A/HRC/28/68 United Nations A/HRC/28/68 General Assembly Distr General 5

A/HRC/28/68 United Nations A/HRC/28/68 General Assembly Distr General 5

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A/HRC/28/68
United Nations
A/HRC/28/68

General Assembly
Distr.: General
5 March 2015
Original: English
Human Rights Council
Twenty-eighth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman
or degrading treatment or punishment, Juan E. Méndez*
Summary
In the present report, the Special Rapporteur focuses on children
deprived of their liberty from the perspective of the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment.
In the report, the Special Rapporteur explores the international legal
framework and standards protecting children deprived of their liberty
from being subjected to torture or other ill-treatment and from
experiencing developmentally harmful and torturous conditions of
confinement. He also examines specific statutes and standards applying
to prevent torture and ill-treatment of children deprived of liberty,
and shortcomings in the practical implementation of legal standards.
Contents
Paragraphs Page
I. Introduction 1 – 2 3
II. Activities of the Special Rapporteur 3 – 15 3
A. Upcoming country visits and pending requests 3 – 5 3
B. Highlights of key presentations and consultations 6 – 15 3
III. Torture and ill-treatment of children deprived of their liberty
16 – 68 4
A. Legal framework and international standards 19 – 33 4
B. Torture and other ill-treatment of children deprived of their
liberty
in law and in practice 34 – 62 7
C. Training, complaint mechanisms and monitoring 63 – 68 14
IV. Conclusions and recommendations 69 – 86 15
A. Conclusions 69 – 83 15 B. Recommendations 84 – 86 19
I. Introduction
1.
The present report is submitted to the Human Rights Council in
accordance with Council resolution 25/13.
2.
In an addendum to the present report (A/HRC/28/68/Add.1), the
Special Rapporteur makes his observations on cases sent to
Governments between 1 December 2013 and 30 November 2014, as
reflected in the communications reports of special procedures
mandate holders (A/HRC/26/21, A/HRC/27/72 and A/HRC/28/85). The
Special Rapporteur made follow-up visits to Tajikistan and Tunisia
(A/HRC/28/68/Add.2). During the period under review, the Special
Rapporteur also visited Mexico (see A/HRC/28/68/Add.3) and the
Gambia (see A/HRC/28/68/Add.4).
II. Activities of the Special Rapporteur
A. Upcoming country visits and pending requests
3.
The Special Rapporteur plans to visit Georgia from 12 to 20 March
2015. He is engaged with the Governments of Thailand and Brazil to
find mutually agreeable dates for visits in 2015.
4.
The Special Rapporteur, with the support of the Anti-torture
Initiative, plans to conduct follow-up visits to Morocco and
Western Sahara, and to Ghana.
5.
The Special Rapporteur continues to request an invitation from the
Government of the United States of America to visit the detention
centre at Guantanamo Bay, Cuba, on conditions that he may accept.
His request to visit State and federal prisons in the United
States is still pending. Similarly, the Government of Bahrain has
not suggested new dates for a visit after the second postponement.
B. Highlights of key presentations and consultations
6.
From 21 April to 2 May 2014, the Special Rapporteur conducted a
country visit to Mexico at the invitation of the Government.
7.
From 4 to 6 June 2014, the Special Rapporteur conducted a
follow-up visit to Tunisia at the invitation of the Government to
assess the level of implementation of his recommendations and to
identify remaining challenges regarding torture and other
ill-treatment.
8.
On 3 September 2014, the Special Rapporteur published a volume
entitled Próximos pasos hacia una política penitenciaria de
derechos humanos en Uruguay: Ensayos de seguimiento a las
recomendaciones de 2009 y 2013 de la Relatoría de Naciones Unidas
sobre la tortura (“Next Steps Towards a Human Rights Penitentiary
System in Uruguay: Reflections on the Implementation of the 2009
and 2013 Recommendations of the United Nations Special Rapporteur
on Torture”)
9.
On 8 September 2014, the Special Rapporteur participated in a
webinar on police torture and human rights in Pakistan,
co-organized by Justice Project Pakistan.
10.
On 9 September 2014, the Special Rapporteur held a lecture on the
theme “the Argentine experience and the emergence of a universal
right to truth” at the Duke Human Rights Center at the Franklin
Humanities Institute.
11.
On 20 October 2014, the Special Rapporteur presented his interim
report on the role of forensic and medical science in the
prevention of torture to the General Assembly (A/69/387). He also
participated in side events and met with representatives of
permanent missions and civil society organizations.
12.
From 3 to 7 November 2014, the Special Rapporteur conducted a
country visit to the Gambia at the invitation of the Government.
13.
On 10 and 11 November 2014, the Special Rapporteur held an expert
consultation in Washington, D.C. on the theme “Children deprived
of their liberty” with support of the Anti-Torture Initiative and
the Ford Foundation.
14.
On 14 November 2014, the Special Rapporteur held a presentation at
the Rothko Chapel in Houston, Texas, as part of an event entitled
“Mainstreaming torture: ethical approaches in the post-9/11 United
States”.
15.
On 19 November 2014, the Special Rapporteur held a presentation at
a reception organized by the World Organization against Torture
for the launch of the new edition of its publication Seeking
Remedies for Torture Victims: A Handbook on the Individual
Complaints Procedures of the UN Treaty Bodies.
III. Torture and ill-treatment of children deprived of their liberty
16.
Children deprived of their liberty are at a heightened risk of
violence, abuse and acts of torture or cruel, inhuman or degrading
treatment or punishment. Even very short periods of detention can
undermine a child’s psychological and physical well-being and
compromise cognitive development. Children deprived of liberty are
at a heightened risk of suffering depression and anxiety, and
frequently exhibit symptoms consistent with post-traumatic stress
disorder. Reports on the effects of depriving children of liberty
have found higher rates of suicide and self-harm, mental disorder
and developmental problems.
17.
The unique vulnerability of children deprived of their liberty
requires higher standards and broader safeguards for the
prevention of torture and ill-treatment. Specific practices and
issues, such as segregation, the organization and administration
of detention facilities, disciplinary sanctions, opportunities for
rehabilitation, the training of specially qualified personnel,
family support and visits, the availability of alternative
measures, and adequate monitoring and oversight, require specific
attention and modified standards.
18.
For the above reasons, the Special Rapporteur has chosen to
dedicate his thematic report to the unique forms of protection due
to children deprived of their liberty and the particular
obligations of States with regard to preventing and eliminating
torture and ill-treatment of children in the context of
deprivation of liberty.
A. Legal framework and international standards
19.
A number of international human rights treaties are relevant to
torture and other ill-treatment in the context of children
deprived of their liberty. These include the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishmentand the International Covenant on Civil and Political
Rights, as well as regional treaties, such as African,
Inter-American and European regional instruments. The Convention
on the Rights of the Child is lex specialis on the human rights
protections afforded to children.
20.
Other legal instruments applicable to children include the United
Nations Standard Minimum Rules for the Administration of Juvenile
Justice (Beijing Rules), the United Nations Guidelines for the
Prevention of Juvenile Delinquency (Riyadh Guidelines), the United
Nations Rules for the Protection of Juveniles Deprived of their
Liberty (Havana Rules), the United Nations Rules for the Treatment
of Women Prisoners and Non-custodial Measures for Women Offenders
(Bangkok Rules) and the Standard Minimum Rules for the Treatment
of Prisoners.
1. Deprivation of liberty of children
21.
For the purpose of the present report, “deprivation of liberty”
denotes any form of detention or imprisonment or the placement of
a child in a public or private custodial setting where that child
is not permitted to leave at will by order of any judicial,
administrative or other authority (A/68/295, para. 27).
Deprivation of liberty involves more severe restriction of motion
within a narrower space than mere interference with liberty of
movement: it includes police custody, remand detention,
imprisonment after conviction, house arrest, administrative
detention, involuntary hospitalization and institutional custody.
It also includes children deprived of their liberty by private
individuals or entities that are empowered or authorized by a
State to exercise powers of arrest or detention.
22.
In accordance with the Convention on the Rights of the Child, and
regardless of the age of majority, the terms “children” and
“child” refer to all persons under the age of 18 years.
2. Prohibition of torture and other ill-treatment of children
23.
The prohibition of torture is one of the few absolute and
non-derogable human rights standards, a peremptory norm of
customary international law or jus cogens. In addition,
international law acknowledges the need for special protections
for children and detained persons.
24.
In its general comment No. 2, the Committee against Torture
interpreted States’ obligations to prevent torture are
indivisible, interrelated and interdependent with the obligation
to prevent cruel, inhuman, or degrading treatment or punishment
(ill-treatment) because conditions that give rise to ill-treatment
frequently facilitate torture (CAT/C/GC/2, para. 3). The
Convention on the Rights of the Child and the Havana Rules have
extended this protection to children deprived of their liberty,
specifying that no member of the detention facility or
institutional personnel may inflict, instigate or tolerate any act
of torture or any form of harsh, cruel, inhuman or degrading
treatment, punishment, correction or discipline under any pretext
or circumstance whatsoever.
25.
Under article 37 (b) of the Convention on the Rights of the Child
and explained by the Committee on the Rights of the Child in its
general comment No. 10 (CRC/C/GC/10), the deprivation of liberty
of a child should be a last resort measure to be used only for the
shortest possible period of time. Similarly, the Havana Rules
require that deprivation of liberty be limited to exceptional
cases. Both the Beijing Rules and the Riyadh Guidelines emphasize
this principle. In addition, the best interests of the child must
be a primary consideration in every decision on initiating or
continuing the deprivation of liberty of a child.1
26.
Where the deprivation of liberty of a child can be justified as
necessary, limited and consistent with the best interests of the
child, the child must be treated with humanity and respect for his
or her inherent dignity and in a manner that takes into account
the needs of persons of their age and maturity. 2 The Convention
on the Rights of the Child specifies that the right to be confined
in an age-appropriate manner includes, in particular, the right to
be separated from adults unless it is considered in the child’s
best interest not to do so, and the right to maintain contact with
his or her family through correspondence and visits, save in
exceptional circumstances. Article 40 (1) of the Convention
emphasizes this principle with regard to children in conflict with
the law by adding the desirability of promoting the child’s
reintegration and assumption of a constructive role in society.
27.
The Havana Rules indicate how States should approach the
deprivation of liberty of children, going beyond the Standard
Minimum Rules for the Treatment of Prisoners by including
guidelines on classification and placement, physical environment
and accommodation, education, vocational training and work,
recreation, religion and medical care, notification of illness,
injury and death, contact with the wider community, limitations of
physical restraint and the use of force, as well as disciplinary
procedures and return to the community.
28.
The role of medical and forensic sciences in the prevention of
torture and other ill-treatment for children deprived of their
liberty is clear (see A/69/387, paras. 19-57). All children are to
be properly interviewed and physically examined by a medical
doctor or qualified nurse reporting to a doctor as soon as
possible after their admission to an institution, preferably on
the day of arrival. In the case of girls, access to gynaecologists
and education on women’s health care are to be provided.3
29.
To ensure that detention will not disrupt preparation for
adulthood and the full realization of a child’s potential, access
to education is a fundamental right of children deprived of their
liberty.4 While Rule 77 (1) of the Standard Minimum Rules for the
Treatment of Prisoners states that the education of illiterates
and children should be compulsory, articles 38 to 46 of the Havana
Rules also recommend participation in community schools, the
availability of diplomas without reference to
institutionalization, and the provision of vocational training.
30.
Article 40, paragraphs 3 (b) and (4), of the Convention on the
Rights of the Child provides that alternatives to detention, such
as care, guidance and supervision orders, counselling; probation,
foster care, education and vocational training programmes should
first be sought, or other alternatives that ensure that children
are dealt with in a manner appropriate to their well-being and
proportionate to both their circumstances and the offence
committed.
31.
Lastly, regardless of the form of deprivation of liberty, whether
criminal, institutional or administrative, article 37 (d) of the
Convention on the Rights of the Child requires that any decision
to deprive a child of liberty must be subject to periodic review
of its continuing necessity and appropriateness. In its general
comment No. 35, the Human Rights Committee specified that the
child has a right to be heard, directly or through legal or other
appropriate assistance, in relation to any decision regarding
their deprivation of liberty, and that the procedures employed
should be child-appropriate (CCPR/C/GC/35, para. 62).
3. Vulnerability of children and the threshold for torture and other
ill-treatment
32.
Children are particularly vulnerable to certain human rights
violations, including torture and other forms of ill-treatment.
The Convention on the Rights of the Child, in its article 37 (c),
establishes the obligation to take into account the age-specific
needs of children. The Human Rights Committee, the European Court
of Human Rights and the Inter-American Court of Human Rights, have
also recognized the need for States to provide special measures or
heightened “due diligence” to protect the personal liberty and
security of every child.5
33.
Children experience pain and suffering differently to adults owing
to their physical and emotional development and their specific
needs. In children, ll-treatment may cause even greater or
irreversible damage than for adults.6 Moreover, healthy
development can be derailed by excessive or prolonged activation
of stress response systems in the body, with damaging long-term
effects on learning, behaviour and health. A number of studies
have shown that, regardless of the conditions in which children
are held, detention has a profound and negative impact on child
health and development. Even very short periods of detention can
undermine the child’s psychological and physical well-being and
compromise cognitive development. Children held in detention are
at risk of post-traumatic stress disorder, and may exhibit such
symptoms as insomnia, nightmares and bed-wetting. Feelings of
hopelessness and frustration can be manifested in acts of violence
against themselves or others. Reports on the effect of detention
on children have found higher rates of suicide, suicide attempts
and self-harm, mental disorder and developmental problems,
including severe attachment disorder.7 The threshold at which
treatment or punishment may be classified as torture or
ill-treatment is therefore lower in the case of children, and in
particular in the case of children deprived of their liberty.
B. Torture and other ill-treatment of children deprived of their
liberty in law and in practice
1. Children in conflict with the law
34.
International standards require the establishment of a minimum age
of criminal responsibility that reflects when a child has the
adequate mental capacity and moral competence to be punished for
crimes. In its general comment No. 10 (CRC/C/GC/10), the Committee
on the Rights of the Child encouraged States parties to increase
their lower minimum age of criminal responsibility to the age of
12 years as the absolute minimum age, and to continue to increase
it to a higher age level. Nevertheless, many countries still
maintain a minimum age of criminal responsibility well below 12
years.
35.
States have an international obligation to put in place a
dedicated legal system and law enforcement processes for children.
All too often, criminal justice systems are designed for adults
and incorporate none of the specific procedural safeguards
required for children. In particular, adult criminal justice
systems expose children to a range of sentences and disciplinary
punishments aimed specifically at adults, without any
rehabilitative component.
36.
The imposition of the death penalty on children is forbidden under
international law and has been accepted so universally as to reach
the level of a jus cogens norm (A/67/279, para. 62).
37.
Similarly, life sentences without the possibility of release for
children are expressly prohibited by international law and
treaties, including article 37(a) of the Convention on the Rights
of the Child. The Committee on the Rights of the Child, in its
general comment No. 10 (CRC/C/GC/10), and the Human Rights
Committee, in its general comment No. 21, confirmed that life
imprisonment without the possibility of release is never an
appropriate punishment for an offence committed by a juvenile
offender.8 The vast majority of States have taken note of the
international human rights requirements regarding life
imprisonment of children without the possibility of release.
Significantly, the United States of America is the only State in
the world that still sentences children to life imprisonment
without the opportunity for parole for the crime of homicide.
38.
With regard to life imprisonment of children, the Human Rights
Council, in its resolution 24/12, and the Committee on the Rights
of the Child, in its general comment No. 10, urged States to
ensure that no one is sentenced to life imprisonment for an
offence committed by persons under 18 years of age.
39.
Although the Convention on the Rights of the Child requires States
to ensure that detention or imprisonment of children should only
be used as a measure of last resort, in exceptional circumstances,
for the shortest possible period of time and only if it is in the
best interests of the child, in reality, detention is often used
as the first response to perceived problems. During his country
visits, the Special Rapporteur observed that, although alternative
or non-custodial measures are provided by law, in a high
percentage of cases, detention is the preferred option and not the
last resort (see A/HRC/22/53/Add.3, para. 53).
40.
In many instances, the worst situations for children arise at the
time of arrest by the police, and during transportation or
subsequent questioning in police custody (see A/HRC/16/52/Add.5,
para. 43 and A/HRC/22/53/Add.1, para. 73). During the period
immediately following apprehension, children are at particularly
high risk of physical, verbal and psychological violence, such as
verbal abuse, threats and beatings, and they are too often not
provided with information on their human rights and the
allegations brought against them in a manner that they can
understand.9 Following their arrest, children often do not have
prompt and private access to legal assistance or notification of
their parents or caregivers, which makes them even more vulnerable
and subject to a higher risk of being subjected to torture or
other ill-treatment.
41.
Despite the international legal framework in place, the majority
of children deprived of their liberty are held in pretrial
detention, often for prolonged periods, and for minor offences,
often in unsuitable premises.10 In many countries, the excessive
use of pretrial detention leads to overcrowded facilities.
42.
Many States continue to hold children and adults in the same
facilities, in particular those in pretrial detention and police
custody, but also during transportation or in the context of
immigration detention. Moreover, the continuous trying and
sentencing of children as adults and the lack of specialized
juvenile facilities have resulted in numerous children being
placed in adult prisons. Disciplinary and other administrative
rules and procedures are often applied, regardless of child
status.
43.
Detaining children and adults together will inevitably result in
negative consequences for the children, who are five times as
likely to be subjected to a substantiated incident of sexual
violence, and are also much more likely to witness or experience
other forms of violence, including physical harm by facility staff
members.11 They are also more likely to commit suicide or engage
in other forms of self-harm when housed in adult – rather than
juvenile – facilities. Research also shows that imprisoning
children with adults can result in increased recidivism and
negative long-term consequences for children, their families and
communities.12
44.
In many States, solitary confinement is still imposed on children
as a disciplinary or “protective” measure. National legislation
often contains provisions to permit children to be placed in
solitary confinement. The permitted time frame and practices vary
between days, weeks and even months. In accordance with views of
the Committee against Torture, the Subcommittee on Prevention of
Torture and the Committee on the Rights of the Child, the Special
Rapporteur is of the view that the imposition of solitary
confinement, of any duration, on children constitutes cruel,
inhuman or degrading treatment or punishment or even torture (see
A/66/268, paras. 77 and 86, and A/68/295, para. 61).13
45.
During country visits, the Special Rapporteur regularly observes
the practice of corporal punishment as a disciplinary measure for
children in detention, including severe caning, flogging, beating
with sticks and electric cords, beatings on the buttocks with
wooden boards, and being forced to kneel for long periods with
hands in the air (A/HRC/25/60/Add.1, paras. 64-65 and
A/HRC/22/53/Add.2, para. 56). Some States still allow the use of
corporal punishment as a criminal sentence for children. With
regard to the jurisprudence of United Nations treaty bodies and
the European Court, the mandate holder has found that any form of
corporal punishment is contrary to the prohibition of torture and
other cruel, inhuman or degrading treatment or punishment (see
A/60/316 and A/67/279). He also noted that States cannot invoke
provisions of domestic law to justify violations of the
prohibition of corporal punishment.
46.
Children are subjected to a range of adult punishments in
detention, including physical and manual restraints, routine
humiliation and degrading searches, and the indiscriminate use of
mace, pepper spray and other harmful chemicals. During country
visits, the Special Rapporteur has observed the use of
psychotropic drugs for children in detention in order to maintain
security in juvenile detention facilities (see A/HRC/22/53/Add.3,
para. 52). In some instances, such forms of punishment (especially
restraints) are adopted as a first resort rather than being used
only in exceptional cases.
47.
A large number of children deprived of their liberty show signs of
mental health problems, or mental illnesses or psychological
disorders, which are often exacerbated during their detention.
Children in detention are prone to self-harm, including suicide,
because of depression. In many instances, children who suffer from
mental health problems have no access to mental health screening
within the first hours of admission to a detention centre and do
not receive adequate treatment, including psychosocial counselling
during detention. Moreover, children showing signs of mental
health problems are often held together with children who do not
show such signs.
48.
Girls deprived of their liberty are at a heightened risk of sexual
violence, sexual exploitation and underage pregnancies while in
detention. The risk of sexual abuse is greater when male guards
supervise girls in detention. Girls deprived of their liberty have
different needs not only to those of adults but also of boys.
Girls in detention are often not only children but also carers,
either as mothers or as siblings, and have specific health,
hygiene and sanitary needs. Across the globe, girls are rarely
kept separately from women in pretrial and post-conviction
settings (see A/HRC/16/52/Add.3, para. 54). Similarly, the Special
Rapporteur notes that lesbian, gay, bisexual, transgender and
intersex children are at a heightened risk.
49.
Children deprived of their liberty are often not allowed to
maintain regular contact with their families and friends, because
either they are denied contact as a form of punishment or are
placed in facilities located far away from their homes and
families. A lack of vocational, educational and recreational
activities for children deprived of their liberty creates
situations of risk of abuse and ill-treatment. When children spend
most of their time confined in their cells, they may experience a
lack of motivation and even depression, which in turn can leads to
incidents of abuse and violence between children or with staff
members. The Special Rapporteur wishes to point out that, while
lack of activities is detrimental for any prisoner, it is
especially harmful for children, who have a particular need for
physical activity and intellectual stimulation. This is also true
for children detained with their mothers in prison. During country
visits, the Special Rapporteur has observed that women’s section
of prisons often show inadequate space for women with children and
a lack of well-equipped recreation areas for children (see
A/HRC/22/53/Add.2, para. 58).
2. Children in institutions
50.
The State’s obligation to prevent torture applies not only to
public officials, such as law enforcement agents, but also to
medical doctors, health-care professionals and social workers,
including those working in private hospitals, other institutions
and detention centres (A/63/175, para. 51 and A/HRC/22/53, paras.
23-26).
51.
The Special Rapporteur has previously recognized that
ill-treatment may occur in a diverse range of settings, even where
the purpose or intention of the State’s action or inaction was not
to degrade, humiliate or punish the child. He notes that most
instances of ill-treatment of children deprived of their liberty
outside of the criminal justice system, such as children in
administrative immigration detention or institutional settings,
involve acts of omission rather than commission, such as emotional
disengagement or unsanitary or unsafe conditions, and result from
poor policies rather than from an intention to inflict suffering.
Purely negligent conduct lacks the intent required under the
prohibition of torture, but may constitute ill-treatment if it
leads to pain and suffering of some severity (A/63/175, para. 49).
This is the case when the suffering is severe and meets the
minimum threshold under the prohibition against torture and other
ill-treatment, when the State is, or should be, aware of the
suffering, including when no appropriate treatment was offered,
and when the State has failed to take all reasonable steps to
protect the child’s physical and mental integrity.
52.
Private detention is often presented as a preferable alternative
to forced criminal or health-related institutionalization of
children with special needs, whether those needs be physical,
mental or psychological. The Special Rapporteur notes that,
because national law often does not regulate private detention
centres, there is a gap in legal protections that may lead to
rampant abuse.
53.
Special attention should be paid to children deprived of their
liberty in health-care institutions (including hospitals, public
and private clinics, hospices and institutions where healthcare is
delivered). Children are detained in such settings primarily to
treat psychiatric, psychosocial or intellectual disabilities, or
drug dependence issues. Almost all States have legislation that
permits the detention of children for psychiatric health purposes.14
Persons with disabilities are particularly affected by forced
medical interventions, and continue to be exposed to unwarranted
non-consensual medical practices (A/63/175, para. 40). During his
country visits, the Special Rapporteur has observed that, in
particular with regard to children with disabilities, “incapacity”
is often presumed, which limits their ability to decide where to
live and what treatment to receive,15 and may be taken as the
basis of substitution of determination and decision-making by the
child, or by parents, guardians, carers or public authorities.16
Structural inequalities, such as the power imbalance between
medical doctors and patients, exacerbated by stigma and
discrimination, result in children with disabilities being
disproportionately vulnerable to having informed consent
compromised (A/HRC/22/53, para. 29). In this context, the
Committee on the Rights of Persons with Disabilities, in its
general comment No. 1 (CRPD/C/GC/1), explained that involuntary
psychiatric treatment is prohibited on the grounds that it
violates the right to consent to medical treatment under article
12 of the Convention on the Rights of Persons with Disabilities
and the absolute prohibition of torture and cruel, inhuman and
degrading treatment (para. 42). The Committee on the Rights of the
Child, in its general comment No. 12 (CRC/C/GC/12), stated that
children should be provided with information about proposed
treatments and their effects and outcomes, including in formats
appropriate and accessible to children with disabilities (paras.
48 and 100).
54.
The Special Rapporteur observes that children who use, or are
suspected of using, drugs are commonly involuntarily confined in
so-called rehabilitation centres. Children thus confined are
compelled to undergo diverse interventions (A/HRC/22/53, para.
40), including painful withdrawal from drug dependence without
adequate medical assistance, administration of unknown or
experimental medications, State-sanctioned beatings, caning or
whipping, forced labour, sexual abuse and intentional humiliation.
Other reported abuses included “flogging therapy”, “bread and
water therapy”, and electroshock resulting in seizures, all in the
guise of rehabilitation. In some countries, a wide range of other
marginalized groups, including street children and children with
psychosocial disabilities, are reportedly detained in these
centres.
55.
Similarly, the involuntary commitment of children with mental
disabilities, including those who have long-term intellectual or
sensory impairments, to psychiatric and social care institutions,
psychiatric wards, prayer camps, secular and religious-based
therapeutic boarding schools, boot camps, private residential
treatment centres or traditional healing centres has been well
documented. Such children may live their whole lives in such
psychiatric or social care institutions (A/HRC/22/53, paras. 57
and 68). Article 14, paragraph 1 (b) of the Convention on the
Rights of Persons with Disabilities unambiguously states that “the
existence of a disability shall in no case justify a deprivation
of liberty”. The Committee on the Rights of Persons with
Disabilities has found that legislation that allows detention in a
mental health institution on the basis of a standard of danger to
self or others infringes this provision. Indeed, the Committee has
repeatedly urged States to ensure that no one is detained against
their will in any kind of mental health facility.17 Furthermore,
the Special Rapporteur has observed the continued use of solitary
confinement and prolonged restraint of children with disabilities
in psychiatric institutions. The environment of patient
powerlessness and abusive treatment of children with disabilities
in which restraint and seclusion are used can lead to other
non-consensual treatment, such as forced medication and
electroshock procedures (A/HRC/22/53, para. 63).
56.
One of the most egregious forms of abuse in health and social care
settings is unique to children. Numerous studies have documented
that a child’s healthy development depends on the child’s ability
to form emotional attachments to a consistent care-giver.18
Children need more than physical sustenance; they also require
emotional companionship and attention to flourish. Unfortunately,
this fundamental need for connection is consistently not met in
many institutions, leading to self-abuse, including children
banging their head against walls or poking their eyes. In
reaction, care-givers use physical restraints as a long-term
solution, or hold the children in cages or their beds, practices
that have been linked to muscular atrophy and skeletal deformity.
57.
Another form of ill-treatment of children in health and social
care detention settings is inappropriate medical care, including
the use of psychoactive medications on children for punitive
purposes, such as injected tranquilizers, which immobilize
children for days, and forced labour in the guise of medical
necessity. During one mission, the Special Rapporteur witnessed
appalling conditions and ill-treatment of children with mental
disabilities in so-called prayer camps, which are alternative
residential facilities. He documented cases of shackling to the
walls, floors or trees and forced fasting, in some cases on
children with neurological problems (see A/HRC/25/60/Add.1, paras.
74-77).
58.
Unsanitary and unsafe conditions may also lead to a violation of
the prohibition of ill-treatment. The Special Rapporteur observes
that overcrowding is present in many institutions, leading to
severe constraints on institutional resources, shortages of
adequate food, clean drinking water, bedding and medical care.
Overcrowding also increases the risk of disease transmission and
infection. Furthermore, adults and children are often not
segregated in institutional facilities, leading to issues of
exploitation.
3. Children in administrative immigration detention institutions
59.
States frequently detain children who are refugees, asylum seekers
or irregular migrants for a number of reasons, such as health and
security screening, to verify their identity or to facilitate
their removal from the territory. Sometimes, children may be
inadvertently detained because there is a failure to distinguish
between child and adult migrants, such as when children are unable
to prove their age.19 The Special Rapporteur has previously noted
with concern that unaccompanied child migrants are systematically
held in detention at police stations, border guard stations or
migration detention centres instead of being held in reception
centres, which are in practice often not numerous enough or are
overcrowded (see A/HRC/16/52/Add.4, paras. 68-69). Most of the
unaccompanied minors are not adequately informed about asylum
procedures or their rights, do not have access to legal counsel or
guardians, and are generally ignorant of the system.20
Furthermore, the procedure to identify minors and to assess their
age and vulnerability appears to be completely inadequate, as many
children reported being registered as adults (see
A/HRC/16/52/Add.4, paras. 68-73 and CAT/C/USA/CO/3-5, para. 19).
60.
Many child migrants witness or suffer harsh physical abuse while
detained. Reports indicate that children in immigration detention
have been tied up or gagged, beaten with sticks, burned with
cigarettes and given electric shocks, and that the use of solitary
confinement of children in immigration detention is common around
the globe. In other instances, migrant children have suffered from
severe anxiety and mental harm after having witnessed sexual abuse
and violence against other detainees. In some countries,
encampment policies have led to the kidnapping, captivity and
torture of child refugees. Child migrant detainees too often face
lengthy detainment.21
61.
In addition, many child migrants suffer appalling and inhuman
conditions while detained including overcrowding, inappropriate
food, insufficient access to drinking water, unsanitary
conditions, lack of adequate medical attention, and irregular
access to washing and sanitary facilities and to hygiene products,
lack of appropriate accommodation and other basic necessities. In
some cases, detention centres refuse to keep migrant children with
their families also being detained, and have denied migrant
children’s right to communicate with their families. Such
practices effectively isolate child detainees from social support
groups.
62.
According to the European Court of Human Rights, even short term
detention of migrant children is a violation of the prohibition on
torture and other ill-treatment, holding a child’s vulnerability
and best interests outweigh the Government’s interest in halting
illegal immigration.22 The Inter-American Court of Human Rights
further noted that, when assessing the possibility to return,
expel, deport, repatriate, reject at the border, or not to admit
or in any way transfer or remove a child to a State, the best
interests of the child must be determined, which also incorporate
the component of adequate development and survival of the child.23
C. Training, complaint mechanisms and monitoring
63.
An essential safeguard against torture and other forms of
ill-treatment is the availability of multidisciplinary and
qualified staff working in children’s institutions. Inside the law
enforcement, institution and migration systems, children are more
vulnerable to human rights violations than adults because of the
manner in which judicial and other officials deal with children.
64.
A significant number of States lack an independent mechanism to
monitor human rights violations not only in detention facilities
but also in medical and social care institutions. Moreover, even
when legislation exists to provide for the monitoring of such
institutions, inadequate human and financial resources and weak
legal enforcement mechanisms are no excuse for failure to prevent
abuse.
65.
Article 25 of the Convention on the Rights of the Child provides
for the right of a child who has been placed by the competent
authorities for the purposes of care, protection or treatment of
his or her physical or mental health to a periodic review of the
treatment provided to the child and all other circumstances
relevant to his or her placement. In this context, the Special
Rapporteur recalls that the possibility of release should be
realistic and regularly considered (CRC/C/GC/10, para. 77). He
also observes that, in practice, many States fail to apply these
rights. Acts of torture and other cruel, inhuman or degrading
treatment or punishment are more widespread than they appear owing
to the greater vulnerability of children and their lack of
capacity to articulate complaints and seek redress (see
A/HRC/25/35, paras. 13-17).
66.
Effective complaint procedures are an important safeguard against
torture and other ill-treatment in all places of detention for
children. According to article 37 (d) of the Convention on the
Rights of the Child, children, including migrant children, have
the right to prompt access to legal aid and other appropriate
assistance, as well as the right to challenge the legality of the
deprivation of their liberty before a court or other competent,
independent and impartial authority, and to a prompt decision on
any such action.
67.
With regard to migrant children, authorities routinely impede
their access to lawyers, non-governmental organizations, service
providers, interpreters and other sources of information and
protection. Furthermore, children often never meet with their
appointed guardian because they are deported before their
representative arrives. In some cases, the report of a child’s
ill-treatment is routinely ignored by the official guardians.
States have similarly failed to implement a legal right to
representation for children detained in health-care settings. Even
when States provide a legal right to review, it generally does not
cover children placed with parental consent.
68.
In January 2014, the Committee on the Rights of the Child, at its
sixty-fifth session, adopted a recommendation that the General
Assembly request the Secretary-General to conduct an in-depth
international study on the issue of children deprived of liberty
(A/69/41, annex II). The Special Rapporteur therefore welcomes
General Assembly resolution 69/157, in which the Assembly invited
the Secretary-General to commission an in-depth global study on
children deprived of liberty.
IV. Conclusions and recommendations
A. Conclusions
69.
Owing to their unique physiological and psychological needs, which
render them particularly sensitive to deprivation and treatment
that otherwise may not constitute torture, children are more
vulnerable to ill-treatment and torture than adults. The detention
of children, including pretrial and post-trial incarceration as
well as institutionalisation and administrative immigration
detention, is inextricably linked – in fact if not in law – with
the ill-treatment of children, owing to the particularly
vulnerable situation in which they have been placed that exposes
them to numerous types of risk. Moreover, the response to address
the key issues and causes is often insufficient.
70.
In determining the seriousness of acts that may constitute
ill-treatment or torture, due consideration must be given to
physical and mental effects and the age of the victim. In the case
of children, higher standards must be applied to classify
treatment and punishment as cruel, inhuman or degrading. In
addition, the particular vulnerability of children imposes a
heightened obligation of due diligence on States to take
additional measures to ensure their human rights to life, health,
dignity and physical and mental integrity.
71.
There is widespread agreement among experts that the
institutionalization of children contributes to physical
underdevelopment, abnormalities in brain development, reduced
intellectual abilities and development, delays in speech and
language development, and diminished social skills. Inappropriate
conditions of detention exacerbate the harmful effects of
institutionalization on children. The Special Rapporteur observes
that one of the most important sources of ill-treatment of
children in those institutions is the lack of basic resources and
proper government oversight.
72.
The deprivation of liberty of children is intended to be an ultima
ratio measure, to be used only for the shortest possible period of
time, only if is in the best interests of the child, and limited
to exceptional cases. Failure to recognize or apply these
safeguards increases the risk of children being subjected to
torture or other ill-treatment, and implicates State
responsibility. Therefore, States should, to the greatest extent
possible, and always using the least restrictive means necessary,
adopt alternatives to detention that fulfil the best interests of
the child and the obligation to prevent torture or other
ill-treatment of children, together with their rights to liberty
and family life, through legislation, policies and practices that
allow children to remain with family members or guardians in a
non-custodial, community-based context. Alternatives to detention
must be given priority in order to prevent torture and the
ill-treatment of children. This includes access to counselling,
probation and community services, including mediation services and
restorative justice. Furthermore, if circumstances change and the
reclusion of children is no longer required, States are required
to release them, even when they have not completed their
sentences.
73.
With regard to children deprived of their liberty within the
context of the criminal justice system, the Special Rapporteur
recalls that children should be charged, tried and sentenced
within a State’s system of juvenile justice, affording them
adequate forms of protection, and never within the adult criminal
justice systems. In addition, laws, policies and practices that
allow children to be subjected to adult sentences are inherently
cruel, inhuman or degrading because they fail to consider any of
the special measures of protection or safeguards that
international law requires for children. Children should never be
treated as if they were adults. Because children are less
emotionally and psychologically developed, they are less culpable
for their actions and their sentencing should reflect the
principle of rehabilitation and reintegration.
74.
In this context, the Special Rapporteur recalls that the death
penalty for children amounts to a violation of the prohibition of
torture and other ill-treatment. Other punishments considered
grossly disproportionate also amount to cruel, inhuman or
degrading treatment or punishment. Life imprisonment and lengthy
sentences, such as consecutive sentencing, are grossly
disproportionate and therefore cruel, inhuman or degrading when
imposed on a child. Life sentences or sentences of an extreme
length have a disproportionate impact on children and cause
physical and psychological harm that amounts to cruel, inhuman or
degrading punishment. Similarly, the Special Rapporteur finds that
mandatory sentences for children are similarly incompatible with
the State’s obligation regarding children in conflict with the law
and the prohibition of cruel, inhuman or degrading punishment.
Mandatory minimum sentences may result in disproportionate
punishments that are often overly retributive in relation to the
crimes committed, particularly in relation to the child’s
individual circumstances and the opportunity for rehabilitation.
In the light of the unique vulnerability of children, including
the risk of torture or ill-treatment in detention and States’
obligation of due diligence to afford children heightened measures
of protection against torture and other forms of ill-treatment,
children must be subject to sentences that promote rehabilitation
and re-entry into society.
75.
The Special Rapporteur believe that there should be a formal
obligation to notify a relative or another adult trusted by the
child about his or her detention regardless of whether the child
has so requested, except if this would not be in the best
interests of the child. Parents or adults trusted by the child
should furthermore be allowed to be present with the child during
interrogation and any court appearances. An essential issue is the
manner in which children are questioned. Interrogation should be
age-sensitive and individualized, and undertaken by authorities
that are skilled in interviewing children. Video recording should
be given due consideration in certain circumstances, to avoid
causing distress to children because of repeated questioning, and
numerous visits to courts. Children should also have immediate
access to a lawyer and a health professional. A specific
information sheet setting out the above-mentioned safeguards
should be given to all children taken into custody immediately
upon their arrival at a law enforcement establishment, and this
information should be verbally explained to children in terms that
they understand.
76.
Children should be appropriately separated in detention, including
but not limited to children in need of care and those in conflict
with the law, children awaiting trial and convicted children, boys
and girls, younger children and older children, and children with
physical and mental disabilities and those without. Children
detained under criminal legislation should never be detained
together with adult detainees. The Special Rapporteur also notes
that the permitted exception to the separation of children from
adults provided for in article 37 (c) of the Convention on the
Rights of the Child should be interpreted sensu stricto. The best
interests of the child should not be defined in accordance to the
convenience of the State. Children in conflict with the law should
be held in detention centres specifically designed for persons
under the age of 18 years, offering a non-prison-like environment
and regimes tailored to their needs and run by specialized staff,
trained in dealing with children. Such facilities should offer
ready access to natural light and adequate ventilation, access to
sanitary facilities that are hygienic and respect privacy and, in
principle, accommodation in individual bedrooms. Large dormitories
should be avoided.
77.
An important safeguard against torture and other forms of
ill-treatment is the support given to children in detention to
maintain contact with parents and family through telephone,
electronic or other correspondence, and regular visits at all
times. Children should be placed in a facility that is as close as
possible to the place of residence of their family. Any exceptions
to this requirement should be clearly described in the law and not
be left to the discretion of the competent authorities. Moreover,
children should be given permission to leave detention facilities
for a visit to their home and family, and for educational,
vocational or other important reasons. The child’s contact with
the outside world is an integral part of the human right to humane
treatment, and should never be denied as a disciplinary measure.
78.
Children in detention should be provided throughout the day with a
full programme of education, sport, vocational training,
recreation and other purposeful out-of-cell activities. This
includes physical exercise for at least two hours every day in the
open air, and preferably for a considerably longer time. Girls
should under no circumstances receive less care, protection,
assistance and training, including equal access to sport and
recreation.
79.
The Special Rapporteur recalls that detention and forced labour
programmes for children who use drugs are not a legitimate
substitute for evidence-based measures, such as substitution
therapy, psychological intervention and other forms of treatment
given with full, informed consent (A/65/255, para. 31). Drug
dependence as a “multi-factoral health disorder” requires a health
response rather than recourse to detention.
80.
Within the context of administrative immigration enforcement, it
is now clear that the deprivation of liberty of children based on
their or their parents’ migration status is never in the best
interests of the child, exceeds the requirement of necessity,
becomes grossly disproportionate and may constitute cruel, inhuman
or degrading treatment of migrant children. Following the advisory
opinion of the Inter-American Court of Human Rights on the rights
and guarantees of children in the context of migration and/or in
need of international protection in 2014, the Special Rapporteur
recalls the different procedural purposes between immigration and
criminal proceedings, and that, in the words of the Court, “the
offenses concerning the entry or stay in one country may not,
under any circumstances, have the same or similar consequences to
those derived from the commission of a crime.” The Special
Rapporteur therefore concludes that the principle of ultima ratio
that applies to juvenile criminal justice is not applicable to
immigration proceedings. The deprivation of liberty of children
based exclusively on immigration-related reasons exceeds the
requirement of necessity because the measure is not absolutely
essential to ensure the appearance of children at immigration
proceedings or to implement a deportation order. Deprivation of
liberty in this context can never be construed as a measure that
complies with the child`s best interests. Immigration detention
practices across the globe, whether de jure or de facto, put
children at risk of cruel, inhuman or degrading treatment or
punishment. Furthermore, the detention of children who migrate to
escape exploitation and abuse contravenes the duty of the State to
promote the physical and psychological recovery of child victims
in an appropriate environment.24 Therefore, States should,
expeditiously and completely, cease the detention of children,
with or without their parents, on the basis of their immigration
status. States should make clear in their legislation, policies
and practices that the principle of the best interests of the
child takes priority over migration policy and other
administrative considerations. Also, States should appoint a
guardian or adviser as soon as the unaccompanied or separated
child is identified, and maintain such guardianship arrangements
until the child has either reached the age of majority or has
permanently left the territory and/or jurisdiction of the State (A/HRC/20/24,
para. 41). While the Special Rapporteur acknowledges that, in
certain circumstances it is possible for States to place children
in a shelter or other accommodation when it is based on the
purpose of child care, protection and support, this should not
become a proxy for expanded unnecessary restrictions to the
liberty of child migrants and families. States are required to
favour measures that promote the care and well-being of the child
rather than the deprivation of liberty. Facilities that grant
accommodation for migrant children should have all the material
conditions necessary and provide an adequate regime to ensure
comprehensive protection from ill-treatment and torture, and allow
for their holistic development. Migrant children should be
separated from children who have been accused or convicted of
criminal offences and from adults. The Special Rapporteur notes,
however, that separating child migrants from unrelated adults can
sometimes itself result in harm by depriving children of important
interactions; ample opportunities for broader human interaction
and physical activity must therefore be given to unaccompanied
migrant children. When children are accompanied, the need to keep
the family together is a not sufficient reason to legitimize or
justify the deprivation of liberty of a child, given the
prejudicial effects that such measures have on the emotional
development and physical well-being of children. The Special
Rapporteur shares the view of the Inter-American Court of Human
Rights that, when the child’s best interests require keeping the
family together, the imperative requirement not to deprive the
child of liberty extends to the child’s parents, and requires the
authorities to choose alternative measures to detention for the
entire family.
81.
The Special Rapporteur recommends that States adopt child-friendly
administrative and criminal court procedures and train police
officers, border guards, detention staff, judges and others who
may encounter children deprived of their liberty in child
protection principles and a better understanding of the
vulnerabilities of children to human rights violations, such as
torture and other forms of ill-treatment. Special mention should
be made of girls, who are particularly vulnerable, and to special
groups of children, such as minorities, disabled children and
migrants.
82.
Children deprived of their liberty and their parents or legal
representatives should have avenues of complaint open to them in
administrative systems, and should be entitled to address
complaints confidentially to an independent authority. Upon
admission, children should be given information on lodging a
complaint, including the contact details of the authorities
competent to receive complaints, as well as the address of any
services that provide legal assistance. In this context, the
Special Rapporteur welcomes the establishment of independent,
local, socio-legal defence centres that provide children with the
effective opportunity to have access to justice and subsequently
to obtain remedies and advocate for systematic training in
children’s rights for professionals.
83.
Regular and independent monitoring of places where children are
deprived of their liberty is a key factor in preventing torture
and other forms of ill-treatment. Monitoring should be conducted
by an independent body, such as a visiting committee, a judge, the
children’s ombudsman or the national preventive mechanisms with
authority to receive and act on complaints and to assess whether
establishments are operating in accordance with the requirements
of national and international standards. Independent monitoring
mechanisms should draw on professional knowledge in a number of
fields, including social work, children’s rights, child psychology
and psychiatry, in order to address the multiple vulnerabilities
of children deprived of their liberty and to understand the
specific normative framework and overall system of child
protection.
B. Recommendations
84.
With regard to legislation, the Special Rapporteur calls upon all
States:
(a) To investigate all allegations of torture or other ill-treatment
of children deprived of their liberty in accordance with the absolute
prohibition of torture and other cruel, inhuman or degrading treatment
or punishment, as codified in the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the International
Covenant on Civil and Political Rights and the Convention on the
Rights of the Child, to prosecute and punish those responsible, and to
act in accordance with the heightened obligation of due diligence of
States to prevent the torture and ill-treatment of children;
(b) To expedite the ratification of the Convention of the Rights of
the Child and the optional protocols thereto, and the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
(c) To adhere to the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty and the United
Nations Guidelines for the Prevention of Juvenile Delinquency.
85.
With regard to the vulnerability of children deprived of their
liberty and policy reform, the Special Rapporteur calls upon all
States:
(a) To ensure that deprivation of liberty is used only as a measure of
last resort only in exceptional circumstances and only if it is in the
best interests of the child;
(b) To ensure that child-appropriate age determination procedures are
in place, and that the person is presumed to be under 18 years of age
unless and until proven otherwise;
(c) To promote preventive mechanisms, such as diversion and early
identification and screening mechanisms, and to provide for a variety
of non-custodial, community-based alternative measures to the
deprivation of liberty;
(d) To ensure that paediatricians and child psychologists with
trauma-informed training are available on a regular basis to all
children in detention, and to establish specialized medical screenings
inside places of deprivation of liberty to detect cases of torture and
ill-treatment, including access to forensic evaluation;
(e) To provide mandatory training to all persons dealing with
children, including training on the Manual on Effective Investigation
and Documentation of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the detection, documentation and
prevention of torture and ill-treatment;
(f) To ensure that children in conflict with the law are charged,
tried and sentenced within a State’s juvenile justice system, never
within the adult criminal justice system;
(g) To set the minimum age of criminal responsibility to no lower than
12 years, and to consider progressively raising it;
(h) To prohibit laws, policies and practices that allow children to be
subjected to adult sentences and punishments, and to prohibit the
death penalty and life imprisonment in all its forms;
(i) To provide additional training to the judiciary so that bail,
probation and alternative measures to detention are considered;
(j) To establish clear guidelines for law enforcement agencies dealing
with children; in particular, not to detain children in law
enforcement establishments for more than 24 hours; to establish a
formal obligation to notify a relative or caregiver about his or her
detention regardless of whether the child requests that this be done,
except if not in the bests interest of the child; to ensure access to
a lawyer and a medical doctor; and never to subject children to police
questioning without the presence of a lawyer and, in principle, his or
her caregiver;
(k) Not to detain children in law enforcement establishments for more
than 24 hours, and only in child-friendly environments;
(l) To amend legislation to require a presumption of community living,
with support, as the favoured policy, for children with disabilities;
(m) To ensure that immigration detention is never used as a penalty or
punishment of migrant children, including for irregular entry or
presence, and to provide alternative measures to detention that
promote the care and well-being of the child;
(n) To prohibit the use of immigration detention as a method of
control or deterrence for migrant children;
(o) To ensure that unaccompanied migrant children are immediately
provided with guardianship arrangements;
(p) To take into consideration any trauma or exposure to torture or
other forms of ill-treatment that child migrants have experienced
prior to being detained;
(q) To establish appropriate and confidential complaint mechanisms for
all children deprived of their liberty, to provide all necessary
support, including legal aid, information, representation and
assistance, to guarantee access to justice for children who have been
tortured or ill-treated while deprived of their liberty, and to ensure
the safety and security of all children who file a complaint;
(r) To establish independent monitoring mechanisms at all places of
deprivation of liberty, including places run by private actors,
through regular and unannounced visits, and to include civil society
organizations in the monitoring of places of deprivation of liberty;
(s) To transfer the oversight of all places of deprivation of liberty
of children from justice, law enforcement or border management
authorities to those responsible for child protection;
(t) To collect quantitative and qualitative data on of children
deprived of their liberty, and to elaborate and publish the State’s
plans for children deprived of liberty;
(u) To support the global study on children deprived of their liberty,
prepared pursuant to General Assembly resolution 69/157, and the
appointment of an independent expert to lead the study.
86.
With regard to conditions during detention, the Special Rapporteur
calls upon all States:
(a) To separate children and adults in all places of detention and,
when in the best interests of the child, to hold children and adults
together during daytime, and only under strict supervision;
(b) To consider case-by-case assessment to decide whether it is
appropriate for a particular inmate to be transferred to an adult
institution after reaching the age of majority;
(c) To provide children deprived of their liberty with appropriate
nutrition, health and other basic services, including ready access to
natural light and adequate ventilation, access to sanitary facilities
that are hygienic and respect privacy and, in principle, accommodation
in individual bedrooms;
(d) To prohibit solitary confinement of any duration and for any
purpose;
(e) To prohibit corporal punishment;
(f) To use restraints or force only when the child poses an imminent
threat of injury to himself or herself or others, only for a limited
period of time and only when all other means of control have been
exhausted, and not to perform strip searches without reasonable
suspicion;
(g) To respond to the specific needs of groups of children that are
even more vulnerable to ill-treatment or torture, such as girls,
lesbian, gay, bisexual, transgender and intersex children, and
children with disabilities;
(h) To facilitate contact to the outside world, in particular with
families and legal representatives;
(i) To provide educational, vocational and recreational
age-appropriate opportunities and green spaces for children;
(j) To maintain an individualized case-management file for each child
in detention (such as information on education and medical history),
subject to careful data protection and privacy protection, including
digital privacy, to ensure that the file is shared only with staff
that requires such information.
(k) To ensure appropriate resources and staffing for all places of
deprivation of liberty.
* * Late submission.
1  Convention on the Rights of the Child, art. 3 (1).
2  International Covenant on Civil and Political Rights, art. 10;
Convention on the Rights of the Child, art. 40; Bejing Rules, para.
5.1.
3  Bangkok Rules 6-18.
4  European Convention on Human Rights, art. 5; European Court on
Human Rights, Buomar v. Belgium; Inter-American Court of Human Rights,
Juvenile Reeducation Institute v. Paraguay, judgement of 2 September
2004, para. 161.
5  Human Rights Committee, general comments No. 17, para. 1 and No.
35, para. 62; European Court of Human Rights, Z and Others v. United
Kingdom, paras. 74-75; Inter-American Court of Human Rights, Gonzales
v. USA, final observations, 24 March 2008, pp. 64-67;.
6  See for example Anthony Lake and Margaret Chan, Putting science
into practice for early child development, UNICEF, New York and WHO
Geneva, 20 September 2014; and Michael D. De Bellis et al.,
“Developmental Traumatology Part II: Brain Development”, Biological
Psychiatry, vol. 14, No. 10 (15 May 1999), pp. 1271-1284.
7  See The heart of the nation’s existence: a review of reports on
the treatment of children in Australian detention centres, ChilOut,
2002, appendix E, Michael Dudley and Bijou Blick; Sarah Mares and Jon
Jureidini, “Psychiatric assessment of children and families in
immigration detention – clinical, administrative and ethical issues”,
Australian and New Zealand Journal of Public Health, vol. 28, No. 6
(2004) pp. 520-526; Human Rights and Equal Opportunity Commission, “A
last resort? National Enquiry into Children in Immigration Detention”,
April 2004; Zachary Steel et al., “The politics of exclusion and
denial: the mental health costs of Australia’s refugee policy”, 12 May
2003, p. 10.
8  See also CCPR/C/112/D/1968/2010, paras. 7.7 and 7.11, and
Inter-American Commission on Human Rights, Juvenile Justice and Human
Rights in the Americas: Rapporteurship on the Rights of the Child
(UNICEF, 13 July 2011), para. 364.
9  See, for example, Association for the Prevention of Torture,
Jean-Jacques Gautier NPM Symposium, “Addressing children’s
vulnerabilities in detention”, outcome report, June 2014, p. 14
10  Ibid. and A/HRC/21/25, para. 8.
11  See Anna Volz, “Stop the Violence! The overuse of pre-trial
detention, or the need to reform juvenile justice systems”, Defence
for Children International, Geneva, July 2010, p. 16.
12  Information received from the American Civil Liberties Union
during the expert consultation held in Washington, D.C. on 10 and 11
November 2014.
13  See also A/HRC/22/53/Add.1, para. 73; United Nations Rules for
the Protection of Juveniles Deprived of their Liberty, para. 67;
Committee on the Rights of the Child, general comment No. 10
(CRC/C/GC/10), para. 89.
14  Carolyn Hamilton et al., “Administrative detention of children: a
global report”, UNICEF and the Children’s Legal Centre, February 2011,
p. 140.
15  See A/HRC/25/60/Add.1, para. 80 and CRC/C/GC/12, para. 21.
16  See Convention on the Rights of Persons with Disabilities, art.
7.
17  See for example CRPD/C/AUT/CO/1 paras. 29-30, CRPD/C/SLV/CO/1
para. 31-32 and CRPD/C/AZE/CO/1, paras. 28-29.
18  See Marinus H. van IJzendoorn et al., “Children in institutional
care: delayed development and resilience”, Monographs of the Society
for Research in Child Development, vol. 76, No. 4 (2011), pp. 8-30;
and Rebecca Johnson et al., “Young children in institutional care at
risk of harm”, Trauma, Violence & Abuse, vol. 7, No. 1 (2006), pp.
34-60.
19  Information received from the International Detention Coalition
on 2 February 2015.
20  International Detention Coalition, Captured Childhood, Melbourne,
Australia, 2012.
21  See Human Rights Watch, Barely Surviving: Detention, Abuse and
Neglect of Migrant Children in Indonesia, 2013, pp. 4, 34-36; MaryBeth
Morand et al., The Implementation of UNHCR’s Policy on Refugee
Protection and Solutions in Urban Areas, Global Survey – 2012, UNHCR,
April 2013, p. 5; and Amnesty International, “Egypt/Sudan: Refugees
and asylum seekers face brutal treatment, kidnapping for ransom and
human trafficking”, 2013, paras. 6, 8.
22  Popov v. France, judgement of 19 January 2012; Rahimi v. Greece,
judgement of 5 April 2011; Mubilanzila Mayeka and Kaniki Mitunga v
Belgium, judgement of 12 October 2006.
23  Rights and guarantees of children in the context of migration
and/or in need of international protection, Advisory Opinion of 19
August 2014, paras. 222 and 231-233.
24  Convention on the Rights of the Child, arts. 34 and 39.
21