Expert consultation on monitoring of places where children are deprived of liberty
Expert Consultation on monitoring of places where children are deprived of liberty
Buenos Aires, Argentina
19-20 May 2016
As implementation of the 2030 Agenda starts, countless children are being left behind, including those deprived of their liberty. Children in vulnerable situations, including those who have run away from domestic violence, those who live on the street and those who are victims of trafficking, prostitution, organized crime or conflict situations, are at special risk. Still others may end up in detention as a result of mental health and drug abuse or because of their status as migrants or asylum seekers.
Held in closed institutions, psychiatric centres or adult prisons or awaiting trial for long periods of time, these children often lack genuine opportunities to gain access to justice and to challenge the legality of their detention or to benefit from education and vocational training and long-lasting social reintegration. While deprived of liberty, children are at heightened risk of violence, including harassment, sexual abuse and torture. They may also be subjected to violence as a form of discipline, punishment or sentencing.
Responding to these serious concerns, the General Assembly, in its resolution 69/157, invited the Secretary-General to commission an in-depth global study on children deprived of liberty including good practices and recommendations for action and to submit the conclusions of the study to the Assembly at its seventy- second session. In the resolution, it was stated that the study should be funded through voluntary contributions and conducted in close cooperation with relevant United Nations agencies and offices and in consultation with relevant stakeholders, including Member States, civil society, academia and children. The study will help to consolidate data and sound evidence to inform policy and law, develop capacity- building initiatives for professionals and promote a change to stigmatizing attitudes and behaviour towards children in detention.
To mobilize support and evidence for the global study on children deprived of liberty, the Special Representative organized with UNICEF a regional conference in Buenos Aires, Argentina, on 19-20 May 2016. The conference focused on oversight, inspection and monitoring of places where children are deprived of liberty in the framework of the criminal justice system.
Leading human rights experts, including the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights, participated at the meeting, as did government representatives, national human rights institutions, UNICEF child protection officers, non-governmental organizations and academics from Argentina, Brazil, Chile, Colombia, Paraguay and Uruguay.
At the conference, held in Buenos Aires, participants identified legislative and institutional developments in Latin America and good practices and challenges in the monitoring and inspection of places of detention and in the promotion of autonomous and independent monitoring mechanisms. The conference also provided an opportunity to review comparable experiences and trends in Europe.
The regional conference highlighted the international normative framework adopted in this area and the significant developments promoted in the region.
Panel and presentations (in Spanish)
Marta Santos Pais
Marta Santos Pais was appointed as Special Representative of the Secretary-General on Violence against Children (SRSG) on May 1st, 2009, and took up her position on September 1st, 2009. As a high level global independent advocate, Marta Santos Pais promotes the prevention and elimination of all forms of violence against children in the justice setting, in the home, in institutional care, in schools, in the workplace and in the community. She acts as a bridge builder in all regions, and across sectors and settings where violence against children may occur.
Marta Santos Pais presentation
General prosecutor for criminal policy, human righst and community services at the National Prosecutor´s Office in Buenos Aires, Argentina. Beloff is also a Professor at the School of Law of the University of Buenos Aires (UBA), University of La Plata and University of Palermo (Argentina). Professor Beloff has extensively published both in Argentina an abroad on criminal law, criminology, human rights and children´s rights. She holds a Bachelor degree in Law from University of Buenos Aires and a LLM from Harvard University. Beloff is member of the boards of several institutions in the fields of criminal justice and children´s rights.
Mary Beloff presentation
She is currently affiliated to the School of Sociology at the Catholic University of Chile. She has been member of Paz Ciudadana Foundation (Santiago de Chile), the Institute of Criminology, University of Cambridge and Ibero-American Association of Therapeutic Jurisprudence. Catalina Droppelmann holds a B.A. in Psychology from the University of Valparaíso (Chile), an MPhil in Criminological Research from the University of Cambridge (UK) and is PhD candidate in the same university.
Catalina Droppelmann Presentation
Miguel Cillero Bruñol he is Professor at School of Law of Diego Portales University (Santiago de Chile) and associated researcher at the Catholic University of Comillas, in Madrid, Spain. Professor Cillero has been a consultant for several international agencies and institutions, such as UNICEF, OAS, IBD and the IOJJ, among others. He is also the Director of the International Course on Children Rights´ organised by UNICEF and Diego Portales University. Cillero holds a Bachelor degree in Law by Universidad de Chile and a Doctorate Degree in Law, by Universidad Pablo de Olavide (Sevilla, Spain).
Miguel Cillero presentation
Juan E. Méndez
Juan E. Méndez is a Professor of Human Rights Law In Residence and since November 2010, the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. In 2009 and 2010 he was the Special Advisor on Prevention to the Prosecutor of the International Criminal Court. He is also Co-Chair of the Human Rights Institute of the International Bar Association. Until May 2009 he was the President of the International Center for Transitional Justice (ICTJ) and in the summer of 2009 he was a Scholar-in-Residence at the Ford Foundation in New York. Concurrent with his duties at ICTJ, the Honorable Kofi Annan named Mr. Méndez his Special Advisor on the Prevention of Genocide, a task he performed from 2004 to 2007.
Juan Méndez presentation
Nicolás Espejo Yaksic
Visiting Fellow at Kellogg College, Oxford University and Advisor to the Special Representative of the Secretary-General on violence Against Children in New York. He has been co-founder and director of the Human Rights Centre at Diego Portales University (Santiago de Chile), representative in Chile for the Center for Justice and International Law and permanent consultant for UNICEF. Espejo has published extensively in the field of human rights and the rights of the child. He holds a Bachelor´s degree in Law (Diego Portales University) a MSt. In International Human Rights Law (Oxford) and a PhD in Law (Warwick).
Nicolás Espejo Yaksic presentation
Esmeralda Arosemena de Troitiño
Special Rapporteur on the Rights of the Child of the Inter-American Commission on Human Rights. Commissioner Esmeralda Arosemena de Troitiño is citizen of Panama. She was elected on June 16, 2015, by the OAS General Assembly, for a 4-year mandate that starts on January 1, 2016 and ends December 31, 2019. She has a degree in Philosophy, Letters, and Education, as well as in Law and Political Science, sigma cum laude. She joined the Special Commission for the 2011-2012 Constitutional Reforms in Panama and was Magistrate of the Supreme Court from 2004 to 2009. She currently puts together teams of trainers in the Accusatory Criminal System for the Public Prosecutor’s Office and at the inter-institutional level.
Esmeralda Arosemena de Troitiño presentation
Norberto Liwski is a Medical Doctor and Social Pediatrician and President of Defence for Children International (DCI) in Argentina. He has been member of the UN Committee of the Rights of the Child, Director of the International Association of Humanitarian Medicine, and former under- secretary on childhood, family and human development for the Buenos Province and Chair of the National Council on Childhood, Adolescence and Family of Argentina. Norberto Liwksi has also hold several academic positions and an active member of civil society organisations.
Norberto Liwski presentation
Juan Fumeiro is President of Defence Children International for Uruguay and Vice-President of the same organization in the Americas. Fumeiro is recognized as a leading activist in the promotion and defence of the rights of the child within civil society in the Americas. He has led several programs and projects in the field of juvenile justice, deprivation of liberty of children and criminal policies in crime prevention.
Juan Fumeiro presentation
• The right to liberty and security is a fundamental human right recognized by international legal standards. This is a topic that the Convention on the Rights of the Child also addresses, including in article 37.
• In stark contrast with these standards, however, thousands of children are detained for long or indefinite periods of time, lacking genuine opportunities to gain access to justice and to challenge the legality of their detention and being neglected in their needs for care, treatment and protection. While deprived of liberty, they may be exposed to violence by other detainees and by staff, including bullying, psychological violence and sexual abuse, as well as corporal punishment, flogging and other forms of inhuman sentencing, alongside the risk of self-harm.
• According to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (resolution 45/113, annex, para. 11 (b)) and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (article 4 (2)), deprivation of liberty is “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. Such settings may include police custody, remand detention, imprisonment after conviction, administrative detention, involuntary hospitalization, and institutional custody of children, including children with disabilities and those in need of protection.
• Children on the move, including refugees, asylum seekers, migrants and victims of trafficking or smuggling may be placed in detention centres or cells in military bases or confined in restricted areas in airports, harbour facilities and islands. They may also be subject to involuntary transportation in vehicles, aeroplanes, boats or other vessels. Girls may be deprived of liberty supposedly for their own protection, including when they are at risk of honour crimes, trafficking or other forms of violence and, while detained, exposed to the risk of further abuse and exploitation.
• Violence in detention facilities is rarely reported or investigated and often remains unpunished and hidden from external scrutiny. The failure to hold perpetrators accountable leads to the perpetuation of violence and a deep sense of impunity.
• In such situations, children face serious difficulties in obtaining prompt and unhindered access to effective remedies to redress human rights violations that may have occurred, including with a view to securing their protection, enabling the investigation of wrongdoing and the punishment of those found responsible, and benefiting from rehabilitation and reparation actions. This is aggravated by children’s fear of harassment, reprisal and stigmatization for speaking out about incidents of violence.
• To address these concerns, urgent measures are needed. First, it is crucial to empower children with easily understandable, age-sensitive and culturally appropriate information about their rights and relevant procedures to enable them to exercise their right to be heard and to benefit from effective remedies and services for their protection, recovery and reintegration. Moreover, it is indispensable to establish safe, child- and gender-sensitive counselling, complaints and reporting mechanisms to which children can easily gain access to address any incidents of violence or other grievances.
• Second, strong accountability mechanisms need to be put in place to safeguard children’s rights in places of detention, through rigorous oversight, inspection and independent monitoring by competent authorities and institutions to prevent and respond to incidents of violence and to fight impunity.
• As a measure of last resort, deprivation of liberty should never be used as a response to a non-existent or weak national child protection system. When in exceptional circumstances children are lawfully deprived of liberty, their right to challenge the legality of the deprivation of their liberty before a court and to a prompt decision thereon should be respected. The length of their placement must be clearly determined at the time of the decision, and non-custodial alternatives should be strengthened at all stages of the proceedings, including through restorative justice approaches. Moreover, restriction of a child’s right to liberty can never be used as a justification for restricting other rights, such as the right to physical and mental integrity, access to justice and due process, protection from discrimination and enjoyment of the rights to education, health or adequate food.
• To be effective, national monitoring mechanisms need to have:
a. A legal mandate safeguarding their autonomy and independence: either under the administration or as external institutions, monitoring mechanisms must be established by law and enjoy autonomy and functional, organizational and financial independence, including in the appointment of their members and their financial viability. This is fundamental if the monitoring mechanisms are to pursue their mandate without interference, including on the part of penitentiary authorities overseeing the administration of centres of deprivation of liberty;
b. Extensive powers to safeguard children’s protection and safety: monitoring mechanisms must have clear roles and responsibilities and broad powers defined by law. These include the right to gain access to any place of deprivation of liberty, including through unannounced visits; the right to access any needed information, to request reports before, during and after the inspection and to receive a prompt response; the right to receive complaints directly from children; and the authority to make public the results of their inspections and recommendations, while preventing the public disclosure of information that may place a child at risk. These mechanisms should be provided with sufficient resources to develop their functions with high-quality standards;
c. A clear human rights mandate to prevent and address any act of torture and other form of violence, as well as to protect the rights of children deprived of liberty, including to good-quality education, adequate physical and mental health and access to due process and to legal safeguards to participate in proceedings;
d. Age-, gender- and child-sensitive complaints mechanisms to inform their work: easy and safe access by children deprived of liberty to counselling, complaints and reporting systems and to inspection and monitoring mechanisms is crucial. These mechanisms should take children’s views and experiences into consideration both to identify and pursue incidents of violence through administrative and criminal investigations and to establish the accountability of perpetrators, and seek children’s opinions on the organizational and structural dimensions of detention centres, the quality of programmes and of staff, and the safeguarding of children’s rights, which otherwise may go unnoticed;
e. Access to sound data and standardized qualitative and quantitative monitoring tools, which are essential to inform a precise and objective monitoring system for places of detention, to guide strategic legal and policy reforms and the strengthening of a child-sensitive juvenile justice system, and to safeguard the rights of children deprived of liberty. Qualitative data may include surveys, interviews with children and staff, and individual assessments and recommendations issued from the inspection. Quantitative data include disaggregated information on the number of children deprived of liberty, including on the basis of gender, age and ethnic and national origin, the institutions where they are placed and the reasons for and duration of the deprivation of their liberty, and the types of crimes for which they are considered responsible and the sanctions imposed, as well as information on daily routines, food and disciplinary registries and rehabilitation and reintegration programmes, and on resource allocation and security measures, such as fire safety protocols. This information should be based on standardized templates and indicators to enable the identification of concerns and monitoring of progress within and between centres of deprivation of liberty.