Torture and ill-treatment of children in the context of juvenile justice*
Dan O’Donnell
Senior consultant on child rights and juvenile justice
UNICEF Regional Office for CEE-CIS
I. Torture and ill-treatment in international law
The prohibition of torture and cruel, inhumane and degrading treatment or punishment
is one of the most fundamental rules of international human rights law, international
humanitarian law and international criminal law.
This prohibition is found in the Universal Declaration of Human Rights,1 the International
Covenant on Civil and Political Rights,2 the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment3 and the Convention on the Rights of
the Child.4 It also is found in all the major regional treaties on human rights and child
rights: the European Convention on Human Rights,5 the American Convention on
Human Rights,6 the African Charter on Human and People’s Rights7 and the African
Charter on the Rights and Welfare of the Child.8 The Geneva Conventions recognise
torture and cruel or inhumane treatment as war crimes9 and the Rome Statute of the
International Criminal Court recognises them as crimes against humanity, depending on
the circumstances in which they is committed.10
Many other international instruments have been adopted, in whole or in part, in order to
clarify the obligations of States regarding the prevention and criminalisation of torture
and cruel, inhuman and degrading treatment or punishment, and the rights of victims.
They include:
- United Nations Rules for the Protection of Juveniles Deprived of their Liberty
(Havana Rules) 11
- Code of Conduct for Law Enforcement Officials12
- Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials13
*
This document is based in part on Child Victims of Torture and Cruel, Inhuman and Degrading
Treatment, D.O’Donnell and N.Liwski, Innocenti Research Centre, 2010, available at www.unicefirc.org/publications/pdf/iwp_2010_11.pdf (English only)
1 Art.5
2 Art.7
3 Art.1.1 and 16.1
4 Art.37(a)
5 Art.3
6 Art.5.2
7 Art.5
8 Art.16.1
9 Common Article 3, read together with Art.50 of the I, II, III and IV Geneva Conventions, respectively.
10 Art.7 and 8
11 UNGA resolution 45/113 of 14 December 1990
12 UNGA resolution 34/169 of 17 December 1979
13 Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, 1990
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- Principles on the Effective Investigation and Documentation of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Principles)14
- Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment15
The prohibition of torture and cruel, inhumane and degrading treatment protects the
essential right of every person to personal integrity, and to dignity.16 In so far as
children are concerned, it also protects their right to “physical, mental, spiritual, moral
and social development.”17
It is one of the few human rights norms that is absolute: there are no limits or conditions
for the enjoyment of this right, and no exceptions can be made for any reason, in any
circumstance.18
It is one of the few rules of international human rights law that is considered jus cogens,
that is, binding on all members of the international community, independently of their
treaty obligations.19
The fact that the UN human rights system has three mechanisms for combating torture including a Special Rapporteur on Torture, whose mandate extents to all Member
States of the United Nations - also underlines the unique importance of the prohibition
of torture and cruel, inhuman and degrading treatment or punishment.
II. Definitions
Article 37 of the Convention on the Rights of the Child provides that “No child shall be
subjected to torture or other cruel, inhuman or degrading treatment or punishment.”
Article 19 of the Convention recognises the obligation of States to protect children from
“all forms of physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse.”
Why does the Convention contain these two norms? What is the difference between
torture or other cruel, inhuman or degrading treatment or punishment, and other forms
of violence?
The definition of torture contained in Art.1.1 of the Convention on Torture is the most
relevant definition in international law.20 An international court has declared that this
14
UNGA resolution 55/89 of 4 December 2000
UNGA resolution 37/194 of 18 December 1982
16 See Art.2 of the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (UNGA resolution 3452 (XXX) of 9 Dec 1975)
15
17
See Art.27.1 of the CRC.
See e.g. Art.2.2 of CAT, and Committee Against Torture, General Comment No.2, 2007, para.5
19 General Comment No.2, supra, para.1
18
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definition has become part of customary international law, and can be used to interpret
other international norms that prohibit torture without defining it. It has three elements: a
material element, a subjective element, and an element with regard to the identity of the
perpetrator.
The material element is defined quite simply as “any act by which severe pain or
suffering, whether physical or mental, is … inflicted.” It is important to bear in mind that
acts that cause severe mental or psychological suffering can be torture, even in the
absence of physical violence.21 Threats of physical violence are an example.22
The second element it includes the intent of obtain information or a confession, to
punish, to intimidate or coerce the victim or a third person, or any reason based on
discrimination of any kind.23
The third element is that the act done “by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.” If a parent
punishes a child using violence that would be torture if used by a police officer or prison
officer, it comes within the scope of Article 19 of the CRC, which concerns violence
inflicted on children while in the care of their parents or guardians, but it is not torture –
at least, it is not torture as defined by international law.
The question of what constitutes cruel, inhuman and degrading treatment or punishment
is more difficult. CAT does not define it, except to describe it as treatment or
punishment that is cruel, inhuman or degrading but does not “amount to torture as
defined in Article 1.”
The main distinction appears to be that “In comparison to torture, ill-treatment differs in
the severity of pain and suffering…”.24 This appears to be. Acts committed for the
purposes mentioned in Article 1 can be considered cruel and inhumane treatment or
punishment even if the pain and suffering caused is not severe.
In addition, while torture (and punishment) normally consists of specific acts, the
concept of treatment is broader. It includes neglect, failure to act, or failure to protect.
Confinement in conditions that are dark, overcrowded or unhealthy, and deprivation of
food, water or medical care can amount to cruel and inhumane treatment.25 The
Havana Rules state that “corporal punishment, placement in a dark cell, closed or
solitary confinement [and] any other punishment that may compromise the physical or
mental health” constitute “cruel, inhuman or degrading treatment [and] shall be strictly
20
The International Court for the Former Yugoslavia concluded that the definition contained in CAT has
become part of customary international law and can be used to interpret other international norms that
prohibit torture without defining it. Prosecutor v Furundzija, Judgment of 10 December 1998, para.160
21 Human Rights Committee, General Comment No.20, 1992, para.5
22 Human Rights Committee, Estrella Case, No.107/1986, para.8.3
23 The definition includes the words “such as”, indicating that these specific intentions are not necessarily
exclusive and should not be interpreted narrowly.
24 Committee Against Torture, General Comment No.2, CAT/C/GC/CRP.1/REV.4, para.10 [The term “illtreatment” is synonym for “cruel, inhuman and degrading treatment or punishment”]
25 See e.g. the sentence of the Interamerican Court of Human Rights in ‘Children’s Rehabilitation Institute’ v
Paraguay, judgment of September 2, 2004, Series C No112, para.171
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prohibited”.26 The Committee on the Rights of the Child has endorsed this
interpretation.27
The Committee against Torture also considers that, unlike torture, ill-treatment does not
require proof of any specific intent.28
States also have obligation to prevent ill-treatment by private persons, especially in
contexts such as prisons, schools and other institutions for children.29 The State is
responsible for violence committed by private persons in contexts, where its failure to
prevent and punish such violence “encourages and enhances the danger of privately
inflicted harm”.30
“Degrading” treatment includes treatment that offends human dignity, even if it does not
involve a violation of the physical or psychological integrity. Whether treatment or
punishment is degrading depends more on its nature, and perhaps socio-cultural norms,
than the suffering or injury of the victim. Allowing a prisoner to be televised in a cage, for
example, has been found to be degrading treatment.31 The Committee on the Rights of
the Child has commented that punishment that “belittles, humiliates, denigrates,
scapegoats, threatens, scares or ridicules” a child is cruel and degrading.32
In considering what constitutes torture or cruel and inhumane or degrading treatment, it
is necessary to bear in mind the greater vulnerability of children. As Sir Nigel Rodley,
the then UN Special Rapporteur on Torture, pointed out:
children are necessarily more vulnerable to the effects of torture [and other
forms of ill treatment] and because they are in critical stages of physical and
psychological development may suffer graver consequences than similarly ill
treated adults.33
The European Court on Human Rights reached a similar conclusion, in a case based
on the European Convention for the Protection of Human Rights and Fundamental
Freedoms:
The Court considers that this “severity” is… in the nature of things, relative; it
depends on all the circumstances of the case, such as the duration of the
treatment, its physical or mental effects and, in some cases, the sex, age and
state of health of the victim, etc.34
26
Rule 67
General Comment No.10, para.89
28 General Comment No.2, para.10
29 Ibid, para.15
30 Ibid
31 Human Rights Committee, Polay Case, No.577/1994, 1998, para.8.5
32 General Comment No. 8, The right of the child to protection from corporal punishment and other cruel
or degrading forms of punishment, CRC/C/GC/8, 2006, para.11
33 E/CN4/1996/35 (9 January 1996) para.10
34 Selmouni v France (25803/94) [1999] ECHR 66 (28 July 1999)
(Application no. 25803/94), Judgment, para.100
27
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III. The obligations of States with regard to torture and ill-treatment of children
The Convention Against Torture contains a comprehensive list of the obligations of
States regard to torture and ill-treatment. This Convention has been ratified by all the
States participating in this meeting, and so all these obligations are binding on each of
them.
Prevention
One obligation is to include information on the subject of torture in the training of all law
enforcement personnel, medical personnel and other public officials involved in the
apprehension, interrogation or treatment of persons deprived of liberty.35
Rules, regulations and instructions regarding apprehension and interrogation of
suspects and the treatment of detainees and prisoners should expressly prohibit
torture.36
Another is to “keep under systematic review interrogation rules, instructions, methods
and practices as well as arrangements for the custody and treatment of persons”
deprived of liberty.37
Human rights commissioners, child rights commissioners and ombudsmen can
potentially play a key role in both of these areas, in cooperation with the relevant
ministries and training institutions.
Legal and procedural safeguards
International human rights law concerning the rights of suspects, accused persons,
detainees and prisoners are numerous and detailed. Many of these norms are
intended, in whole or in part, to prevent torture and ill-treatment. The following are some
of the most important ones:
-
the right to legal assistance
The CRC recognises the right of children deprived of liberty to “prompt access
to legal and other appropriate assistance.”38
-
the right of persons deprived of liberty to medical assistance and obligation to
examine detainees and prisoners
35
CAT Art.10.1
CAT Art.10.2
37 CAT Art.11; the Human Rights Committee also recognises the importance of permanent, systematic
review of standards and practices for the prevention of torture and ill-treatment. General Comment No.20
on Art.7 [of the International Covenant on Civil and Political Rights], 1992, para.11
38 Art.37(d) See also Havana Rule No.18(a)
36
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The Committee Against Torture has stated that persons deprived of liberty
should have the right to “independent medical assistance.”39 The Havana
Rules provide that “Every juvenile has a right to be examined by a physician
immediately upon admission to a detention facility, for the purpose of
recording any evidence of prior ill-treatment and identifying any physical or
mental condition requiring medical attention.”40 The Committee on the Rights
of the Child has endorsed the “the right to be examined by a physician upon
admission to the detention/correctional facility”.41
-
the right to contact parents or duty of authorities to contact parents
This right is recognised by Art.37(c) of the CRC. The Beijing Rules provide
that “Upon the apprehension of a juvenile, her or his parents or guardian shall
be immediately notified of such apprehension.”42
-
prohibition of the use as evidence of confessions or other information obtained
through torture or ill-treatment
CAT provides that “statements … made as result of torture” may not be
used as evidence in legal proceedings.43 The Committee Against Torture,
Human Rights Committee and Committee on the Rights of the Child all
agree that this rule also should apply to evidence obtained through illtreatment.44
-
the requirement that deprivation of liberty be authorized by a court or other
competent authority
The Committee on the Rights of the Child recommends that every child
arrested or deprived of liberty should be brought before a competent
authority within 24 hours.45 In principle, the reason for this is to allow the a
judge or prosecutor to determine whether there are sufficient legal reasons
to keep the child in custody, but the requirement that the child appear in
person also is a valuable safeguard against psychological pressure or
physical violence.
Investigation
Any person who has been tortured or subjected to cruel, inhuman or degrading
treatment has the right to make a complaint to the competent authorities, who have an
39
General Comment No.2, supra, para.13
Rule 50
41 General Comment No.10, para.89
42 Rule 10.1
43 Art.15
44 General Comment No.2 of the Committee Against Torture, para.6; General Comment No.20 of the
Human Rights Committee, supra, para.12, and General Comment No.10 of the Committee on the Rights
of the Child, para.56
45 General Comment No.10, supra, para.83
40
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obligation to promptly and impartially examine the allegations made.46 Of course, one of
the consequences of torture and ill-treatment is fear. Torturers rely on fear to be able to
mistreat suspects and prisoners without suffering consequences. It is easier to
intimidate children than adults, and the parents of children who have been beaten or
mistreated by the authorities may fear that making a compliant will make things worse
for their children. Or, given the home environment of many children who come into
conflict with the law, the parents or guardians may not care, or may think that violence is
an acceptable way to treat children.
CAT recognises an obligation to carry out a prompt and reasonable investigation of all
suspected cases of torture and ill-treatment, regardless of whether or not a complaint
has been made.47 Such investigations are especially important where children are
concerned.
The authorities also have an obligation to protect persons who complain about torture or
ill-treatment from additional ill-treatment or intimidation.48 The Istanbul Principles
indicate, in this regard, that “Those potentially implicated in torture or ill-treatment shall
be removed from any position of control or power, whether direct or indirect, over
complainants, witnesses and their families…”.49 The UN Guidelines on Justice in
Matters involving Child Victims and Witnesses of Crime provide that “special strategies
are required for child victims … who are particularly vulnerable to recurring
victimization” including those confined in institutions.50 Special strategies also may be
required to protect children who have repeated contacts with the police.
Criminalisation and punishment
Torture must be recognised as a crime punishable by “appropriate penalties which take
into account [the] grave nature” of torture.51 Defining torture as a specific offence, rather
than punishing acts of torture as common crimes such as inflicting injury, is a more
effective means of preventing torture, according to the Committee Against Torture.52
The obligation to make torture a crime is not limited to direct participation, but includes
criminalisation of complicity.53 The Committee Against Torture has indicated that “It is
essential to investigate and establish the responsibility of persons in the chain of
command as wall as that of the direct perpetrators.”54
CAT clearly requires criminal prosecution of officials who have participated, directly or
indirectly, in torture. When criminal prosecution is possible, the imposition of
administrative sanctions would not satisfy this obligation. Failure to prosecute when
46
CAT Art.13 and 16.1; see also General Comment No.20 of the Human Rights Committee, supra,
para.14
47 CAT Art.12 and 16.1
48 CAT Art.13 and 16.1
49 Principle 3(b)
50 approved by Economic and Social Council Resolution 2005/20, Guideline 39
51 CAT Art.4
52 General Comment No.2, para.11
53 CAT Art.4.1
54 Ibid, para.9
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successful prosecution would be possible contributes to impunity. Administrative
sanctions nevertheless may be appropriate in three circumstances: when prosecution is
not possible even though there is some evidence of torture or ill-treatment; as an
additional sanction when a perpetrator has been prosecuted and convicted, or when
criminal proceedings terminates without a conviction but there is sufficient evidence to
impose administrative sanctions.
The right of victims to assistance
The CRC expressly recognises the duty of States to “take all appropriate measures to
promote physical and psychological recovery and social reintegration of a child victim
of… torture or any other form of cruel, inhuman or degrading treatment or
punishment…”.55 Such assistance must be provided “in an environment which fosters
the health, self-respect and dignity of the child.”
The first step towards realization of this right is, of course, the identification of victims.
Medical professionals in the community as well as those in the juvenile justice system
should be trained to recognise the physical and psychological symptoms of torture and
ill-treatment, and in their legal and ethical obligations with regard to victims of these
practices. Such training should not be limited to medical doctors (physicians), but
should also be provided to nurses, social workers and psychologists, especially those
working in the area of juvenile justice.
It also may be useful to provide others who have frequent contact with children “in
conflict with the law”, such as lawyers, educators and prosecutors, with sufficient
training on the symptoms of torture and ill-treatment to enable them to make referrals
when appropriate. Protocols for referral should be developed, and all relevant
professionals and paraprofessionals should be made aware of them.
Given the impunity that often surrounds torture and ill-treatment, entitlement to
assistance should not depend on any formal decision that a child has been tortured or
ill-treated. Access to assistance should depend on a medical or psychological
diagnosis, rather than a legal decision.
The right of victims to compensation
CAT recognises the right of victims of torture “to fair and adequate compensation”, and
the Committee Against Torture considers that this right extends to victims of illtreatment.56 Since torture and ill-treatment by definition involve State responsibility, the
obligation to compensate or make reparations to the victim lies primarily on the State or
the agency responsible, although the perpetrators also may be personally responsible.
Armenia, Azerbaijan, Georgia, Moldova and Ukraine are Parties to the European
Convention on Human Rights and so risk being ordered to pay damages by the
European Court of Human Rights, if victims are not compensated under national
55
56
Ibid, Art.38
Art.14.1; General Comment No.2, supra, paras.3 and 6
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procedures. In 2006, Turkey was ordered to pay €10,000. in damages, plus costs, to a
boy 12 year old boy suspected of theft who was beaten by the police during
interrogation.57
Impunity or Accountability?
The laws and procedures of the countries represented here fall short of international
standards concerning the prevention of torture and ill-treatment in some regards. For
example, the legislation of all your countries allows the police to keep children in
custody without a court order, for more than 24 hours, and the legislation of most, if not
all, allows solitary confinement to be used as a disciplinary measure in juvenile prisons
and detention centres. In some respects, however, the legislation of most if not all
countries represented here meets and even exceeds international requirements. For
example, in most or all of them, the law not only recognizes the right to legal assistance,
but requires that an attorney be present during any questioning of a child suspected or
accused of a crime.
Paradoxically, ill-treatment remains widespread, and even torture persists, in some of
the countries that have the strongest legal safeguards. In Armenia, for example, there
are very good safeguards against torture and ill-treatment, but a survey of the
experiences of children in Armenia carried out in 2009 concluded that the majority of
children taken into police custody were beaten.58 During a mission to Kazakhstan the
same year, the UN Special Rapporteur on Torture found beatings by police and
correctional staff were common.59
No similar reports or surveys have been published, in recent years, concerning the
other countries represented here. The surveys of children’s experiences carried out as
part of this project will allow confirm the extent to which the findings of these reports are
typical of the region as a whole. Certainly, we cannot assume, at this point, that the lack
of information concerning the other six countries means that torture and ill-treatment of
children does not exist there, or is less frequent.
When torture and ill-treatment persists, despite legal prohibitions and safeguards, we
have a problem of impunity. Either there is a tacit governmental policy of tolerating
torture and ill-treatment, or there is a policy of eliminating torture and ill-treatment, but
those who rely on these illegal and immoral practices to achieve their aims have found
effective ways to circumvent and frustrate governmental policies.
No doubt in all countries there are public servants to are the committed to human
treatment of children in conflict with the law, and those who, for whatever reasons, are
willing to tolerate and participate in brutality. The question is, which group is
marginalized, and which holds power?
57
Okkali v Turkey (application no.52067/99) Judgment of 17 October 2006, para.4 of the dispositive part
Juvenile Justice in Armenia: Perspective of Children in Conflict with the Law, OSCE and Advanced
Social Technologies, Yerevan, 2009, p.7
59 Report to the UN Human Rights Council, A/HRC/13/39/Add.3, para.40 and 42
58
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The key to answering this question lies, in large part, in the transparency of
mechanisms to investigate and punish torture and ill-treatment. Recognition that abuses
occur is the first step towards eliminating them – and perhaps the most difficult and
important step. There are few countries – if any – where torture and ill-treatment does
not exist. Denial that it exists, and unwillingness to provide objective, credible
information on what is being done to investigate and punish it, is the strongest indicator
that impunity is tacitly but officially tolerated.
The challenge we face is two-fold. One is to discover, document and analyse the
mechanisms of impunity, in order to make efforts to dismantle them more effectively.
The other is to give moral and political support to those who are committed to the
eradication the torture and ill-treatment of children in the context of juvenile justice, to
help ensure that their views are embraced by the highest authorities and transformed
into policy.
It remains to be seen which is the most difficult challenge.
***
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