note: this paper is a work in progress and will be updated on a regular basis. for comments or input, email crin at: [email protected]

Note: This paper is a work in progress and will be updated on a
regular basis.
For comments or input, email CRIN at: [email protected]

Human Rights Standards in Inhuman Sentencing
Sentencing child offenders to death, to life imprisonment and to
corporal punishment has been consistently denounced by UN Treaty
Bodies and Special Procedures and by regional human rights mechanisms
as a violation of human rights.
The CRIN reports on States where inhuman sentencing is still lawful (http://www.crin.org/violence/campaigns/sentencing/#countries)
include the text of relevant recommendations to prohibit and eliminate
inhuman sentencing made by the Human Rights Committee, Committee
against Torture, Committee on the Rights of the Child and other Treaty
Bodies.
Core human rights instruments
Respect for human dignity is the fundamental guiding principle of
human rights law. The preamble to the Convention on the Rights of the
Child affirms, in accordance with the principles in the Charter of the
United Nations, repeated in the preamble to the Universal Declaration
and reflected in all the core human rights instruments, that
“recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of
freedom, justice and peace in the world”.
The preamble to the Convention also recalls that, in the Universal
Declaration, the United Nations “has proclaimed that childhood is
entitled to special care and assistance”. The following are key
relevant provisions in the core human rights instruments:
Article 5 of the Universal Declaration of Human Rights (http://www.crin.org/Law/instrument.asp?InstID=1013)
and Article 7 of the International Covenant on Civil and Political
Rights (http://www.crin.org/Law/instrument.asp?InstID=1006), which
both require that “[n]o one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”;
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (http://www.crin.org/Law/instrument.asp?InstID=1052),
which sets out a clear definition of torture and details measures
States must take to prevent torture from occurring;
Article 6 of the International Covenant on Civil and Political Rights,
which guarantees the right to life and requires specifically that the
“[s]entence of death shall not be imposed for crimes committed by
persons below eighteen years of age”; and
The Second Optional Protocol to the International Covenant on Civil
and Political Rights, aiming at the abolition of the death penalty,
which requires the complete abolition of the death penalty and was at
August 2010 ratified or acceded to by 72 States (see
http://www.crin.org/Law/instrument.asp?InstID=1010).
In a Resolution adopted in 2000 on “The death penalty in relation to
juvenile offenders”, the Sub-Commission on Human Rights reiterated
international human rights standards and affirmed “that the imposition
of the death penalty on those aged under 18 at the time of the
commission of the offence is contrary to customary international law”
(Resolution 2000/17, available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/09597876bb508210c125697300448a18?Opendocument).
In 2003 the UN Commission on Human Rights re-affirmed this Resolution
(Resolution 2002/77, available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/e93443efabf7a6c4c1256bab00500ef6?Opendocument).
Successive resolutions of the Human Rights Council and the General
Assembly have continued to call for an end to executions of children
and life imprisonment without possibility of parole. For example, the
General Assembly Resolution on the Rights of the Child from the 63rd
Session “[c]alls upon all States:
(a) To abolish by law and in practice the death penalty and life
imprisonment
without possibility of release for those under the age of 18 years at
the time of the
commission of the offence, including by taking all necessary measures
to comply
with their obligations assumed under relevant provisions of
international human
rights instruments, including the Convention on the Rights of the
Child and the
International Covenant on Civil and Political Rights….” (A/RES/63/241,
13 March 2009, para. 43, available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/485/25/PDF/N0848525.pdf?OpenElement).
In the Human Rights Council 10th Session, March 2009, the Resolution
on Human rights in the administration of justice, in particular
juvenile justice “[u]rges States to ensure that, under their
legislation and practice, neither capital punishment nor life
imprisonment without the possibility of release is imposed for
offences committed by persons under 18 years of age.…” (A/HRC/10/L.15,
20 March 2009, para. 11, available at
http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_2.pdf).
The Convention on the Rights of the Child echoes these standards in
relation to children, defined in article 1 as everyone below the age
of 18. Article 37 requires States Parties to ensure that:
“(a) No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be
in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time…”.
More broadly, Article 19 requires States to take “all appropriate
legislative, administrative, social and educational measures to
protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parents or
others...”.
Article 40 covers additional rights of children in relation to justice
systems, emphasising generally that “States Parties recognize the
right of every child alleged as, accused of, or recognized as having
infringed the penal law to be treated in a manner consistent with the
promotion of the child’s sense of dignity and worth, which reinforces
the child’s respect for the human rights and fundamental freedoms of
others and which takes into account the child’s age and the
desirability of promoting the child’s reintegration and the child’s
assuming a constructive role in society…”.
In addition, articles in the Convention identified by the Committee on
the Rights of the Child as general principles require that the best
interests of the child be a primary consideration “in all actions
concerning children”, including those taken by courts of law (article
3(1)), and that States ensure “to the maximum extent possible the
survival and development of the child” (article 6).
Read more: http://www.crin.org/docs/resources/treaties/uncrc.asp
In its General Comments, the Committee on the Rights of the Child
provides its authoritative interpretation of the provisions of the
Convention.
In General Comment No. 10 (http://www2.ohchr.org/english/bodies/crc/comments.htm)
on Children’s Rights in Juvenile Justice, the Committee urges the
abolition of the death penalty and life imprisonment for children.
In General Comment No. 8 (http://www2.ohchr.org/english/bodies/crc/comments.htm)
on the Right of the Child to Protection from Corporal Punishment and
Other Cruel or Degrading Forms of Punishment, the Committee highlights
States’ obligation to prohibit and eliminate all corporal punishment
in all settings, including juvenile justice systems.
Committee on the Rights of the Child General Comment No. 10 -
Prohibition of the Death Penalty and Life Imprisonment (paras. 75-77)
“Article 37 (a) of CRC reaffirms the internationally accepted standard
(see for example article 6 (5) of ICCPR) that the death penalty cannot
be imposed for a crime committed by a person who at that time was
under 18 years of age. Although the text is clear, there are States
parties that assume that the rule only prohibits the execution of
persons below the age of 18 years. However, under this rule the
explicit and decisive criteri[on] is the age at the time of the
commission of the offence. It means that a death penalty may not be
imposed for a crime committed by a person under 18 regardless of
his/her age at the time of the trial or sentencing or of the execution
of the sanction.”
“The Committee recommends the few States parties that have not done so
yet to abolish the death penalty for all offences committed by persons
below the age of 18 years and to suspend the execution of all death
sentences for those persons till the necessary legislative measures
abolishing the death penalty for children have been fully enacted. The
imposed death penalty should be changed to a sanction that is in full
conformity with CRC.”
“No child who was under the age of 18 at the time he or she committed
an offence should be sentenced to life without the possibility of
release or parole. For all sentences imposed upon children the
possibility of release should be realistic and regularly considered.
In this regard, the Committee refers to article 25 of CRC providing
the right to periodic review for all children placed for the purpose
of care, protection or treatment. The Committee reminds the States
parties which do sentence children to life imprisonment with the
possibility of release or parole that this sanction must fully comply
with and strive for the realization of the aims of juvenile justice
enshrined in article 40(1) of CRC. This means inter alia that the
child sentenced to this imprisonment should receive education,
treatment, and care aiming at his/her release, reintegration and
ability to assume a constructive role in society. This also requires a
regular review of the child’s development and progress in order to
decide on his/her possible release. Given the likelihood that [the]
life imprisonment of a child will make it very difficult, if not
impossible, to achieve the aims of juvenile justice despite the
possibility of release, the Committee strongly recommends the States
parties to abolish all forms of life imprisonment for offences
committed by persons under the age of 18.”
General Comment No. 8 – prohibition of all corporal punishment (paras.
22, 29, 32)
“The Committee emphasizes that eliminating violent and humiliating
punishment of children, through law reform and other necessary
measures, is an immediate and unqualified obligation of States
Parties.”
The Committee notes that “in a minority of States, corporal punishment
using canes or whips is still authorized as a sentence of the courts
for child offenders. As frequently
reiterated by the Committee, the Convention requires the repeal of all
such provisions.”
The Committee also reiterates that religion cannot be used as a
justification for violent punishment: “Freedom of religious belief is
upheld for everyone in the International Covenant on Civil and
Political Rights (art. 18), but practice of a religion or belief must
be consistent with respect for others’ human dignity and physical
integrity. Freedom to practise one’s religion or belief may be
legitimately limited in order to protect the fundamental rights and
freedoms of others. In certain States, the Committee has found that
children, in some cases from a very young age, in other cases from the
time that they are judged to have reached puberty, may be sentenced to
punishments of extreme violence, including stoning and amputation,
prescribed under certain interpretations of religious law. Such
punishments plainly violate the Convention and other international
human rights standards, as has been highlighted also by the Human
Rights Committee and the Committee against Torture, and must be
prohibited.”
The death sentence for children is also specifically prohibited in the
Geneva Conventions:
The Geneva Convention relative to the Protection of Civilian Persons
in Time of War of 12 August 1949 (Fourth Geneva Convention) states
that “[i]n any case, the death penalty may not be pronounced against a
protected person who was under eighteen years of age at the time of
the offence” (Article 68);
The Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed
Conflicts (Additional Protocol I) states that “[t]he death penalty for
an offence related to the armed conflict shall not be executed on
persons who had not attained the age of eighteen years at the time the
offence was committed” (Article 77(5)); and
The Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of Non-International Armed
Conflicts (Additional Protocol II) states that “[t]he death penalty
shall not be pronounced on persons who were under the age of eighteen
years at the time of the offence. . .” (Article 6(4)).
Regional human rights instruments
Africa
The African Charter on the Rights and Welfare of the Child (1990) states
that “[t]he death sentence shall not be pronounced for crimes
committed by children.” (Article 5(3))
The Charter requires States to “take specific legislative,
administrative, social and educational measures to protect the child
from all forms of torture, inhuman or degrading treatment and
especially physical or mental injury or abuse, neglect or maltreatment
including sexual abuse, while in the care of a parent, legal guardian
or school authority or any other person who has the care of the child”
(Article 16).
Regarding the administration of juvenile justice, the Charter further
mandates that:
“1. Every child accused or found guilty of having infringed penal law
shall have the right to special treatment in a manner consistent with
the child’s sense of dignity and worth and which reinforces the
child’s respect for human rights and fundamental freedoms of others.
2. States Parties to the present Charter shall in particular:
(a) ensure that no child who is detained or imprisoned or otherwise
deprived of his/her liberty is subjected to torture or inhuman or
degrading treatment or punishment…
3. The essential aim of treatment of every child during the trial and
also if found guilty of infringing the penal law shall be his or her
reformation, re-integration into his or her family and social
rehabilitation...” (Article 17).
Read the Charter: http://www.crin.org/Law/instrument.asp?InstID=1015
The African Charter of Human and Peoples’ Rights (1981) states that
“[h]uman beings are inviolable. Every human being shall be entitled to
respect for his life and the integrity of his person...” (Article 4).
The Charter further stipulates that “[e]very individual shall have the
right to the respect of the dignity inherent in a human being and to
the recognition of his legal status. All forms of exploitation and
degradation of man particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited”
(Article 5).
Additionally, States are required to ensure the protection of the
rights of the child “as stipulated in international declarations and
conventions” (Article 18).
Read the Charter: http://www.crin.org/Law/instrument.asp?InstID=1041
Americas
The American Convention on Human Rights (1969) states that “[c]apital
punishment shall not be imposed upon persons who, at the time the
crime was committed, were under 18 years of age...” (Article 4(5)).
Article 5 of the Convention prohibits torture and protects human
dignity: “1. Every person has the right to have his physical, mental,
and moral integrity respected. 2. No one shall be subjected to torture
or to cruel, inhuman, or degrading punishment or treatment. All
persons deprived of their liberty shall be treated with respect for
the inherent dignity of the human person….”
The Convention also provides children with a right to special
protection: “Every minor child has the right to the measures of
protection required by his condition as a minor on the part of his
family, society, and the state” (Article 19).
Read the Convention:
http://www.crin.org/Law/instrument.asp?InstID=1016
League of Arab States
The Arab Charter of Human Rights (2004) states that “[t]he death
penalty shall not be inflicted on a person under 18 years of age,
unless otherwise provided by the law in force at the time of the
commission of the crime” (Article 7).
Commentators have indicated that this provision is incompatible with
the international human rights standards quoted above (read more at
http://www.crin.org/resources/infodetail.asp?id=16382; see also
“Alexandria Declaration, 2008”, calling for amendment of Article 7;
http://www.penalreform.org/files/rep-2008-Alexandria-Declaration-en.pdf).
The standards above remain undiluted, however, as article 43 of the
Charter states that “[n]othing in the present Charter shall be
interpreted as impairing the rights and freedoms protected by the
State Parties’ own laws, or as set out in international or regional
instruments of human rights that the State Parties have signed or
ratified, including women’s rights, children’s rights and minorities’
rights.”
In contrast, the Charter's provision on torture remains
uncontroversial, stating that:
“1. No one shall be subjected to physical or mental torture or to
cruel, inhuman or degrading treatment or punishment.
2. The State Parties shall protect every person in their territory
from being subjected to such practices and take effective measures to
prevent such acts. The practice thereof, or participation therein,
shall be regarded as a punishable offense. Each victim of an act of
torture is entitled to a right to compensation and rehabilitation”
(Article 8).
Read the Charter: http://www.crin.org/Law/instrument.asp?InstID=1267
Organisation of the Islamic Conference recommendation
Following a conference to celebrate the 20th anniversary of the
adoption of the CRC, held in Cairo in November 2009, the “Cairo
Declaration on the Convention (CRC) and Islamic Jurisprudence” was
adopted. The Conference was organised by the Ministry of State for
Family and Population of Egypt and co-sponsored by the Organisation of
the Islamic Conference (OIC) and UNICEF. In the Declaration,
“Participants call on OIC Member States to take legislative measures
to abolish the imposition of capital punishment on persons who
committed a crime when under the age of 18, and suspend the execution
of any pending capital punishment. Furthermore, it is recommended to
abolish all forms of life imprisonment for crimes committed before the
age of 18.”
Participants to the Conference also recommended that OIC Member States
prohibit all corporal punishment and other cruel or degrading forms of
punishment or treatment of children, in all settings including within
schools and within the family, linking law reform with the promotion
of positive, non-violent forms of discipline.
Europe
The European Convention for the Protection of Human Rights and
Fundamental Freedoms states that “[n]o one shall be subjected to
torture or to inhuman or degrading treatment or punishment” (Article
3).
Protocol No. 13 to the Convention, ratified by 42 member states,
concerns the abolition of the death penalty in all circumstances (see
http://conventions.coe.int/treaty/en/treaties/html/187.htm;
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=187&CM=8&DF=18/09/2010&CL=ENG)
Read the Convention:
http://www.crin.org/Law/instrument.asp?InstID=1062
Other standards
UN Rules and Guidelines and inhuman sentencing
The Committee on the Rights of the Child consistently refers to the
standards set by the UN Standard Minimum Rules for the Administration
of Juvenile Justice (the “Beijing Rules”), the UN Rules for the
Protection of Juveniles Deprived of their Liberty and the UN
Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh
Guidelines”), all of which condemn corporal punishment (paragraphs
17.3, 67 and 54, respectively). The Committee has also referred to the
Guidelines for Action on Children in the Criminal Justice System
(1997), aimed at the implementation of the Convention on the Rights of
the Child in relation to juvenile justice and the UN standards for
juvenile justice.
Go to: http://www.crin.org/Law/instrument.asp?InstID=1071
Case law
International and regional human rights mechanisms and high level
national courts have applied human rights standards in condemning and
requiring prohibition of the sentencing of children to death, life
imprisonment and corporal punishment.
Decisions of human rights mechanisms
International
Human Rights Committee communications procedure
Osbourne v Jamaica (2000)
Corporal punishment: In this case, the applicant had been sentenced in
1994 to 10 strokes of the tamarind switch, which was permitted at the
time under Jamaican law. Reviewing States' obligations under the
International Covenant on Civil and Political Rights, the Committee
agreed with the applicant that sentences of corporal punishment were
impermissibly cruel, inhuman and degrading:
“The author has claimed that the use of the tamarind switch
constitutes cruel, inhuman and degrading punishment, and that the
imposition of the sentence violated his rights under article 7 of the
Covenant. The State party has contested the claim by stating that the
domestic legislation governing such corporal punishment is protected
from unconstitutionality by section 26 of the Constitution of Jamaica.
The Committee points out, however, that the constitutionality of the
sentence is not sufficient to secure compliance also with the
Covenant. The permissibility of the sentence under domestic law cannot
be invoked as justification under the Covenant. Irrespective of the
nature of the crime that is to be punished, however brutal it may be,
it is the firm opinion of the Committee that corporal punishment
constitutes cruel, inhuman and degrading treatment or punishment
contrary to article 7 of the Covenant. The Committee finds that by
imposing a sentence of whipping with the tamarind switch, the State
party has violated the author’s rights under article 7” (13 April
2000, CCPR/C/68/D/759/1997, para. 9.1)
Read the decision:
http://www.unhchr.ch/tbs/doc.nsf/0/339e324bcf148a04c125690c00359dd6?Opendocument
Note: This judgement was confirmed in Sooklal v Trinidad and Tobago (8
November 2001, CCPR/C/73/D/928/2000, para. 4.6, available at
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/060472c5f719c37cc1256b0c0037d251?Opendocument);
Higginson v Jamaica (25 June 2002, CCPR/C/74/D/792/1998, para. 4.6,
available at
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/40dc97b15fe67797c1256bed004ac91a?Opendocument);
and Errol Pryce v Jamaica (13 May 2004, CCPR/C/80/D/793/1998, para.
6.2, available at
http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/15cd9e9f5ce87175c1256e9800460a18?Opendocument)
In the aftermath of these decisions upholding the right not to be
sentenced to corporal punishment and holding States responsible for
inflicting cruel and inhuman punishment, however, both Jamaica and
Trinidad & Tobago denounced the Optional Protocol to the International
Covenant on Civil and Political Rights (for more information, see
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en).
Regional
European Court of Human Rights
Tyrer v UK (1978)
Corporal punishment: The first case concerning corporal punishment to
come before the European Court of Human Rights concerned the sentence
of “birching” imposed on a 15-year-old boy in a British Crown
Dependency) in 1972. Article 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950) states that
“[n]o one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
The judgement describes in detail the circumstances of the punishment
inflicted: “After waiting in a police station for a considerable time
for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of
the same day. His father and a doctor were present. The applicant was
made to take down his trousers and underpants and bend over a table;
he was held by two policemen whilst a third administered the
punishment, pieces of the birch breaking at the first stroke. The
applicant’s father lost his self-control and after the third stroke
‘went for’ one of the policemen and had to be restrained.”
In view of these circumstances, the Court found that the punishment
amounted to degrading punishment in breach of article 3 of the
Convention: “[T]he very nature of judicial corporal punishment is that
it involves one human being inflicting physical violence on another
human being. Furthermore, it is institutionalised violence that is in
the present case violence permitted by law, ordered by the judicial
authorities of the State and carried out by the police authorities of
the State. Thus, although the applicant did not suffer any severe or
long lasting physical effects, his punishment whereby he was treated
as an object in the power of authorities – constituted an assault on
precisely that which is one of the main purposes of Article 3 to
protect, namely a person's dignity and physical integrity. Neither can
it be excluded that the punishment may have had adverse psychological
effects” (European Court of Human Rights, Application No. 5856/72,
paras. 10, 33).
Read the decision:
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Tyrer&sessionid=60960558&skin=hudoc-en
Inter-American Commission and Court of Human Rights
Caesar v Trinidad and Tobago (2005)
Corporal punishment: The Inter-American Court of Human Rights
condemned judicial corporal punishment for the first time in the
context of a 1992 sentence to imprisonment and 15 strokes of the
cat-o-nine tails. In ruling that the punishment of flogging is a
violation of the Convention, the judgement concluded:
“Regarding the law and practice in Trinidad and Tobago of judicial
corporal punishment by flogging, the Court considers that the very
nature of this punishment reflects an institutionalization of
violence, which, although permitted by the law, ordered by the State’s
judges and carried out by its prison authorities, is a sanction
incompatible with the Convention. As such, corporal punishment by
flogging constitutes a form of torture and, therefore, is a violation
per se of the right of any person submitted to such punishment to have
his physical, mental and moral integrity respected, as provided in
Article 5(1) and 5(2), in connection with Article 1(1) of the
Convention. Accordingly, Trinidad and Tobago’s Corporal Punishment Act
must be considered in contravention to Article 5(1) and 5(2) of the
Convention….
The Court continued, “[w]hile the Inter-American Court is neither
authorized nor required by the Convention to pronounce on the
compatibility of the actions of individuals with the Convention, it is
nevertheless obvious that the conduct and decisions of civil servants
and state agents must be framed within those international
obligations. In the instant case, where the Corporal Punishment Act of
Trinidad and Tobago gives the relevant judicial officer an option to
order corporal punishment in addition to imprisonment in certain
circumstances, the Court feels bound to put on record its profound
regret that the presiding officer in the State’s High Court saw fit to
exercise an option which would manifestly have the effect of
inflicting a punishment that is not merely in blatant violation of the
State’s international obligations under the Convention, but also is
universally stigmatized as cruel, inhuman, and degrading.”
(Inter-American Court of Human Rights, Series C, No. 123, judgment of
11 March 2005, paras. 73-74)
Read the decision:
http://www.corteidh.or.cr/docs/casos/articulos/seriec_123_ing.pdf
African Commission on Human and Peoples’ Rights
Curtis Francis Doebber v Sudan (2003)
Corporal punishment: In 2000, a complaint was submitted to the African
Commission on Human and Peoples’ Rights regarding the sentencing of
eight students in Sudan to between 25 and 40 lashes for “public order”
offences under the 1991 Sudanese Criminal Law, based in Islamic law.
In its judgement, the Commission stated that it was not the task of
the African Commission to interpret Shari’ah law, but rather limited
its review to ascertaining whether the lashes administered were
compliant with human rights standards.
Nevertheless, the Commission stated clearly that “[t]here is no right
for individuals, and particularly the government of a country to apply
physical violence to individuals for offences. Such a right would be
tantamount to sanctioning State sponsored torture under the Charter
and contrary to the very nature of this human rights treaty.”
In the end, the Commission concluded that the Sudanese legislation
permitting flogging violated article 5 of the Charter on Human and
Peoples’ Rights, and requested that the government of Sudan
“[i]mmediately amend the Criminal Law of 1991, in conformity with its
obligations under the African Charter and other relevant international
human rights instruments; [a]bolish the penalty of lashes; and [t]ake
appropriate measures to ensure compensation of the victims.”
(African Commission on Human and People's Rights, 236/2000, 33rd
Ordinary Session, Niger, 2003, para. 42)
Read the decision:
http://www.achpr.org/english/Decison_Communication/Sudan/Comm.%20236-2000.pdf
Judgements of Constitutional and other high-level national courts
Fiji: High Court of Fiji, Lautoka, 2002 (corporal punishment),
available at
http://www.endcorporalpunishment.org/pages/pdfs/Fiji-judgment.pdf
Namibia: 1991(3) SA 76 (NmSC) (corporal punishment), available in
South African Law Reports here: http://www.jutalaw.co.za/
South Africa: S v Williams and Others, 1995 (corporal punishment),
available at
http://www.endcorporalpunishment.org/pages/pdfs/judgements/State%20v%20Williams%20et%20al%201995.pdf
Zimbabwe: 1990(4) SA 151 (ZSC) (corporal punishment; note that
Zimbabwe amended its constitution in response to this judgement),
available in South African Law Reports here: http://www.jutalaw.co.za/
Other case law resources:
Search for other case law related to children's rights here:
http://www.crin.org/Law/search.asp
Special Procedures of the Human Rights Council
Special Rapporteur on Torture
Successive Special Rapporteurs on Torture have condemned corporal
punishment and other extreme physical punishments and recommending
prohibition since the 1980s, including challenging religious
“justifications” for them. Among other things, a 1996 report
highlighted corporal punishment of children in penal systems (for
example, see:
E/CN.4/1988/17, 12 January 1988, para. 44; E/CN.4/1996/35, 9 January
1996, paras. 14 and 17; E/CN.4/1997/7, 10 January 1997, paras. 5 and
7-10).
In 2002, the then Special Rapporteur expressed public support for the
aims of the Global Initiative to End All Corporal Punishment of
Children, and later that year produced a report specifically
addressing corporal punishment of children (2 July 2002, A/57/173). He
concluded “that any form of corporal punishment of children is
contrary to the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment”, and therefore called upon States
“to take adequate measures, in particular legal and educational ones,
to ensure that the right to physical and mental integrity of children
is well protected in the public and in the private spheres…”.
This conclusion was repeated by the current Special Rapporteur,
Manfred Nowak, in his first report to the General Assembly in 2005:
“On the basis of the review of jurisprudence of international and
regional human rights mechanisms, the Special Rapporteur concludes
that any form of corporal punishment is contrary to the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment.
Moreover, States cannot invoke provisions of domestic law to justify
the violation of their human rights obligations under international
law, including the prohibition of corporal punishment.” Special
Rapporteur Nowak again “call[ed] upon States to abolish all forms of
judicial and administrative corporal punishment without delay”
(A/60/316, 30 August 2005, para. 28).
In 2010, the Special Rapporteur produced a study on the phenomena of
torture, cruel, inhuman or degrading treatment or punishment in the
world, including an assessment of conditions of detention and a
section therein on corporal punishment. Noting the different forms
such punishment can take, he stated: “What is common to all these
forms of corporal punishment, however, is that physical force is used
intentionally against a person in order to cause a considerable level
of pain. Furthermore, without exception, corporal punishment has a
degrading and humiliating component. All forms of corporal punishment
must therefore, be considered as amounting to cruel, inhuman or
degrading punishment in violation of international treaty and
customary law” (para. 209).
Read reports from the Special Rapporteur:
http://www2.ohchr.org/english/issues/torture/rapporteur/index.htm
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
In his 2009 report, Special Rapporteur Philip Alston included a
substantial section on the execution of juvenile offenders
(A/HRC/11/2, paras. 27 et seq, 27 May 2009
http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.2.pdf).
In line with previous Special Rapporteurs, he asserted: “The
prohibition against executing juvenile offenders (those who were under
the age of 18 at the time of committing the relevant crime) is one of
the clearest and most important of international human rights
standards. It is unequivocal and admits of no exception. There is not
a single Member State of the United Nations that is not a party to one
of the two international treaties enshrining this norm: the Convention
on the Rights of the Child and the International Covenant on Civil and
Political Rights. Yet juvenile offenders continue to be sentenced to
death, as evidenced by many such reports I have brought to the
attention of the Governments concerned in recent years.”
The Special Rapporteur noted that in the last two years, he had
addressed communications to five Governments regarding allegations
that the death penalty was imposed for an offence committed by a
person under 18, or that the execution of a juvenile offender was
imminent: “The communications concerned 46 juvenile offenders, four of
them female, the remainder male. In six cases, it was alleged that the
juvenile offender had been executed. In the remaining cases, urgent
appeals were sent in situations where reports indicated the risk of
the execution of a juvenile offender taking place. In two cases, I was
subsequently informed by the Government that the death penalty had
been quashed on appeal; in another case, I was subsequently informed
by a source that the juvenile offender had been released (the
Government did not respond to my urgent appeals in these cases).
Finally, in two cases, I called the Government’s attention to reports
that such executions had already taken place. In neither of those
cases did the Government confirm or deny the reports.”
The Special Rapporteur continued: “Unfortunately, the level of
government responses to communications is particularly low in cases
concerning the imposition of the death penalty against juvenile
offenders. Thus, 33 communications over a two-year period have drawn
only four responses, amounting to a response rate of about 12 per
cent. Moreover, since February 2008, no responses to communications
regarding the use of the death penalty against juvenile offenders have
been received.”
Before concluding his report, the Special Rapporteur also emphasised
the importance of prohibiting the execution of persons under 18 at the
time of the offence for human rights: “It might be asked why the
Council should be especially concerned with this particular
issue, when a relatively small number of juveniles have actually been
executed. The answer is threefold. First, matters concerning the right
to life are of fundamental importance, a fact which has consistently
been recognized by the Council and its predecessor. Second, the
juvenile death penalty is a negation of the essential principles of
juvenile justice endorsed by a wide range of United Nations bodies and
accepted by all States. Third, the credibility of the Council is
called into question if it fails to respond in any way to a situation
involving repeated violations of an international standard that is
entirely unambiguous and universally proclaimed…”
Read reports from the Special Rapporteur:
http://www2.ohchr.org/english/issues/executions/index.htm
Child Rights Information Network – CRIN 16

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