Considerations regarding the deprivation of liberty of juveniles in criminal matters, in light of national and international regulations

Author:Gabriela-Nicoleta Chihaia
Position:Judge, Ph.D., Brasov County Court for Minors and Family
Pages:173-184
SUMMARY

This article aims to identify the international legal framework, especially the European one, as well as the national framework regarding the deprivation of liberty of juveniles in criminal procedure proceedings, starting from the correct implementation of the principles that concern the interest of this category of persons and continuing with the situations in which it can be disposed, as well as the impact that such a measure has on the juveniles, but also on the families from which they come from. At the same time, this article presents, on the one hand, the vulnerabilities presented by juveniles in detention, and on the other hand, their main rights, both at European and national level. The importance of monitoring the places in which the juveniles are detained is emphasized, as well as the need for alternatives measures to the deprivation of liberty of juveniles, depending on the different stages of the procedure in which they are involved. This goal is the hardest to achieve in practice, as there are few possibilities for implementing such alternative measures. The criminal justice system for juveniles must be oriented entirely towards respecting the rights and safety of juveniles, to promote their well-being, both physically and mentally, and the deprivation of liberty should be used as a last resort, only in exceptional situations, when it is absolutely necessary to achieve the goals provided by the legislation in this matter.

 
CONTENT
Considerations regarding the deprivation of liberty… 173
CONSIDERATIONS REGARDING THE DEPRIVATION
OF LIBERTY OF JUVENILES IN CRIMINAL MATTERS,
IN LIGHT OF NATIONAL AND INTERNATIONAL
REGULATIONS*
Gabriela-Nicoleta CHIHAIA**
Abstract: This article aims to identify the international legal framework, especially the
European one, as well as the national framework regarding the deprivation of liberty of juveniles in
criminal procedure proceedings, starting from the correct implementation of the principles that
concern the interest of this category of persons and continuing with the situations in which it can be
disposed, as well as the impact that such a measure has on the juveniles, but also on the families from
which they come from.
At the same time, this article presents, on the one hand, the vulnerabilities presented by
juveniles in detention, and on the other hand, their main rights, both at European and national level.
The importance of monitoring the places in which the juveniles are detained is emphasized, as
well as the need for alternatives measures to the deprivation of liberty of juveniles, depending on the
different stages of the procedure in which they are involved. This goal is the hardest to achieve in
practice, as there are few possibilities for implementing such alternative measures.
The criminal justice system for juveniles must be oriented entirely towards respecting the rights
and safety of juveniles, to promote their well-being, both physically and mentally, and the
deprivation of liberty should be used as a last resort, only in exceptional situations, when it is
absolutely necessary to achieve the goals provided by the legislation in this matter.
Key words: Public Law, Criminal Law, criminal executional law, juveniles, deprivation of
liberty, rights, vulnerabilities.
Introduction
Juveniles come into contact with the justice system in many different ways, for
example, for family matters such as divorce or adoption, in administrative matters
for nationality or immigration issues or in criminal matters as victims, witnesses or
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 4 November 2019.
** Judge, Ph.D. - Braşov County Court for Minors and Family.
Law Review special issue, Decembre 2019, pp. 173-184
174 GABRIELA-NICOLETA CHIHAIA
perpetrators of crimes. When faced with the justice system, juveniles are thrown
into an intimidating adult world which they cannot understand.
The most important measure that can be ordered against a juvenile and with
the biggest implications on his/her life and personality is deprivation of liberty, in
criminal proceedings.
According to the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty1, „a juvenile is every person under the age of 18. The age
limit below which it should not be permitted to deprive a child of his or her liberty
should be determined by law”. At the same time, „the deprivation of liberty means
any form of detention or imprisonment or the placement of a person in a public or
private custodial setting, from which this person is not permitted to leave at will,
by order of any judicial, administrative or other public authority”.
Deprivation of liberty can also be defined as any form of detention or
imprisonment or a placement a person in a public custodial setting, from which the
person is not permitted to leave at will, by order of any judicial authority.
The juvenile justice system should uphold the rights and safety and promote
the physical and mental well-being of juveniles. Imprisonment should be used as a
last resort. Juveniles should only be deprived of their liberty in accordance with
these principles.
This article intends to present first and foremost the legal framework, both at
international level, especially at European level, and at national level, regarding
the way of depriving the juveniles involved in criminal proceedings, the principles
whose observance is required by these regulations, as well as their correct
implementation in practice. Thus, we will refer only to the detention of juveniles as
a result of their criminal liability, and not to the situations in which they are
deprived of liberty in different correctional, medical, educational, therapeutic,
social institutions, etc.
At the same time, it is important to emphasize that the mere implementation of
these principles is not sufficient, since it is important that, after taking the measure
of deprivation of liberty of the juvenile, their places of detention to be checked,
monitored, to meet the purpose of the criminal sanction that was applied to them,
taking into account their age, the degree of their personality development and the
influence on the growth and development of juveniles, in an attempt to render the
society fit for an adult life that would no longer interfere with the criminal
environment.
Also for the purpose of correct and complete reintegration into society of
juveniles who are involved, as active subjects, perpetrators of crimes of varying
degrees of gravity, in criminal proceedings, it is important to identify alternative
measures of deprivation of liberty that can be arranged by the judicial bodies.
1 United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by General
Assembly resolution 45/113 of 14 December 1990
Considerations regarding the deprivation of liberty… 175
Moreover, all international and national regulations regarding the deprivation
of liberty of juveniles in criminal proceedings emphasize that such deprivation can
only be disposed of as the last solution of criminal policy, the period spent by a
juvenile in detention affecting him/her in a way greater than it would affect a
major, such a measure can be taken only if it is necessary and is commensurate
with the gravity of the act the juvenile is accused of having committed, in the case
of pre-trial detention, or for which he was definitively convicted by a court, in the
case of detention as a criminal punishment.
Thus, deprivation of liberty of a juvenile should be a disposition of last resort
and for the minimum necessary period and should be limited to exceptional cases.
The length of the sanction should be determined by the judicial authority, without
precluding the possibility of his or her early release.
1. Deprivation of liberty of juveniles in criminal proceedings; guiding
principles
Juveniles involved in criminal proceedings may be deprived of liberty only in
situations where they are accused or convicted of a crime, either in so-called
provisional detention - arrested and placed in a pre-trial detention, during the
criminal trial, or as a result of a decision to convict them - by which it was decided,
with definitive character, that they committed the offense for which they were
investigated, the so-called detention - sentenced to custodial sentence.
Thus, 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.
Like adult charges, juveniles in criminal investigations are presumed innocent
and shall be treated as such. First, as expressly provided by the Convention on the
Rights of the Child, the leading international regulation on the rights of the child,
adopted by the United Nations2, no child shall be deprived of liberty illegally or
arbitrarily. The arrest or detention of a child must be in accordance with the law
and will only be as light and as short as possible.
It follows that the fundamental principle that governs the matter of criminal
detention of juveniles is that the pre-trial detention of juveniles should be carried
out only as a last resort, the judicial bodies should try to find, if possible, other
options to keep the juvenile at their disposal and prevent him/her from
committing other criminal acts. Also in the matter of criminal law, the principle of
civil law is fully applicable, namely all judgments of the judicial authorities must
take into account, first of all, the "best interests of the child".
2 Convention on the Rights of the Child - The Convention on the Rights of the Child, adopted on
November 20, 1989 by the United Nations, published in the Official Gazette of Romania no. 314 of
June 13, 2001.
176 GABRIELA-NICOLETA CHIHAIA
This principle results from both international and Romanian national
regulations. Thus, United Nations Rules for the Protection of Juveniles Deprived of
their Liberty provides that „detention before trial shall be avoided to the extent
possible and limited to exceptional circumstances. Therefore, all efforts shall be
made to apply alternative measures. When pre-trial detention is nevertheless used,
juvenile courts and investigative bodies shall give the highest priority to the most
expeditious processing of such cases to ensure the shortest possible duration of
detention. Untried detainees should be separated from convicted juveniles”.
Also, the Convention on the Rights of the Child stipulates in article 37 letter c)
that "any juvenile deprived of liberty will be separated from adults, unless it is
considered that it is in the best interest of the juvenile not to do so, and will have
the right to maintain contact with his/her family through correspondence and
visits, except in exceptional cases”.
In this regard, the Criminal Procedure Code3 provides for a special section, 8,
within the chapter on preventive measures, entitled "Special provisions on
preventive measures applied to juveniles", according to which "detention and
pre-trial detention may be ordered against a juvenile, exceptionally, only if the
effects that deprivation of liberty would have on his/her personality and
development are not disproportionate to the purpose pursued by taking the
measure. When determining the duration for which the measure of pre-trial
detention is taken, the age of the defendant is taken into account from the date on
which the measure is taken, prolonged or maintained ”(article 243 paragraph 2-3).
Also, the aspects related to the execution of the preventive measure are
regulated by Law no. 254/20134, which stipulates that the detention and pre-trial
detention during the criminal prosecution, including of the juvenile defendants,
are carried out in centers of pre-trial detention and arrest that are organized and
operate under the subordination of the Ministry of Internal Affairs, being
established by order of the Minister of Internal Affairs. During the trial, the
pre-trial detention is carried out in the special sections of detention in
penitentiaries or in the pre-trial detention centers in the penitentiary, which are
organized and operate under the National Penitentiary Administration.
Article 117 of the aforementioned law, entitled “Pre-trial detention Regime”,
stipulates that the juvenile persons detained or in pre-trial detention are usually
housed separately from the adult persons. During the execution of the pre-trial
detention, the juvenile is granted psychological assistance, under the conditions
established by the regulation provided in article 107 paragraph 2, in order to
3 Law no. 135/2010, published in the Official Journal of Romania no. 486 of July 15, 2010, entered
into force on 01/02/2014.
4 Law no. 254/2013 regarding the execution of the punishments and of the deprivation measures
ordered by the judicial bodies during the criminal trial, published in the Official Journal of Romania
no. 514 of August 14, 2013
Considerations regarding the deprivation of liberty… 177
diminish the negative effects of the deprivation of liberty on its physical, mental or
moral development.
At the same time, according to article 123, "during the trial, the juvenile
deprived of liberty execute the preventive measure in detention centers. For the
presentation to the judicial bodies, the juveniles on pre-trial detention can be
transferred to the special sections of pre-trial detention in penitentiaries for a
period of maximum 10 days, being kept separately from the adults. In the interval
stipulated, the juveniles execute the measure of the pre-trial detention, respecting
the particularities of the age, with the assurance of the necessary psychosocial
assistance, in order not to harm their physical, mental or moral development ”.
All regulations, whether national or international, expressly provide that
juveniles in conflict with the law should be held in detention centers 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 juveniles. 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.
An important support given to juveniles in detention is to maintain contact
with parents and family through telephone, electronic or other correspondence,
and regular visits at all the time. Juveniles should be placed in a facility that is as
close as possible to the place of residence of their family.
2. The main rights of juveniles deprived of liberty in criminal proceedings
Even if they are deprived of liberty, juveniles, either during the criminal trial,
or already convicted under a definitive judgment of the judicial authorities, benefit
from various rights during the detention period. Many of them are common with
those of the elderly in detention, being regulated at international level in the main
documents regarding human rights, such as: Universal Declaration of Human
Rights, European Convention on Human Rights, Charter of Human Rights, etc.
At the same time, the main international document on the rights of juveniles,
Convention on the Rights of the Child regulates, at the level of the principle, the
main rights enjoyed by juveniles in detention status as a result of criminal
behavior, restoring common rights with those of others to the detained majorities,
but also stipulating and emphasizing rights inherent in the minority status of the
persons involved in the criminal proceedings.
The Convention on the Rights of the Child is lex specialis on the human rights
protections afforded to juveniles.
The analysis of the main rights enjoyed by the juveniles in detention as a result
of the criminal proceedings that are being carried out against them can only start
178 GABRIELA-NICOLETA CHIHAIA
with one of the most important rights they enjoy, namely the right not to be
subjected to torture or inhuman or degrading treatment.
Some international human rights treaties or regulations are relevant to torture
and other ill-treatment in the context of juvenile deprived of their liberty. These
include the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the International Covenant on Civil and Political
Rights, as well as regional treaties, such as African, Inter-American and European
regional instruments.
Convention on the Rights of the Child provides that no child shall be subjected
to torture, punishment or cruel, inhuman or degrading treatment. Capital
punishment or life imprisonment without the possibility of being released will not
be pronounced for crimes committed by persons under the age of 18 years.
At national level, our country has also implemented this principle, firstly by
prohibiting the death sentence of any person, both in the case of juveniles and
those with life imprisonment. The Romanian Criminal code, which entered into
force in February 2014, provided for the persons who committed crimes during the
period when they were juveniles, the impossibility of applying some punishments,
but only sanctioning them with educational measures.
Thus, according to the Romanian Criminal Code, the rule, in the case of
juvenile offenders, is the application of non-custodial educational measures (article
116 paragraph 1), the deprivation of liberty measures being the exception and
being reserved for the hypotheses of serious offenses or of juveniles who have
committed multiple offenses (article 116 paragraph 2).
Secondly, like the other states, Romania regulated and sanctioned the
commission of acts of torture or inhuman or degrading treatment against any
person at criminal level, through the offenses of "submission to ill treatment"
(article 281 Criminal Code) and "torture" (article 282 Criminal Code).
Last but not least, in article 5 of Law no. 254/2013, it is foreseen that the
submission of any person in the execution of a punishment or other measure
depriving of liberty to torture, inhuman or degrading treatment or other
ill-treatment is forbidden.
In close connection with the right not to be subjected to torture or inhuman or
degrading treatment, there is also the right to be treated with respect for dignity.
Article 40 paragraph 1 of the Convention on the Rights of the Child recognizes
every child who is suspected, accused or has been found to have violated the
criminal law the right to treatment according to the sense of dignity and personal
value, which will strengthen respect for human or for human rights and freedoms
fundamental of others and taking into account his age, as well as the need to
facilitate his reintegration into society and him/her assuming a constructive role in
society.
Considerations regarding the deprivation of liberty… 179
Also, article 37 paragraph 1 letter c) provides that any child deprived of liberty
must be treated with humanity and with due respect for human dignity and in a
manner that takes into account the needs of persons of his or her age.
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.
A similar provision can be found in Law no. 254/2013, which in article 4
stipulates that the deprivation of liberty measures (the only criminal sanctions that
can be applied to juveniles who have committed crimes) are carried out under
conditions that ensure the respect of human dignity.
Juveniles should be provided, where possible, with opportunities to pursue
work, with remuneration, and continue education or training, but should not be
required to do so. They should receive and retain materials for their leisure and
recreation as are compatible with the interests of the administration of justice.
In the same sense, in order to respect human dignity and a daily life as close as
possible to that of freedom, the Special Rapporteur Juan E. Méndez recommended5
that children in detention should be provided throughout the day with a full
program 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.
In addition to the rights presented above, an important place in the regulation
of the rights of the child, like those of the major persons investigated in a criminal
procedure, is occupied by the so-called procedural rights, which the person
concerned benefits during the criminal procedure.
Thus, according to article 40 paragraph 2 of the Convention, the parties of the
Convention shall, in particular, ensure that any child suspected or accused of a
criminal law violation has at least the following rights guaranteed:
(i) to be considered innocent until proved otherwise;
(ii) to be informed in the shortest and most direct manner of the allegations
against him/her or, where appropriate, through his/her parents or legal
representatives and to receive legal assistance or any other appropriate assistance,
in order to formulate and support the defenses;
(iii) the right to examine, without delay, the case by an authority or a judicial
authority, competent, independent and impartial, through a fair trial and fair
5 United Nations, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, A/HRC/28/68, available at https://www.refworld.org/docid/5508244
54.html
180 GABRIELA-NICOLETA CHIHAIA
hearing procedure, in the presence of those who provide legal representation or
legal assistance and if this is not considered to be contrary to the major interest of
the child, taking into account especially his/her age or situation, in the presence of
his/her parents or his/her legal representatives;
(iv) not being compelled to testify or confess that he/she is guilty; the right to
interrogate or request the interrogation of the witnesses of the prosecution, to
obtain the bringing and interrogation of the witnesses of the defense, under equal
conditions;
(v) if he/she is found to be in violation of the criminal law, the right to have
appeal to the decision and to any measures taken accordingly, before a competent,
independent and impartial superior authority or court, according to laws;
(vi) the right to be assisted free of charge by an interpreter, if he/she does not
understand or speak the language used;
(vii) the right to full respect for his/her private life, at all stages of the
procedure.
Thus, it can be observed that among the most important rights regarding the
period of the criminal proceedings, is the right to defense of the juveniles accused
of committing crimes, including in the component to benefit from the specialized
advice of a lawyer, even designated by the state and paid by this one, to
communicate freely with the lawyer.
In this respect, United Nations Rules for the Protection of Juveniles Deprived
of their Liberty provides that “juveniles should have the right of legal counsel and
be enabled to apply for free legal aid, where such aid is available, and to
communicate regularly with their legal advisers. Privacy and confidentiality shall
be ensured for such communications”.
At the same time, the Convention on the rights of the children, in article 37
letter d) stipulates that "juveniles deprived of liberty must have the right to have
quick access to legal aid or any other appropriate assistance, as well as the right to
challenge the legality of their deprivation of liberty, before a court or other
competent authority, independent and impartial, and the right to be judged in the
urgent procedure of the case”. The provisions are similar to those of the European
Convention on Human Rights, regulated by article 5 regarding the right to
freedom and security.
The Romanian legislation also provides for the obligation of the legal
assistance of the juvenile accused (suspect or accused) for the entire duration of the
criminal proceedings against him, his absence attracting by law the absolute nullity
of the acts performed by the judicial bodies. In case the juvenile has not chosen a
lawyer, the judicial body is obliged to take measures for the appointment of an ex
officio lawyer. Also by virtue of respecting the right to defense, the lawyer has the
right to benefit from the time and facilities necessary for the preparation and
realization of an effective defense, including contacting his client under conditions
of confidentiality at the place of detention, law no. 254/2013 stipulating at article
Considerations regarding the deprivation of liberty… 181
62 that the convicted persons, but the provision also applies to those in provisional
detention, benefit from the space and facilities necessary to ensure the right to legal
assistance. They can consult lawyers elected by them, in any matter of law
deduced from administrative or judicial procedures, consulting with the lawyer,
elected or ex officio, being made with the respect of the confidentiality of the visit,
only under visual supervision.
3. The need to identify alternative measures for juvenile detention
Starting from the principle presented from the beginning of the this paper,
namely, that the detention of juveniles involved in criminal proceedings should be
the last measure to which the judicial authorities should go, all the regulations at
international, universal or European level, emphasizing the need of identification
and application by the national judicial bodies of alternative measures to the
detention of these juveniles.
The Convention on the Rights of the Child emphasizes that each state must
regulate, at national level, a whole range of provisions, such as those regarding
care, guidance and supervision, probation periods, family placement, education
programs, general and professional and to alternative solutions to those regarding
detention, in the interest of protecting them and commensurate with their situation
and with the crime committed.
Unfortunately, as in the case of adults, deprivation of liberty is often the first
response of the judicial bodies against juveniles who commit crimes and last for
too long. Detention is justified for a variety of reasons, starting from the need to
prevent other criminal offenses, to protecting society, public order and security,
and even the protection of the child in question.
However, most custodial systems are ineffective in preventing the repetition of
the criminal behavior of the person who spent a longer or shorter period in
custody. In practice, many times, the heavier, harsher the punishment, the less the
effect sought - the reeducation of the condemned and his/her preparation for
his/her return into society. This happens with greater repeatability in the case of
juveniles, with reference to which, the specialists pointed out that the detention has
a negative impact on their mental development, constituting a harm to the health
of the juveniles. This is because, with the deprivation of liberty of juveniles, these
rights are affected, in the alternative, by other rights, even if the authorities try to
adopt regulations that protect them, such as: deprivation of education, access to
adequate health, access to justice etc.
At international level it has been emphasized that the reaction taken shall
always be in proportion not only to the circumstances and the gravity of the
offence, but also to the circumstances and the needs of the juvenile as well as to the
needs of the society. Restrictions on the personal liberty of the juvenile shall be
imposed only after careful consideration and shall be limited to the possible
182 GABRIELA-NICOLETA CHIHAIA
minimum. Deprivation of liberty shall not be imposed unless the juvenile is
adjudicated of a serious act involving violence against another person or of
persistence in committing other serious offences and unless there is no other
appropriate response. The well-being of the juvenile shall be the guiding factor in
the consideration of her or his case.
For these reasons, it was stressed continuously, the need to find alternatives to
detention.
At the national level, this decision was implemented with the entry into force
of the current Criminal Code, the legislator establishing the sanctioning framework
for juvenile offenders so that it corresponds to their psychophysical particularities,
to ensure their education and re-education, in order not to reiterate in future
criminal behavior.
Thus, article 115 of the Criminal Code regulates the general legal framework of
the educational measures that can be taken against juveniles who commit crimes
(with the mention that only juveniles between 14 and 18 years old, according to
article 114 paragraph 1 of the Criminal code), stipulating that educational
measures are not depriving of liberty, in the increasing order of their seriousness:
the training period, supervision, registration at the weekend and daily assistance,
and educational measures depriving of liberty: the admission to an educational
center and the admission to a detention center.
Non-custodial educational measures can theoretically be taken for any crime
committed by a juvenile. In contrast, the deprivation of educational measures can
be taken only if the juvenile has committed a crime, for which an educational
measure has been applied which was executed or whose execution began before
the crime for which he is convicted (similar to the post-executing offense or
post-convict) or when the punishment provided by law for the crime is 7 years or
greater or life imprisonment. Even in these situations, the court is not obliged to
take an educational measure depriving of liberty, since the legislator uses the
phrase "may", which means that the application of such a measure is optional and
not mandatory.
Conclusions
The fundamental principles that govern the deprivation of liberty of juveniles
are: arrest or detention of a child shall be in conformity with the law, used only as a
measure of last resort, for the shortest appropriate period of time; no child shall be
deprived of liberty unlawfully or arbitrarily; deprivation of liberty is very rarely in
the best interest of the child, nor necessary to protect public safety.
Under article 37 letter (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
Considerations regarding the deprivation of liberty… 183
measure to be used only for the shortest possible period of time. Similarly, the
Havana Rules require that deprivation of liberty to 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.
The detention of juveniles should only take place under conditions that take
full account of their particular needs, status and special requirements according to
their age, personality, sex and type of offence, as well as mental and physical
health, and which ensure their protection from harmful influences and risk
situations.
The principal criteria for the separation of different categories of juveniles
deprived of their liberty should be the provision of the type of care best suited to
the particular needs of the individuals concerned and the protection of their
physical, mental and moral integrity and well-being.
As the Special Rapporteur Juan E. Méndez recommended6, States must adopt
child-friendly 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.
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.
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 less than 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
noncustodial, community-based alternative measures to the deprivation of liberty;
(d) To ensure that pediatricians and child psychologists with trauma informed
training are available on a regular basis to all children in detention, and to establish
6 Ibidem.
184 GABRIELA-NICOLETA CHIHAIA
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.