ESTRUCTURA DE HORMIGÓN ARMADO Y PREFABRICADOS

Pre-trial detainees are persons awaiting trial or finalisation of their trial. They have not been convicted of the charges brought against them. Pre-trial detention, which punishes a person before he is proven guilty, is regarded as a draconian law as it violates the theory of punishment.28 The record shows that 3.2 million people are in pre-trial detention worldwide.29 Studies have identified various reasons, such as lack of coherence over how the presumption of innocence should be balanced against the need to protect the public as being one of the main factors for pre-trial detention. Poverty, lack of education, lack of coordination between criminal agencies, ineffectiveness and inadequate resources of criminal justice systems also contribute to the excessive use of pre-trial detention.30 Detention of children at the pre-trial stage has many harmful impacts and far reaching effects, which include deprivation of social life, health care and personal development, denial of educational opportunities, stigmatization, interference on the right to be cared for by the parents and impairment of the ability to prepare their legal defences.31

The CRC views the issue of pre-trial detention of children as a matter of great concern. As a general principle, Article 37(b) the CRC stresses that the detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.32 Commenting on this requirement, the Committee on the CRC recommends that state parties should as much as possible ensure that children detained at the pre-trial stage should be

28_{Appleman, L.I. (2012). Justice in the Shadowlands : Pretrial Detention, Punishment, & the Sixth Amendment.}

Washington & Lee Law Review, 69, p 1304.

29_{Schonteich, M. (2013). The Overuse of Pre-Trial Detention: Causes and Consequences. Criminal Justice}

Matters, 92(1), p 18.

30_{Ibid, p 18.} 31

Mccarthy, B.R. (1987). Preventive Detention and Pretrial in The Child Court Custody. Journal of Crime and Justice, 15, p 186.

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released, and if necessary under certain conditions.33 State parties are encouraged to formulate adequate legislative as well as alternative measures to effectively reduce the use of pre-trial detention. In addition, the Committee on the CRC also demands that criminal process involving children should be given priority, especially in cases where children are placed under detention pending trial. It is important to note that the Committee proposed a timeframe to be set by state parties to ensure that cases that involve pre-trial detention of children are handled expeditiously. In this respect, the Committee recommended that state parties ensure that cases involving pre-trial detention of children should not exceed thirty days at the latest.34 It also urges state parties to ensure that the judicial body of competent authority to make a final decision on the charges against children within six months after the case is formally presented.35 In the same vein, the Havana Rules provides that all relevant bodies, particularly the courts, the prosecutors and the investigators are required to give the highest priority to expediting the process to ensure the shortest possible period of detention.36

Apart from that, the CRC also insists that the legal principles of criminal law should be strictly adhered to in dealing with children under pre-trial detention. Children detained while awaiting trial are presumed innocent and must be treated as such.37 The presumption of innocence applies during the pre-trial process in the sense that it restrains any forms of coercion that the authority can use against a child suspect before trial.38 In the event that pre- trial detention is inevitable, Article 37 of the CRC dictates that arrested children also must be detained in a separate place from adults, unless it is considered in the child's best interest not

33_{Committee on the Rights of the Child, General Comment No 10: Children‟s Rights in Child Justice,}

CRC/C/GC/10, 25 April 2007, para. 81.

34_{Ibid, para. 83.} 35_{Ibid, para. 83.} 36

Rule 17 of the Havana Rules.

37_{Article 40(2)(b)(i) of the CRC.}

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to do so.39 It is the duty of state parties to set up separate facilities with child-centred staff, as well as policies and practices to accommodate the detention of children.40 In this respect, reference can also be made to the provisions of other international instruments. For example, the JDL recommends the establishment of open detention facilities with no or minimal security measures in order to ensure the best interest of children is upheld.41 In addition, the JDL and the Beijing Rules also stipulate that children detained at the pre-trial stage must be given opportunities to continue their education or training. In addition, they must be afforded with care, protection and all necessary assistance such social, educational, vocational, psychological, and medical that they may need in view of their age, sex and personality.42

4.2.2.1 Issues

In practice, there are various issues relating to pre-trial detention of children which remain controversial. The emerging unanimity among legal systems on the policy that pre- trial detention and imprisonment of children should be avoided or at least used as a measure of last resort alone is not sufficient to curb this problem. Despite the effort by various legal systems to inculcate the approach restricting that pre-trial detention of children into their legislation, they have failed to prevent the unacceptable level of children languished in detention centre or prison, including at the pre-trial stage.43 Apart from that, the issue of separation between children and adult detainees at detention centres has also attracted attention from various parties. Though the CRC as well as other international instruments have strictly stated that children and adults shall be detained separately at the detention

39

Similar requirement is provided in article 10(2) of the ICCPR, Rule 85 of the Standard Minimum Rules for the Treatment of Prisoners, rule 13.4 of the Beijing Rules and rule 17 of the Havana Rules.

40_{Committee on the Rights of the Child, General Comment No 10: Children‟s Rights in Juvenile Justice,}

CRC/C/GC/10, 25th April 2007, para. 85.

41

Rule 30 of the JDL.

42_{Rule 17 and 18 of the JDL and Rule 13 of the Beijing Rules.}

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centres, certain state parties still fail to comply.44 The Committees on the CRC have expressed their concern over the practice of certain countries which permit children under detention to mix with adults.45 It is very surprising to find that many countries, including Austria, Finland, Ireland, Germany, Portugal and Switzerland, disregard the requirements of the international instruments and continue to detain children with adults.46 In Ireland, for example, the United Nations Committee on the Rights of the Child,47 the Council of Europe Commissioner for Human Rights,48 the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment49 and the European Committee of Social Rights50 have criticized the practice which allows children to mix with adults in the same place of detention and demanded the state party to take necessary steps to ensure immediate cessation of such practice.51

In addition, the treatment of pre-trial children detainees at the detention centre or prison has also received criticism from various parties. Various studies have disclosed that the treatment received by detainees at the detention centre or prison is no better, and often worse, than the treatment experienced by those who have already been convicted for criminal

44_{Schabas, W. and Sax, H., n. 11 above, pp. 39-40.}

45_{Among concluding observations issued by the Committee to relevant state parties on this matter are}

Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/4-5, 25 February 2014, para 69, Committee on the Rights of the Child, Concluding Observations: Kyrgyzstan. UN Doc. CRC/C/KGZ/3-4, 7 July 2014, paras. 66, 67, Committee on the Rights of the Child, Concluding Observations: Myanmar, UN Doc. CRC/C/MMR/3-4,14 March 2012, para. 93, Committee on the Rights of the Child, Concluding Observations: Iceland UN Doc. CRC/C/ISL/3-4,23 January 2012, paras. 56, 57.

46_{Goldson, B. and Muncie, J. (2012). Towards a global “child friendly” child justice? International Journal of}

Law, Crime and Justice, 40(1), p 52.

47

United Nations Committee on the Rights of the Child, Concluding Observations: Ireland, UN Doc. CRC/C/IRL/CO2, 29 September 2006, paras. 72-73.

48_{Council of Europe, (2008), Report of the Council of Europe Commissioner for Human Rights Thomas}

Hammarberg on his Visit to Ireland 26-30 November 2007, CommDH (2008), paras. 68-72.

49

Council of Europe, Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)from 25January to 5 February 2010, CPT/Inf (2011) 3, para. 26.

50_{Council of Europe, European Committee of Social Rights Conclusions 2011 (Ireland), Articles 7, 8,16,17,13}

and 27 of the Revised Charter, p 19.

51_{Goldson, B. and Kilkelly, U. (2013). International Human Rights Standards and Child Imprisonment:}

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offence.52 There are also reports which exposed inhumane living conditions, inadequate medical facilities and lack of professionally trained staffs in children‟s detention facilities.53 Such poor treatment received by children is simply unacceptable as it is against their presumption of innocence.54

Lastly, the practice of certain state parties which restrict and limit access of family to detained children is also considered to be a serious problem.55 To make it worse, legislation in some state parties do not even contain any requirement on the part of the police or enforcement officer to inform the families about the pre-trial detention of children.56 Apart from depriving families from giving physical and emotional support for children in preparing for the trial, denial or restriction on children‟s right to contact the families during pre-trial detention may also implicate various aspects of their life.

In short, the issue of pre-trial detention of children needs to be addressed as a matter of urgency. It is incomprehensible to detain any child who has not yet been found guilty in the same manner with one who has been found guilty. Therefore, it is time to remedy this oversight. The unacceptable number of children languishing in prison pending trial suggests that the approach, strategy and policy to keep children as much as possible away from prison are not as straightforward as they seem. It is not simply a question of drawing up policy or

52

Appleman, L.I., n. 28 above, p 1312, Lippke, R.L. (2014). Preventive Pre-trial Detention without Punishment. Res Publica, 20(2), p 112, Miller, M. and Guggenheim, M. (1990). Pretrial Detention and Punishment. Minnesota Law Review,75, p 369.

53

Winfield, E.N. (2008). Judicial Policy Making and Child Detention Reform: A Case Study of Jimmy Doe et al. v. Cook County. Journal of Gender, Race & Justice, 12, p 237, Dale, M.J. (1998). Lawsuits and Public Policy: The Role of Litigation in Correcting Conditions in Child Detention Centers. University of San Francisco Law Review, 32, p 687.

54

Tribe and Lawrence H. (1970). An Ounce of Prevention: Preventive Justice in the World of John Mitchell. Virginia Law Review, 56, p 407.

55_{Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc.}

CRC/C/15/Add.4, 18 February 1993, para. 14, Committee on the Rights of the Child, Concluding Observations: Nigeria, UN Doc. CRC/C/15/Add.61, 30 October 1996, para. 23.

56_{Committee on the Rights of the Child, Concluding Observations: Burkina Faso, UN Doc. CRC/C/15/Add.193,}

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legislating regulation.57 Instead, it is about getting the context right, which requires an integrated approach comprising of the formulation of measures, legislation of the statutes, and efficiency of implementation by various parties. In other words, it is insufficient for the government to focus on amendment or legislation of new law to tackle this issue. Instead, emphasize also should be given to other important aspects, such as establishment of sufficient number of separate detention centres for children, recruitment of professionally trained staffs, introduction of informal alternative measures and programmes, involvement of parents and community and others.