Using the law to challenge child detention

 
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This page lists the summaries from CRIN’s case law database that relate to children in detention, including cases challenging the detention of children and implementing international standards. Each summary includes links to the full text of the relevant judgment. Many of these cases have been included in our database because they apply the Convention on the Rights of the Child.

We will continue to update this page with links to case summaries in our legal database, so please email us with suggested cases.

 

Criminal justice system

Detention as a last resort

Armenia

  • Case No. ԵԱՆԴ/0094/01/13 [2015] Criminal Chamber of the Court of Cassation of Armenia - detention as a last resort in the sentencing of minors.

Barbados

  • SD (A Minor) v Commissioner of Police [2011] Magisterial Appeal No. 4 of 2010, Supreme Court of Judicature, Court of Appeal - whether a detention sentence was too long, considering the CRC and the principle of detention as a last resort.

Bahamas

  • RB (a juvenile) v. Attorney General [2016] SCCrimApp No. 205 of 2015, Court of Appeal - relationship between best interests of the child, detention as a last resort and decisions on bail.

Bolivia

  • Vargas (on behalf of IAF) v. Elia Tellez Rivero [2010] Constitutional resolution 2008-18265-37, File No. 2365/2010-R, District Court of Cochabamba - regarding unlawful incarceration of a child for the purpose of questioning in light of art. 37 of the Convention on the Rights of the Child.

Malaysia

Russia

Samoa

  • Ulugia v. Police [2010] WSCA 15, Court of Appeal of Samoa - on the appropriate sentencing of children for violent offences in light of the principle of detention as a matter of last resort for the shortest appropriate period.

South Africa

Swaziland

  • Masinga v. Director of Public Prosecutions and others [2011] SZHC 58, High Court of Swaziland - finding that the imposition of mandatory minimum sentences on children violated the constitutional protection against inhuman treatment or punishment. Also discussed the detention as a last resort standard.

Tonga

  • R v. Valu [2008] TongaLawRp 10, Tonga LR 44, Supreme Court of Tonga - on detention as a last resort and absconding from non-detention placements.

United Kingdom

    Detention of children as cruel, inhuman or degrading treatment or punishment

Argentina

  • Mendoza et al v. Argentina [2013] Series C No. 260 - life sentences for child offenders in Argentina amount to arbitrary imprisonment and cruel, inhuman and degrading treatment or punishment under the American Convention on Human Rights

Swaziland

  • Masinga v. Director of Public Prosecutions and others [2011] SZHC 58, High Court of Swaziland - finding that the imposition of mandatory minimum sentences on children violated the constitutional protection against inhuman treatment or punishment. Also discussed the detention as a last resort standard.

    Life imprisonment and indeterminate sentences

Argentina

  • Mendoza et al v. Argentina [2013] Series C No. 260 - life sentences for child offenders in Argentina amount to arbitrary imprisonment and cruel, inhuman and degrading treatment or punishment under the American Convention on Human Rights

Antigua and Barbuda

  • The Queen v. Everton Welch [2011] Criminal Case No. ANUHCR 1994/0015, Eastern Caribbean Supreme Court - finding that age is a relevant consideration in determining the appropriate sentence for murder.

Argentina

  • César Alberto Mendoza, et al. (judicial review) [2012]  Causa N° 14.087–Sala II–C.F.C.P “Mendoza, César Alberto y otros s/ recurso de revisión”- life sentences for children in Argentina are unconstitutional and violate the Convention on the Rights of the Child

Barbados

  • Scantlebury v. the Queen [2005] 68 WIR 88, Court of Appeal of Barbados - ruling that allowing a member of the executive to determine the duration of detention under a sentence of detention “at Her Majesty’s pleasure” violated the separation of powers under the constitution of Barbados.

  • Griffith and others v. the Queen [2004] UKPC 58, Judicial Committee of the Privy Council - requiring the court to sentence and oversee release of children sentenced to be “detained at Her Majesty’s pleasure”.

Belize

  • Bowen and Jones v. Belize [2010] Claim No. 214 of 2007, Supreme Court of Belize - mandatory life without parole sentences for children in Belize are unconstitutional.

  • Melendez v. the Queen [1994] Criminal Appeal No. 9 of 1994, Court of Appeal - ruling that the sentence of detention at Her Majesty’s pleasure was unconstitutional insofar as it it allowed the executive to determine the length of detention.

Canada

  • R v. Wellwood and Moffat [2011] BCSC 690, Supreme Court of British Columbia - on the sentencing of a child as an adult to life imprisonment.

China (Hong Kong)

  • Lai Hung wai v. Superintendent of Stanley Prison [2003] Hong Kong Court of First Instance - finding indeterminate sentences for offences committed while under the age of 18 were lawful and did not violate art. 37 of the Convention on the Rights of the Child.

Cyprus

  • Kafkaris v. Cyprus [2008] Application No. 21906/04, European Court of Human Rights - finding that irreducible life sentences are a violation of the prohibition on torture, inhuman or degrading punishment (does not specifically address sentences for children).

Jamaica

Malawi

  • Moyo v. Attorney General [2009] Case No. 12 of 2007, High Court of Malawi, sitting as the Constitutional Court - finding that the detention of a child with adults unlawful. Rejecting a claim that detention “at the pleasure of the President” is unconstitutional.

Saint Kitts and Nevis

  • Browne v. the Queen [1999] UKPC 21, Judicial Committee of the Privy Council - requiring judicial oversight over the release of children sentenced detention “during the Governor-General’s pleasure”.

United Kingdom

  • Vinter and others v. United Kingdom [2013] Application Nos. 66069/09 and 3896/10,  European Court of Human Rights - regarding the compatibility of “whole life sentences” with the prohibition on torture, inhuman or degrading punishment. Does not specifically relate to children, but makes it clear that this line of case law does not address child offenders serving life sentences.

  • T and V v. United Kingdom [1999] Application Nos. 24724/94 and 24888/94, European Court of Human Rights - ruling that allowing the Secretary of State to determine how long child offenders serving sentences of detention during Her Majesty’s pleasure would serve in detention violated the right to a fair trial.

  • R v. Secretary of State for the Home Department, ex parte V and T [1998] AC 407, House of Lords - ruling that the tariff policy, allowing the Home Secretary to determine the minimum period child offenders must spend in detention when serving a sentence of detention during Her Majesty’s pleasure, was unlawful.

  • Singh v. United Kingdom; Hussain v. United Kingdom [1996] Application No. 23389/94 and 21928/93, European Court of Human Rights - sentences of detention during Her Majesty’s pleasure violate article 5(4) of the ECHR insofar as those sentenced are not able to take proceedings to the courts to challenge the legality of ongoing detention to a court with the power of release.

United States

  • Montgomery v. Louisiana [2016] WL 280758, Supreme Court of the United States - ruling that the prohibition of mandatory life without parole sentences for juveniles applies retroactively in the United States.

  • Kansas v. Dull [2015] Opinion No. 106,437, Supreme Court of Kansas - mandatory lifetime post-release supervision is unconstitutional when applied to juvenile non-homicide offenders in the United States.

  • Miller v. Alabama [2012] 567 US ---- (2012); 132 S.Ct. 2455)2-12), Supreme Court of the United States - mandatory sentences of life without the possibility of parole for child offenders are unconstitutional.

  • Graham v. Florida [2010] 560 US ___ (slip opinion), United States Supreme Court - life without parole sentences are unconstitutional for child offenders for non-homicide offences.

    “Heinous” offences

Australia

  • R v. Maygar; R v. WT [2007] QCA 310, Supreme Court of Queensland - regarding the sentencing of child offenders for “heinous” offences.

    Trial as an adult or detention with adults

India

Honduras

  • Minors in detention v. Honduras [1999] Case 11.491, Inter-Am. CHR, report No. 41/99, American Court of Human Rights - finding the detention of children in adult prisons unlawful.

Lesotho

  • R v. Malefetsane Mohlomi and others [2013] CR No. 10/2013, High Court of Lesotho - requiring all persons under the age of 18 to be prosecuted as children and requiring specialised procedures before permitting detention sentences for children.

Malawi

  • Moyo v. Attorney General [2009] Case No. 12 of 2007, High Court of Malawi, sitting as the Constitutional Court - finding that the detention of a child with adults unlawful. Rejecting a claim that detention “at the pleasure of the President” is unconstitutional.

    Pretrial detention

Angola

  • Acórdão 326/2014 [2014] - on whether pretrial detention can be used when less restrictive options are available.

Bangladesh

Bolivia

  • Seas (on behalf of his son, DAZD) v. Vidal [2011] Constitutional Resolution 0879/2011-R; File No. 2010-21415-43-AL, District Court of Santa Cruz - finding pre-trial detention of a child accused of a criminal offence had been unlawful and considering art. 37 of the Convention on the Rights of the Child.

Fiji

  • Seniloli v. Voliti [2000] - regarding compensation for unlawful pretrial detention, considering article 37 of the Convention on the Rights of the Child.

Poland

  • Grabowski v. Poland [2015] Application No. 57722/12, European Court of Human Rights - on whether three months detention without judicial determination violates art. 5 of the ECHR.

Solomon Islands

  • K v. Regina [2005] SHBC 150;[2006] SBCA 21 [2006] SBHC 53, High Court of Solomon Islands - regarding the granting of bail for children accused of serious offences and the compatibility of mandatory life imprisonment sentences with the Convention on the Rights of the Child.

United Kingdom

    Transfer to adult prison

Bangladesh

    Conditions of detention and Ill-treatment in detention

Argentina

  • Bulacio v. Argentina [2003] Series C No. 100; IHRL 1483, Inter-American Court of Human Rights - regarding appropriate compensation and reparations for the death of a child in detention, including the need for investigation and prevention of recurrence.

Australia

  • Corey Brough v. Australia [2006] Communication No. 1184/2003 - finding that the conditions in which a 17 year old was detained violated the right to be treated with dignity while in detention (art. 10, ICCPR) and the right to special protection of minors (art. 24, ICCPR). Ill-treatment included detention in a “safe cell” with no possibility of communication, under constant light and without age appropriate treatment.

Guyana

  • Twyon Thomas v. Attorney General [2011] 2010 No. 12-M Demerara, High Court of the Supreme Court of Judicature - regarding the unlawful detention and torture of a 14 year old boy in connection with a murder investigation.

Honduras

Paraguay

  • Juvenile Re-education Institute v. Paraguay [2004] Serie C no. 112, Inter-American Court of Human Rights - the first case in which the IACHR ruled on the conditions of detention for children and young people under the American Convention on Human Rights.

Peru

  • Gomez Paquiyauri brothers v. Peru [2004] IHRL 1493, Inter-American Court of Human Rights - finding the detention, ill-treatment and murder of two teenage brothers violated the Inter-American Convention on Human rights.

Tajikistan

  • Sharifova and others v. Tajikistan [2008] Communication Nos. 1231/2003 and 1241/2004, Human Rights Committee - finding that the State had violated the rights of five people to be free from torture, to a fair trial and to be treated with dignity when deprived of liberty. Two of the detainees were children and their right to special protection under the ICCPR had also been violated.

Tonga

  • Fa’aoso v. Paongo [2006] - regarding unlawful detention of a child and ill-treatment while detained. Ruling considers article 37 of the Convention on the Rights of the Child.

    Access to a lawyer while in detention

    Turkey

  • Salduz v. Turkey [2008] Application No. , European Court of Human Rights - ruling that the denial of access to a lawyer during his interrogation violated his right to a fair trial.

    Alternatives to detention / non-detention sentencing

Micronesia

  • Kosrae v. Ned [2005] 13 FSM Intrm. 351, Kosrae State Court Trial Division - considering the compatibility of community service sentencing with the Convention on the Rights of the Child.

    Extradition

Argentina

   

   Children of incarcerated parents

Libya

  • Aboussedra v. Libyan Arab Jamahiriya [2007] Communication No. 1751/2008, Human Rights Committee - finding the illegal detention of a man was a violation of the prohibition on torture and inhuman treatment and that the corresponding rights of his wife and children were also violated by his detention.

Zimbabwe

    Detention to prevent abortion

  • P and S v. Poland [2012] Application No. 57375/08, European Court of Human Rights  - regarding ill-treatment and detention of a girl seeking a legal abortion.
     

    Immigration detention

Australia

  • D, E and their two children v. Australia [2006] Communication No. 1050/2002, Human Rights Committee - finding arbitrary detention in light of the failure of the state to justify the length of detention (three years).

  • Minister for Immigration and Multicultural and Indigenous Affairs v. B and others [2004] HCA 20, 20 April 2004, A246/2003, High Court of Australia - ruling that the Australian family courts do not have the authority to order the release of children from immigration detention or to make orders on the welfare of children in immigration detention.

  • Bakhtiyari v. Australia [2003] Communication No. 1069/2002, Human Rights Committee - finding the detention of children with their mother for 2 years and eight months pending the outcome of an application to remain in the country was arbitrary and violated art. 9(1) of the ICCPR.

  • Baban et al v. Australia [2003] Communication No. 1014/2001, Human Rights Committee - finding the detention of a father and son amounted to arbitrary detention because it extended beyond the time for which the state could provide an appropriate justification and because the state could not demonstrate less intrusive measures would have been insufficient.

Belgium

  • UNICEF and others v. Belgium [2016] A. 214.331/XI-20.421, Council of state, Administrative Section of Litigation - on detention of children awaiting determination of their immigration status.

  • Mubilanzila Mayeka and Kaniki Mitunga v. Belgium [2006] Application No. 13178/03, European Court of Human Rights - finding the detention of an unaccompanied child in a centre for adults violated art. 3 of the ECHR; separation from family violated art. 8 and detention in a facility for adults violated art. 5.

Greece

  • Rahimi v. Greece [2011] Application No. 8687/08, European Court of Human Rights - ruling that the detention of an unaccompanied minor without regard for particular circumstances violated art. 5 of the ECHR.

United Kingdom

    Curfews

Belarus

    Detention in medical facilities

Bolivia

  • Llanto et al v. Corrales [2011] Constitutional resolution 0733/2011-R, File No. 2009-21028, District Court of Cochabamba - finding a girl had been unlawfully detained in a hospital as a means of securing payment of medical fees.
     

    Mental health care and treatment

Canada