RES/36/16 Human rights in the administration of justice, including juvenile justice

GE.17-17640(E)



Human Rights Council Thirty-sixth session

11–29 September 2017

Agenda item 3

Resolution adopted by the Human Rights Council on 29 September 2017

36/16. Human rights in the administration of justice, including

juvenile justice

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Recalling the Universal Declaration of Human Rights and all relevant international

treaties, including the International Covenant on Civil and Political Rights, the Convention

on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment and the Optional Protocol thereto, as well as the

International Convention for the Protection of All Persons from Enforced Disappearance,

and encouraging all States that have not ratified or acceded to the aforementioned treaties to

consider doing so expeditiously,

Bearing in mind the numerous other international standards and norms in the field of

the administration of justice, in particular of juvenile justice, including the revised United

Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela

Rules), the United Nations Standard Minimum Rules for the Administration of Juvenile

Justice (the Beijing Rules), the Basic Principles for the Treatment of Prisoners, the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh

Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their

Liberty, the Guidelines for Action on Children in the Criminal Justice System, the

Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, the

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures

for Women Offenders (the Bangkok Rules), the Bangalore Principles of Judicial Conduct,

the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo

Rules) and the United Nations Principles and Guidelines on Access to Legal Aid in

Criminal Justice Systems,

Recalling all resolutions of the Commission on Human Rights, the Human Rights

Council, the General Assembly and the Economic and Social Council relevant to the

subject, in particular Human Rights Council resolutions 30/7 of 1 October 2015, General

Assembly resolutions 71/188 of 19 December 2016 and Economic and Social Council

resolution 2017/19 of 6 July 2017,

Recalling also Human Rights Council resolution 31/13 of 23 March 2016 on the

rights of persons belonging to national or ethnic, religious and linguistic minorities,

focusing on minorities in the criminal justice system,

Noting with appreciation the work of all special procedures of the Human Rights

Council that addresses human rights in the administration of justice in the discharge of their

mandates,

Noting with interest the work of all human rights treaty body mechanisms on human

rights in the administration of justice, in particular the adoption by the Human Rights

Committee of its general comments No. 21 (1992), on humane treatment of prisoners

deprived of their liberty, No. 32 (2007), on the right to equality before courts and tribunals

and to a fair trial, and No. 35 (2014), on liberty and security of person, noting with interest

also the adoption by the Committee on the Rights of the Child of its general comments No.

10 (2007), on children’s rights in juvenile justice, and No. 13 (2011), on the right of the

child to freedom from all forms of violence, and noting with interest further the adoption by

the Committee on the Elimination of Racial Discrimination of its general recommendation

No. 31 (2005), on the prevention of racial discrimination in the administration and

functioning of the criminal justice system, and the adoption by the Committee on the

Elimination of Discrimination against Women of its general recommendation No. 33

(2015), on women’s access to justice,

Noting with appreciation the important work in the field of the administration of

justice of the Office of the United Nations High Commissioner for Human Rights, the

United Nations Office on Drugs and Crime, the United Nations Children’s Fund, the United

Nations Development Programme, the Special Representative of the Secretary-General on

Violence against Children and the Special Representative of the Secretary-General on

Children and Armed Conflict,

Convinced that the independence and impartiality of the judiciary, and the integrity

of the judicial system and an independent legal profession are essential prerequisites for the

protection of human rights, the rule of law, good governance and democracy, and for

ensuring that there is no discrimination in the administration of justice, and should therefore

be respected in all circumstances,

Underlining the importance of implementing the 2030 Agenda for Sustainable

Development, and recognizing the role of its goals relating to gender equality (Goal 5),

reducing inequality within and among countries (Goal 10) and the promotion of just,

peaceful and inclusive societies (Goal 16) for eliminating discrimination in the

administration of justice,

Emphasizing that the right of access to justice for all, including access to legal aid,

forms an important basis for strengthening the rule of law through the administration of

justice, and acknowledging the contribution of other actors, including lawyers’ associations

and civil society, in providing legal aid,

Recalling that every State should provide an effective framework in which to pursue

remedies to redress human rights violations or grievances and to challenge the lawfulness

of detention before a court,

Emphasizing that the social rehabilitation and reintegration of prisoners should be

among the essential aims of the criminal justice system so as to ensure, as far as possible,

that offenders are willing and able to lead a law-abiding and self-supporting life upon their

return to society,

Recognizing the importance of the principle that, except for those lawful limitations

that are demonstrably necessitated by incarceration, persons deprived of their liberty retain

their non-derogable human rights and all other human rights and fundamental freedoms,

Concerned about the negative impact of overincarceration and overcrowding on the

enjoyment of human rights, and acknowledging that overincarceration constitutes one of

the major underlying causes of overcrowding,

Underlining that prejudice and discrimination against persons belonging to

vulnerable groups in the administration of justice may result in their overincarceration and

overrepresentation throughout the criminal justice system, and recognizing the need for

States to take measures, within the justice system, particularly the criminal justice system,

to prevent discrimination against them and to enhance inclusive and representative

institutions,

Aware of the need for special vigilance and safeguards with regard to the specific

situation of suspects and offenders who are children, juveniles, women, persons belonging

to national or ethnic, religious and linguistic minorities and other persons with increased

vulnerability in the administration of justice, in particular while they are deprived of their

liberty, and their vulnerability to violence, abuse, injustice and humiliation,

Recognizing that women in detention or imprisonment have certain different needs,

including different health-care needs, and in this context noting the importance of gender-

sensitive justice systems,

Encouraging continued regional and cross-regional efforts, the sharing of best

practices and the provision of technical assistance in the field of juvenile justice, recalling

in this regard the holding of the World Congress on Juvenile Justice in Geneva, from 26 to

30 January 2015, and noting with interest its final declaration,

Reaffirming that the best interests of the child must be a primary consideration in all

decisions concerning the deprivation of liberty and, in particular, that depriving children

and juveniles of their liberty should be used only as a measure of last resort and for the

shortest appropriate period of time, in particular before trial, and the need to ensure that, if

they are arrested, detained or imprisoned, children should be separated from adults to the

greatest extent feasible, unless it is considered in the child’s best interest not to be,

Reaffirming also that the best interests of the child are an important consideration in

all matters concerning the child and related to the sentencing of his or her parents or, where

applicable, legal guardians or primary caregivers,

1. Notes with appreciation the report of the United Nations High Commissioner

for Human Rights on non-discrimination and the protection of persons with increased

vulnerability in the administration of justice, in particular in situations of deprivation of

liberty and with regard to the causes and effects of overincarceration and overcrowding;1

2. Reaffirms the importance of the full and effective implementation of all

United Nations standards on human rights in the administration of justice;

3. Calls upon States to spare no effort in providing for effective legislative,

judicial, social, educative and other relevant mechanisms and procedures, as well as

adequate resources, to ensure the full implementation of those standards, and invites them

to assess their national legislation and practice in accordance with those standards;

1 A/HRC/36/28.

4. Invites States to take into consideration the issue of human rights in the

administration of justice in the universal periodic review procedure;

5. Invites Governments to include in their efforts to implement the 2030 Agenda

for Sustainable Development and their national development plans the administration of

justice as an integral part of the development process, and to allocate adequate resources for

fair and effective justice systems, including the provision of legal aid services with a view

to promoting and protecting human rights, and to address gender inequality, and invites the

international community to provide an increased level of both technical and financial

assistance to States and to respond favourably to their requests for capacity-building, and

enhancement and strengthening of institutions concerned with the administration of justice;

6. Stresses the special need for continuous national capacity-building in the

field of the administration of justice, including through reform of the judiciary, the police,

prosecution and the penal system, as well as juvenile justice reform, and promoting

women’s effective participation and equal opportunities in the judiciary and a composition

of law enforcement bodies that reflects the diversity of the population;

7. Reaffirms that no one should be unlawfully or arbitrarily deprived of his or

her liberty, and notes the principles of necessity and proportionality in this regard;

8. Calls upon States to apply individual criminal responsibility and to refrain

from detaining persons solely on the basis of their family ties with an alleged offender;

9. Also calls upon States to ensure that anyone who is deprived of his or her

liberty has prompt access to a competent court with the effective power to determine the

lawfulness of the detention, and to order release if the detention or imprisonment is

determined not to be lawful by that court, as well as prompt access to legal counsel, in

accordance with their international obligations and commitments;

10. Urges all States to consider establishing, maintaining or enhancing

independent mechanisms with the mandate to monitor all places of detention, including by

making unannounced visits, and to hold private interviews without witnesses with all

persons deprived of their liberty;

11. Calls upon States to ensure a proper file and data management system on

prisoners that allows the tracking of the number of persons deprived of their liberty, their

detention period, offences or grounds for detention, and developments regarding the prison

population, and encourages States to collect other up-to-date, comprehensive and

disaggregated data that allow for the identification and prevention of discrimination in the

administration of justice and overincarceration;

12. Recalls the absolute prohibition of torture and cruel, inhuman or degrading

treatment or punishment in international law, and calls upon States to address and prevent

detention conditions of persons deprived of their liberty that amount to torture or cruel,

inhuman or degrading treatment or punishment;

13. Calls upon States to investigate promptly, effectively and impartially all

alleged human rights violations and abuses suffered by persons deprived of their liberty, in

particular cases involving death, torture and cruel, inhuman or degrading treatment or

punishment, to provide effective remedies to the victims, and to ensure that detention

administrations cooperate fully with the investigating authority and preserve all evidence;

14. Encourages States to address overcrowding in detention facilities by taking

effective measures, including by enhancing the availability and use of alternatives to

pretrial detention and custodial sentences, access to legal aid, mechanisms for crime

prevention, early release and rehabilitation programmes and the efficiency and capacity of

the criminal justice system and its facilities, and to make use in this regard of, inter alia, the

United Nations Office on Drugs and Crime Handbook on strategies to reduce overcrowding

in prisons;

15. Urges States to take all necessary measures to prevent and eliminate

discrimination in law and in practice against persons belonging to vulnerable groups in the

administration of justice that may also result in their overincarceration and

overrepresentation throughout the criminal justice process;

16. Also urges States to pay special attention to the conditions of detention or

imprisonment of persons with increased vulnerability and their particular needs;

17. Calls upon States to review penal policies that can contribute to

overincarceration and overcrowding, in particular regarding so-called “zero-tolerance

policies”, such as the application of mandatory pretrial detention and mandatory minimum

sentences, especially for minor and/or non-violent crimes;

18. Urges States to endeavour to reduce pretrial detention, which should be a

measure of last resort and for as short a period as possible, by, inter alia, adopting

legislative and administrative measures and policies on its preconditions, limitations,

duration and alternatives, and by taking measures aimed at implementing existing

legislation, as well as by ensuring access to justice and legal advice and assistance;

19. Underscores the particular importance of providing appropriate training in

the administration of justice, including for prosecutorial and judicial authorities, with a

view to raising awareness of and eliminating prejudice and discrimination, ensuring

proportionate sentencing and enhancing the implementation of non-custodial measures at

the pretrial and post-conviction stages;

20. Recognizes that every child and juvenile alleged as, accused of or recognized

as having infringed the law, particularly those who are deprived of their liberty, as well as

child victims and witnesses of crimes, should be treated in a manner consistent with his or

her rights, dignity and needs, in accordance with international law, bearing in mind relevant

international standards on human rights in the administration of justice and taking into

account the age, gender, social circumstances and development needs of such children, and

calls upon States parties to the Convention on the Rights of the Child to abide strictly by its

principles and provisions;

21. Urges States to consider applying the United Nations Model Strategies and

Practical Measures on the Elimination of Violence against Children in the Field of Crime

Prevention and Criminal Justice, as appropriate, in the design, implementation, monitoring

and evaluation of laws, policies, programmes, budgets and mechanisms aimed at

eliminating violence against children in the field of crime prevention and criminal justice,

and encourages them to support and to benefit from the programme proposed by the United

Nations Office on Drugs and Crime and the United Nations Children’s Fund in this regard;

22. Encourages States that have not yet integrated children’s issues into their

overall rule of law efforts to do so, and to develop and implement a comprehensive juvenile

justice policy to prevent and address juvenile delinquency as well as with a view to

promoting, inter alia, the use of alternative measures, such as diversion and restorative

justice, and ensuring compliance with the principle that the deprivation of a child’s liberty

should only be used as a measure of last resort, for the shortest appropriate period of time,

and that such decisions must be subject to periodic review of their continuing necessity and

appropriateness, and to avoid, wherever possible, the use of pretrial detention for children;

23. Urges States to systematically integrate children’s access to justice into

justice sector reforms, rule of law initiatives and national planning processes, such as

national development plans and justice sector-wide approaches, and to support it through

the national budget;

24. Encourages States not to set the minimum age of criminal responsibility at

too low an age, bearing in mind the emotional, mental and intellectual maturity of the child,

and in this respect refers to the recommendation of the Committee on the Rights of the

Child to increase their lower minimum age of criminal responsibility, without exception, to

12 years, as the absolute minimum age, and to continue to raise the lower limit to a higher

age;

25. Urges States to ensure that, under their legislation and practice, neither

capital punishment nor life imprisonment are imposed for offences committed by persons

under 18 years of age;

26. Calls upon States to consider establishing or strengthening existing

independent and child-friendly national monitoring and complaints mechanisms so as to

contribute to safeguarding the rights of children deprived of their liberty;

27. Welcomes the work on the in-depth global study on children deprived of

liberty,2 and encourages Member States, United Nations agencies, funds, programmes and

offices, and other relevant stakeholders, to support the elaboration of the study;

28. Invites States to provide for human rights training on the administration of

justice and juvenile justice, including anti-racist, anti-discrimination, multicultural, gender-

sensitive and child rights training, for all judges, lawyers, prosecutors, social workers,

immigration, correction and police officers, and other professionals working in the

administration of justice;

29. Also invites States, upon their request, to benefit from the technical advice

and assistance provided by the relevant United Nations agencies and programmes in order

to strengthen their national capacities and infrastructures in the field of the administration

of justice, including in addressing overcrowding, overincarceration and violence against

children in the field of crime prevention and criminal justice;

30. Calls upon relevant special procedures of the Human Rights Council to pay

special attention to questions relating to the effective protection of human rights in the

administration of justice, including juvenile justice and the human rights of persons

deprived of their liberty, and the causes and effects of overincarceration and overcrowding,

and to provide, wherever appropriate, specific recommendations in this regard, including

proposals for advisory services and technical assistance measures;

31. Invites States, when reviewing progress made in the implementation of the

2030 Agenda for Sustainable Development, to consider the causes and effects of

overincarceration and overcrowding, including with regard to non-discrimination and

persons with increased vulnerability in the administration of justice;

32. Calls upon the United Nations High Commissioner for Human Rights to

strengthen advisory services and technical assistance relating to national capacity-building

in the field of the administration of justice, in particular juvenile justice;

33. Requests the High Commissioner to submit to the Human Rights Council, at

its forty-second session, a report on human rights in the administration of justice, in

particular on violence, death and serious injury in situations of deprivation of liberty,

drawing on the experience of United Nations and regional human rights mechanisms and

seeking the views of States, including on their policies and best practices, civil society, and

other relevant stakeholders;

2 See General Assembly resolution 69/157, para. 52 (d).

34. Decides to continue its consideration of this issue under the same agenda

item, in accordance with its annual programme of work.

40th meeting

29 September 2017

[Adopted without a vote.]