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IX. National and International Legal Standards on Children in Conflict with the Law

Burundian and international standards recognize that children in conflict with the law are a particularly vulnerable group, entitled to specialized protections within the justice system. The Burundian constitution recognizes that all children have the right to special protections, because of their vulnerability.¹³⁵ According to Article 46 of the constitution, children must be detained for the shortest amount of time possible and if detained must be separated from anyone over 16 years of age.¹³⁶

In February 2007, the Committee on the Rights of the Child issued a General Comment reaffirming and making more specific previously stated guidelines and requirements on the treatment of children in conflict with the law.¹³⁷ These new guidelines reinforce many of the points which Burundi must address, such as standards for defendants’ rights and timing of pre-trial detention, to establish a juvenile justice system in the best interests of children. Burundi is already in compliance with the recommendations of the Committee regarding establishing a minimal age of criminal responsibility which is older than twelve years and in outlawing the death penalty for minors.

Burundi has ratified the principal international treaties that protect the basic and fundamental human rights of children in conflict with the law: the Convention on the Rights of the Child (CRC),¹³⁸ the International Covenant on Civil and Political Rights (ICCPR),¹³⁹ the International Covenant on Economic, Social and Cultural Rights (ICESCR),¹⁴⁰ and the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, (Convention Against Torture).¹⁴¹ Burundi is also party to the regional African [Banjul] Charter on Human and Peoples’ Rights (African Charter) and the African Charter on the Rights and Welfare of the Child (ACRWC).¹⁴²

Safeguards in detention

Torture, cruel, inhuman and degrading treatment

The prohibition under international law on torture and other cruel, inhuman and degrading treatment or punishment is absolute. ¹⁴³ As well as being a matter of customary international law, and prohibited by the ICCPR,  the Convention against Torture (CAT) explicitly prohibits torture at all times and under all circumstances.¹⁴⁴  The African Charter on Human and Peoples’ Rights also prohibits torture, cruel, inhuman and degrading treatment¹⁴⁵and the Burundian constitution provides for similar prohibitions.¹⁴⁶

State parties to CAT undertake to adopt “effective legislative, administrative, judicial or other measures to prevent” torture.¹⁴⁷Under Article 15 of CAT, Burundi is required to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”¹⁴⁸ 

Specifically in relation to children, both CRC and ACRWC place explicit duty on the state to ensure children are protected from torture, or other cruel, inhuman or degrading treatment.¹⁴⁹

The beatings and sexual violence to which children in detention are exposed and subjected present serious violations of Burundi’s obligations to protect children from torture and other prohibited treatment.

Conditions of incarceration

International standards require that children deprived of their liberty “have the right to facilities and services that meet all the requirements of health and human dignity.”¹⁵⁰ The UN Rules for the Protection of Juveniles Deprived of their Liberty (UN Rules), as well as the UN Standard Minimum Rules for the Treatment of Prisoners, set forth detailed specifications of the conditions under which children may be confined.¹⁵¹ They entitle children to basic standards of health, sanitation–including clean and sufficient bedding–and nutrition.¹⁵² Both the ICCPR and the CRC mandate the separation of children from adults in detention.¹⁵³ The CRC and the ACRWC also specifically require states to take extra measures to protect children from sexual abuse, exploitation, and coercion.¹⁵⁴ Conditions in Burundian prisons and lock-ups are far below these recognized international standards themselves meant to represent the minimum conditions of detention.

Length of detention

Although the HRC has stated in a case involving adults that detention for prolonged periods of time does not in and of itself constitute cruel, inhuman or degrading treatment, it has qualified this statement by saying that this conclusion is valid only “in the absence of some further compelling circumstances.”¹⁵⁵ The CRC was enacted “[b]earing in mind the need to extend particular care to the child . . . by reason of his physical and mental immaturity . . . [and to provide] special safeguards and care, including appropriate legal protection . . . .”¹⁵⁶  The detainees’ status as children—a group that has been identified as particularly vulnerable—may qualify as compelling circumstances that would render prolonged pretrial detention, particularly in conditions which deny them adequate access to food, health care and education, a form of cruel, inhuman or degrading treatment.

Due process

The CRC requires states parties to establish specialized “laws, procedures, authorities, and institutions” for children in conflict with the law.¹⁵⁷ Burundi has not yet done so, although, if adopted, the proposed law now before parliament would partially meet this requirement.  Whether or not states have a juvenile justice system, they have a clear duty to ensure that the due process guarantees required under international human rights law are implemented for all children accused of crimes. Children accused of crimes have a right not to be detained arbitrarily or subject to other forms of unlawful detention.¹⁵⁸ Children also have the right to the basic guarantees of a fair trial, including the right to be presumed innocent until proven guilty, to be informed promptly and directly of the charges against them, to have prompt access to legal and other appropriate assistance, and to have their cases heard without delay.¹⁵⁹ Imprisonment of children should be a last resort and should be kept to the minimum period possible.¹⁶⁰ The primary objective in placing children in an institution should be to provide them “care, protection, education, and vocational skills,” that will enable them to return to their communities and play a productive role.”¹⁶¹ Burundian authorities have so far failed to ensure that these rights are consistently implemented for children in conflict with the law.

Prolonged pretrial detention 

Pre-trial detention typically involves two stages. The initial period of detention when a person is arrested on suspicion of having committed an offence, and then if the person is charged with an offence following arrest, the accused may have to spend time in detention on remand awaiting trial.

In relation to the first pre-charge detention period, the ICCPR requires that anyone arrested be “be brought promptly before a judge or other officer authorized by law to exercise judicial power”.¹⁶²  The Human Rights Committee has interpreted the term “promptly” to mean that delays in bringing detainees before an impartial judge must not exceed a few days.¹⁶³

After an accused has been brought before an appropriate judicial officer, human rights law requires that trial be held within a reasonable time, so that pre-trial detention is kept as short as possible.¹⁶⁴ This is particularly true where the accused is a child and Burundi has specific obligations to ensure that any pretrial detention of children is of the shortest possible period of time.¹⁶⁵ The ACRWC requires that for children facing criminal charges that all matters be “determined as speedily as possible.”¹⁶⁶The prolonged pre-trial detention of children in Burundi violates the obligations set out not only in the ICCPR, but also in the CRC and the ACRWC.¹⁶⁷

The CRC, the ICCPR, and the African Charter all prohibit arbitrary detention.¹⁶⁸ According to the United Nations Working Group on Arbitrary Detention, detention can be considered arbitrary “[w]hen the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.” Burundi has accepted international norms related to the right to a fair trial as specified in the ICCPR and the African Charter, requiring access to trial within a reasonable time. The CRC and ACRWC set an even higher standard—the former requiring that pretrial detention be limited to the “shortest appropriate period of time.”¹⁶⁹ Burundi’s pretrial detention of children may so far exceed the “reasonable time” and “shortest appropriate period” standards as to violate the prohibition on arbitrary detention.

Right to counsel

There are no provisions for court appointed lawyers in Burundian law, despite Burundi having ratified the ICCPR that requires access to free legal counsel for those without means.¹⁷⁰ International treaties obligate Burundi to provide legal assistance to children facing criminal charges.  The CRC establishes that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.”¹⁷¹ Burundi is obligated to ensure that this right is respected for every child, not only for those who can afford to pay for it.¹⁷² Regional treaties to which Burundi is a party also create the duty to provide legal representation for juveniles.  Article 17 of the ACRWC states that every child accused of a crime “shall be afforded legal and other appropriate assistance in the preparation and presentation of his defense” without discrimination based on “fortune . . . or other status.”¹⁷³

A central goal of the criminal justice system in relation to children in conflict with the law should be to provide them the chance for rehabilitation. The ICCPR is explicit that in the case of minors facing a criminal prosecution, the process has to take into account “the desirability of promoting [the minor’s] rehabilitation.” ¹⁷⁴  The Human Rights Committee has explained that “convicted juvenile offenders shall be subject to a penitentiary system that . . . is appropriate to their age and legal status, the aim being to foster reformation and social rehabilitation.”¹⁷⁵  Children must have access to courts and legal counsel for Burundi to ensure the rights guaranteed by the ICCPR and CRC.¹⁷⁶

Although Burundi is a poor nation, the protection of the right to counsel is not contingent on the economic circumstances of a state.  The ICCPR is clear in requiring states “to take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the . . . Covenant.”¹⁷⁷   As the Human Rights Committee has said, “A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the State.”¹⁷⁸ 

Access to fundamental rights in detention

Right to food

Children, including those in prison, have special nutritional needs and international law recognizes as a fundamental right, an entitlement of children to have access to food to satisfy those needs.  International legal instruments require Burundi to ensure the right to food and to meet the nutritional needs of children. The ICESCR provides that the right to food involves first and foremost the right to be “free from hunger.”¹⁷⁹ The Committee on Economic, Social, and Cultural Rights has defined adequate food as food available “in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.”¹⁸⁰ When individuals are unable to enjoy the right to adequate food by the means at their disposal, states must fulfill that right directly.¹⁸¹  Prisoners cannot earn a living nor provide for their own nutritional needs and thus fall into this category.  The ICESCR requires Burundi to meet a prisoner’s dietary needs, which the Committee has defined as “a mix of nutrients for physical and mental growth, development and maintenance.” ¹⁸²

The CRC and the ACRWC require states to ensure that children reach the best attainable level of health, including physical and mental growth, through the provision of food and clean drinking-water.¹⁸³ 

Right to education

The right to education is set forth in the CRC, the ICESCR, and ACRWC. Each of these treaties specifies that primary education must be compulsory and available free to all.¹⁸⁴ Secondary education, including vocational education, must be “available and accessible to every child,” with the progressive introduction of free secondary education.¹⁸⁵In addition, the ICCPR requires that juvenile offenders, “be accorded treatment appropriate to their age and legal status.”¹⁸⁶  Detainees of school age, like all children, should have access to education.  ICCPR guarantees each child the right to “such measures of protection as are required by his status as a minor,” a provision that the Human Rights Committee has interpreted to include education sufficient to enable each child to develop his or her capacities and enjoy civil and political rights.¹⁸⁷

Under article 26 of the ICCPR, Burundi is obligated to respect the entitlement of every person “without discrimination to the equal protection of the law.” In addition, the Convention against Discrimination in Education prohibits any discrimination, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular . . . [o]f depriving any person or group of persons of access to education of any type.¹⁸⁸

Consistent with these nondiscrimination provisions, a state that provides primary school education to its children, as Burundi currently does, may not arbitrarily deny an education to particular groups of children. The state may make distinctions among groups of individuals only to the extent that those distinctions are based on reasonable and objective criteria.¹⁸⁹ International standards clarify that detention status is not a permissible basis for the denial of education to children. As reaffirmed in the UN Rules for the Protection of Juveniles, children do not lose their right to an education when they are confined. “Every juvenile of compulsory school age” who is deprived of his or her liberty “has the right to an education suited to his or her needs and abilities,” education which should be “designed to prepare him or her for return to society.”¹⁹⁰ The Beijing Rules call upon government officials to ensure that children deprived of their liberty “do not leave the institution at an educational disadvantage.”¹⁹¹