Deprivation of liberty case law

This page compiles 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.

Some cases are filed under multiple headings where they address several aspects of the rights of children in detention.

+ 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

Kok Wah Kuan v. Pengarah Penjara Kajang, Selangor Darul Ehsan (2004) 4 LRC 395, High Court - refusing to directly apply the detention provisions of the Convention on the Rights of the Child because they have not been directly incorporated into Malaysian law.

Russia

Decision of the Plenary Session of the Supreme Court of the Russian Federation (2011) Case No. 1 of February 2011 - review of national law on juvenile justice.

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

Raduvha v. Minister of Safety and Security and Another (2016) ZAC 24, Constitutional Court of South Africa - on whether detention was a measure of last resort.

Director of Public Prosecutions KwaZulu-Natal v. P (2005) ILDC 492, Supreme Court of Appeal - finding that suspending sentencing on condition that a girl convicted of a homicide offence complete a period of “correctional supervision” was lawful. Decision taken considering the principle of detention as a last resort.

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

B.J. v. Pauline Proudfoot, Children’s Reporter for Stirling and the Lord Advocate (2010) CSIH 85, 2011 SC 201, Court of Session of Scotland - on the compatibility of a decision to transfer a child in a residential care centre to secure accommodation and its compatibility with the principle of detention as a last resort.

+ Detention as cruel, inhuman or degrading treatment or punishment

Inter-American Court of Human Rights

Mendoza et al v. Argentina (2013) Series C No. 260 - life sentences for offences committed by children in Argentina amount to arbitrary imprisonment and cruel, inhuman and degrading treatment or punishment under the American Convention on Human Rights

Swaziland

+ Life imprisonment and indeterminate sentences

Inter-American Court of 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

Director of Public Prosecutions of Jamaica v. Kurt Mollison (No. 2) (2003) - UKPC 6, Judicial Committee of the Privy Council - replacing the sentence of “life imprisonment” for a child with “detention at the court’s pleasure" and requiring sentencing and release under this sentence to be determined by the courts.

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. The judgment does not specifically relate to children, but makes it clear that this line of case law does not address people serving life sentences for offences committed as children.

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 people serving sentences of detention during Her Majesty’s pleasure for offences committed as children 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 children 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 postrelease supervision is unconstitutional when applied to childrne who have committed non-homicide offences 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 children are unconstitutional.

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

+ "Heinous" offences

Australia

R v. Maygar; R v. WT (2007) QCA 310, Supreme Court of Queensland - regarding the sentencing of children for “heinous” offences.

+ Trial or detention of children as adults

India

Dr Subramanian Swamy and others v. Raju Thr. Member Juvenile Justice Board and another (2014) SLP (Crl.) No. 1953 of 2013, Supreme Court of India - regarding the maximum age at which a person can be tried as a juvenile.

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.

Honduras

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

Malawi

+ Pre-trial detention

Angola

Acórdão 326/2014 (2014) - on whether pretrial detention can be used when less restrictive options are available.

Bangladesh

State v. Metropolitan Police Commissioner, Khulna and others (2008) 60 DLR 660, Supreme Court of Bangladesh, High Court Division - regarding the procedural guarantees for children who are arrested.

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 arti. 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

The Queen on the application of HC (a child, by his litigation friend CC) v. Secretary of State for the Home Department (2013) EWHC 982, High Court of Justice - finding illegal a policy that did not offer 17 year olds protection as children when detained at a police station.

+ Transfer to adult prison

Bangladesh

Fahima Nasrin v. Government of Bangladesh and others (2009) 61 DLR 232, Supreme Court of Bangladesh, High Court Division - on the illegality of transferring a child to an adult prison upon reaching 18 without a court order.

+ Conditions of detention and ill-treatment

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.

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

Minors incarcerated in the El Carmen Education Centre v. Director of the Honduran Institute for Children and Family (2006) (Menores de Edad Internos en el Centro Pedagogico El Carmen vs. Director o encardgao de La Junta Interventora del Instituto Hondureno de La Ninez Y La Familia, Suprema de Justicia de Honduras, Sentencia del 20 Abril de 2006) Supreme Court of Honduras - finding Honduras responsible for ill-treatment of children in detention facilities, including in light of article 3(3) of the Convention on the Rights of the Child.

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.

+ Alternatives to detention and non-custodial 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 S. 780. XLIV, “Arresto Preventivo con Fines de Extradición” (2009) Supreme Court of Argentina - the court permitted the extradition of a child for trial in the United States on drug charges.

+ 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

Chiramba and others v. Minister of Home Affairs N.O. and others (2008) ZWHHC 82, High Court of Zimbabwe - finding the arrest and incommunicado detention of a mother with her child was unlawful.

+ Detention to prevent abortion

Poland

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

R (AA) v. Secretary of State for the Home Department (2016) EWHC 1453, High Court of England and Wales - on the legality immigration of asylum seeking children. Detention unlawful from moment Secretary of State received an age assessment.

R (on the application of Suppiah and others) v. Secretary of State for the Home Department (2011) EWHC 2 (Admin), High Court of England and Wales - on the detention of asylum seeking families and the requirement to safeguard the welfare of children (finding detention in the current case illegal).

+ Curfews

Belarus

Decision of the Constitutional Court of the Republic of Belarus No. P-704/2012 of 17 May 2012 on the constitutionality of the Law "On amendments and additions to some laws of the Republic of Belarus on the prevention of child neglect and juvenile delinquency" - on the constitutionality of a law on curfews and juvenile justice.

+ 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

In the matter of A.C., a patient at Thunder Bay Regional Health Sciences Centre, Thunder Bay Ontario (2005) CanLii 7115 (ON C.C.B.), Ontario Consent and Capacity Board - regarding an order for involuntary treatment at a psychiatric facility in light of art. 37 of the Convention on the Rights of the Child.

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