Court/Judicial body: African Commission on Human and Peoples’ Rights
Date: 20-24 July 2011 CRC
Provisions: Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Other international provisions:African Charter on Human and Peoples’ Rights, Articles 1, 3, 4 and 7International Covenant on Civil and Political Rights, Article 6(5)United Nations Standard Minimum Rules for the Administration of Juvenile Justice
Background: The complaint was brought on behalf of seven child soldiers who were sentenced to the death penalty between 1999 and 2001 by military courts in the Democratic Republic of the Congo (the “DRC”). The complainants argued that the DRC violated the children’s human rights by allowing for the death penalty to be applied to children, by not allowing for the appeal of convictions handed by military courts, and by not providing the children with legal representation.
Issue and resolution: Death penalty and fair trial for child offenders. Whether the State had violated the African Charter by issuing death sentences to child offenders. The Commission concluded that the State had violated the right to life and the right to a fair trial.
Court reasoning: The complaint alleged that the DRC failed to meet its obligation under Article 1 of the African Charter to take all necessary measures for the implementation of the rights prescribed by the Charter, as the State had failed to harmonise its domestic legislation with international instruments to which it was a party. The Commission noted that, pursuant to Article 60 of the African Charter, it may draw inspiration from other human rights instruments when determining the content and scope of the rights guaranteed by the African Charter; but it may not rule on whether other treaties have been properly implemented. Regarding Article 4 of the Charter which provides for the right to life, the Commission noted that interference with that right must not be arbitrary, meaning that any limitations on the inviolability of life must be consistent with the law. Unlike the International Covenant on Civil and Political Rights (ICCPR) and some other conventions, the African Charter does not mention the death penalty explicitly and the Commission has previously decided that the death penalty is inconsistent with the Charter. Furthermore, the State is a party to the CRC and the ICCPR, both of which prohibit the imposition of the death penalty on juvenile offenders. Therefore, the Commission held that the DRC had violated the children’s right to life by allowing for the death penalty to be imposed. Article 7(1)(a) of the African Charter provides for the right to an appeal against any decision violating one’s rights. The Commission noted that a second hearing is particularly necessary for the efficient administration of justice where grave sentences such as death penalty or life imprisonment have been imposed and, even more so, where it concerns children. Although there was a possibility of Presidential pardon, the Commission decided this does not satisfy the requirements of Article 7(1)(a) as it depended entirely on the goodwill of the President. Therefore, it was decided that the DRC had violated the children’s right to an effective remedy by not allowing the sentence of the military court to be challenged. A further violation of the right to defence and counsel of one’s own choosing established in Article 7(1)(c) was found as the children were not represented at the trials. The Commission said that legal representation is fundamental to a transparent and fair trial and that States are responsible for providing legal representation to those who are unable to obtain it otherwise. However, there was no evidence of difference in treatment that would constitute a breach of Article 3(1) of the Charter guaranteeing equality before and equal protection of the law. Finally, based on the established violations of Articles 4 and 7, the Commission held that Article 1, which obliges the State to give effect to the rights in the Charter, had also been breached.
Excerpt citing CRC and other relevant human rights “On international legal instruments, the Complainants allege the violation of children’s rights to special judicial treatment guaranteed by Article 40(3) of the Convention on the Rights of the Child, set out in Articles 2(1) and 12(1) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice and Article 5 of the Decree of 6 December 1950 on delinquent children. They further allege that the right of children to judicial assistance stipulated in Article 17(2)(c)(iii) of the African Charter on the Rights and Welfare of the Child and Article 40(2)(b)(ii) of the Convention on the Rights of the Child has been violated.” “The Complainants, under the same instruments, also allege the violation of the prohibition of the application of juvenile death penalty under Article 6(5) of the International Covenant on Civil and Political Rights, Article 37(9) of the Convention on the Rights of the Child and Articles 6 and 8 of the Decree of 6 December 1950.” “[…]the Commission notes that many international obligations, to which the Democratic Republic of Congo has committed itself, prohibit the imposition of the death penalty on children. We cannot refer to this subject without mentioning the fundamental standard on this matter which is Article 6(5) of the International Covenant on Civil and Political Rights expressed in the following terms “a death sentence cannot be imposed for crimes committed by individuals who are below 18 years”. Even if it were to be assumed that the concept of arbitrariness would maintain an open window on the limitation of the right to life protected by Article 4 of the Charter, one actually realizes that the provisions of Article 6 of the Covenant, among others, exclude persons who are less than 18 years from the limitation of the right to life, even legally, from the imposition of the death penalty. A similar protection is guaranteed by Article 37(9) of the United Nations Convention on the Rights of the Child which stipulates that “Neither capital punishment nor life imprisonment without the possibility of release shall be handed down for offences committed by persons below 18 years”. Needless to strive for the interpretation in order to observe that the very act of imposing such sentences against juveniles constitutes an arbitrary interference in the right to life and the integrity of these persons, an act which is prohibited by Article 4 of the African Charter.”
CRIN comments: CRIN believes this decision is consistent with the CRC. The death penalty, as well as life imprisonment and other types of inhuman sentencing, constitute a clear violation of the rights of the child. Furthermore, pursuant to Article 38 of the Convention, States must take all feasible measures to ensure the protection and care of children who are affected by an armed conflict, therefore, no criminal penalties should be imposed on children for acts committed while illegally recruited as soldiers.
Notes: The death sentences of six of the children concerned had been commuted to life sentences and one of the seven children was executed minutes after the sentence was imposed. On 2 August 2002 DRC issued Decree granting pardon to child soldiers and other minors sentenced to the death penalty and other repressive punishments. Another Decree issued in 2002 provides for the principle of second appeal in relation to decisions of military courts.
Citation: Communication No. 259/2002
Link to full judgement: http://www.achpr.org/files/sessions/14th-eo/comunications/259.2002/achpr14eos_decision_259_02_eng.pdf