CCPR/C/112/D/1968/2010
detention, trial, appeals or subsequent imprisonment. Nor is there any suggestion that the
State party has failed to take the general measures of protection it considers appropriate
with respect to children, or has failed to intervene when the family has failed in its duties.
In the absence of a breach of another article in the Covenant which would indicate that the
State party has failed to take such measures of protection as are required by the authors’
status as minors and in the absence of any suggestion that there has been a failure to take
other general measures of protection appropriate to the needs of children, a breach of article
24, paragraph 1 should not arise.
4.28 Concerning the authors’ reference to article 37 (a) of the Convention on the Rights
of the Child, the State party submits that allegations made by the authors claiming a standalone breach of article 24, paragraph 1, which seek to import obligations from the
Convention more properly directed at interpretation of substantively parallel articles of the
Covenant, should be considered in relation to allegations of breach of those articles, rather
than directly considered at first instance in relation to article 24, paragraph 1.
Authors’ comments on the State party’s observations
5.1
On 6 September 2012 the authors provided comments on the State party’s
observations.
Claims under article 7
5.2
The authors argue that, to their knowledge, no person the subject of a “non-release
recommendation” has ever been released. That was the purpose of the amendments to the
law. Although the amended legislation maintains the technical possibility of release, that is
limited to the authors being on their deathbeds or severely incapacitated. Hence, such a
possibility should be treated as no possibility at all. Further, if the authors were paroled on
their deathbeds but then somehow recovered, they would be liable to have their parole
revoked, in accordance with section 170 (1) (a1) of the Crimes (Administration of
Sentences) Act 1999 (NSW).
5.3
As to the possibility of release pursuant to the royal prerogative of mercy, the
authors state that the power to grant mercy has only been used once in New South Wales in
respect of a person convicted of murder. That is the case the State party referred to, which
concerned a woman who murdered her husband after suffering protracted domestic
violence. Properly understood in the political-legal context of New South Wales and in
light of the authors’ status as children, the mere technical prospect of either author ever
receiving the royal prerogative of mercy is not sufficient to convert what would otherwise
be cruel, inhuman or degrading treatment into treatment that is compliant with article 7.
5.4
For any child sentenced to life imprisonment, the possibility of release must be
“realistic and regularly considered”, as indicated by the Committee on the Rights of the
Child.13 New South Wales law as it stands precludes the authors from seeking a
determination of the indefinite life sentences until they have been in prison for 30 years.
Hence, in addition to not being realistic, the possibility of their release is not regularly
considered.
5.5
It is common ground that sentencing children to life without the possibility of
release is a breach of article 7. Such sentences are cruel and inhuman when imposed on a
child because, among other things: (a) child offenders have a lower culpability than adult
offenders; (b) children have greater prospects for rehabilitation; and (c) life sentences
13
Committee on the Rights of the Child general comment No. 10 (2007) on children’s rights in juvenile
justice, para. 77.
13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents