CCPR/C/112/D/1968/2010
7.8
The Committee notes that the review procedure in the case of the authors is
subjected, through various amendments of the relevant legislation, to such restrictive
conditions that the prospect of release seems extremely remote, also bearing in mind the
“never to be released” recommendation made by Justice Newman of the Supreme Court of
New South Wales on 18 September 1990. Furthermore, the release, if it ever took place,
would be based on the impending death or physical incapacitation of the authors, rather
than on the principles of reformation and social rehabilitation contained in article 10,
paragraph 3, of the Covenant. In that respect, the Committee recalls its general comment
No. 21 (1992), in which it indicated that no penitentiary system should be only retributory
and that it should essentially seek the reformation and social rehabilitation of the prisoner.
The Committee emphasizes that this principle applies with particular force in connection
with juveniles.
7.9
The Committee notes the observations provided by the State party regarding the fact
that the authors have benefited substantially from prison programmes and policies designed
to further their personal development, encourage social contact with the outside world and
provide skills which would assist in their reintegration into the community if released (see
paras. 4.16 and 4.17 above). The Committee notes in that regard that the State party has not
put forward any argument suggesting that rehabilitation would not succeed in the the case
of the authors, based, for instance, on psychological and psychiatric assessments of them.
7.10 The Committee notes the argument of the State party, in connection with article 24
of the Covenant, that its criminal justice system provides appropriate protection to
juveniles, including special procedures regarding pretrial detention, trial and imprisonment.
The Committee does not question the existence of such measures of protection and their
application to the authors at the time of the trial and during the first years of their
imprisonment. However, as for articles 7 and 10, paragraph 3, the main claim under article
24, paragraph 1, of the Covenant remains the imposition of life sentences on the authors
without real possibility of release.
7.11 Article 24, paragraph 1, of the Covenant requires that States parties afford children
such measures of protection as are required by their status as minors. That provision takes
into account the vulnerability and immaturity of children, as well as their capacity for
development. The entitlement of children to special consideration also informs article 10,
paragraphs 2 (b) and 3, and article 6, paragraph 5, of the Covenant, which prohibits the
imposition of death sentences for crimes committed by persons below eighteen years of
age. The Committee considers that treating juvenile offenders in a manner appropriate to
their age and legal status precludes a definitive conclusion that a juvenile’s actions make
that person incapable of rehabilitation and undeserving of release, regardless of any future
personal and social development, for the entire length of a lifetime. The Committee recalls
in that regard article 37 (a) of the Convention on the Rights of the Child, which stipulates
that “neither capital punishment nor life imprisonment without possibility of release shall
be imposed for offences committed by persons below eighteen years of age.” While the
main role of the Committee is to monitor the implementation of the Covenant, the
Committee considers this provision, which is included in a treaty that has been ratified or
acceded to almost universally, including by the State party, as a valuable source informing
the interpretation of the Covenant in the present case.
7.12 Taking into account the lengthy period prescribed before the authors are entitled to
apply for release on parole, the restrictive conditions imposed by the law to obtain such
release and the fact that the authors were minors at the time they committed their crimes,
the Committee considers that the life sentences, as currently applied to the authors, do not
meet the obligations of the State party under article 7, read together with articles 10,
paragraph 3, and 24 of the Covenant. Having reached that conclusion the Committee will
not examine the claims of violation of article 15, paragraph 1.
17
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