Papua New Guinea (PNG) has a population of 6.8 million, nearly half of which is under 18 years of age. UNICEF – At a glance: Papua New Guinea, Statistics, (Retrieved 30 April 2012). Public trust in the justice system has been eroded, and the country’s significant crime problem exacerbated, by brutal responses from police against those they suspect of having committed offences, and the routine violence, abuse and rape carried out by police against persons, including children, within their custody. Human Rights Watch, “Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea, 30 October 2006. Many incidents are cases of opportunistic abuses of power by police instead of their following official processes. While a raft of measures have been assembled in order to improve conditions and processes for youths within the justice system, their success has been hampered by a severe lack of implementation, insufficient resources, and failure to impose appropriate penalties on authorities for failure to adhere to their provisions.

International legal obligations

The Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) work to prohibit torture and cruel, inhuman, or degrading treatment and punishment. Many abuses that children in PNG have been subjected to amount to "torture" which is defined in CAT to mean any act where severe pain or suffering, (physical or mental), is inflicted by a state official or with their consent or acquiescence, for a purpose such as obtaining a confession or information, punishment, intimidation or coercion.UN Convention Against Torture, Article 1. PNG ratified the ICCPR in 2008 but has not yet ratified the CAT, however the prohibition against such treatment is widely regarded to have attained the status of a jus cogens norm meaning that it is a binding norm of customary international law from which states are not permitted to derogate. Human Rights Watch, "Making Their Own Rules: Police Beatings, Rape and Torture in Papua New Guinea, 31 August 2005, at 49-54. Universal Declaration of Human Rights, Article 5 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Pursuant to the United Nations Convention on the Rights of the Child, which PNG ratified in 1993, a child has a right to protection from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child." United Nations Convention on the Rights of the Child, Article 19(1). Article 37 prohibits the subjection of children to "torture or other cruel, inhuman or degrading treatment or punishment". United Nations Convention on the Rights of the Child, Article 37(a). It further states that arrest, detention or imprisonment of children should only be used as a last resort for the shortest appropriate time, that children should be separated from adults, and that children deprived of their liberty must have the right to prompt access to legal assistance. United Nations Convention on the Rights of the Child, Article 37(b)-(d).

Juvenile justice reforms

In response to concerns regarding the handling of young offenders in PNG, the Juvenile Courts Act 1991 (JCA) was enacted, entering into force in 2003, and representing PNG’s endeavour to incorporate the Convention on the Rights of the Child into its domestic criminal justice system.Mark Evenhuis “When Justice Harms: Juvenile Justice in Papua New Guinea” (2011) 36:3 AltLJ 166. Through the JCA, PNG became the first country in the Pacific to establish a distinct justice system for juvenile offenders, UNICEF “Pacific Region turning Spotlight on Achieving Justice for Children (Retrieved 26 April 2012). a juvenile being "a person aged not less than seven years and less than 18 years". Juvenile Courts Act 1991 (PNG), section 2.

Free legal assistance for juveniles is only obtainable from the Office of the Public Solicitor where they face serious charges or seek to appeal a custodial sentence.Mark Evenhuis “When Justice Harms: Juvenile Justice in Papua New Guinea” (2011) 36:3 AltLJ 166 at 169. However, the JCA provides for the appointment of juvenile court officers (JCO) who, pursuant to section 13 of the JCA should have the power to enter places where children are detained, including police lockups; interview children; be present during interrogation; advise children of their rights; question arresting officers; attend court; and make submissions regarding sentence. Juvenile Courts Act 1991 (PNG), section 13(1). Anyone obstructing a JCO from exercising their powers commits an offence under the JCA. Juvenile Courts Act 1991 (PNG), section 13(3). In practice their role has largely proved ineffective on account of their insufficient training; lack of legitimacy from the perspective of police and correctional institution staff who regularly refuse them access to juveniles; deficient financial resources for expenses incurred in performing their duties (such as travel); and inadequate supervision of JCOs following training.Mark Evenhuis “When Justice Harms: Juvenile Justice in Papua New Guinea” (2011) 36:3 AltLJ 166 at 170.

The Juvenile Courts established under the JCA have jurisdiction for all indictable offences except homicide, rape or offences punishable by death or imprisonment; the more serious charges will come before National Court Judges. Juvenile Courts Act 1991, section 15. Juvenile Magistrates and Judges are guided by the Juvenile Court Protocol which requires them to "monitor the use of physical force used against a juvenile" and to exclude any evidence obtained by use of threats Evidence Act 1975 (PNG), section 28 (confessions induced by threats are inadmissible). or torture UN Convention Against Torture, Article 15 (statements obtained by torture may not be invoked as evidence except against a person accused of torture). Convention on the Rights of the Child, Article 40 (which seeks to protect children from self-incrimination). pursuant to both domestic and international standards. Human Rights Watch, “Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea, 30 October 2006, at 18. The Juvenile Court Protocol, prohibits Magistrates from placing children in institutions that lack a separate juvenile section, and directs them to review police decisions with regard to detention.Magisterial Service of Papua New Guinea, Juvenile Court Protocol for Magistrates, 2004, at 37-38. Magistrates are provided a checklist so that they may ensure that any arrest or detention of juveniles is carried out in compliance with the JCA and the Protocol. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 8. However, Human Rights Watch (HRW) has found that Magistrates and Judges were not asking children about their physical treatment, even in cases where they were obviously injured, and often ignored reports of violence volunteered by children. Human Rights Watch, "Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea, 30 October 2006, at 18.

The 2004 Administrative Review of the Police recommended reform with regard to accountability, enforcement of disciplinary codes, reform of task forces, mobile squads and auxiliary police, and an improvement of police response to cases of domestic violence and sexual abuse. Human Rights Watch, “Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea, 30 October 2006, at 13. The Police Juvenile Justice Policy and Diversity Protocol was drafted in February 2006 with the aim of realigning police practices and procedures with JCA provisions and ensuring that the interests of juveniles are the primary consideration. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 7. In accordance with these procedures, arrest and detention of juveniles are only to be used in extreme or special circumstances, and their identity and records are to be kept strictly confidential. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 7. The Protocol places emphasis on restorative justice and diversion with a view to diverting those who commit less serious offences away from the formal justice processes. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 8.

Problems with implementation of reforms

Police violence Violence within PNG’s police force is endemic and the vulnerability of children, and the assumption that most young males are "raskols" (members of criminal gangs), render children particularly easy targets. Human Rights Watch, "Making Their Own Rules: Police Beatings, Rape and Torture in Papua New Guinea, 31 August 2005, at 6. During his visit to PNG in 2010 the UN Special Rapporteur on Torture received numerous complaints of beatings and ill-treatment of juveniles whose allegations were corroborated by medical evidence. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 10-11. In interviews conducted by HRW, children reported such abuses as being kicked, beaten with crowbars, batons, rubber hoses, and chairs, as well as being shot or knifed, with the pain and suffering often inflicted in order to obtain confessions to crimes or to punish them for things they had done. Human Rights Watch, "Making Their Own Rules: Police Beatings, Rape and Torture in Papua New Guinea, 31 August 2005, at 25. Girls are often subjected to sexual abuse or rape at the hands of police and because girls are seldom charged, tried or sentenced, any contact they may have with the police is not necessarily formally recognized. Human Rights Watch, "Making Their Own Rules: Police Beatings, Rape and Torture in Papua New Guinea, 31 August 2005, at 6. Sexual violence has contributed to a rapidly escalating HIV epidemic as fear of police deters people from reporting sex offences as well as other crimes. Human Rights Watch, “Still Making Their Own Rules: Ongoing Impunity for Police Beatings, Rape, and Torture in Papua New Guinea, 30 October 2006, at 2.

In a 2010 Report the Special Rapporteur expressed concerns that police in PNG were often in a position where it was difficult for them to enforce the rule of law on account of insufficient financial and human resources, low standards of professionalism and widespread corruption, difficulties in accessing remote rural areas, and a general lack of political will. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 9. The resulting situation is a reliance on private security companies who are tasked with carrying out some of the core duties of the police; in 2011 there were more operative private security officers than police (4,800 and 1,200 respectively) illustrating a worrying trend in the eyes of the Special Rapporteur who suggested that "it reflects police weakness and a failure of the State to provide security and freedom from fear." Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Mission to Papua New Guinea, 2010, at 9.

Detention facility conditions