Children in Court CRINMAIL 12:
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News
Reform afoot in Europe, at the UN; Update from the Americas
The Council of Europe’s 47 members have reached agreement on a package of reforms to the European Court of Human Rights. The Brighton Declaration details steps that will be taken to streamline processes at the overburdened Court. Among other things, the Declaration promises to make it easier for the Court to reject cases, requires national courts to apply European Court decisions to cases with similar facts, and increases funding for resources and staff. Not all of the reforms are certain to facilitate greater access to justice, however, as the Declaration also recommends reducing the time limit for filing applications from six months to four months and proposes amending the European Convention on Human Rights to encourage greater Court deference towards national governments.
While acknowledging the European Court’s massive back log and growing case load, advocates had earlier expressed serious concerns that certain governments would seek to weaken what has become one of the world’s strongest human rights mechanisms. Indeed, for some countries, it appears the Court is one of the only independent means to seek justice, with over 60 per cent of new complaints coming from just five countries: Russia, Turkey, Italy, Romania and Ukraine. Under the stewardship of the United Kingdom, many proposals were made during negotiations to limit the Court’s powers in the name of efficiency. Worried that such proposals would serve to foster a culture of impunity, advocates have instead pointed to the need for governments to increase respect for human rights and the rule of law at the national level.
On the international stage, a similar project is under way in Geneva to strengthen the functioning of the United Nations human rights treaty body system. Thirty-two NGOs have submitted a joint statement as part of the process, based on the belief that it should aim both to facilitate the individual enjoyment of human rights and to improve national governments’ respect for human rights obligations. Specifically, the NGOs call on those involved to address the goals of universal ratification of human rights treaties, compliance with reporting obligations, implementation of recommendations and views, enhancing the membership of the treaty bodies and providing adequate resources to the system.
Meanwhile, the Inter-American Commission on Human Rights has just presented its 2011 Annual Report, which details the activities carried out by the Commission and its thematic rapporteurships. Among other things, last year the Commission approved 67 admissibility reports and eight friendly settlements, reviewed more than 400 requests for precautionary measures and presented 23 cases to the Inter-American Court of Human Rights. Notably, the report also contains special sections on the human rights situation in Colombia, Cuba, Honduras and Venezuela, countries the Commission believed warranted special attention in 2011.
Courts in jeopardy in Cambodia, Israel
A second international judge has resigned from a special human rights court in Cambodia. Set up following extensive discussions between Cambodia and the UN, the tribunal has been tasked with bringing people to justice for human rights abuses committed during the 1970s under the Khmer Rouge regime. The court’s first verdict was issued in 2010, but over the past six months it has been plagued by disagreements between international and national members. The first resignation came in October following statements by the Cambodian government that the departing judge felt could undermine the proceedings; the second stems from complaints of obstructive behavior on the part of a Cambodian investigative judge. Given these prominent departures, the Open Society Justice Initiative has now called on the UN to reconsider its commitment to the tribunal and to launch an inquiry into the Cambodian government’s interference with the proceedings.
In a worrying move, the Israeli justice minister has proposed a new law that would allow for the country’s legislature to reinstate laws that have been struck down by the Supreme Court. Under the bill, lawmakers could overturn Supreme Court decisions with a simple majority vote in favour of a law found unconstitutional. The proposal comes following the amendment of rules to the selection of Supreme Court justices in January, and is the latest in the line of measures that many fear threaten the independent power of the judiciary.
You’re on your own, kid
Concerns are mounting as the United Kingdom presses forward with proposals to reform legal fee arrangements and dramatically reduce the availability of legal aid. Campaigners insist that thousands of children – up to 13 per cent of those who currently receive assistance – will lose access to legal aid, primarily in the areas of immigration, benefits, housing, and social welfare. According to the English Children’s Commissioner, the changes to legal aid eligibility will have a marked negative effect on children’s rights. In a submission to the Government, the Commissioner notes that proposals to eliminate children’s eligibility to receive free legal aid and representation for certain types of cases implicate their rights to social security, family life, recovery from abuse, education and health.
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Case Updates
Crude justice
Thirty-five Nigerian villages have jointly filed a lawsuit in the United Kingdom to challenge what they say is an unacceptably slow response from oil giant Shell to several 2008 oil spills in a neighbouring river. The river once provided the villages with water for drinking and farming, and villagers allege that its pollution has ruined their livelihoods. Shell stands behind its clean-up efforts and blames the spills on sabotage, but villagers insist the company’s efforts thus far have been woefully inadequate. The parties had been in negotiations since a class action was first filed against Shell last April, but legal action was recommenced when talks over compensation broke down last month.
Amnesty International has set out in a memorandum its concerns around Shell’s activities and failure to respect human rights in the Niger Delta region. Amnesty argues that Shell’s damaging practices continue after decades of documented environmental damage and demands that, among other things, Shell support the establishment of a fund to clean up and restore the region. Amnesty also points to a recent independent assessment that purports to reveal Shell’s dramatic underestimate of the spills’ magnitude.
Despite mounting evidence in their favour, the Nigerian plaintiffs face justice systems increasingly hostile to their rights. In March, the Supreme Court of the United States punted in a closely watched case where Shell challenged corporate liability for overseas human rights violations altogether. The case will likely determine whether companies can be sued in U.S. courts for violations committed abroad, with Shell arguing that it should not be held accountable in the U.S. for alleged human rights abuses including extrajudicial killing, torture and rape committed in the 1990s in the very same Niger Delta region. The court has ordered the case to be expanded and reargued during its next term, and analysts now expect even more sweeping implications for business and human rights when a decision is reached next year.
On top of this, the International Commission of Jurists has recently published a report on access to justice for human rights abuses involving corporations – mainly those in the oil industry – at home in Nigeria. The report concludes that “people whose environment, land and health have been severely harmed by the activities of corporations face major obstacles when seeking justice.” Corruption, faulty laws and inadequate legal aid leave vulnerable communities with little national recourse; few cases are filed, fewer reach a satisfactory conclusion, and even fewer are ultimately enforced.
Across the Atlantic in South America, accountability appears to be gaining ground as Shell-competitor Chevron now faces a second $11 billion lawsuit in Brazil in addition to criminal charges for oil spills in the Campos Basin. The cases, filed by a federal prosecutor, seek to compensate Brazil for losses suffered as a result of the spills. Chevron, however, maintains that the allegations are “outrageous” and “absurd”, although the company has already been held liable by an Ecuadorean court for $18 billion in damages for polluting the Amazon which the company may soon see enforced against its assets in Panama and Venezuela.
Elsewhere, in Kazakhstan, the fate of a village at the edge of an oil and gas field hangs in limbo despite a 2010 court ruling in their favour. The village was within the original bounds of a special safety zone established around the field in 2002, but villagers were told that the size of the zone had been reduced when they asked to be relocated in accordance with zone regulations. With the assistance of Kazakh NGO Green Salvation, the village successfully sued the government to challenge the reduction in the safety zone and demand relocation, citing harmful emissions from the field’s operations.
Authorities now allege that some residents are delaying settlement by demanding higher compensation, but environmental activists worry that justice is playing second fiddle to big business. Kazakhstan’s record for complying with judgments is far from perfect, leading some to conclude that “The bigger the defendant, and the more [a case] concerns state organs, the harder it becomes to have a court decision fulfilled.”
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Global Case Roundup
International justice in the DRC, Sierra Leone
In its first ever judgment, the International Criminal Court found Congolese warlord Thomas Lubanga guilty of recruiting child soldiers. Specifically, Mr. Lubanga has been held responsible for conscripting and enlisting children and later using them to participate in hostilities that raged across parts of the Democratic Republic of Congo from 2002 to 2003. The verdict was warmly received by the international human rights community, with UN High Commissioner for Human Rights Navi Pillay marking the decision as “a great step forward” for international justice. While this seems indisputable, concerns have since been voiced over what, if any, reparations will be offered to Lubanga’s former child soldiers.
In another monumental decision, the Special Court for Sierra Leone has convicted former Liberian President Charles Taylor of helping the country’s rebels play a bloody role in the country’s civil war during the 1990s and early 2000s. Testimony during the five-year trial proceedings was at times gory and disturbing, with one witness recounting how he pleaded with the rebels to cut off his remaining hand rather than murder his young son. Taylor – the first African head of state to be tried in an international court – has referred to the trial as a “sham” and denies all allegations, but now faces a sentencing hearing in as soon as four weeks.
This will not be a first for the joint UN and Sierra Leone tribunal, which has already convicted nine other defendants for war crimes and ordered them imprisoned for periods ranging from 15 to 52 years. The Sierra Leonean government has been a staunch supporter of both the Court and the Taylor trial, believing that the international justice process has injected strength into the judicial system. “Justice has been delivered”, said the country’s justice minister of the Court’s work, “The trials have also heightened awareness that you cannot get away with impunity.”
One step forward, one step back for gay rights in regional human rights courts
In a blow to gay rights, the European Court of Human Rights has ruled that same-sex couples do not have the right to adopt the children of their partners. The case was brought by a French woman whose partner had conceived a child through artificial insemination, and whose subsequent request to adopt that child was denied by French authorities as she was not married to the child’s mother. A number of human rights organisations intervened, highlighting that 10 European countries allow for second parent adoption and arguing that giving parental authority to both women would enhance the well-being of the child. Nevertheless, despite the fact that same-sex marriage is not legal in France, the Court found that French law did not discriminate against the prospective mother given that unmarried heterosexual couples would face similar hurdles.
Perhaps trying to make up for its European cousin, the Inter-American Court of Human Rights found that the Supreme Court of Chile had wrongfully removed the three children of a lesbian judge from her care on the basis of her sexual orientation. The Court held not only that the judge’s rights to equality and non-discrimination had been violated, but that this discriminatory treatment had had a detrimental impact on her daughters as they were unable to live with their mother for a period of eight years. Noting that "the interest of the child is a guiding principle for the development of standards and their application in all areas relating to the child's life," the Court ordered Chile to pay $72,000 in damages and legal fees. The judgment is the Court’s first affirmation that discrimination based on sexual orientation violates international law, and has been hailed as an important step forward for LGBT rights.
On a sadder note, a young gay man has since been brutally murdered in the Chilean capital of Santiago in what appears to have been a hate crime. The UN has now called on Chile to pass legislation to protect its citizens from discrimination based on sexual orientation and gender identity. As it happens, an anti-discrimination bill is currently under review in the country’s parliament, and the Government has now promised to fast-track approval.
In other LGBT rights news, Sexual Minorities Uganda, a Ugandan human rights organisation, has filed a claim in United States Federal Court against a U.S.-based evangelical minister it alleges was behind a decade-long campaign to persecute sexual minorities. Among other things, the group claims the minister supported a law that would have made homosexuality punishable by death. Members of the group have endured severe discrimination and human rights abuses owing to their sexual minority status, and seek to “prevent the further escalation of persecution in Uganda before it reaches an even more lethal stage."
Bullying loses ground in Bangladesh, the United States
In Bangladesh, the High Court has ordered the Government to explain its failure to investigate allegations of harassment against persons with disabilities in the country’s education system. In response to a case brought by the Bangladesh Legal Aid and Services Trust (BLAST) along with several disability rights organisations and advocates, the Court further ordered the government to adopt guidelines to prevent disability-based harassment in light of disabled children’s fundamental rights to equality.
Similarly, a school district in the United States has reached a settlement with the federal government and six students over allegations that it had failed to stop virulent and endemic anti-gay bullying. Facing conflicting pressure from anti-bullying groups and conservative Christians, the Minnesota school district had put into place a policy of “neutrality” that some teachers felt prevented them from supporting gay students in a hostile climate. In response to the case, the district adopted a new policy to “affirm the dignity and self-worth of all students” and has agreed under the settlement to strengthen measures to prevent, detect and punish gender or sexual orientation-based bullying and to pay the students involved a total sum of $270,000.
Anti-gay measures have also been under fire in schools in Sweden, with the European Court of Human Rights issuing a ruling that upholds the Swedish Government’s right to criminalise actions taken against the LGBT community. In the case, a number of persons had been arrested after they entered a school and distributed leaflets that referred to homosexuality as “deviant” and having a “morally destructive effect on society.” The Court was particularly disturbed that the leaflets were left in the lockers of “young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them.”
The right to education holds its ground in India, to be tested in Moldova
The Supreme Court of India has upheld the country’s right-to-education law, which requires most schools to reserve 25 per cent of their places for impoverished children and allows any child between ages 6 and 14 to demand free admission. A group of private schools had complained that the law violated their autonomy and would drain their resources, but schools receiving government funding will be forced to comply regardless under the Court’s decision. To assuage critics of the law, the Indian prime minster has assured schools that sufficient funds will be made available.
Meanwhile, in a case against Moldova and Russia, the European Court of Human Rights held a hearing on a complaint brought by children, their parents and their teachers in Moldova who refused to obey a government order that they write their language using a particular script. As punishment for their failure to adopt the Cyrillic alphabet, a requirement of no practical use, schools were stormed and closed and those who refused to abide by the requirement were detained, harassed and threatened.
Health makes headlines in Colombia, Japan, the United States, India
The Constitutional Court of Colombia has recognised the right of a 12 year-old girl to terminate her pregnancy because her life and health were in danger. Despite meeting the legal requirements for voluntary termination, the girl had endured 10 weeks of paperwork and bureaucratic formality, and was ultimately forced to continue with her pregnancy. The Court found that an irreparable harm had been caused to the girl, and ordered that she be compensated and provided with appropriate mental health care free of charge.
In less positive news for children’s right to health, a Japanese court in the tsunami-ravaged Fukushima prefecture has refused an application from a group of children asking for their schools to be evacuated. The students continue to attend classes in an environment with a dangerously high level of radiation, provoking serious health concerns. Dissatisfied with the ruling, lawyers for the children have since staged two Global Citizens’ Tribunals in a bid to hold the Japanese Government to international account for its failure to protect children’s rights in the wake of the disaster.
Families with children facing severe health difficulties in the United States have also headed to court, suing the state of Florida over a new policy that would force sick children into nursing homes rather than receiving care at home. The plaintiffs allege that the move is not only a violation of their rights under the Americans with Disabilities Act, but also a more expensive alternative.
In a case that looms large for access to medicine around the world, a lawsuit brought by pharmaceutical manufacturer Novartis in India to demand intellectual property rights for a new leukemia pill now threatens to derail the country’s long-standing status as a manufacturing base of affordable, generic drugs. Many of these same drugs are marketed under brand names and protected by patents in the United States and Europe, but can be made legally and cheaply in India. The country is now the leading source for poorer countries to obtain inexpensive lifesaving medicine, and activists worry that a favourable judgment for Novartis would choke the global supply of medicines to treat AIDS, cancer and other diseases.
Legal recognition of a biological reality in Indonesia
In Indonesia, the country’s Constitutional Court has issued a decision affirming the rights of children to establish legal ties with both of their parents, whatever the relationship between those parents was or is. Previously, a child born to unmarried parents would not be recognised to have a father, effectively denying the child paternal inheritance and in many instances the opportunity to apply for a birth certificate. In reading out a ruling that recognises the civil rights of children in these circumstances, the Court affirmed: “Children born out of wedlock are entitled to a relationship with their fathers.”
Children’s rights and religion in Canada, the United States
The Supreme Court of Canada has upheld the constitutionality of a mandatory Ethics and Religious Culture Program in Quebec schools. The programme had replaced Catholic and Protestant courses on religious and moral instruction, and aggrieved Catholic parents sued to exempt their children from the new classes on the grounds of freedom of religion. Among other things, these parents feared that the replacement programme would interfere with their ability to pass their faith on to their children, and that teaching children about multiple religions at once would confuse them. The Court disagreed, finding the new course to be neutral in nature and that “the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society.”
Across the border in the United States, the Catholic Church has mounted a legal attack against the Survivors Network of Abused Priests (SNAP), an organisation known for its support of victims of childhood sexual abuse in the church. In two cases filed against priests accused of sexual abuse in Missouri, the church has gone to court to demand that SNAP – neither plaintiff nor defendant in either of the cases – hand over more than two decades of email records, likely including correspondence with victims, whistle-blowers, and witnesses, among others. One judge has already ruled that SNAP must comply with this request given that it in all probability has information relevant to one of the cases. Although the church denies that the moves are part of a broader, more aggressive strategy, SNAP fears that the request for the documents is part of a larger campaign to silence the network and victims of child sex abuse in general.
Child sexual abuse in the clear in Brazil?
The Supreme Court of Brazil has cleared a man of charges relating to the rape of three 12-year-old girls on the basis that the girls were sex workers. The decision has sparked outcry from the UN Office of the High Commissioner for Human Rights’ South American office, which notes that the court’s consideration of the victims’ sex lives violates international human rights law and fears the decision “marks a dangerous precedent and discriminates against the victims based on both their age and gender." Brazil’s Human Rights Secretariat similarly criticised the judgment for fostering a culture of impunity and failing to respect the absolute nature of children’s rights.
Green light for challenging discrimination in France, Canada
Racial minorities in France have filed a lawsuit alleging bias and racial profiling in police search tactics. The lawsuit claims that the French police, who can lawfully request identification from any person without a reason, use their powers to unfairly target racial minorities for searches and identification checks. In January, a Human Rights Watch report found that black and Arab males in France were regularly singled out for abusive identity checks, and that children as young as 13 were “subjected to frequent stops involving lengthy questioning, invasive body pat-downs, and the search of personal belongings.”
A federal court in Canada has kick-started a case brought by indigenous groups to challenge discrimination against children living on their native lands. The First Nations groups first filed suit with the Canadian Human Rights Tribunal in 2007, which dismissed allegations that child welfare services were significantly underfunded on as opposed to off the reserve. The new ruling requires the Tribunal to examine the case, and has been welcomed by one Canadian NGO as an affirmation of First Nations children’s right to challenge discrimination across the board.
Hope for juvenile justice in the United States
Following on the heels of a 2010 decision that found a right to a meaningful opportunity for release from prison for children convicted of non-homicide offenses serving life sentences, the United States Supreme Court heard arguments in March in two cases considering the constitutionality of sentencing children to life imprisonment without the possibility of parole for offences that resulted in the loss of life. Human Rights Watch has been closely following the cases, arguing that “the sentence of life without parole for youth offenders violates international human rights law and is contrary to neurological and child development findings documenting the profound differences between adults and children.” Read CRIN’s report on inhuman sentencing in the United States here.
In other U.S. juvenile justice news, a privately run juvenile detention center in Mississippi has reached a settlement in a suit filed by civil rights organisations on behalf of 13 inmates. The case prompted an investigation by the U.S. Department of Justice, which has concluded that children held in the center were victims of sexual misconduct, excessive force, inadequate health care and indifference, among other things. Under the settlement, the children will be transferred to a facility governed by juvenile justice standards that offers rehabilitative services and protection from sexual abuse and violence.
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New Legal Resources
The UN Human Rights Council this year focused on Children and the Administration of Justice during its annual day on the rights of the child; read CRIN’s coverage of the event here. Similar discussions have also been underway in Latin America, where the Inter-American Commission on Human Rights recently released a report on Juvenile Justice and Human Rights.
UNICEF, The Global Compact and Save the Children have released a new set of Children's Rights and Business Principles. The Principles aim to promote greater respect and support for children’s rights within the business community, and were drafted and revised during a lengthy consultation process with children, civil society and businesses. Also on the subject matter, the Business & Human Rights Resource Centre has published the first ever edition of its Quarterly Bulletin on Business & Children, available in six languages here.
The Open Society Justice Initiative has launched a new occasional series of “Case Digests,” summarizing important decisions from global human rights tribunals. The series begins with the UN Human Rights Committee’s 103rd session. For more legal analysis of human rights court decisions, including of cases in the digest, search “Case Watch” on the Justice Initiative blog or click here.
INTERIGHTS has produced a series of legal manuals which serve as a unique reference for lawyers wishing to familiarise themselves with a given article of the European Convention on Human Rights. Each manual includes a theoretical part on the standards of the ECHR and a compilation of citations from the case law of the European Court of Human Rights. The Article 11 manual – on freedom of assembly and association – has recently been updated, and the latest version is now available in English and Russian.
The International Juvenile Justice Observatory has published Recommendations on Mental Health and Young Offenders, which review international and regional standards on the subject matter and make suggestions for reform to bring about greater respect for children’s rights to health, rehabilitation and reintegration on the international, regional and national levels.
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