Children in Court CRINMAIL 15

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NEWS

New standards, law on legal aid

This spring, the UN Commission on Crime Prevention and Criminal Justice passed a resolution approving draft Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. The resolution paves the way for the adoption in the General Assembly, which would put in place a series of standards to ensure access to legal advice and assistance for all persons brought into the folds of the criminal justice system. Among other things, the draft Principles and Guidelines state that:

• “Children should have access to legal aid under the same or more lenient conditions as adults;”

• “Legal aid provided to children should be prioritised within the best interests of the child, accessible, age-appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children;” and

• “States should ensure special measures for children to promote children’s effective access to justice and to prevent stigmatization and other adverse effects as a result of being involved in the criminal justice system.”

Read more about the new Principles and Guidelines as they apply to children in CRIN's new Legal Assistance Toolkit for Children and Children's Rights Organisations.

In another exciting development, Sierra Leone has enacted a new law which some believe will create one of the most progressive legal aid systems in Africa. The law creates a truly national legal aid system for the first time, and places a strong emphasis on the role of paralegals in addition to fully qualified lawyers. Comprehensive legal assistance will be offered in both the criminal and civil justice systems by a mix of public, private, and civil society actors.

Children's rights & business

The UN Office of the High Commissioner for Human Rights has offered new insight on the corporate responsibility to respect human rights in the form of an interpretive guide. The guide aims to develop a full understanding of the meaning and intent of the UN Guiding Principles on Business and Human Rights, and includes a series of basic questions and answers on remediation through judicial processes and company-based grievance mechanisms. Read the guide here.  In related news, UNICEF has also launched a workbook on children's rights and business, which can be downloaded here.

Bringing legal advocacy into focus, the Business & Human Rights Resource Centre has published a new briefing to highlight human rights lawsuits against companies over alleged abuses in more than 25 countries. This briefing draws attention to the latest developments in lawsuits including claims of torture, environmental damage and occupational hazard brought by victims against companies in Argentina, Bangladesh, Canada, China, Democratic Republic of Congo, Ecuador, France, Nigeria, South Africa, UK, USA and other countries. The briefing flags key developments, trends and issues in human rights litigation against business actors, and in particular addresses gaps in access to remedies for victims. Among other trends, it finds an increase in the use of national courts and domestic law to hold companies accountable for human rights abuses.

Justice served in Rwanda

Community-based “Gacaca” court trials have come to an end in Rwanda. The courts, firmly rooted in restorative justice ideals, were put in place 10 years ago to expeditiously try the many thousands of individuals accused of genocide, war crimes and crimes against humanity in connection with the 1994 Rwandan Genocide. Although the courts have at times been marred by allegations of corruption and injustice, they have also been widely commended for delivering justice efficiently and promoting reconciliation. Rwandan President Paul Kagame lauded the courts as a successful adaptation of the country's traditional conflict resolution mechanism, telling the world that “[Gacaca] challenged every Rwandan into introspection and soul-searching that resulted in truth-telling, national healing, reconciliation and justice. And it worked because Rwandans largely believed in it.”

Heading to court for children in Ireland

A new children's law centre will soon open in Ireland with the goal of advancing children's rights through legal advocacy. Children in Ireland are not permitted to initiate legal action on their own, and often have great difficulty in accessing legal remedies when their rights have been violated. The centre will not only provide legal advice and information on matters relating to children, but will also undertake strategic litigation and advocate directly for progressive legal reform. The initiative follows in the footsteps of many similar law centres around the world that have successfully used the law to further children's rights. Read more about children's rights and strategic litigation here; read more about children's law centres here.

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CASE UPDATES

Reaching into Chevron's wallet

After a decades-long battle, Chevron may finally be forced to start paying some of the $18 billion in damages an Ecuadorean court levied against the oil company for polluting the Amazon. As Chevron no longer has assets in Ecuador, lawsuits have been filed in Canada and Brazil to enforce the judgment. According to the plaintiffs' lead lawyer, these are only the first of many to come: “We plan to exercise our legal right to collect every penny of the legitimate judgment from Ecuador, even if we have to drag Chevron kicking and screaming into courts around the world.”

Nonetheless, Chevron continues to deny responsibility and has lodged an appeal with Ecuador's Supreme Court, reiterating that the existing judgement is “a product of bribery, fraud, and...illegitimate” and should not be “enforceable in any court that observes the rule of law.” The company also suffered a partial defeat in a related suit against the plaintiffs' lawyers in New York when a United States federal judge dismissed several of its claims, including those related to fraud. Meanwhile, in another heavy-hitting case, Chevron is now gearing up to face criminal charges and roughly $20 billion in claims for damages in Brazil stemming from a spill in one of the country's oil fields.

About-face on access to justice for rights abuses

Arguments are rolling in as the United States Supreme Court prepares to rehear a case that will determine whether companies can be sued in U.S. courts for human rights violations committed overseas. The case – filed against oil giant Shell – relates to allegations of extrajudicial killing, torture and rape in Nigeria, and now threatens to close off what has become a well-established pathway for victims around the world to hold corporations accountable for human rights abuses. In a surprising move, the United States Government has switched sides, now taking the position that overseas victims of human rights violations should not be able to seek justice against foreign corporations in U.S. courts. After filing a joint brief with the Government of the Netherlands in support of Shell, the United Kingdom is now also facing pressure from activists to explain why it chose to intervene in a U.S. court case. Read the briefs filed so far and learn more about the case here.

Taylor on lockdown

Following his conviction for aiding and abetting war crimes, Liberian ex-President has now been sentenced to serve 50 years in jail by the Special Court for Sierra Leone. The sentence was heartily welcomed in Sierra Leone, and the Court believes it to reflect both Taylor's responsibility as head of state and his betrayal of the public trust. For his part, however, Taylor maintains his innocence and has promised to launch an appeal.

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GLOBAL CASE ROUNDUP

Busy term for the United States Supreme Court

The Supreme Court of the United States has taken a step further toward eliminating the inhuman sentencing of children. In a closely-watched decision, the Court ruled that mandatory sentences of life without the possibility of parole are unconstitutional for children convicted of homicide.

The decision continues a line of cases interpreting the constitutional ban on cruel and unusual punishment that in 2005 put a stop to the juvenile death penalty and in 2010 gave children serving life sentences for non-homicide related offences a “meaningful opportunity for release.”

The lawyer for the two defendants, both young men convicted and sentenced to life without parole when they were just 14 years old, views the Court's decision as long-awaited recognition “that children need additional attention and protection in the criminal justice system." While judges can still choose to send children found guilty of homicide to prison for life without parole, they must now be able to consider the circumstances of the offence and the offender's age, maturity, development, and family environment before doing so.

Nevertheless, the U.S. remains known as one of the harshest regimes for juvenile offenders, with over 2,500 people currently serving sentences of life without parole for offences committed before their 18^th birthday. A shocking 80 per cent of these offenders were sent to prison for life under mandatory sentencing regimes, and are now entitled to new sentencing hearings. It may prove to be a difficult road for many, though, as these hearings must be initiated by prisoners and – in a blow to accessing justice – the Court has said that inmates petitioning for new hearings do not have a constitutional right to counsel.

In other Supreme Court news, the justices also struck down several provisions of a draconian Arizona immigration law. The law would have made it a crime for illegal immigrants to work or seek work in the state, authorised police officers to arrest a person without a warrant if they have reason to believe that person is an illegal immigrant, and made it a state requirement for immigrants to register with the federal government. However, the Court left in place a requirement that police officers who have stopped someone make an effort to verify that person's immigration status with the federal government. Critics fear this opens the door to targeting minorities for arrest; the U.S. Attorney General shared these concerns and has affirmed that the Justice Department “will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination.”

Environmental concerns weigh on China, Nigeria, Japan

In late May, pretrial discussions were under way in a landmark public interest lawsuit brought by environmental NGOs and a local authority in China. The case centres around toxic heavy metals discharged by a chemical plant in a rural part of Yunnan province, causing extensive health problems for residents and especially children in several nearby villages. NGOs are not typically permitted to file public interest litigation without government backing, but in a rare move, the case was accepted by an environmental tribunal last October and the court has now begun to investigate the evidence presented before it begins a formal hearing. The offending plant has already been closed, and the plaintiffs now demand that the plant's operators pay 10 million yuan ($1.58 million) to fully restore the local environment. Read the full story here, and read more about the case here.

Meanwhile, in the wake of what it calls “the worst lead poisoning epidemic in modern history”, Human Rights Watch has demanded that the Nigerian government undertake an urgent environmental clean-up for communities near small-scale gold mining operations. Nigerian President Goodluck Jonathan has announced that roughly $4 million will be earmarked to address the lead poisoning, which has had particularly serious impacts on the health of local children. Human Rights Watch is also asking for safer mining practices and medical attention for children at risk of poisoning, and intends to monitor how government money is spent.

Across the world in Japan, more than 1,000 residents of the tsunami-devastated Fukushima prefecture have taken a stronger stance by filing a criminal complaint against executives of the Tokyo Electric Power Company (TEPCO), owner of the now infamous Fukushima Daiichi nuclear power plant. The residents have asked the local prosecutor to bring charges against the named executives and government officials for exposing them to radiation following the plant's meltdown. They allege that officials failed to anticipate or prepare for the disaster, an act of professional negligence that has resulted in extensive damage, death and injury. TEPCO executives also face a civil case filed in March by shareholders demanding $67 million for similar claims.

Disappearing Act in Argentina, Guatemala

Two former dictators from Argentina have been convicted of systematically stealing 34 babies from political prisoners during the country's “Dirty War.” The children were given new identities and lives, leaving families to search for decades for their whereabouts. One of the stolen children, now reunited with his father, describes “a torture prolonged through time, for the grandmothers searching, for family members, everyone.” Both of the dictators are already imprisoned for human rights abuses, but have been sentenced to an additional 50 and 15 years behind bars. For some victims, this “represents a guarantee that justice is done.”

In another disturbing disappearance, the Inter-American Commission on Human Rights has filed a case with the Inter-American Court of Human Rights after a 15-year-old girl went missing in Guatemala in 2001. The Guatemalan government has accepted that the initial investigation into the girl's disappearance was fraught with problems, but has failed to conduct a new investigation, hold those responsible to account, or provide reparations to the victim's family. The Commission has also expressed strong concerns about discrimination and violence against women and girls in the country overall.

Immigrants unwelcome in the United Kingdom, United States

The United Kingdom Government has reignited a controversy over the rights of foreign prisoners with children. The Government has suggested that immigration concerns should be given priority over the right to family life, and that offenders should be deported upon release. If the Government fails to see its views manifested in the courts, it may go so far as instructing judges that the right to family life is not absolute and can be overridden in the national interest. Along with measures that will introduce income thresholds for British citizens wishing to bring foreign spouses and children into the country, critics fear that the reforms will serve to split families apart.

Also in the United Kingdom, the Supreme Court has issued a combined ruling on three cases that address children's right to respect for private and family life when one or both parents are under threat of extradition. Under the decision, the impact of extraditing a parent on his or her children's lives must be examined and weighed against the strong public interest in people standing trial for the crimes of which they are accused. The Court signalled that extradition should generally go forward unless a parent's deportation would cause exceptional disruption to his or her child's life, and in one case refused to extradite a mother of four with a disabled husband to Poland to face minor charges of dishonesty.

In a more clearcut victory for immigrants' rights in the United States, legal immigrants in Massachusetts have won the right to have their health care reinstated. In 2009, the state had voted to exclude more than 40,000 immigrants from its health insurance program as part of a budget-cutting measure, prompting a lawsuit that made its way to the state's Supreme Court. The Court found that immigrants are entitled to constitutional protection against discrimination, and that financial concerns cannot be used to justify differential treatment based on birth or immigration status.

Shocking death under Bulgaria's watch

The Bulgarian Helsinki Committee (BHC) has filed an application with the European Court of Human Rights following the death of a 15-year-old girl in a state institution for children with mental disabilities. The girl died from gastrointestinal perforation following an operation that removed shoe insoles, rags, sponges, socks, pieces of paper and stones from her stomach. A subsequent investigation looked solely into the actions of hospital staff surrounding the girl's medical care, failing to address the circumstances in the institution that enabled her to consume so many foreign objects. The BHC argues that the girl was severely neglected as a result of her disability and alleges violations of her human rights, including her right to life, freedom from inhuman degrading treatment, and freedom from discrimination.

Still separate but not equal in the Czech Republic

The Public Defender of Rights in the Czech Republic has slammed the country for failing to desegregate special schools for Roma children, and recommends that moves to integrate primary schools be prioritised. Indeed, extensive desegregation measures are required under the European Court of Human Rights' groundbreaking 2007 decision in D.H. and others v. Czech Republic, but the Council of Europe's Committee of Ministers is now concerned at the slow pace of implementation. To mark the fifth anniversary of the case, the Open Society Justice Initiative has produced an online photo essay, “Failing Another Generation.”

Profit trumps health in children's medicine

British pharmaceutical giant GlaxoSmithKline (GSK) will pay $3 billion in fines in the United States after accepting liability for criminal charges over the illegal marketing of a popular anti-depressant to children, which has since been banned for young patients because it can make them suicidal. The company admitted to hiding scientific evidence, manipulating research articles and showering physicians with expensive gifts in a scheme to trick and bribe doctors into prescribing the drug. It was never approved for use in children, but GSK pushed doctors to use their discretion by suggesting that the anti-depressant might be helpful to under-18s with mental health issues despite much evidence to the contrary.

Tough call on sexual abuse in Sweden

Sweden has avoided being sanctioned by the European Court of Human Rights over the acquittal of a man who hid a camera in the bathroom to record his 14-year-old stepdaughter undressing. When the girl first discovered the camera, she brought it to her mother and later witnessed her mother and stepfather burn a film, leaving the court unable to speculate as to what was on the tape. Although the man was initially convicted at trial, he was later acquitted for lack of evidence, with the Swedish appeals court noting that "the filming of sexual abuse was not a crime in itself as in Swedish law there was no general prohibition against filming an individual without his or her consent." Nevertheless, the European Court found that Sweden's legislation adequately protected the girl's right to private life and refused to hold the government accountable for the difficulty in prosecuting the case. Taking illicit photographs is not yet a criminal offence in Sweden, despite the 2011 urgings of the country's Ministry of Justice.

Moves to curb circumcision in Germany

The Cologne state court in Germany has banned the ritual circumcision of young boys, even where their parents have arranged for the procedure. After complications materialised following the circumcision of a four-year-old Muslim boy, charges were initially brought against the acting doctor. While these claims were ultimately dismissed, the court found that circumcising children in line with Muslim and Jewish traditions unlawfully places the freedom of religion and parents' rights over children's right to physical integrity.

An end to impunity in Zimbabwe?

A South African court has ordered the country to investigate allegations of serious human rights abuses including torture and other crimes committed in Zimbabwe under the authority of President Robert Mugabe. In March, South African human rights groups filed a legal action asking the nation's courts to prosecute persons responsible for the rights violations, prompting a judge to declare that South Africa is obligated to launch investigations as a signatory to the 1998 Rome Statute establishing the International Criminal Court. The decision allays longstanding concerns over the Zimbabwean justice system, viewed by many as too weak to effectively prosecute war crimes, but has also raised concerns of a potential flood of litigation across the border in South Africa.

LGBT children find their voices in the United States

Students at a Florida high school in the United States have taken to the courtroom after being denied permission to start a Gay-Straight Alliance club. The school's principal told students that it would make him “uncomfortable” to have the club on campus, and both he and later the district superintendent refused to approve its formation. The students hope that a judge will order the school district to allow their group to meet, through which they aim to "fight bullying, discrimination, harassment and violence in school."

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NEW LEGAL RESOURCES

Multimedia Strategic Litigation

Interested in the state of global human rights litigation? Six lawyers from the Open Society Justice Initiative have recorded introductory talks that look at how litigation can help support the struggle to realise human rights around the world. Topics covered include the challenges and pitfalls of public interest litigation, the state of international law on torture and ill-treatment, and litigation around statelessness, freedom of information, arrest rights, and anti-discrimination.

Advocates for International Development (A4ID) has made a video available online of its recent seminar on the role of strategic litigation in advancing the protection of socio-economic rights and how it can enhance international development efforts to guarantee the right to health and the right to education in developing countries. The video features presentations from the University of Essex and INTERIGHTS.

International mechanisms for children's rights

A4ID and Clifford Chance LLP have written a four-part introduction to international courts and tribunals. The guides cover Courts and Tribunals Available to States, International Tribunals Available to Individuals, United Nations Human Rights Bodies Available to Individuals, and Regional Courts including Human Rights. For more information on ways that children can challenge violations of their rights, read CRIN's Guide to Child Child Rights Mechanisms.

The Centre for Civil and Political Rights has published a review of the domestic implementation of the Human Rights Committee's October 2010 and March 2011 decisions on individual communications under the Optional Protocol to the International Covenant on Civil and Political Rights. For each session, the Centre has selected a sample of cases, sought information on implementation from reliable sources, and drafted follow-up reports which rate States' compliance with Committee recommendations. The Centre hopes that the reports will serve as an awareness-raising tool for human rights advocates to advocate for full compliance with Committee decisions.

The International Service for Human Rights and the Institute for Human Rights and Development in Africa recently launched a new guide for human rights defenders in Africa. The guide is intended as a practical resource, informing defenders about the protections the African Commission offers and the progress it has made in the last twenty years in seeking to assist human rights defenders through its case law, statements, urgent appeals and resolutions.

In light of the ever-increasing instances of devastating environmental damage and human rights violations, an environmental justice group (EJOLT) has published a paper that reviews national and international mechanisms available to hold multinational corporations accountable for their actions. On the basis of recent judicial developments concerning civil liability claims by victims of corporate operations in various countries, the paper explores the circumstances under which national, transnational and international litigation, either by itself or in interaction with each other, have proven most effective in providing redress.

Parents in conflict with the law

Children whose parents are in conflict with the law are an invisible and often highly vulnerable group. To draw attention to the challenges they face and to encourage more effective implementation of their rights, Penal Reform International (PRI) has published a Justice for Children Briefing on Children with Parents in Conflict with the Law. The briefing considers the international and regional standards in place to protect children whose parents are in conflict with the law and examines how their rights are affected at every stage of criminal proceedings, offering conclusions and recommendations.

Moving forward in the Americas

In May, the Inter-American Commisson on Human Rights presented its Report on the Human Rights of Persons Deprived of Liberty in the Americas. The report reviews and identifies the most serious and widespread problems in prisons and other detention centres in the region, including overcrowding, violence, lack of protection for vulnerable groups, excessive use of force and lack of vocational and educational programmes. In its focus on the human rights of detainees, the report looks particularly at the rights to life and humane treatment and argues for a renewed focus on rehabilitation and reintegration into society. Along these lines, the Commission also expressed serious concern in June over the violent death of a 17-year-old in a juvenile detention centre in Guatemala. Read more about the incident here.

The Inter-American Commission has also recently published a report on Access to Justice for Women Victims of Sexual Violence in educational and health institutions in the Americas. The report finds that sexual violence in these spheres persists and remains largely unpunished, and identifies children as one group at particular risk of rights violations. Addressing sexual violence as an extreme form of discrimination, the report also offers recommendations to guarantee access to justice by improving judicial responses to violence against women and girls. The Commission has further called on States “to create the conditions that enable women to use the justice systems to remedy the acts of violence they suffer and to be treated respectfully and decently by public officials.”

Last but not least, the Organisation of American States has launched a new webpage on its Rapporteurship on the Rights of the Child. The Rapporteurship was created in 1998 to bolster respect for the human rights of children and adolescents in the Americas by evaluating the situation of children's rights, conducting country or site visits, and providing advice on individual petitions. The Rapporteurship also publishes a variety of studies and reports, including a recently released Report on Corporal Punishment and Human Rights of Children and Adolescents. Among other things, the new webpage offers links to decisions and jurisprudence from the Inter-American Commission on Human Rights and Court of Human Rights that relate to children's rights. Notably, the Organisation of American States' Unit on the Rights of Lesbian, Gay, Transgender, Bisexual and Intersex persons has since launched a similar webpage.

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