Children in Court CRINMAIL 18:

In this issue:

Life imprisonment: reform in the Americas

The Criminal Appeals Chamber of Argentina has ruled that life imprisonment sentences for persons under the age of 18 are unconstitutional. Argentinian law previously allowed for sentences of life imprisonment to be handed down to children from the age of 16, and guaranteed that they would be detained for a minimum of 20 years. Citing the Convention on the Rights of the Child, the judgment recognised that life imprisonment of children was incompatible with the requirement to use detention for children as a measure of last resort and for the shortest possible period of time, as well as that such punishment is not compatible with the need to ensure juvenile sentences aim at the reintegration the child. The decision has served to eliminate life imprisonment of children from the laws of South America.

Grenada too has taken a significant step towards eliminating inhuman sentencing from its laws, by explicitly prohibiting life imprisonment as well as the whipping or flogging of anyone under the age of 18 at the time an offence was committed. The Act has received the final ascent of the Governor-General, but will not come into force until a date is set by the responsible Minister. The new Juvenile Justice Act does not, however, prohibit detention at the pleasure of Her Majesty, an indeterminate sentence that can allow for the detention of a child for the rest of his or her life.

Meanwhile, following the US Supreme Court’s ruling on the unconstitutionality of mandatory sentences of life without parole for juveniles (LWOP), legal reforms have started to take place throughout the United States, although amendments to date still fall short of the standards set by the CRC.

California was not required to amend its laws by the Court decision, but nevertheless the state enacted a bill in September which will allow all juveniles who have been sentenced to prison terms of life without parole to apply to have their sentences reduced to 25 years imprisonment. The new law allows judges to reduce LWOP sentences for offences committed while a person was under the age of 18, if the offender can demonstrate remorse and that he or she has taken steps towards rehabilitation. The new law makes release possible that the 300 people who are currently serving juvenile LWOP sentences in California for offences committed while under the age of 18.

A similar bill is also awaiting the approval of the Governor of Pennsylvania, under which children sentenced to LWOP for crimes committed while under the age of 15 would be able to seek parole after 25 years, and those aged 16 or 17 would have to serve a minimum of 35 years. Neither law would outlaw full life sentences. Human Rights Watch wrote an open letter to Governor Corbett in response to the passage of the Bill arguing for a “thoughtful, informed sentencing reform” rather than the “rushed legislative process” that has led to the passage of this legislation.

The fight against juvenile LWOP sentencing in the USA is also progressing through the Inter-American human rights system. A petition arising from the life imprisonment practices in Michigan was declared admissible in March this year, and is currently pending before the Inter-American Commission on Human Rights for a hearing on the merits.

Accountability for historical human rights abuses- Kenya, the United Kingdom and Iran

The High Court of England and Wales held this month that Kenyan victims of torture, sexual abuse and other violence will be able to bring cases against the British Government in relation to historic human rights abuses. The case arose out of abuses committed by the British administration in Kenya during the 1950s Mau Mau uprising, including a large number of child victims. Among those who brought the case was Jane Muthoni Mara who alleges that she was abused and raped while detained during the uprising while she was 15 years old: she should now be able to pursue her claim through the British courts. The case has potentially far reaching implications, an estimated 2,000 victims of human rights abuses during the uprising are still alive, and may now be able to bring cases to establish the guilt of those responsible and receive compensation for the harm they have suffered. The British Government has expressed its intention to appeal the ruling which could substantially delay any decisions on compensation.

In a less formal setting, an independent tribunal held hearings in the Hague in September to investigate the mass executions of as many as 30,000 people, including large numbers of teenagers, in Iran during the 1980s. Though the tribunal will not be able to impose sanctions the process has been set up in an attempt to hold the State accountable for the widespread human rights abuses that took place during what became known as “the bloody decade”. Those on the tribunal’s steering Committee includes a number of prominent lawyers and legal academics, including a former prosecutor at the International Criminal Court, Sir Geoffrey Nice, and former UN Special Rapporteur on Palestinian human rights, Richard Falk.

Not a measure of last resort: detention of children in New Zealand, Bahrain and the United States

A review launched by the the Independent Police Conduct Authority (IPCA), the Office of the Children’s Commissioner and the Human Rights Commission in New Zealand has called for police to improve their training and treatment of young people in custody. In 2011, 213 young people were detained in Police cells, marking a steady increase in the number held in police detention since 2009. The review makes 24 recommendations aimed at reducing the number of young people spending time in Police cells and ensuring that the conditions in detention and treatment of young people meet New Zealand’s international obligations. Commenting on the publication of the report, Judge Sir David Carruthers, chair of the IPCA said, “we need to focus on preventing and reducing youth offending as well as identifying alternatives to Police detention.”

This self critical response is in stark contrast to that seen in Bahrain. A report published last month by the Bahrain Centre for Human Rights (BCHR) highlights the plight of 123 children who have been detained for an average period of 91 days since March 2012, often without charge. The report also highlights the widespread ill-treatment of children in detention, including torture.

In the context of immigration, the number of unaccompanied migrant children held in United States detention centres has risen nearly 50 per cent in the nine months ending in June 2012, up to 10,000, according to federal statistics. These figures were published this month in a report produced by the Women’s Refugee Commission, which includes substantial criticism of the facilities in which children are detained, as well as of the operations of the United States Customs and Border Protection and the Department of Health and Human Services Office of Refugee Resettlement. The report noted the trend of holding children in “surge facilities” which are likened to emergency hurricane shelters, where only basic medical care and limited education facilities are available.

Children's testimony in courts - contrasting approaches in India and Spain

In India, the High Court of Delhi has ruled that the evidence of child witnesses cannot be rejected outright in criminal proceedings in which children are involved. The case arose in relation to a man’s appeal against conviction for kidnapping and raping a three-year-old girl. The court rejected the argument that the trial court’s reliance on the evidence of witnesses aged three and four at the time of the alleged events rendered the conviction unsound and accepted that the statement of child witnesses be given due weight on the basis that “there [was] nothing on record to show that both [children] were not capable to reveal the incident and identify the accused”.

This progressive step in the Indian courts falls in stark contrast to that of Spain, according to a report by Save the Children. The report criticised the Spanish courts for archiving cases of child sexual abuse without conducting a thorough investigation, especially when the alleged perpetrator is a parent. The report also found that children’s testimonies are not given appropriate consideration, and are rarely obtained through child-friendly practices, such as drawing and play. The youth of children has also been used by judges as a justification for disregarding their testimony as unreliable.

On the issue of the credibility of children's testimonies, a study conducted last year by the Centre for Legal Studies (CEJFE) in Catalonia contradicted the assumption that the testimonies of child victims of sexual abuse are unreliable because they have a tendency to exaggerate. The study, in which 135 nursery school children between the ages of three and six took part, found that young children are capable of recounting traumatic experiences in great detail, with a margin of error of only five per cent. The study concluded that even if children’s testimonies do contain flaws, they should never be disregarded in courts.

Discrimination against homosexual and unmarried couples in Northern Ireland

The High Court in Northern Ireland held this October, that secondary legislation prohibiting unmarried couples and couples in civil partnerships from adopting children was discriminatory with regards to couples’ rights to private and family life. In rendering the judgment of the court, Justice Treacy highlighted the “irrational and plainly unlawful” provisions that allowed single people to adopt regardless of sexuality, but not if they had entered a civil partnership. The judge further stressed the importance of the best interests of the child in adoption cases, finding that “[e]xcluding persons from the whole adoption process on the sole basis of their relationship status can only serve to narrow the pool of potential adopters which cannot be in the best interests of the child”.

Reproductive rights in the United States, Latin America and France

The Supreme Court of Utah has ruled against recognising a child’s biological father as a parent for the purposes of social security benefits in a case of artificial insemination after the death of the child’s father. The case revolved around Gayle Burns, whose husband had his sperm deposited in a cryo-preservation facility for his wife prior to his death, and who later used the sperm to conceive a child. The court’s decision turned on the Social Security Act, which requires that the spouse must record consent to becoming a parent through artificial insemination in order to be legally recognised as such for the purposes of related benefits. The court was unwilling to recognise the preservation of semen under Ms. Burns control as indicative of such consent.

Meanwhile, Uruguay has become the third State in Latin America to legalise abortion beyond cases of rape, incest or danger to a woman’s health. The enacted Bill guarantees women’s right to abortion under any circumstances during the first trimester of pregnancy. The rule is a major reform in a year that has seen more modest legal changes in other countries in the region. In March the Supreme Court of Argentina ruled that victims of rape could not be prosecuted for seeking abortions and in April the Supreme Court of Brazil overturned a ban on aborting brain-damaged foetuses. These reforms, however, remain the exception in a region in which El Salvador, Nicaragua, Honduras, the Dominican Republic and Chile all retain absolute prohibitions on abortion.

The French National Assembly has passed a Bill this month that would make contraceptives available free of cost to children between the ages of 15 and 18. The Bill, which is expected to pass through the Senate without difficulty, would also extend the provision of free abortions that are available to minors and low-income women to allow for the reimbursement of the costs of abortions for all women.

Botswana Court strikes down discriminatory inheritance laws

The High Court of Botswana has struck down provisions of customary law that prevented women from inheriting the family home on the basis of the constitutional guarantee of gender equality. Under customary legal practices, the family home was inherited by either the first or last son, depending on the tribe, a practice which clearly discriminates against women and girls. The ruling came in relation to a case involving four sisters, all over the age of 65, who had fought a five-year legal battle to keep and continue living in their parent's house, which was being claimed by a distant male relative who had never lived there. The case sets an important precedent in a country where customary practices commonly discriminate against women and girls.

Remedies for displacement in Australia and Cambodia

Two NGOs operating in Cambodia have filed a complaint with the Australian Human Rights Commission on behalf of 30 families who have allegedly suffered serious violations of their human rights as a result of resettlement during a railway rehabilitation project. The project, which is largely funded by The Asian Development Bank (ADB) and the Australian government, involved the resettlement of around 1,200 families to refurbish the dilapidated railways in the region. The complaint alleges that the relocation has placed children in situations without access to water, far from schools, and in some cases has pushed children into work to supplement family incomes. The complaint also alleges that the Australian government did not take the necessary steps to avoid and remedy these abuses and to mitigate the harm that people have suffered. This petition follows that lodged last month with the ADB’s Compliance Review Panel.

Call for applications: litigation surgery on the right to education in Africa

Interights is calling for applications from lawyers, advocating or litigating the right to education in Africa for participation in a litigation surgery. The surgery will focus on helping lawyers to identify, frame violations and formulate human rights arguments in seeking remedies to violations, as well as promoting an in-depth understanding of litigation before regional and international human rights bodies. In order to be considered for the event, applicants are required to submit cases they are litigating or intend to litigate that address right to education violations. The deadline for applications is 23 November 2012. See more details here.

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