Children in Court CRINMAIL 19

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3 December 2012, issue 19 view online | subscribe | submit information

Children in Court CRINMAIL 19:

In this issue:

News and Cases

Segregated education of Roma children in Slovakia and the Czech Republic

A regional court in Slovakia has taken a stand against the segregation of Roma children in schools, by finding the practice of teaching Roma children in separate classrooms within the school unlawful. The court held that the measures contravened the equal treatment requirement under national anti-discrimination law. The school had argued that it had not separated children according to ethnicity, but on the basis that they came from socially-disadvantaged backgrounds. The majority of affected students, however, came from Roma settlements. The judgment requires the school to place children in mixed classes from the start of the next academic year.

Meanwhile, in the Czech Republic, the Open Society Foundation is urging the Czech government to end the institutionalised segregation of Roma children within schools. The European Court of Human Rights ruled five years ago that the practice of segregation amounted to illegal discrimination with regards to Romani children’s right to education, responding to evidence that half of Roma children were placed in special schools and half of the students in special schools were Roma. Roma children were 27 times more likely to be placed in these schools. “Practical schools” have since replaced “special schools” but there are concerns that Roma children continue to be segregated from mainstream education.

Children in detention in the United Kingdom and Egypt

The High Court has granted permission to challenge the treatment of 17-year-olds in police custody in England and Wales. The case arose from a boy arrested in London, who was detained for 12 hours without being able to speak to his parents or being provided access to the assistance of an appropriate adult. Under current regulations, children aged 17 are provided with lesser protection than younger children, despite the definition of a child as a person under 18 within English law and the Convention on the Rights of the Child. Shauneen Lambe of Just for Kids Law, who have brought the case, argues that “this is not an isolated incident. 17-year-olds are routinely treated as adults when dealing with the police”. This case, which should appear before the courts early next year, will provide an opportunity to challenge the lesser protection of older children in the criminal justice system.

In Egypt last month, evidence emerged on the widespread abuse of children in detention during the protests over the past year. Around 300 children have been arrested and detained in relation to protests, according to a report published by Human Rights Watch, and have been subjected to ill-treatment that may amount to torture. The organisation found widespread evidence of beatings at the hands of state agents as well as electric shocks being administered to the face of a 16-year-old boy. A decree issued by the President in October 2012, granting amnesty for “crimes linked to the January 25 revolution” should prevent the prosecution of many of the children arrested as a result of the protests, but the 136 children arrested following the September 2012 protests in Cairo may still be prosecuted.

ECHR rules on mistreatment of a girl seeking an abortion

The European Court of Human Rights has ruled that Poland’s treatment of a 14-year-old girl following her attempt to obtain an abortion violated the European Convention on Human Rights (ECHR) in four respects. The girl had sought a termination after she fell pregnant as a result of rape. The court held that the State had violated the girl’s right to private and family life in preventing her from obtaining an abortion to which she was legally entitled, and also in disclosing confidential medical information to the press and members of the public. The State also violated article 5 of the Convention by detaining the applicant for reasons not permitted under Convention. It appeared from the facts that detention had been used to prevent the girl from obtaining an abortion, which is not a permissible basis for depriving a person of their liberty under the ECHR.

Finally, the treatment suffered by the girl amounted to inhuman or degrading treatment, in that she was placed under pressure from doctors not to have an abortion, obliged to discuss the matter with a priest regardless of her wishes, and her mother was required to sign a declaration that her daughter might die if she underwent an abortion, despite the absence of a cogent medical justification for the declaration. Both the mother and daughter were subjected to harassment at the hands of the media and anti-abortion activists, against which the State failed to provide protection. The instigation of a criminal investigation into the child on suspicion of engaging in sexual intercourse with a minor under the age of 15 was also initiated, though later dropped.

Meanwhile, in the United States, Montana has approved a referendum that would require doctors to inform the parents if their children have scheduled an abortion. Though the duty is not mandatory in emergency situations, and notice can be waived by the parents or in sealed court proceedings, where these requirements are not met, the law would allow for criminal and civil liability for the performing physician.

Ireland adopts constitutional child rights provisions

Following a referendum in Ireland, children’s rights provisions will be incorporated into the Irish Constitution for the first time. Included in the amendment is a duty to pass laws to make adoption available to all children, the provision of the best interests of the child as paramount, the inclusion of the right for children to have their views heard in certain judicial proceedings and a change to the threshold for State intervention in the family where the welfare of the child is affected.

The changes have generally been recognised as modest, but commentators have noted the potential to litigate to further the protection of children’s rights based on the new provisions. The new article 42A.1 “recognises and affirms the natural and imprescriptible rights of all children” and requires the State to “as far as practicable, by it laws protect and vindicate those rights”, language that reflects the existing personal rights provisions. The provision could change the relationship between the State and children, by recognising children as rights holders and requiring the State to protect those rights rather than placing these rights within the confines of the family.

Pakistan drops blasphemy charges against Christian girl

Pakistan’s courts have finally dropped the blasphemy charges facing a 14-year-old girl, charges brought in relation to allegations that she burned pages from the Koran. The girl has been on bail since September after charges were brought against an Imam for allegedly framing her. Pakistan’s blasphemy laws have been subject to widespread abuse and led to many false accusations, and there is concern that the quashing of the charges may not end the furore. The girl has been living in an undisclosed location since her release on bail, and the end of legal proceedings may not end public hostility in relation to the allegations.

United States civil courts rule on Somali human rights abuses

Courts in Ohio have ruled against former Somali Colonel, Abdi Aden Magan, finding that he was responsible for the torture of human rights activists during the 1980s under the military dictatorship of Mohammed Siad Barre. The case was brought on behalf of human rights advocate, Abukar Hassan Ahmed, who alleged that he had been subjected to three months of torture under the orders of Colonel Magan, who was serving as the investigations chief of the National Security Service of Somalia at the time. Magan had initially challenged the allegations, but left the country during proceedings which may make it impossible to enforce any ruling on damages. The case comes after a ruling in August in which the District Court in Virginia awarded seven Somali’s US$21 million for the actions of former Somali Prime Minister Samantar, who had allegedly tortured and killed members of the Isaaq clan throughout the 1980s.

French courts reopen electrocution case

French Courts have ruled in favour of reopening the case regarding the electrocution of two boys in 2005, an event that led to widespread rioting in Paris. The case arose out of the death of two boys, aged 15 and 17 in a power substation while being pursued by police. The French courts had initially recommended that two police officers face trial on charges of “non-assistance to a person in danger” for failing to come to the boy’s aid, but the decision was subsequently overturned. The latest decision to reopen the case comes seven years after the incident and will now proceed to the Rennes Appeals Court, which will determine if the police will face charges.

Indigenous groups in Brazil face eviction

Amnesty International has urged the Brazilian authorities to take action to suspend a court order to evict 170 Guarani-Kaiowá indigenous people, including 70 children, from a portion of their ancestral lands. The community has been occupying land along the Hovy River since they were forced out of their previous settlement by armed gunmen who razed their village to the ground.

Around 60,000 Guarani-Kaiowá people live in the state of Mato Grosso do Sul, and many have been subjected to intimidation and violent evictions for occupying their ancestral lands before the completion of a state demarcation process. Amnesty reports that if carried out, the eviction would leave the community to live alongside the highways, where they would be vulnerable to threats from security guards hired to prevent them from re-occupying the land, health problems related to inadequate temporary shelters and a lack of medical assistance.

Human rights and business round-up

Investors in Hershey Co. have launched a lawsuit against the company, to gain access to information on whether the chocolate maker’s cocoa is produced using child labour. Hershey’s has refused to identify its cocoa suppliers, but the complaint alleges that there is overwhelming evidence that much of the company’s cocoa originates in Ghana and Côte d’Ivoire and, therefore, “there are substantial grounds to believe … that Hershey’s chocolate empire is built on a foundation of a West African child labour force”. As of 2011, as many as 1.8 million children were involved in growing cocoa, including hard physical labour and the use of dangerous tools such as machetes, work that places children at serious risk.

New York’s State Court of Appeals has also provided a forum to challenge human rights abuses committed overseas in November, in allowing victims of Hezbollah rocket attacks in northern Israel to bring a case in the United States. The claimants, including a minor, allege that the Lebanese Canadian Bank, with the Assistance of American Express, aided the commission of the attacks by facilitating international transfers of funds. The case will now be heard in full, as to whether the Lebanese bank knowingly transferred funds to aid terrorism and whether American Express acted negligently.

While legal action to combat foreign human rights abuses has just begun in the US, litigation in Canada against Anvil Mining for its alleged involvement in the Kilwa massacre in Congo has been brought to a halt. Rights groups launched a class action suit against the Quebec office of the corporation in relation to allegations that it provided logistical support to the Congolese military as it suppressed a rebel uprising in 2004. As many as 100 people died during the military operation. The Appeal Court had previously dismissed the case on the basis that the Montreal Office of the corporation had not been involved in the decision-making in the Congo, and therefore it would be inappropriate to hear the case in Quebec, and the Supreme Court’s refusal to hear the case, will make it impossible to pursue it further in Canada. Speaking for the coalition that brought the case, Matt Eisenbrandt said, “it is unacceptable that in 2012, victims are still unable to hold Canadian companies accountable in Canadian courts, for their alleged involvement in serious human rights violations committed abroad”.

Meanwhile, in Argentina, the courts have embargoed up to US$19 billion of Chevron’s assets in relation to a lawsuit brought by Ecuadorian villagers. The complaint alleges that Chevron contaminated watersheds over nearly 30 years, causing widespread sickness among indigenous tribespeople and farmers in Ecuador. The company has persistently refused to comply with the original Ecuadorian judgment, alleging that it was “the product of bribery, fraud, and it is illegitimate”, but the latest development in the cause embargoes assets that would cover the full award of the Ecuadorian court. The suit, which has been ongoing for two decades and spans several jurisdictions, may effectively bar the company's investment in Argentina, as any assets placed in the country would be at risk of seizure.

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