CRINMAIL 24: Children in Court
In this issue:
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Introduction
It has been a month of innovative litigation in defence of children’s rights, from the finding in the United Kingdom that it is unlawful to treat children as adults when in police custody to that of the Delhi High Court holding the government accountable for failing to act on child labour. It has also been a month in which the options available for legal advocacy on children’s rights have been extended to a new international complaints mechanism at the UN level. This CRINmail will focus on the news and cases that have caught CRIN’s eye this month.
As always, if you know of cases underway on children’s rights that you’d like to share, please let us know at [email protected].
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News
New UN complaints procedure enters into force
This month a new complaints procedure opened to those seeking to challenge violations of children’s rights to food, adequate housing, education, health and other economic social and cultural rights. The optional protocol to the International Covenant on Economic Social and Cultural Rights (CESCR) came into force on the 5th of May as Uruguay became the tenth country to ratify the instrument.
The Committee on Economic, Social and Cultural Rights, which has monitored the implementation of CESCR since 1985, will for the first time be able to examine complaints from individuals or groups of individuals who have exhausted all attempts to access justice at the national level for violations of the rights under the Covenant. To date, Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia and Spain have all ratified the Protocol. Read more here.
Last month’s Children in Court CRINmail focused on the complaints procedure to the Convention on the Rights of the Child, now the only UN complaints procedure yet to enter into force. Read more here.
Inhuman sentencing update: death penalty in the Maldives and LWOP in the United States
While there is much good to report this month, the news has been bleaker with regards to the criminal sentencing of children.
The Maldives has provoked international condemnation this month by sentencing two teenagers to death for a murder they allegedly committed while under the age of 18. The news comes after a 15-year-old victim of rape was sentenced to 100 lashes for having pre-marital sex and amid concerns that violence in the country’s justice system may be on the rise.
In light of the case, and in view of the rate of violence against children in general in the Maldives, the UN Special Representative of the Secretary-General on Violence Against Children, Marta Santos Pais, said: “It is imperative to improve in the legislation a clear legal prohibition of all forms of violence against children, including in the home, in care and justice institutions, as well as a form of criminal sentencing.”
Meanwhile, in the United States, controversy continues over how individual States will reform their laws in response to the US Supreme Court judgment of June last year, which provided that mandatory sentences of life imprisonment without parole (LWOP) are unconstitutional for people who were under 18 at the time they committed an offence. Florida’s courts have so far refused to apply the judgment retroactively, meaning that those serving LWOP sentences at the time of the judgment have continued to serve those sentences. The District Court of Appeals began to hear the case this month as to whether this practice meets the standards set by the Supreme Court.
Further information:
War crimes update: arrests, convictions and retrials
The International Criminal Tribunal for the Former Yugoslavia has convicted six leading political and military figures for crimes committed during the Bosnian Civil War, including responsibility for the murder, rape and torture of Bosnian muslims, including children. Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentic Coric and Berislav Pusic were all sentenced to between 10 and 25 years imprisonment for crimes which the court recognised “were not the random acts of a few unruly soldiers, but part of a plan to permanently remove Muslims from territory claimed by Bosnian Croats.”
The judgment ends a process which began in 2006. Full information on the trial, including the judgment and history of the case is available here.
Meanwhile, the genocide trial of Rios Montt, former dictator of Guatemala, suffered a set-back this month, as the Constitutional Court overturned his conviction for genocide, torture and rape. Montt had previously been convicted and sentenced to 80 years imprisonment for his part in crimes committed against 1,771 indigenous Ixil Mayans during his rule of 1982-1983. The court annulled the conviction on the basis that Montt had been left without legal representation after the defence team left proceedings in protest. The trial will now have to be reheard and victims' families will be required to give testimony again.
The trial marks the first time a former head of state has been prosecuted for genocide in a national court.
The investigation into crimes committed during the “dirty war”, in which an estimated 30,000 Argentinians “disappeared” at the hands of the military dictatorship, continued during May. Colonel Julio Candiotti , a former Argentinian military officer was arrested in Uruguay in relation to his alleged role in the regime.
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Cases
It has been a busy month for children's rights in the courts - read on for some of the highlights that have come to CRIN's attention throughout May.
Court rules treatment of 17 year olds in detention unlawful in United Kingdom
Treating 17-year-olds in the same way as adults in police stations is unlawful, according to a ruling of the High Court of England and Wales. Under regulations governing the police, children under the age of 17 were entitled to the support of an adult to help engage with the justice system, but 17-year-olds were not. The case revolved around the plight of two boys who had not been entitled to the support of “an appropriate adult” while they were detained in police stations.
The treatment of persons under 18 as adults while under police custody was an anomaly in the United Kingdom’s law, which generally defines a child as any person under the age of 18. In judicial review proceedings such as this case, a person under 18 must be assisted by an adult in bringing the case, “a leaden irony” recognised by the presiding judge, given that the case revolved around whether 17-year-olds require additional help in engaging with the justice system.
The Court found that the Home Secretary had violated the rights of the claimants by failing to amend the relevant regulations to distinguish between adults and those under the age of 18. The decision turned on the failure of the Home Secretary to have regard to the detained childrens’ right to private and family life under article 8 of the European Convention on Human Rights (ECHR). The judgment also relied on the principle that the best interests of the child must be considered a primary concern in decisions undertaken by administrative authorities, as enshrined in the UN Convention on the Rights of the Child (CRC). Although the CRC has not been incorporated into UK law, the judge held that the ECHR, which has been incorporated, must be interpreted in light of the CRC.
The National Appropriate Adult Network has estimated that in the UK 75,000 17-year-olds are detained in police custody every year and will now be entitled to greater protection in light of their vulnerability. Read more here.
Italy’s “state of emergency” on Roma people unlawful
Italy’s Supreme Court this month has ruled Italy’s policy in response to the so-called “Nomad emergency” unlawful. On 21 May 2008, the Italian government used law 225/1992 to declare a state of emergency with regard to the settlements of “nomad” communities in several regions of Italy, under the claim that they were responding to a “situation of grave social alarm, with possible repercussions for the local population in terms of public order and security”.
The policy led to increased discrimination against Roma people and widespread human rights violations, including forced evictions resulting in homelessness and restrictions that prevented children from attending school. Roma people were also increasingly segregated in camps set up by the authorities. The government will now be required to abandon the policy.
Amnesty International, welcoming the judgment, has called on the new Italian government to “act on this decision and end forced evictions, segregation in camps and exclusion from social housing.” The case brings to an end the lengthy legal battle over the measures which have already been condemned by the Italian Council of State and the European Court of Justice. Read more about the history of the litigation here.
Child labour and trafficking in India
The High Court of Delhi in India has fined the city government for failing to implement steps ordered by the Court in July 2009 to monitor, address and prevent instances of child labour. If the Court's directions had been followed, it is believed that the government would have acted on the cases of more than 18,000 child labourers to-date. The ruling came in response to a petition filed by Bachpan Bachao Andolan (BBA), which said that “…despite having the laws and policies in place and repeated directions of the High Court and Supreme Court, the Government authorities continue to violate the law by taking little or no action for [the] protection of children… [W]e hope that this direction by the High Court is the first step in fixing accountability of authorities in protecting our children from trafficking, slavery and bonded labour.”
In related news, the Supreme Court of India has issued a direction aimed at compelling police to act on their duty to investigate the cases of missing children. The decision sets out the obligations of police, including the requirement to register missing child cases as cognisable offences, a requirement that would amount to a presumption that when children go missing a crime has been committed. The direction also requires cases to be referred to the Anti-Human Trafficking Unit in each state where a missing child is not found within four months of an initial report being filed. Celebrating the judgment, Mr. Satyathi of BBA said, “[our] argument that children do not disappear in thin air but go missing because of an organized nexus of traffickers and mafias, has been finally upheld by the highest court of the land today”. Read more here and the full decision here.
Sexual assignment of children to be addressed by United States’ courts
In the United States, the adoptive parents of a child, with the help of the Southern Poverty Law Centre, have filed a ground-breaking law suit on the rights of intersex children. The case surrounds a boy, MC, who was 16-months-old at the time he underwent gender assignment surgery which left him with female genitalia, but is now 8-years-old and identifies as a boy despite the irreversible surgery. The suit, filed in federal and state courts, alleges that the Department of Social Services and the Greenville Hospital System violated the child’s constitutional rights under the 14th amendment. Specifically, the federal petition alleges that the State violated MC’s substantive and procedural due process rights by carrying out the surgery “without notice or a hearing to determine whether the procedure was in [his] best interest”.
The lawsuit filed at the state level alleges the defendants committed medical malpractice by not obtaining informed consent before proceeding with the surgery, as M.C.'s guardians at the time of the surgery were not told about the risks involved, including sterilisation and reduced sexual function. Doctors subjected M.C. to the surgery "without notice or a hearing to determine whether the procedure was in M.C.'s best interest," said the legal advocacy organisation, the Southern Poverty Law Center (SPLC), which is representing the adoptive parents. In addition, "there was no medical reason to perform this surgery, which robbed M.C. not only of his healthy genital tissue but also of the opportunity to decide what should happen to his own body," said SPLC.
Children’s religious freedom in schools in France
In an interesting complaint at the UN level, the Human Rights Committee has found French authorities in violation of the International Covenant on Civil and Political Rights (ICCPR) for expelling a Sikh boy from school for refusing to remove his keski - a piece of material to cover his uncut hair.
Since the passage of Act No. 2004-228 in 2004, the wearing of clothing manifesting religious affiliation in public schools has been prohibited in France. The issue of wearing religious symbols in public institutions has been extensively litigated throughout the European human rights system, though generally without success. Based on similar facts, the European Court of Human Rights held in 2009, that expulsion of a Sikh boy for refusing to attend school without a keski was compatible with his right to freedom of religion.
Based on article 18 of the ICCPR, which bears more than a passing resemblance with the freedom of religion protections under the European Convention on Human Rights, the Human Rights Committee found that the State had not provided sufficient evidence to demonstrate that the wearing of the keski posed a threat to the rights and freedoms of other pupils at the school, as the State had argued, and that regardless, the permanent expulsion of the boy from public school was disproportionate to the aim.
Read CRIN’s summary of this judgment and browse other children’s rights related cases from the UN human rights complaints mechanisms through our case law database.
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THE LAST WORD
“The underlying principle is that the criminal justice system should take account of a defendant’s age, level of maturity and intellectual and emotional capacity. It is only by doing so that the system can redress the imbalance which is the inevitable result where a child or young person is confronted by the power of criminal justice”
- Lord Justice Moses in R.(a child, by his litigation friend CC) v. the Secretary of State for the Home Department and the Commissioner of Police of the Metropolis, United Kingdom
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