CRINmail 33:
Children in Court

In this issue:

View this CRINmail in your browser.

INTRODUCTION

From the first prosecutions of female genital mutilation in Egypt and the United Kingdom to only the second conviction before the International Criminal Court, there is a lot to report in this month’s Children in Court CRINmail. Read on for the latest news on how children’s rights have been defended in courts around the world.

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].

LATEST NEWS AND CASES

Egypt and United Kingdom launch first FGM prosecutions

For the first time a doctor is set to be prosecuted in Egypt for carrying out female genital mutilation. Dr Raslan Fadl will face charges in relation to the death of a 13-year-old girl on whom he allegedly performed the operation. The girl’s father, who requested the procedure, is also facing prosecution. The case was reopened by the country’s Chief Prosecutor following a campaign by local rights groups and the international organisation Equality Now as well as an investigation by the National Population Council (NPC).

FGM was banned in Egypt in 2008, but is still widely accepted and carried out by many doctors in private. Speaking about the case, Hala Youssef, head of the NPC said, “It’s the first time that somebody in Egypt will be prosecuted for this crime, and it should be a lesson for every clinician. The law is there, and it will be implemented.”

This month the Crown Prosecution Service in the United Kingdom also launched its first prosecution in relation to FGM. Legislation was first introduced to explicitly prohibit the practice in 1985, and replaced in 2003, but until this month no prosecution had been brought. A doctor will face charges of carrying out the mutilation, while another man is to be charged with intentionally encouraging an offence of FGM. The initial court hearings will take place on 15 April.

For more information on FGM, see the report on harmful practices based on tradition, culture, religion or superstition by the International NGO Council on Violence against Children.

Challenging anti-homosexuality laws

This month, gay rights activists in Uganda petitioned the country’s Constitutional Court to overturn the Anti-Homosexuality Act. The Act, which President Museveni signed into law last month, criminalises the promotion of homosexuality and imposes a maximum sentence of life imprisonment for homosexual acts.

In Malawi, the High Court is currently hearing a petition challenging the constitutionality of anti-sodomy provisions of the Malawi Penal Code and the convictions of three men imprisoned in 2011 under these provisions. The three men were convicted of "unnatural acts" and were given sentences ranging from six to 12 years of hard labour. In Malawi, homosexual offences are punishable by prison sentences of up to 14 years for men, and up to five years for women.

In Lebanon, a criminal court has acquitted a transexual individual accused of engaging in sexual relations with men, a decision hailed by gay rights activists as an historic ruling which paves the way for decriminalising homosexuality. Article 534 of the Lebanese Penal Code criminalises “sexual intercourse contrary to nature”, which has often been used to punish individuals for engaging in same-sex relations. The judge found that the defendant’s acts did not fall within the scope of “sexual intercourse contrary to nature”, affirming that “persons afflicted with gender identity disorder, as the current defendant is… although they deviate from the norm, and depart from what is familiar, they remain the offspring of nature from which they came”.

United Kingdom court rulings on housing and legal aid

Last month, the UK Court of Appeal rejected a claim that the housing benefit cap, which limits the amount of welfare payments that people can claim, violated the Convention on the Rights of the Child (CRC). The case was brought by four claimants - the mother and youngest child of two single parent families - forced into temporary accommodation in London, who alleged that the Secretary of State failed to have proper regard to the interests of children, in violation of Article 3 of the CRC. The Court held that Article 3 did not create an obligation on decision-makers to address conflicting considerations of public policy in any particular order. As the lower court had stated, all that was necessary was to “give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise”, and there was ample evidence that the Secretary of State did have regard to the interests of children as a primary consideration. Read the judgment.

This month, the UK High Court dismissed a challenge to the Justice Secretary’s decision to cut legal aid for prisoners. The claimants, Howard League for Penal Reform and the Prisoners’ Advice Service, argued that denying prisoners advice and assistance under the criminal legal aid system will lead to a risk of unfair decision making and unlawfully interferes with their right of access to justice. On the issue of the risk of unfairness, the Court ruled that the claimants failed to prove that there was an unacceptable risk of procedural injustice inherent in the system itself. It also said that the right of access to a court does not necessarily result in a right to legal aid, and that the provision of legal aid of this character is not mandatory, except in exceptional cases. It concluded by stating that the cuts are a matter of political judgment, even if they will have “serious adverse effects for prisoners”. You can read the judgment and our report on access to justice for children in England for more information.

Children’s rights before India’s courts: child marriage, child labour and begging

In Ahmedabad, parents of children who were married 20 years ago have been sentenced to one month prison terms and fined. The cases concerned members of the Nat-Bajhaniya community who had organised mass marriages in an Usmanpura school in 1994. Under the Child Marriage Restraint Act, parents or guardians can be imprisoned for a maximum three months for promoting, permitting, or failing to prevent a child marriage.

The Bombay High Court is currently hearing a petition challenging the authority of the Child Welfare Committee to step in to protect young girls from child diksha, the practice of renunciation integral to Jainism. The case was filed in 2004 after an eight-year-old girl participated in a diksha ceremony renouncing the material world, creating outrage among children’s rights activists. During the hearings, the Court observed that the “right to childhood conflicts with the right to religion.”

In Pune, police and children’s rights activists are considering bringing legal action to have parents of children who beg declared “unfit” under the provisions of the Juvenile Justice Act. According to Childline, Pune, "there has been an alarming rise in the number of child labour cases and children found begging on the streets… Parents themselves are involved and many times even if these children are rescued, they are sent back for the same work".

Juvenile justice in the United States

In the United States, disputes over the implementation of Miller v. Alabama - the case in which the US Supreme Court found mandatory sentences of life imprisonment without parole (LWOP) unconstitutional for child offenders - continued to make progress through state courts.

Much of the dispute has focused on whether the ban on mandatory LWOP sentences should be applied to those who were sentenced prior to the Supreme Court ruling in June 2012. In February and March, the Supreme Courts of Nebraska, Texas and Illinois found that the judgment had retroactive effect, decisions which will lead to the review of the sentences of more than 140 people who were sentenced to life for offences committed while under 18 in those states.

Meanwhile, the Ohio Supreme Court looked at a separate aspect of the Miller judgment - the need to explicitly take account of the youth of a person when deciding whether to apply a life sentence. Ruling on the sentence of a man who was sentenced to LWOP for offences committed while 17, the court sent the case back for resentencing, and the trial court will have to explicitly consider the offender’s youth at the time of the offence. 

This month, the American Civil Liberties Union (ACLU) filed a case in the Ohio Supreme Court challenging the state’s practice of indiscriminately shackling child defendants in courtrooms. While adult courts require a hearing before shackling defendants, juvenile courts in Ohio are allowed to shackle children, regardless of their age or the charges against them, without first holding a hearing to determine if it is necessary. The ACLU court filing deals specifically with a 14-year-old girl who has been charged with a non-violent drug offence in a juvenile court.

Last month saw the introduction of a new bill in Kansas which would expose anyone filing a complaint to the police about police misconduct to criminal prosecution for perjury if any part of the complaint is deemed false. Under the proposal, complainants would have to sign a sworn affidavit before the complaint is investigated, thereby banning anonymous complaints. Ironically, the controversial bill was filed and sponsored anonymously by someone in the Committee on Corrections and Juvenile Justice. It would also prevent any other law enforcement agency from taking up the investigation once it has been closed. The proposed legislation is being dubbed a “legalise police retaliation” measure.

Pfizer drug trial victims file fresh suit

Litigation is set to continue against Pfizer over a clinical trial of an experimental meningitis drug it conducted in Nigeria in 1996. The trial, during which several children died, was marred by allegations of lack of consent, inadequate documentation and medical malpractice. Pfizer came to an out-of-court settlement worth $75 million in 2009 and began making payments, but for many, compensation has been slow to arrive. The issue is set to return to Nigeria’s courts in April, when claimants will argue that the way that the compensation criteria have been applied - including requiring spinal fluid samples of test participants to be matched to those of claimants - have breached the terms of the settlement. Hearings will begin again in April.

Crimes against humanity: DRC, Côte d’Ivoire and Haiti

In March, Germain Katanga was convicted of four counts of war crimes and one count of crimes against humanity, becoming only the second person to be convicted by the International Criminal Court. Though originally charged with being directly involved in the crimes, the court found that Katanga had acted as an intermediary between weapons suppliers and those who physically targeted the village of Bogoro in the Democratic Republic of the Congo in 2003. Katanga was acquitted of further charges of using child soldiers, as although the court was convinced beyond reasonable doubt that children were within the Ngiti militia which carried out the attack, there was not enough evidence to establish his responsibility for this crime.

Proceedings at the ICC are set to begin against Charles Blé Goudé, for his alleged role in the post-election violence in Côte d’Ivoire in 2010-11. Blé Goudé faces charges for four counts of crimes against humanity, namely murder, rape and other forms of sexual violence, persecution and other inhuman acts allegedly committed while leading the “Young Patriots” youth movement. An estimated 3,000 people died during the violence. Proceedings will begin through the Pre-Trial Chamber which will set an initial date to confirm the charges. Details of the proceedings will be published through the ICC’s official case page.

Meanwhile, the Haitian Court of Appeal has paved the way for former-dictator Jean-Claude Duvalier to be charged with crimes against humanity. The judgment overturns the decision of a judge in 2012 that Duvalier could not be charged with these crimes related to forced disappearances and torture during his rule as the limitation period had expired. The UN Independent Expert on Haiti, Gustavo Gallon, welcomed the decision, noting that it “unequivocally reverts the incomprehensible ruling taken previously by the lower chamber judge who threw out the human rights charges against Duvalier and only charged him for the alleged financial crimes.” The decision recognised crimes against humanity as part of the laws of Haiti and that these crimes could not be subject to statutes of limitations.

Colombia Constitutional Court case on sterilisation of minors

In March, Colombia’s Constitutional Court upheld the national prohibition on performing surgical sterilisation of children. The decision sets out two exceptions to this rule, however, when a pregnancy endangers the child’s health, and where the child has a severe and permanent mental disability and lacks capacity to give consent or understanding of the responsibilities of being a parent. The Court stated that, "when it comes to minors with disabilities for whom there is a proven impossibility to give consent in the future to undergo sterilisation procedures, the parents, or in any case, the legal guardian, must request judicial authorisation to allow surgical sterilisation” and that “previous case law has considered that a person that does not have the capacity to understand what sterilisation is or its consequences, as it is the case of mental disabilities, she or he will hardly be in a place to understand the responsibility attached to the exercise of maternity or paternity and therefore, the implications of being able to or not to procreate".

Several rights groups have spoken out against the decision. Andrea Parra, of the Program for Equality and Social Inclusion, argued that the Court had disregarded its obligations under the Convention on the Protection of the Rights of Persons with Disabilities. Ms Parra further claimed that “[t]he Convention recognises that all the people, regardless of their disability, have will and preferences and the State must recognise and respect them. Validating a third party signature of the consent form to the procedure is forced sterilisation.”

The issue is scheduled for this month’s hearings before the Inter-American Commission. You can read more on our IACHR session page.

French courts rule on child’s right to access the courts

This month the Conseil d'Etat - France's highest administrative court - took an important step to provide children with access to justice. The Council ruled that a child can initiate legal proceedings when his or her fundamental freedoms are at stake. In the past, children only had standing before the courts if they had been emancipated. Now, where a child does not have the capacity to take legal action, he or she can still have standing before a judge when emergency measures are necessary to protect a fundamental freedom. The case arose when a local judge ordered an unaccompanied refugee child to be placed in care. The local authority denied the child support, which left the child homeless and unable to seek protection from the courts.

CALL FOR INFORMATION: judicial mechanisms to address human rights abuses by businesses

The Office of the UN High Commissioner for Human Rights is inviting comments on a study on the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. This study identifies barriers to accessing justice at the domestic level, and the effects of differences in domestic approaches on the way that domestic remedial systems are used in practice. The OHCHR is now inviting interested stakeholders to make submissions in writing on the issues identified in the study which they think require further clarification. The deadline for submissions is 1 June 2014. More information is available through the OHCHR website.

Back to top

Last Word

Back to top