Children in Court: CRINmail 38

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15 August 2014 subscribe | subscribe | submit information
  • CRINmail 38:
    Children in Court

    In this issue:

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    Latest news and cases

    Turkish court releases children, saying they have the right to protest

    In July a local court in Turkey ruled in favour of 24 children detained last year for attending anti-government protests, saying the children had the right to protest according to Turkey’s demonstrations law and the European Convention on Human Rights (ECHR). The 24 children, who were among hundreds of children detained during the Gezi Park protests in June 2013, were charged with “violating the demonstration law”, “resisting arrest from public officers” and “damaging public property”. In its verdict, the court stated that everyone has the right to hold peaceful meetings and demonstrations without prior permission and to express and manifest his or her thoughts and opinions individually or collectively in accordance with articles 26 (freedom of expression) and 34 (freedom of assembly) of the Turkish Constitution and the ECHR. The court also said there was “no concrete evidence to prove that the children were carrying guns or staged an attack during the protests”. All 24 children were released, and the court also suspended the punishment of one child who had received a prison sentence of five months and 16 days for damaging local property.

    Cases against Guatemala, Romania and Spain over deaths of children

    There have been a number of significant rulings by international and regional human rights bodies against state authorities over the past month regarding the deaths of children.

    In July the Inter-American Court of Human Rights found that Guatemala failed to protect the right to life and personal integrity of a 15-year-old girl who was sexually assaulted, tortured and brutally murdered in 2001. During the investigation of the girl’s abduction and murder a number of irregularities occurred, including failure to take appropriate steps when she was reported missing, flaws in the preservation of the crime scene when her body was discovered, and deficiencies in the handling and analysis of the evidence that was gathered. The Court found that not only had the State failed to properly investigate the murder, it had also failed to address and resolve the ingrained culture of violence and discrimination against women that permeates Guatemalan society, which led to a flawed investigation. Therefore the State had failed to protect the girl’s right to life and personal integrity as well as her family’s right to a fair judicial process and legal remedy.

    Also in July the Grand Chamber of the European Court of Human Rights found that Romania violated the right to life of an 18-year-old who had spent his life in state institutions. The victim - who was of Roma origin - had been abandoned at birth and placed in an orphanage, and diagnosed as being HIV-positive and severely mentally disabled. The case was brought by a Romanian NGO, the Centre for Legal Resources, on behalf of the victim following his death after being transferred to an ill-equipped psychiatric hospital in 2004. On the issue of standing, the Court found that, while the Centre was not itself a victim of the alleged violations of the ECHR, it should be allowed to represent the victim due to “the exceptional circumstances of this case and bearing in mind the serious nature of the allegations”. The Court ruled that the victim’s rights to life and an effective legal remedy had been violated because he had not received adequate care or appropriate treatment for his condition, and the authorities, aware of the lack of resources in the hospital where he had been placed, had unreasonably put his life in danger. Moreover, the State had failed to conduct an effective investigation into his death. The Court recommended that Romania ensure that mentally disabled persons in a comparable situation are provided with independent representation enabling them to have complaints relating to their health and treatment examined before an independent body.

    The UN Committee on the Elimination of Discrimination against Women has held Spain responsible for failing to prevent the death of a seven-year-old girl who was killed by her father during a court-approved visit in 2003. The mother of the girl filed more than 30 complaints against the man between 1999 and 2001 and had petitioned the court for a restraining order. The father had nonetheless been granted unsupervised visits with the girl and, during one visit, shot his daughter before killing himself. The Committee found that the State could have foreseen that the father posed an imminent danger to the child’s life and well-being and that the Spanish authorities showed a lack of interest in properly evaluating all aspects of the case. The Committee has ordered Spain to submit a report within the next six months on steps taken to comply with the decision. A summary and the full decision are available in CRIN’s legal database.

    According to a 2012 report by Save the Children, family courts in Spain systematically fail to take children's best interests into account during court proceedings on domestic abuse. The organisation - as well as the Committee in the case above - found that judges are often found to prioritise re-establishing a relationship between a child and an allegedly abusive parent over ensuring a child's protection from the risk of abuse. Decisions on custody and visitation rights, for example, are made even if a criminal proceeding against a parent for alleged abuse is open, thus ignoring the risk of further violence.

    Petition in Israeli court to name children killed in Gaza

    In July a human rights NGO petitioned Israel’s High Court of Justice to allow a radio advertisement naming Palestinian children who have been killed in Gaza during Operation Protective Edge. The Israel Broadcasting Authority banned the ad made by B’Tselem, which named five Palestinian children aged two to 10, claiming it was “politically controversial”. In its petition B’Tselem argued that the banning of the ad undermined freedom of political expression, which has been previously recognised as a constitutional right. The petition also said that the ad did not advance a political argument, but merely provided information about a number of children killed in Gaza. In response, Israel’s attorney-general has proposed a new test with a series of questions to be applied in determining whether or not to approve the broadcasting of ads, which includes: whether an ad may be construed as political or as provoking ideological controversy; whether alternative media exist for the publication of the information; the timing of publication; and the advertiser’s identity. B’Tselem claims that this proposed policy is unlawful and unconstitutional.

    Right to compensation for trafficked victims in the United Kingdom

    In July the UK Supreme Court heard its first ever modern slavery case, ruling that people trafficked into the United Kingdom have a right to recover compensation from their traffickers regardless of their immigration status. Previously trafficking victims were not able to claim damages if their immigration status was irregular, even if their employers were found guilty of trafficking and had caused the victims’ immigration status to become irregular. The case concerned a Nigerian woman who had been trafficked into the United Kingdom at the age of 14 and exploited in domestic servitude, working 18 months unpaid and suffering serious physical abuse and threats from her employer. Her claim for damages against her former employers was dismissed by the Court of Appeal as she had consented to her illegal stay in the United Kingdom. But the Supreme Court ruled that traffickers should not be able to shield themselves of liability on the basis that the people they exploit are in the country illegally. Anti-Slavery International, which intervened in the case, welcomed the ruling, saying “if someone is coerced or forced into an illegal employment, they are victims of crime and their rights should be protected”.

    LGBT rights in Uganda, China and the United States

    Uganda’s Constitutional Court annulled the much criticised Anti-Homosexuality Act this month, ruling that the parliament had not met procedural requirements in passing the Act. The Act, which was signed into law in February, criminalised all expressions of homosexuality, including its “promotion” and allowed courts to sentence people to life imprisonment for “aggravated homosexuality”. A panel of five judges in the Court of Appeal ruled that insufficient MPs were in attendance during the approval of the bill for it to be enacted. Activists warn, however, that lawmakers could introduce a new bill. While welcoming the ruling, Frank Mugisha, director of Sexual Minorities Uganda, lamented that “the case was not heard on its true merits. The truth is that not only is the anti-homosexuality act persecutory, it is also unconstitutional and illegitimate… Until the act has been dismissed on the substance of our arguments, we cannot rest easy”.

    The Ugandan attorney-general has since announced his intention to appeal the decision to the Supreme Court, and homosexual activity remains unlawful under the Penal Code, which remains in force.

    In July a Beijing court heard China’s first case against gay “conversion therapy”. The court challenge was brought by a man against a clinic in Chongqing which allegedly administered electric shock therapy to “cure” him of homosexual thoughts. Although China declassified homosexuality as a mental illness in 2001, the stigma remains and these clinics are still widespread in China.

    Cases challenging sexual orientation “conversion therapy” have been gaining momentum in the United States. In June, the Supreme Court declined to hear a challenge to a California law that bans sexual orientation “conversion therapy” for children. In rejecting the case, the Court effectively let stand a court ruling issued in August last year that the state’s ban on the practice did not violate the free speech rights of counsellors or people seeking treatment. This decision clears the way for California to begin enforcing the ban on conversion therapy. For previous coverage of the issue, see our earlier Children in Court CRINmails here and here.

    Child sexual abuse in East Africa and the Netherlands

    Two unusual cases related to child sexual abuse have come up over the past month. British Airways is being sued for damages over claims that one of its pilots sexually abused children in East Africa. First Officer Simon Wood allegedly molested children in schools and orphanages during stopovers in Kenya, Uganda and Tanzania. The law firm Leigh Day, which is representing 16 young girls and women in the case, says that British Airways should be held responsible as Wood was able to abuse the victims by reason of his employment with the airline, in particular through his involvement with the airline’s community relations work. According to a coroner’s inquest, Wood committed suicide last year after he was charged with child abuse offences.

    In a second case, a Dutch paedophile society is planning to challenge a ban on their organisation in the Netherlands by appealing to the European Court of Human Rights, arguing that the ban infringes the freedom of speech of its members. The organisation, Vereniging MARTIJN, has been advocating legal and social acceptance of sexual relations between adults and children in the Netherlands since 1982. Last April the Supreme Court of the Netherlands ruled that although “in general great caution must be taken when banning a society, the unusually serious actions of Vereniging MARTIJN, which are geared towards removing potential barriers for those seeking sexual relations with children, force the verdict that the organisation be forbidden and dismantled”. The case will be put to the European Court no later than October this year.

    Children’s right to be heard in legal proceedings in the United Kingdom

    Last month, the United Kingdom’s Minister of Justice announced plans to empower children affected by family court hearings to tell judges their thoughts and feelings on the case. The announcement was made following calls from the Family Justice Young People’s Board, which has a mandate to represent young people’s interests in the family justice system. While welcoming the announcement, a spokesperson for Resolution - an organisation of 6,500 family lawyers and professionals working in England and Wales - warned that "[s]adly, with fewer parents able to access legal support as a result of the cuts to legal aid, and publicly-funded mediation numbers on the decline, there is a risk that the increased pressure on the family courts could undermine this commitment”. Resolution also advised in July that the family courts system is at breaking point as a result of unrepresented litigants and overstretched judges.

    You can read more about children’s ability to be involved in legal proceedings in the United Kingdom in CRIN’s access to justice for children report on England.

    Corporal punishment in the United States, Bolivia and Chile

    In the United States the New York State Appellate Court has dismissed child neglect proceedings brought against a father who spanked his eight-year-old son for swearing at an adult. The County Department of Social Services brought proceedings before the Family Court arguing that the father had neglected the child by inflicting “excessive corporal punishment”. The Appellate Court found that parents have a right to use reasonable force against a child in order to maintain discipline or promote the child’s welfare and that the open handed hitting of a child amounted to reasonable force.

    Meanwhile, Bolivia has become the 39th State to ban all corporal punishment of children in all settings, including the home, and Chile is considering a bill that would amend the Civil Code to prohibit any humiliating or degrading treatment of children.

    You can read more about attempts to abolish corporal punishment of children around the world through the Global Initiative to End All Corporal Punishment of Children.

    Juvenile justice in India and the United States

    This month a bill that would permit children aged 16 or older to be tried as adults was introduced into the lower house of the Indian parliament. The new bill, drafted by the Ministry of Women and Child Development, seeks to repeal and re-enact the current law and give the Juvenile Justice Board discretion to transfer children to adult courts. Under clauses 14 and 17(3) of the bill, children aged 16 and 17 who are alleged or found to have committed offences punishable with more than seven years’ imprisonment can be transferred to the adult system. The bill could potentially contradict the judgment by India's Supreme Court in March this year which upheld the constitutionality of the existing Juvenile Justice Act and rejected a petition that called for an interpretation of the law to allow juveniles to be treated as adults.

    Last month in the United States the Iowa Supreme Court ruled that mandatory sentences for children are unconstitutional under the state Constitution. The decision arose out of the case of a 17-year-old boy who was sentenced to 25 years’ imprisonment under mandatory sentencing laws for punching another teenager and taking US$5 worth of cannabis from him. Relying on the reasoning of the US Supreme Court in Miller v. Alabama - which held that mandatory sentences of life imprisonment without the possibility of parole violate the federal Constitution - the Court found that a child facing a prison term is entitled to individualised sentencing that takes into account the child’s age, maturity, role in the offence and the potential for rehabilitation.

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    Last Word

    “[M]andatory minimum sentences applicable to adult offenders apply, with no exceptions, to juvenile offenders, including those who engage in inane juvenile schoolyard conduct. At least for those juveniles, our collective sense of humanity preserved in our constitutional prohibition against cruel and unusual punishment and stirred by what we all know about child development demands some assurance that imprisonment is actually appropriate and necessary. There is no other area of the law in which our laws write off children based only on a category of conduct without considering all background facts and circumstances.”

    - Chief Justice Cady in Iowa v. Lyle

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