CRINMAIL 66
In this issue:
Problems viewing this CRINMAIL? Click here.
LIFE IMPRISONMENT OF CHILDREN IN THE COMMONWEALTH
As part of CRIN's campaign for the prohibition of inhuman sentencing of children - defined to include sentences of death, life imprisonment and corporal punishment - we have produced a report that focuses on sentences of life imprisonment in the Commonwealth.
We decided to focus on this form of inhuman sentencing and its legality in Commonwealth coutries for three reasons: i) the prevalence of life imprisonment of children is particularly high among the Commonwealth States; ii) the shared legal history of the Commonwealth has resulted in common practices; and iii) to highlight a form of inhuman sentencing of children that has been hidden by the focus on the death penalty as the most extreme punishment.
Out of the 54 States within the Commonwealth, CRIN's research has found that 45 still allow for life imprisonment of persons who were under 18 at the time they committed the offence.
Progress has been made in outlawing the death penalty for children, a practice now very rare internationally, but in its place many states have introduced mandatory life sentences. Twenty-seven Commonwealth States have instituted measures to ensure that children who would otherwise have been sentenced to death would be eligible instead to die in prison. CRIN reflected on this trend in a joint submission to the UN Secretary-General on the moratorium on the use of the death penalty.
Additionally, the growth of indeterminate sentences has blurred the borders between life sentences and other terms of imprisonment. Currently, 26 Commonwealth States permit sentences of detention at the pleasure of Her Majesty/Governor general/President/State, a sentence which allows for the indefinite lawful detention of a person without the certainty that can come with a traditional life sentence. Studies into this practice have identified higher levels of mental health problems for those subject to indeterminate sentences compared to those serving traditional terms of life, indicating the harm that can be inflicted by the uncertainty of apparently lesser sentences.
Only five Commonwealth States have explicitly prohibited life imprisonment of children; these examples show how juvenile justice need not rely on harsh punitive sentences to combat the problems of youth crime. When the Convention on the Rights of the Child was drafted more than two decades ago, NGOs pressed for the prohibition of life imprisonment outright, and were forced to settle for a prohibition on life imprisonment without parole in the name of consensus. CRIN does not believe, however, that the focus should be on eliminating the worst of the worst practices, or establishing average practices in juvenile justice, but on establishing a system of justice that fully respects the rights of children.
CRIN is concerned that States are handing out lengthy sentences to children, yet international condemnation is limited to life imprisonment without parole and the death penalty. It is essential - indeed long overdue - to widen the focus and challenge any sentence under which, at the time it is passed, a child is liable to be detained for the rest of his or her natural life.
CRIN, with other commentators, believes that the only justification for the detention of a child should be that the child has been assessed as posing a serious risk to the public safety. Courts should only be able to authorise a short maximum period of detention after which the presumption of release from detention would place the onus on the State to prove that considerations of public safety justify another short period of detention. The same principles should apply to pre-trial detention.
CRIN's report of life imprisonment of children in the Commonwealth serves to highlight the prevalence and plurality of laws permitting life imprisonment of children, laws that potentially condemn children to die in prison, and hopes to lead to reviews of the sentencing of children to ensure that they are fully compliant with the CRC and other instruments. CRIN believes that life imprisonment, of any type, does not have a place in juvenile justice.
Back to top
NEWS AND REPORT ROUND-UP
Mandating against mandatory sentencing
Back in June in the United States, the Supreme Court declared that mandatory life sentences without the possibility of parole for offences committed under the age of 18 are unconstitutional. In doing so, the Court recognises juveniles’ different status and their capacity for change, whereas mandatory life sentences – also known as death-in-prison sentences – remove any discretion by a judge or jury to consider such factors. Full story.
Two months later in Argentina, the country's top criminal court ruled that sentences of life imprisonment for juvenile offenders are unconstitutional and cannot be applied to minors, as it puts the State in violation of the Convention on the Rights of the Child (CRC), to which it is a signatory. The ruling came in relation to three life sentence cases that have now been overturned. In its decision, the tribunal said international law, such as the CRC, is above national legislation, emphasising that judges must apply supranational legal standards in their rulings if the State is not to infringe its international obligations. Full story (in Spanish).
The three cases in question, as well as two others, are currently being investigated by the Inter-American Court of Human Rights, for the alleged violation of the rights of the five juveniles, one of whom died in prison.
Cursing blasphemy laws
A Pakistani girl accused of blasphemy for allegedly burning pages of the Koran, an offence which potentially carries the death penalty, was released on bail last month, and her case transferred to a juvenile court after having been detained at an adult prison for almost a month. Police subsequently declared in court that there was no evidence to substantiate the blasphemy claims, while the Muslim cleric that had made the accusation is currently detained and accused of falsifying evidence in the case.
Under Pakistan's strict anti-blasphemy laws, a person can be jailed for life or put to death for desecrating the Koran. But civil society organisations have reported that blasphemy charges are imposed arbitrarily, and used to justify violence and prosecution against people, including children, with many having been killed by violent mobs.
A positive side of the Pakistan case is the level of criticism it generated internationally, and more promisingly, also nationally. The Pakistani media, for example, which in the past has kept coverage of blasphemy cases to a bare minimum, showed a more proactive interest in this case. A council of Muslim clerics also openly came out in support of reports that false evidence was used to frame the girl. And that the allegedly false accuser is under arrest and potentially faces blasphemy charges himself is unprecedented. While in the past, judges have tended to accept blasphemy evidence at face value, the above developments allowed for the trial court judge to make the bold decision of questioning the veracity of the blasphemy claims and transfer the case to a juvenile court.
Blasphemy charges have also been handed down in Afghanistan, Algeria, Bangladesh, Egypt, Indonesia, Iran, Malaysia and Nigeria, among others. For further information, download a report on the issue by the organisation Human Rights First.
Corporal punishment in law
In September in the Maldives, a 16-year-old girl was sentenced to receive 100 lashes and eight months' house arrest for having sex outside of marriage. The sentence will be implemented once the girl turns 18, said the court issuing the ruling, which comes ten months after UN human rights chief, Navi Pillay, urged the State to stop publicly flogging women for having extra-marital sex. Full story.
Flogging is usually a form of punishment in the Maldives handed down by village chiefs acting as local judges. But according to a CRIN report on the legality of inhuman sentencing in the country, corporal punishment is lawful under Islamic law as a criminal sentence for persons under 18.
On a positive note, Albania has become the latest country to ban corporal punishment of children in all settings, including in the home and penal system! For a detailed country report on the issue, click here.
Violence and children's health
Submissions to the OHCHR Study on "the right of the child to the enjoyment of the highest attainable standard of health" are now closed. Several organisations emphasised the link between forms of violence and the enjoyment of health in their submissions.
In that made by the Global Initiative to End All Corporal Punishment Against Children, the organisation points out that corporal punishment violates children's right to health both through the direct physical harm it causes and through its damaging short- and long-term effects on children’s physical and mental health. The submission draws attention to the strong links between the right to health and the right to freedom from all forms of violence, and highlights that realising children’s right to the enjoyment of the highest attainable standard of health is not possible when the law allows them to be hit and hurt under the guise of “discipline”. Download the Global Initiative submission in PDF and Word.
CRIN also made a submission, in which we reflect on, among other things, how harmful traditional practices affect children's right to health, including the denial of life-saving medical treatment on the basis of religious belief, and the health and psychological implications ritual male circumcision can have for infant boys into their adulthood. To read the submission, click here.
You can download all the submissions to the OHCHR discussion on children's right to health here.
Back to top
UPCOMING EVENTS
Child rights & business: Urging States and private companies to meet their obligations
Organisation: International Institute for the Rights of the Child
Date: 14–17 October 2012
Location: Sion, Switzerland
More details here.
Maltreatment: Eradicating child maltreatment interventions with children and families – policy and practice
Organisation: Child and Family Training et al.
Date: 9 November 2012
Location: London, United Kingdom
More details here.
Juvenile justice: Criminality or social exclusion? Justice for children in a divided world
Organisation: International Juvenile Justice Observatory
Date: 5–7 November 2012
Location: London, United Kingdom
More details here.
Violence: 19 Days of Activism for Prevention – Global campaign for prevention of abuse & violence against children & youth
Organisation: Women's World Summit Foundation
Date: 1–19 November 2012
Location: N/A
More details here.
Trafficking: International Conference on Human Trafficking
Organisation: BAWSO – Black Association of Women Step Out
Date: 21 November 2012
Location: Cardiff, Wales, United Kingdom
More details here.
Maltreatment: International Conference on Child and Family Maltreatment
Organisation: Chadwick Center for Children & Families
Date: 26–31 January 2013
Location: San Diego, California, United States
More details here.
The Last Word
"...[T]he element of retribution is not appropriate within juvenile justice systems if the objectives pursued are the reintegration and rehabilitation of the child. Removing [children] from the criminal justice system does not mean that they will not be held responsible for their actions, nor that they will be denied due process to determine whether allegations against them are true or false."
-- Inter-American Commission on Human Rights, Rapporteurship on the Rights of the Child, Report on Juvenile Justice and Human Rights in the Americas, July 2011
Back to top
|
