The fact that the Chisinau Agreement and domestic legislation of the Commonwealth of Independent States treats unaccompanied children as criminals instead of as children in need of protection is unacceptable and must change. CRIN is calling on NGOs and governments in CIS countries affected by the Agreement, as well as different actors and institutions working at regional and international levels, to lobby for reforms to the Agreement as well as national laws to ensure their compliance with international law in order to protect the best interests of unaccompanied children in the region.
NGOs and civil society organisations can undertake legal advocacy to encourage a review of the Chisinau Agreement as well as domestic legislation to better reflect the rights of unaccompanied children in the region. These actions include, but are not limited to the following:
National Level
a) Bring a complaint to local or Constitutional courts/ council
The constitutions of all CIS states have provisions on the maximum period of detention allowed without having a case heard by a court. The fact that children are often detained without a court order for a prolonged period of time and that the Chisinau Agreement allows for such detention directly violates these constitutions. Complaints and petitions to review the compliance with constitutional norms can be filed in all cases in which children are detained without a court order for a period longer than that set out in the constitution and/ or in inappropriate conditions.
Cases can be brought to local courts or constitutional courts if the Constitution system allows for individual petitions. If this is not the case, then a letter outlining the problem can be submitted to parliament. Strategic litigation can also be initiated by legal clinics, citizens groups and victims themselves (if they have the capacity or on their behalf by parents or guardians).
Example:
- A positive precedent comes from Kyrgyzstan, where an NGO - the Youth Human Rights Group - initiated litigation in 2011 which resulted in an agreement between the NGO and Ministry of Internal Affairs. A special focus group was created in 2013 under the Ministry of Internal Affairs to regulate the detention of unaccompanied children. The group comprised representatives of the Ministries of Education, Social Development and Internal Affairs and representatives of Youth Human Rights Group. As a result of their work, a draft law on the length of detention was adopted stating that children can be detained for up to three hours and, in exceptional circumstances, up to 48 hours.
b) Contact the Ombudsperson
Campaigners can also write to ombudspersons for children's rights or human rights in general in a particular country or province. Ombudspersons can intercede with the highest level of government, including a president or bring attention to a problem, for instance by organising a press conference.
Example:
- The ombudsperson for children's rights in the Novosibirsk region of Russia has published a report on the conditions of detention of unaccompanied children in the region, partly based on his own visits to detention centres.
c) Write a joint NGO statement to all the high level ministries, prosecutors and chairpersons in courts dealing with children’s issues
Given the generally low response rate to individual letters and petitions from most governmental institutions in the CIS, it would be useful to raise this issue with as many high-level officials as possible. Ministers can discuss the issue at the executive level and may even foster a legislative review. Prosecutors can initiate court proceedings and legislative review. Chairpersons in courts can prepare an explanatory note to the law to shed light on certain provisions. This advocacy manoeuvre can also shed light on the problem from multiple perspectives.
Regional Level
d) Submit complaints to the European Court of Human Rights
In Council of Europe Member States, victims or their representatives can bring a case to the European Court of Human Rights, provided domestic remedies have been exhausted. The Court has issued a number of judgements on the situation of unaccompanied children and a case from a CIS state would be an important addition.
e) Raise the issue at the CIS Interparliamentary Assembly of States
The Interparliamentary Assembly of the CIS was founded in 1995. It consists of parliamentary delegations of CIS Member States. Its main goal is to harmonise laws among these States. NGOs can write to local parliaments and representatives urging them to raise the problems with the Chisinau Agreement within the Assembly and encourage them to push for the development of model laws in line with international human rights standards. NGOs can also address the Assembly directly.
International Level
f) Communications/ alternative reports to UN bodies
NGOs and civil societies can submit alternative reports to UN bodies if a specific country has ratified a relevant UN treaty. Where States have ratified optional protocols to the relevant treaties or have made the necessary declaration, and completed other procedure requirements (e.g. exhaustion of domestic remedies for individual communications) individual communications, inter-state complaints and inquiries can be submitted. UN Special Procedures can also be called upon in advocacy efforts.