20th Anniversary of the UN Convention on the Rights of the Child

This blog was contributed by Aekje Teeuwen, Legal Consultant based in Phnom Penh, Cambodia
A juvenile defendant, aged 17 was arrested, charged with robbery and placed in pre-trial detention for two months and 26 days. The court of first instance sentenced the defendant for five years in prison. The defendant appealed this decision and waited in custody for two years and ten months for his appeal trial. Although, the lawyer was present during appeal trial, the defendant was tried in absentia. The appeal court reduced the sentence to three years and six months.

As of today, a total number of 851 minors, between 14 and 18 years of age, of whom 826 are male and 25 female, are detained in Cambodian prisons. In many cases these children are denied their basic legal rights, resulting in excessive periods held in pre-trial detention, as well as prolonged detention during the appeal process. Further, a lack of legal representation and being tried in absentia compounds the denial of their basic rights.

In Cambodia there are no children’s courts nor Judges and Prosecutors specialized in the area of juvenile justice and the application of the rights of the child. As a result, children are often subjected to the same judicial procedures and processes as adults. The extreme vulnerability of these children is further exacerbated as a result of them not being housed in separate sections of the prison to the adults, as well as inadequate food, healthcare and access to educational & rehabilitation programs.

During 2007, a Cambodian non-governmental organization called The Center for Social Development (CSD) monitored 22 appeal trials in which 26 juveniles were involved. 61.5 % of the juvenile defendants were held in custody pending appeal trial. Of these 61.5 %,
12.5 % of juvenile defendants waited in custody less than one year (8 months). 56.25 % of the defendants waited for more than one year and 31.25 % of the juvenile defendants had to wait more than two years. In the beginning of 2008, a case was monitored in which a juvenile defendant waited for four years and three months before an appeal trial date was set.

It is outlined in the Cambodian Criminal Procedure Code Article 387 that the Court of Appeal must decide the appeal trial date within a reasonable period of time. Despite this excessive periods of time pass before appeals are heard. These excessive ‘waiting-periods’ for appeal trial are a great cause for concern, in particular in cases where the defendant is in custody and/or which involve children and considers waiting for years for an appeal trial ‘beyond a reasonable time’. Also it does not comply with article 37 of the UN Convention on the Rights of the Child, which stipulates that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. This issue has been specifically highlighted in this article because up to this date there is very little attention given to this particular matter in Cambodia.

In addition, it was noted that amongst the 26 juvenile defendants 23 % did not have access to defense counsel during their appeal trial. As well, 65 % were tried in their absence. It is clearly outlined in national and international laws that every citizen has the right to be tried in his presence and enjoys the right to judicial counsel. The UNCRC recognizes the importance of a child’s access to legal representation in Article 37 (d): “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance”.
We are celebrating the 20th anniversary of the UN Convention on the Rights of the Child. This is a great opportunity to promote and highlight the rights concerning children in conflict with the law throughout the whole criminal process, from the commencement of the judicial proceedings until final judgment is rendered. Therefore, it is urged to the Government of Cambodia, in accordance with the UNCRC to which Cambodia has made a solemn commitment in 1992 to uphold, to act in the best interests of Cambodian children, and to specifically require Judges and Court officials to fast-track juvenile appeals and to give them the highest priority and to ensure the shortest possible period of time prior to adjudication.
Finally, this is an issue not only for Cambodia, but for all judicial systems throughout the world to comply with their national and international laws and conventions regarding the rights of the child, and to always take into account and respect the particularly special position children hold in our societies.

“Kids for cash”: the dangers of private prisons laid bare

Last month two Pennsylvania judges pleaded guilty to federal corruption charges which relate to the jailing of around 2000 children between June 2000 and January 2007. The children were sent to two private detention facilities in exchange for bribes worth more than $2.6 million; the private prison companies belonged to the Mid Atlantic Youth Services Corp. The case has become known as the “kids for cash” scandal and has raised questions about the close ties between the courts and private contractors, as well as the harsh treatment adolescents have received in the criminal justice system in the Pennsylvania and beyond.

President Judge Mark Ciavarella and former President Judge Michael Conahan agreed to 87-month prison sentences for themselves, but as Jurist has reported, the pleas will not be formally accepted until sentencing, which could take up to 90 days. Ciavarella claims he took the money innocently, assuming it was a legitimate “finder’s fee” from the private company for help in building the detention centre. He denies sending children to custody in return for kickbacks. This matter will also have to be determined by the court.

The story did not receive much attention this side of the atlantic, although the Guardian covered it and George Monbiot wrote a good piece where he provided the following examples of the types of sentencing decisions the judges made in relation to children coming before them:

“Michael Conahan sent children to jail for offences so trivial that some of them weren’t even crimes. A 15 year-old called Hillary Transue got three months for creating a spoof web page ridiculing her school’s assistant principal. Mr Ciavarella sent Shane Bly, then 13, to boot camp for trespassing in a vacant building. He gave a 14 year-old, Jamie Quinn, 11 months in prison for slapping a friend during an argument, after the friend slapped her.”

Monbiot’s focus was not so much the issue of judicial corruption but more the fact that “This is what happens when public services are run for profit.” He reports that the judges also took action which resulted in the closing of a competing prison which operated in the public sector. The money was diverted to a private company called PA Child Care (PACC) which it helped to build a new facility in the area.

And it is this point that links to more commonplace acts of corruption and bizarre decision making regarding the operation of the prison sector in the USA. Where prisons are run for profit, there is a corporate need to ensure that the market for imprisonment does not fail. Therefore people must be imprisoned. The ultimate connection between both the politicians responsible for criminal justice policy and the courts can then become tainted at best, and corrupted at worst, as in this case.

The legal fall out from the Pennsylania corruption cases is now being felt. On 26th March the Pennsylvania Supreme Court ordered that convictions of hundreds of children be overturned and the relevant records expunged without hearing. This decision followed the recommendation of Special Master Grim which was made in order to investigate the “alleged travesty of juvenile justice …[and] to identify the affected juveniles and rectify the situation as fairly and swiftly as possible”.

Grim recommended that this should be done in all non-serious cases where the juveniles appearing before Ciavarella were not represented by lawyers, something that happened in half of the cases before him. Grim wrote:

“This prompt action in these non-serious cases will be at least one step towards righting the wrongs which were visited upon these juveniles and will help restore confidence in the justice system. Furthermore, it is not in the interest of the community to relitigate these non-serious cases, nor do I believe that the victims would be well-served by new proceedings.”

In more serious cases the juveniles can object to a decision and the Supreme Court will examine those cases.

University of Pitsburgh School of Law Professor David Harris criticised the plea deal made by the judges and is quoted on Jurist “I don’t think seven years is nearly enough for the harm they did to the system of justice, to our collective belief in the rule of law, to these children, and to their families.”

His point is well made. The judges sent children to prison establishments and boot camps in situations that were inappropriate or for offences that were not even criminal or warranting detention. The impact of that detention is in many ways immeasurable in terms of the psychological, physical and emotional harm that those children will have experienced and are still experiencing. The criminal justice system is often regarded as being overly punitive, but not when it comes to corrupt judges who were willing to trade children’s lives for financial benefit.

And what of the corporation that was willing to pay for those children? The culture of private prisons as business seems to be breeding corporations that see nothing wrong in finding alternative means of filling their facilities. In this case there has been no action in relation to the corporation. PACC’s then owner, Bob Powell, has not been charged. The company is still operating and its spokesman denies that its current owner knew of the kickbacks

Plenary Session 1: Chris Cunneen – Juvenile Justice in Australia: How well do we comply with international standards?

Professor Cunneen opened by highlighting the fact that Australia has a federal system and consequently there are differing standards and strategies applied across the jurisdictions. Cunneen sought to use three general principles to examine whether or not Australia is compliant with international standards.

The first principle he used was that of imprisonment and detention as a last resort. Currently there are 29.1 per 100,000 imprisoned in the country but as was pointed out this figure masks the difference between states. The Northern Territory for example has a rate of 97.5 per 100,000. Cuneen pointed out that this figure was worrying when one factored in the high number of Aboriginals resident in this jurisdiction. He then highlighted the different rates of imprisonment between New South Wales and Victoria, two jurisdictions comparable when taking into consideration population size. Victoria has a rate of 7.1 whereas New South Wales has a rate of 35. The last 25 years has seen a reduction in the rate of incarceration, Cunneen did identify a slight upswing of late but he is hopeful that this is a temporary change. A negative issue that has recently become apparent is the large number of youths on remand having been refused bail. In 2006 58% of the detention population was made up of remand prisoners. There has been a tightening of the bail laws in the adult legislation that has now also been applied to juveniles without any thought. Cunneen pointed out the knock on effect of this is that a large number of youths are placed in detention system pending their trial and because they have been convicted of no crime, no programmes can be implemented to tackle any problems the youths may have.

The second principle he used was the availability and use of diversion options. Cunneen pointed out that Australia has a number of similar initiatives to Ireland in operation to divert youths from the full rigours of the criminal justice system. Again he stressed how each jurisdiction differed slightly in their approach. Warnings, cautions and family conferencing are all at the heart of diversion. The criteria for their use is established in legislation where the seriousness of the offence, level of violence, harm and the offending history of the child are all taken into consideration when deciding what route to take. The family conference is taken from the New Zealand model. The youth must admit to the offence, agree to participate and the victim must also agree to participate. The police, DPP or a judge may refer a case to a conference. Cunneen acknowledged the mixed results of conferences internationally. In New South Wales youths are less likely to re-offend if they are diverted for property or violent offences than if they came before the courts for the same offence. There is a limited use of drug courts in Australia where half the people referred to the programme are refused admission and 40 % who are admitted complete the programme. Cunneen pointed out that a recent problem has been the increase in the number of people before the courts where the number being diverted has remained the same. The enthusiasm for reform can wear out after a period.

The final general principle Professor Cunneen examined was the prohibition against racial discrimination. He opened by highlighting the fact that Aborigines do not enjoy the same of benefits of diversion. He gave the example of a young female shoplifter. If the shoplifter is black s/he three times more likely to be arrested than if s/he is white. The result is a massive over representation of Aboriginals in the Australian detention system. More than 50 % of the detention population are of Aboriginal extraction. Cunneen pointed out that where detention levels are going down overall, the numbers of Aboriginals being held in detention is rising.

Professor Cuneen concluded by outlining how the diversion system can improve. There needs to be a range that responds hierarchically to the seriousness of offending, adequate resources, the diversion options must be seen as viable options and there is the need for legislation to provide clarity and consistency. He finished by arguing that once rates of recidivism for diversion are as good, if not better, than those for detention then they must be used.

Summary provided by John Cronin, LL.M (Criminal Justice) Candidate

Youth Justice 2008: Measuring Compliance with the International Standards

The Centre for Criminal Justice and Human Rights at the Faculty of Law, University College of Cork is hosting a two day international conference on Youth Justice in Ireland and internationally in association with the Children Acts Advisory Board. The Conference is a two-day event – Thursday April 3rd and Friday 4th 2008 – designed to bring together a range of people from around the world who work in the field of youth justice as researchers, practitioners or policy makers.

The aim of this international conference is to provide a forum for the discussion of recent developments in the law and policy of youth justice in Ireland and internationally. It will identify recent trends in youth justice, and anticipate future challenges in the area.

The conference programme comprises International and Irish speakers. Academics and practitioners from all over the world (including Australia, New Zealand, Canada, the US, India, Nigeria and Europe) as well as from Ireland will present on and discuss trends in youth justice and the extent to which they meet international children’s rights standards. The conference will also be addressed by the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg.

The full programme and booking details are available here. For bookings email youthjustice2008[at]gmail.com. Coverage of the plenary sessions will be provided on the CCJHR Blog.