Monday, 14 December 2009

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.

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