Unformatted text preview: JUSTICE FOR CHILDREN The situation for children in conflict with the law in Afghanistan Page | 1 Page | 2 ACKNOWLEDGEMENTS This report is the result of a collaboration between UNICEF and AIHRC. It builds on the continued efforts of UNICEF and AIHRC for the reform and development of the juvenile justice system in Afghanistan and on knowledge and experience gained from ongoing monitoring of the situation of children in conflict with the law. Both organisations would like to recognise the support and facilitation of the Ministry of Justice, in particular Mohammad Seddiq Seddiq, Head of Juvenile Justice Department, as well as the management and staff in juvenile detention facilities. In AIHRC, this study was developed, coordinated and implemented by Hangama Anwari. Data management and statistical analysis were conducted by Nadir Kohzad and the primary report was prepared by Hussain Hasrat. Technical support was provided by Noriko Izumi, Lise Bendiksen and Dorothea Grieger from UNICEF and the final report was prepared on behalf of AIHRC by Jeremy Southon. The monitoring and support to children in detention has been made possible by financial assistance provided by the Government of Germany. This study would not have been possible without the commitment and energy of AIHRC field officers who as part of their ongoing monitoring and support for children in detention collected data in often difficult and challenging circumstance. Both UNICEF and AIHRC would like to recognise the vital contributions of these child rights advocates: Hasan Faiz, Abdul azim Akid, Rahima Halimi, Sakina Sharifi, Parwiz Ahang, Najib babrakzay, Shamsuldin Tanwir, Ghulam Hussain Bewas, Salamat Azimi, Zamin Sabire, Addul Rauoof Moallem, Spojmay Saeed and Norozali Rahimi. Most importantly, the research team would like to highlight and recognise the contribution of the children who provided information for this study. Many of these children were in difficult circumstances, filled with apprehension, and facing uncertain futures. It is sincerely hoped that in addition to the support that AIHRC has provided to many of these individuals, these children’s efforts will contribute towards positive change for the situation of all children in conflict with the law. The opinion expressed are those of the authors and editors and do not necessarily reflect the policies or views of UNICEF. Page | 3 FOREWORD There has been increasing attention by the government of Afghanistan and civil society to juvenile justice reform in Afghanistan in recent years. The adoption of the Afghan Juvenile Code in 2005 is the first major step in the development of the administration of juvenile justice in the country. Yet, there remain gaps between the Juvenile Code and the international standards and norms on children in conflict with the law. Afghanistan still has a long way before achieving full compliance with the Convention on the Rights of the Child regularly in the areas of prevention of juvenile offending, diversion and the use of deprivation of liberty only as a measure of last resort. The study was initiated in order to assist the Government of Afghanistan in fulfilling their duties towards children in conflict with law and also to urge for full implementation of the Juvenile Code. The study shows that children in detention face various rights violations‐ including maltreatment, lack of access to education and health services. Also, lack of due process in juvenile justice system appears to be a serious concern. A punitive and retributive approach to juvenile justice seems to be still predominant in Afghanistan. We strongly advocate for measures to prevent and reduce detention or imprisonment of children and prevention programmes involving vulnerable families, communities and children at risk‐ we need to invest more to prevent children coming into conflict with the law than just to assist children already in detention. We hope that the present study will offer a basic dataset and tool to further develop assessment, evaluation and service and policy for children in conflict with the law in Afghanistan. Dr. Sima Samar Chair Person Afghanistan Independent Human Rights Commission Catherine Mbengue Representative UNICEF Afghanistan Page | 4 I. INTRODUCTION State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. UN Convention on the Rights of the Child, Article 40 Juvenile justice, as opposed to criminal justice, recognises children who come into conflict with the law as victims. It takes into account the fact that children lack the maturity of adults (morally and cognitively, physically and emotionally). It recognises the vulnerability of children to experimentation, victimisation, and to becoming involved in crime and that the problems experienced in childhood or adolescence can have life‐long implications. The overwhelming majority of children coming into conflict with the law are victims of neglect, exploitation, and social and economic hardship. These children need and have a right to proper care, guidance, protection and the opportunity of social reintegration – needs on which the juvenile justice system should be based. In this spirit the Government of Afghanistan adopted the Juvenile Code – Procedural Law for Dealing with Children in Conflict with the Law in March 2005 incorporating the basic principles of juvenile justice as expressed in the CRC.i Following the enactment of this legislation, awareness‐raising, training and capacity‐
building programmes were undertaken with law enforcement and judicial bodies as well as other stakeholders. However, monitoring visits by AIHRC have highlighted that many of the provisions laid out in the legislation have not been implemented and that two years after the adoption of the Juvenile Code many of the authorities in charge of its implementation are even unaware of the rules stipulated. In the absence of a proper system, there is very little information available on how legal standards are being applied to children in conflict with the law throughout the country. This study, undertaken in cooperation with UNICEF, endeavours to give a greater understanding of the situation of children in conflict with the law in Afghanistan and the juvenile justice system’s treatment of them. It builds on the continued leadership and support that UNICEF has provided in the juvenile justice sector and in particular technical support to AIHRC in monitoring the situation of children in conflict with the law. Greater knowledge and understanding is critical to developing appropriate interventions for prevention, protection and reintegration of children who are at risk or in conflict with the law. It is also essential for the development and promotion of alternative measures to the institutionalisation of children in the juvenile justice system. This paper presents the findings of research with children in conflict with the law in 22 provinces of the country. It highlights the present implementation of legal standards for the administration of juvenile justice as expressed both in national and international legislation. Finally, urgent recommendations are made to key stakeholders for the protection and promotion of the rights of children in conflict with the law. Page | 5 International Standards International standards, ranging from prevention to disposal and social reintegration, provide a framework of agreed guidelines for the administration of juvenile justice: Convention on the Rights of the Child 1989 (CRC) UN Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing (Rules) UN Rules for the Protection of Juveniles Deprived of their Liberty 1990 (JDLs) UN Guidelines for the Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines) UN Rules for Non Custodial Measures (Tokyo Guidelines) Vienna Guidelines for Action on Children in the Criminal Justice System 1997 International Covenant on Civil and Political Rights 1966 (ICCPR) Convention against Torture 1984 (CAT) Internationally much research has been conducted into the nature of children coming into conflict with the law and consequently there is better understanding on the best ways to prevent young offending. Both child rights advocates and law enforcement officials recognise that the protection of children’s rights is essential in preventing young offending and promoting a just and peaceful society.ii These issues and key international standards for the administration of juvenile justice are presented in more detail in throughout this document. CONVENTION ON THE RIGHTS OF THE CHILD
The key international instrument related to children is the UN Convention on the Rights of the Child (CRC). The convention is an
international treaty which is legally binding once ratified. It details the obligations of the State for the survival and development of
the child. As well as specific provisions related to juvenile justice the CRC contains key cross-cutting principles: •
• Non-discrimination: All rights apply to all children without exception (Article 2);
Best interests of the child: All actions concerning the child should take full account of his or her best interests (Article 3);
Survival and Development: The State’s obligation to ensure the child’s survival and development (Article 6);
Participation: The child’s right to express an opinion and to have that opinion taken into account in any matter or
procedure affecting the child (Article 12);
Role of Parents: Parents or legal guardians have primary responsibility for the upbringing and development of the child.
The best interests of the child will be their basic concern (Article 18);
Implementation of rights: The State’s obligation to implement the rights of the CRC (Article 4); Article 37 addresses the issue of deprivation of liberty. Most importantly it states the principle that deprivation of liberty should
be a last resort and for the shortest period of time possible. Specifically the Article: •
• Prohibits torture, cruel treatment or punishment, capital punishment, life imprisonment, and unlawful arrest or
deprivation of liberty of children.
States that if a child is deprived of his or her liberty this must be done in a manner which takes account of the special needs
of a person of their age and in a manner which is respectful of the child’s inherent human dignity.
Obligates the government to separate children from detained adults, to provide children contact with family, and to
provide access to legal and other assistance. Article 40 is the most detailed article of the CRC and addresses the administration of juvenile justice. It legally binds states to the
following principles of juvenile justice: •
• Dignity: the right of every child in conflict with the law to be treated with respect and dignity;
Consideration of Age: the treatment of a child should take into account the child’s age;
Reintegration: the aim of juvenile justice system is to promote the reintegration and rehabilitation of the child;
Diversion: Whenever appropriate, measures for dealing with children without resorting to judicial proceedings should be
used, provided that human rights and legal safeguards are fully respected;
Minimum guarantees: Article 40 provides for minimum guarantees of children’s rights in the administration of juvenile
justice, including presumption of innocence, access to legal support, confidentiality etc. Page | 6 National Context The Government of Afghanistan ratified the UN Convention on the Rights of the Child in 1994 and in 2005 passed the Juvenile Code enacting these international treaty obligations into national law. Since this time concerted efforts have been made for the development of the juvenile justice system in Afghanistan: •
• In 2005 the Juvenile Justice Administration Department (JJAD) overseen by the Ministry of Justice was established with financial and technical support from UNODC and UNICEF Over 250 professionals have been trained (judges, prosecutors, police, and social workers) In Kabul, juveniles are housed in a newly constructed juvenile rehabilitation centre, however for the majority of provinces where juvenile rehabilitation centres exist these are located in a rented house outside of the compound of the adult prison. These centres are often only available for male juveniles while female juveniles are detained with adults in the women’s prison. In Kandahar and Jalalabad the juvenile rehabilitation centre is a separate wing within the adult prison. Establishment of first ‘open’ juvenile rehabilitation centre in Kabul Specialised juvenile prosecutors’ offices have been established in 5 provinces (Balkh, Herat, Kandahar, Kabul and Kunduz) However, in reality, children in conflict with the law may have felt little impact from these changes. Reviews of the juvenile justice sector have highlighted the lack of coordination between implementing ministries and agencies, and the delayed implementation of juvenile courts, legal aid, and social support systems. iii To date only three Juvenile Primary Courts have been established (in Kabul, Mazar and Jalalalbad) with two more provinces in the process of establishing these courts. 28 provinces remain with no formal plans, in spite of the fact that the Juvenile Code clearly stipulates that cases involving juveniles should be processed in specialisedjuvenile courts. As such justice for children in conflict with the law remains very much rooted in the criminal justice system. These issues have been recognised in the National Justice Sector Strategy 2008 where juvenile justice has been identified as cross‐cutting area for reform. The Strategy identifies three overarching goals: to improve institutional capacity to deliver sustainable justice services, to improve coordination and integration within the justice system and with other state institutions; and, to improve the quality of justice. With regard to juvenile justice, the strategy has set objectives for implementation of reform by 2010 including: •
• Developing regulations, protocols, and manuals to implement the Juvenile Justice Code and international norms and standards on juvenile justice; Developing a common approach to re‐integration of juveniles with their families, in cooperation with the Ministry of Social Affairs; Increasing the number of justice social service professionals with specialized training in juvenile issues; and Improving and expanding juvenile justice facilities and programs throughout the country, with a special attention to non‐custodial measures such as community‐based interventions.iv , Page | 7 II. METHODOLOGY This study aims to provide an assessment of the situation of children in the juvenile justice system in Afghanistan, and in particular has the following specific objectives: •
• Assess the situation of children in juvenile rehabilitation centres; Assess implementation of procedural law for dealing with children in conflict with the law; Investigate the behaviour of different actors in the juvenile justice system towards children. Research Methodology Detailed structured questionnaires for interviewing the children were developed by AIHRC with the technical input of UNICEF. Data collection was conducted in 22 provincesv where there were existing juvenile rehabilitation centres for children over a period of one month by trained field researchers. All males and females encountered in the centres below the age of 18 years were approached to be interviewed. Only those children willing to participate were interviewed after signing a consent form. A total of 258 questionnaires were Table 1: Age at Time of Interview
collected. 3 questionnaires were Age Male considered invalid due to incomplete Under 12 4 information while a further 8 12 to 15 89 questionnaires of adults who were 18 16 to 18 117 years at the time of arrest were also TOTAL 210 removed. A total of 247 questionnaires were input for analysis. Female 1 12 24 37 TOTAL 5 101 141 247 2% of respondents reported they were less than 12 years of age at the time of arrest, while 46% were between 12 and 15 years of age, and 43% 16 or 17 years of age. The most significant number of respondents were in Kabul and Herat accounting for 30% and 18% of respondents. After these provinces Kandahar, Ningharhar and Balkh accounted for 4‐6% of respondents. Further information was collected from the findings and observations of the field research team and the collection of a total of 25 case studies from children in juvenile rehabilitation centres in six provinces. Selected case studies have been included in this report. Page | 8 Limitations of the Study The scope of this study is limited. The study, based on the information provided by children in structured questionnaires, is largely of a quantitative nature although case studies were collected to provide some basic qualitative information. Data collection was limited to children in juvenile rehabilitation centres (formal and informal) and therefore was conducted in 22 out of 34 provinces. The study does not provide information about children who were not referred to rehabilitation centres. Therefore, children who are kept in police facilities, children who are treated as adults by the justice system, and children who are not formally registered in the justice system have not been covered by this study. These are perhaps the most vulnerable groups of children in conflict with the law and future investigation should determine the extent of these issues. In some instances it was not possible to maintain complete privacy for the duration of the questionnaire meaning that difficult or sensitive questions may not have been answered by all respondents. Page | 9 III. KEY FINDINGS Background of Children in Detention Children’s socio‐economic background and the environment they live in at school, work and in the community, influence their behaviour and the risk of them coming into conflict with the law. The role of society and environment is well acknowledged in the “Beijing Rules” and it is established that these factors sould be taken into account in any response to children in Box 1: The Principle of Proportionality The response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reactions. (Official Commentary of the “Beijing Rules” Rule 5 conflict with the law (see Box 1). When asked about the economic status of their family, 55% of children rated their family as poor or very poor with no significant difference between the economic situation of males and females. 42% of respondents rated their family as ‘medium’ economic status, while not one single respondent referred to their family as being rich. Overall 69% of children reported that they were working before their arrest and detention (males 76%, females 32%). In terms of educational status, notably the majority of females were illiterate (females 62%, males 36%). Only 8% of females and 28% of males had advanced beyond primary level. Another 7 males had received a religious education and 1 male was able to read and write without receiving any formal schooling. The mother tongue of the majority of respondents was Dari (64%), followed by Pashtu (31%) and Uzbek (4%). Page | 10 Legal Status of Children in Detention The UN Convention on t...
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