JOURNAL
Children’s Rights International
Justice is Hope
An Initiative of World Congress on Family Law and Children’s Rights Inc.
Assessment on Children in Conflict with the law/Child Justice
Research Institute for Asia and the Pacific
The University of Sydney, Australia
Sandra Egger Chief Researcher
April 2005
RIAP Research
Report to UNICEF: Executive Summary
Executive Summary
The Objectives of the Research
The research undertaken in the present project was commissioned by UNICEF Cambodia and conducted between March and August 2004. The broad aim of the study was to examine the way in which children in conflict with the law in Cambodia are treated. In general terms it is known that there are serious deficiencies in the laws and in the response of the criminal justice agencies. The rights of children are routinely violated at all stages in the criminal justice process. There is no age of criminal responsibility and no system of juvenile justice in Cambodia. Children are generally detained in adult prisons and, usually, are not separated from the adult prisoners.
Whilst the broad features of the problem are known, the available information has not been comprehensively examined and only a few empirical research studies have been conducted. Furthermore, there has been no systematic attempt to assess the availability of population and research data for the development of key juvenile justice indicators. The development of indicators is an essential part of the process of monitoring progress towards child protection goals. The present research sought to address these shortcomings.
Approach
The research employed different research methodologies in a series of separate research undertakings. Firstly, using the traditional tools of legal scholarship, the criminal law was examined and analysed with a view to identifying the important deficiencies in relation to children in conflict with the law. Secondly, a critical literature review of relevant Cambodian research was undertaken. The remaining four research studies used empirical research methodologies:
- Crime and justice statistics: The official and unofficial databases on crime and justice information were examined in order to establish what national statistics and data collections and indicators were available to monitor children in the criminal justice system and to identify the deficiencies the existing sources. The development of key juvenile justice indicators was a central focus of the research.
- Children in prison: An empirical study was conducted in which a sample of children in prison was interviewed and detailed information collected about their experiences.
- Key Informant study: Structured interviews were conducted with a range of people working with children in conflict with the law or within the criminal justice system.
- The Youth Rehabilitation Centre: Interviews were conducted with a small number of children at the Youth Rehabilitation Centre and with people working with children at risk.
In the Chapters of the report, these research undertakings are described in sequence.
The Laws
The analysis of the laws found that, notwithstanding that the Constitution of Cambodia contains a number of important rights and guarantees in relation to the criminal process and that it explicitly recognises many of the other important international instruments such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, there are inadequate legal mechanisms available for citizens to enforce these rights. There is no independent body with the legal power to investigate human rights breaches and other breaches of the law by government agencies. There is a clear need to establish a human rights commission or ombudsman’s office under statute to perform these functions. Such an office could also perform the functions of a police complaints authority.
The analysis of the two primary statutes relating to the substantive and procedural criminal law, the UNTAC Law and the SOC Law, demonstrated serious deficiencies. The UNTAC Law and the SOC Law (and the amending statutes) do not provide an adequate legal framework for a comprehensive code of criminal offences and a procedural and evidence code governing the rights of the accused, the conduct of the trial and evidentiary rules. Problems were identified in the definitions of offences, bail laws, sentencing laws and the absence of a system of parole.
Of particular concern in relation to children in conflict with the law is the failure of the law to provide for non custodial sentencing options, the problems created in the definition of robbery in the UNTAC Law and the sentencing requirements imposed by Article 8 of the Law on the Aggravating Circumstances.
Cambodian domestic laws applying to children in conflict with the law do not meet the standards imposed by the Convention on the Rights of the Child, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules). The most significant omissions are in the following areas:
- The minimum age of criminal responsibility
- Arrest and Pre-trial detention
- Access to Legal Assistance
- Torture, restraint and isolation whilst in custody
- Privacy
- Separate juvenile justice laws
- Separate Sentencing Laws
- Pre-trial diversion for children
- Separate sentencing laws providing alternatives to institutional care
- The separation of incarcerated children from adults
- The conditions under which children are incarcerated
- Family and other visits whilst in detention
- Complaints mechanisms for child prisoners
- Oversight and inspection of the conditions of imprisonment
- Independent investigation of complaints
- Post-release services
The problems identified in prior empirical research
Previous empirical research found a large increase in the prison population between 1998 and the present. The result has been serious overcrowding. The overcrowding was found to be associated with cramped and inadequate living conditions, a lack of access to sunlight and exercise, insufficient cell ventilation, increased tension and violence, poor sanitation and hygiene and an increase in the transmission of communicable diseases. Other problems identified in the previous research were:
- A high proportion of the total prison population were pre-trial detainees (30% to 32%) and there were numerous reports of detention in pre-trial custody for periods in excess of the legal limits.
- Defence lawyers reported difficulties experienced in gaining access to their clients in prisons and the lack of privacy in interviews.
- Torture in police custody and prison was found in many of the studies. Assaults in police custody were associated with forced confessions, the extortion of money or as a form of “rough justice”. In prisons, it was associated with alleged breaches of security or discipline. Children were included in the samples of prisoners reporting assault in police detention.
- Corrupt conduct by prison officials was reported in several studies. According to the research this included bribes paid for family visits, time out of the cells, work and transportation to court.
Additional and specific problems found for children in custody were:
- Over half of the children in custody were held in pre-trial detention.
- Children were not housed in separate parts of most prisons and they were exposed to the risk of sexual and physical assault and the potentially criminogenic influences of adult prisoners.
- Little or no access to educational programs in the prisons.
- Children in prison received little or no education and training and there were serious inadequacies in food and health care.
- Nearly half of the charges against children in custody were for simple theft (27%) or theft prosecuted as robbery because of the presence of multiple offenders (18%). The sentences imposed on these children were generally 2 years imprisonment or less and many of them would be suitable recipients of non-custodial sentencing options such as probation or community work orders.
National Key Indicators
This part of the research was directed at collecting population data on the criminal justice system in Cambodia, and more particularly, to ascertain the availability of key indicators on children in conflict with the law. One of the important objectives was to provide a mechanism to monitor over time the way in which children in conflict with the law are treated within the criminal justice system.
An examination was conducted into the data collections maintained by each of the criminal justice agencies in order to assess the availability of national population statistics. The research found that considerable progress has been made in the collection of criminal justice statistics. The availability of official crime and justice statistics in each of the four important areas is as follows:
- Police: National data on crime incident reports to the police and clear-up information (known as suppression) is available and tabulated within the Ministry of the Interior. Currently, there is no systematic information collected in the Ministry of Interior database on arrests or charges. The age of the suspect is also not recorded.
- Courts: There is currently no statistical data collection on persons whose appearance before the criminal courts has been finalised. The establishment of a database of information regarding court appearances and outcomes is an important area for development in the criminal justice statistical collection in Cambodia.
- Prisons: A national prisons data collection by the Department of Prisons in the Ministry of Interior has been established. A small amount of information on each prisoner in all 25 prisons in Cambodia is collected at the end of each month and centrally tabulated in the Ministry of Interior. This census data allows regular monitoring of the total number of prisoners in Cambodia and their sex, legal status, location and age. The census figures revealed that there were 6,346 prisoners in Cambodia in January 2004. There were 266 child prisoners (4.2% of the prison population) and 47.7% of the children were pre-trial detainees (n = 127).
- Victim Surveys: A general population wide crime victim survey was conducted by the Ministry of Interior with assistance and advice from international experts. The results have not yet been published.
It was found that considerable progress has been made in the collection of official crime and justice statistics. Recommendations were made regarding the establishment of a Government working party to undertake the design and implementation of a national data collection. It was also found that there had been progress in the availability of juvenile justice indicators to allow the monitoring of the child protection goals. A summary of the information available on these indicators is presented in Chapter 10.
Children in Prison
The aim of this part of the research was to obtain information regarding children’s experiences with the criminal justice agencies and about the conditions in prison. The research was conducted between 28 July and 10 August 2004. It involved lengthy interviews with 59 children in prison. The interviews were conducted in Khmer. The questionnaire contained approximately 60 questions and the answers were open ended.
The issues canvassed included demographic information, offence information, problems with police, courts and prisons.
The majority of children were male (n = 52, 88.1%) and 7 were female (11.9%). Most were aged between 16 years and 17 years (59.6%). Two of the children held in pre-trial detention were under 13 years of age: one was 11 years and one was 12 years. The detention of these children is in breach of Article 14 of the UNTAC Law which prohibits the pre-trial detention of “minors less than 13 years”.
The information reported on the children’s background prior to imprisonment revealed a picture of social, economical and educational disadvantage. A disturbingly high number had both parents deceased (16.9%) and fewer than half were living with both parents (42.4%). The educational level achieved by the children prior to incarceration was not high. Many did not complete grade 1 (18.6%) and more than half of the sample finished school at grade 4 or less (55.9%). Less than half could read and write (40.7%).
A high proportion of children were in pre-trial detention (49.2%). Theft was the largest category of offences charged (35.6%), followed by robbery (23.7%). For sentenced children, the most common sentence was 2 years imprisonment or less (n = 13, 46.4%) and nearly half of these were for theft offences.
The findings on children in police custody were particularly disturbing. Fewer than half said that the police contacted their parents whilst they were in police custody (45.8%) and the 48 hour legal limit was respected for only 54.2% of the children. The remainder were held in police custody for between 3 and 8 days. Nearly half of the children reported being threatened or beaten whilst in police custody (45.8%). The assaults included beating, beating around the head, kicking and beating, being shocked with electricity, beaten with weapons and kicked until unconscious and threatened with shooting. The levels of violence inflicted on children whilst in police custody in the present research are higher than those found in previous research.
All but one of the sentenced children said that they were frightened by the court experience (96%). Relatively high levels of legal representation at trial (67.7%) were reported by the sentenced children, but only 16.9% said that they had been visited in detention by their legal representative prior to the trial.
Prison conditions were found to be poor, in agreement with the findings from previous research. Approximately half of the children were housed with adult prisoners (49.1%).
The absence of fruit (84.7% of children) and protein (27.2% of children) in the diet were particular problems. Seven children (11.9%) reported having to drink the toilet water.
Most children reported no access to schooling (71.2%) and only two children said that they attended vocational training (3.4%). No child reported having access to counsellors if upset and most reported no access to drug and alcohol services. One third of the children said that they were not permitted to leave the cells to go outside and exercise.
No regular family visits were received by approximately one third of the children (37.3%) and 8 children (13.6%) said that their family had never visited.
The Key Informants
This part of the research was aimed at examining the expert opinions of people working within the criminal justice and with children in conflict with the law about the problems in police, courts and prisons and to seek their views about the necessary reforms.
Structured interviews were conducted with 42 key informants.
The views of the key informants showed a great deal of consensus in relation to the plight of children incarcerated in Cambodian prisons. There was agreement that children were inappropriately detained with adult prisoners and that there were deficiencies in a wide range of areas: diet, medical services, education, vocational training, mental health services, drug and alcohol services. There was also considerable agreement in the range of reforms considered to be necessary: the establishment of a special children’s court, special sentencing laws for children, the development of non custodial sentencing options and additional training in children’s rights. There was disagreement regarding the extent of police mistreatment of children (including torture and forced confessions), whether the requirements of CRC were respected in sentencing,
whether the court hearing was appropriate for children, the extent to which pre-trial detention limits were exceeded and whether children were physically or sexually assaulted whilst in custody. The most significant finding was the overwhelming support for the creation of a separate juvenile justice system.
The Youth Rehabilitation Centre
The objective of this segment of the research was to ascertain the policies and practices currently in operation at the YRC. Three children living at the centre were interviewed and interviews were also conducted with an official working with the YRC and a representative of an NGO who works with children who have spent time at the YRC. In the early years of operation, concerns were expressed regarding the detention of children without charge or conviction and sentence in the YRC. In Cambodian law, there are no status offences specifically applying to children (such as vagrancy, homelessness, drug addiction, neglect, incorrigible behaviour, uncontrollable, running away from home and school truancy). However it appears that children were in the past subject to inappropriate and discriminatory policing and unlawful detention at the YRC.
The results from this research suggested that the policies of the YRC have changed. The centre appears to run as an open centre and children are not detained against their will. Children appear to be able to come and go as they please. The YRC is performing an important role in providing youth refuge accommodation for children who are not able to live at home for a variety of family, social and economic reasons. Whilst there are no juvenile status offences in Cambodia under which children are detained at the centre, discriminatory policing practices with homeless children is an area worthy of further examination and monitoring
Conclusions and Recommendations
The recommendations for reform are discussed in Chapter 10. The main priority areas are:
Reforms to the general criminal law
Many problems were identified in the existing law: the small number of offences, the poor drafting and failure to define the terms in many offences (e.g. sexual offences and robbery), the failure to include any defences (such as a defence of mental illness or insanity) and the early statute of limitations for all crimes. Particular attention should be paid to the definition of robbery: simple theft is classified as robbery if undertaken by several people. It was noted that a new penal code is being drafted and it was recommended that the impact of the provisions on children in conflict with the law should be carefully assessed.
Reforms to the laws of criminal procedure and evidence
The existing laws are generally inadequate to provide a comprehensive and appropriate code of criminal procedure and evidence. It was noted that a new criminal procedure code is being drafted and it was recommended that the impact of the provisions on children in conflict with the law should be evaluated.
Pre-trial detention and bail
It was concluded that the existing laws do not provide an adequate framework for the grant of bail and it appears that bail is not often granted. A high proportion of children in custody were in pre-trial detention and it was suggested that bail law reform should be a priority and consideration should be given to the establishment of bail hostels in the community where children may reside under specified bail conditions whilst awaiting trial. The laws relating to pre-trial detention also need to be clarified and mechanisms introduced to ensure compliance by police and prison officials.
The treatment of children by police
The high number of children in police custody in excess of the legal limit (44.2%) and the high levels of physical abuse whilst in police custody (45.8%) found in the present study suggest that reforms in this area are an important priority. Firstly, increased efforts are necessary in the training of police in children’s rights and the laws applying to children in police custody. Secondly, the need for an oversight body such as an ombudsman’s office or a human rights commission is clear. There is currently no independent body with the legal power to investigate and to compel government agencies and laws to respect the constitutional and legal rights of children in conflict the law.
Legal representation
A relatively high number of sentenced children were legally represented at trial (67.7%). The support of the legal aid programs by UNICEF and other international donors has resulted in an increase in the availability of legal services for children in conflict in the law. However, only 16.9% of children said that they had been visited in detention by their legal representative prior to the trial and this was identified as an area worthy of further investigation and policy formation.
Sentencing
The problems found in sentencing laws included the very limited non custodial options, the doubts surrounding the extent to which mitigating or attenuating circumstances may be taken into account in sentencing for a felony and doubts surrounding the extent to which the sentences of children may be reduced under the law. Recommendations were made concerning the reform of sentencing laws and, in particular, the sentencing laws applying to children.
Release and parole
Recommendations were made concerning the establishment of a parole service and post-release rehabilitation programs
Reforms to the law relating to juvenile justice
One of the most important findings of the present research related to the failure to establish a system of juvenile justice and the problems experienced by children incarcerated in adult prisons. In January 2004, there were 266 children in prison in Cambodia. The conditions in prison were found to be adverse to the growth, development and rehabilitation of the children. It was also found that there was strong support amongst key informants for a juvenile justice system. It was recommended that laws be enacted to establish a system of juvenile justice. Such laws would include provisions to establish a minimum age of criminal responsibility, to establish a separate children’s court, to respect the principle that arrest, detention and incarceration should be measures of last resort and for the shortest appropriate time and to establish a separate system of detention for children.
Diversion
Recommendations were made regarding the introduction of appropriate diversion schemes for children in conflict with the law. Caution was urged where such diversion schemes operate as a complete alternative to the criminal justice system (not merely a sentencing option) and it was suggested that they be established within a statutory framework.
The development of national key indicators:
The positive progress made in recent years in the collection of national criminal justice statistics was noted and it was recommended that consideration should be given to the establishment of a Government working party to undertake the design and implementation of a national data collection. Membership should include representatives from each of the key criminal justices agencies, the Ministry of Justice, the Ministry of Interior and National Institute of Statistics. Finally, information was provided on national key indicators in juvenile justice in Cambodia. Where data was not available at a national level, consideration was given to the findings from individual sample research studies to supplement the information on what is known regarding each key indicator. The development of these indicators to allow the measurement of progress towards child protection is a central part of the reform process for children in conflict the law.