Juvenile rights: between legislation and practice [Archives:2006/1009/Reportage]
By: Afrah Ba-Dowailan
For the Yemen Times
What shakes me from my innermost core is hearing or seeing a child in pain, whether that pain is physical, spiritual or some type of remissness or carelessness. In my job, I undoubtedly see many pictures of mistreatment and such mistreatment is rejected by human conscience, morals and tradition.
Children's rights have a distinct place among all heavenly doctrines, of which Islam is particularly careful. Islamic Sharia (jurisprudence) provides protection for a child from before birth, even before his father marries his mother. As the hadith advises, “Choose your spouse wisely because qualities are inherited.”
The Prophet Mohammed (pbuh) said, “It's enough for a human that he not fail those he supports.” In this case, a human isn't confined only to the parents and support means all aspects of care and protection. It goes without saying that there is a great sin and horrible waste when children are placed in detainments.
Children's rights also have a distinguished position in United Nations literature, which is reflected in local societies, particularly after signing the 1990 U.N. Convention on the Rights of the Child. Along with other U.N. legislation, the agreement's primary rules and pillars have found their way into Yemeni legislation concerning children. Further, Yemen was among the first nations to sign the agreement in 1991.
Juveniles in the legal system
Yemeni legislation regulates children's situation, particularly when they violate the law, providing more care and qualification to ensure their integration into society. To this end, 1992's Delinquent Protection Law No. 24 and No. 26 in 1997 both regulate how underage delinquents are arrested, as well as their full rights during detainment. When speaking about detention, we mean care rather than prison.
These two laws have made noticeable progress in the children's situation in Yemen. Further, they've resulted in the emergence of a specialized judiciary for juvenile delinquents, providing them special treatment. There are standards for children's arrest, taking into consideration their age, the crime site and the circumstances of the crime.
According to Yemeni legislation, setting them free is the rule whereas detention is the exception. Arrest is justified if there's some kind of risk on the part of the delinquent, such as when revenge upon the delinquent is feared or when the delinquent himself poses a threat to others.
It's important to mention that juvenile delinquents are subject to arrest under three circumstances:
1- Committing an act legally prohibited.
2- Being in places where they are subject to perversion.
3- Posing social risks to themselves or others, bearing in mind that detention is the last option and that prior to this, there should be a number of social reform measures, such as compensating and handing him over to his family; thus allowing him to reintegrate into society.
Who is considered a child?
The international definition of a child is anyone under age 8. Yemeni law includes all children's rights under normal conditions. The 1992 Delinquent Protection Law confines protection to children ages 7-15. The law deprives ages 16-18 of the benefits enjoyed by those aged 15 or under. According to Yemeni law, reaching age 15 means one is an adult. This discrepancy involving the difference between a child and an adult has created the problem of delinquent children.
If a ruling dictates detaining a delinquent for three years, as in murder cases, and his age at that time was 14, he will be transferred to prison upon reaching age 16. This is one reason for the existence of children in prison. Another is a delay in issuing rulings, which may cause delinquents to spend time in prison.
A discrepancy exists between international standards specifying that a child is anyone age 18 or under and local standards fixing the age of adulthood at 15. Therefore, anyone over age 15 will be treated like an adult and should be imprisoned. If given a ruling limiting their freedom, children sometimes are detained or imprisoned where no juvenile detention centers exist or will be imprisoned if they pose a high risk.
Inability to pay their financial obligations is another reason for detaining children. Obligations resulting from convicting delinquents regarding legal fees, compensation, theft restoration, etc., are a problem in Yemeni law because delinquents should remain in prison until their families pay for these obligations. The problem worsens when a delinquent fails to inform his family or if they reject him.
The law forbids physically enforcing the law upon children and compensation cases should suit the delinquent's family. However, an escalating problem regards how victims can restore their belongings, which will be addressed below in the recommendations and solutions section.
The problem of revenge, which remains prevalent in most Yemeni areas, also causes concerned authorities to keep delinquents detained in order to protect their lives.
For girls, the case is even worse. Female delinquents suffer greatly because their families often refuse to receive them after they complete their sentence; therefore, official authorities don't release them for fear that they'll become subject to by mistreatment by their relatives or street harassment.
Detaining children is between legislation and practice
Arrest should be made only with legal justification and there should be no detention of children whose status isn't settled by law. Furthermore, a delinquent under age 12 shouldn't be detained at a police station. Under no circumstances should a delinquent under age 12 be detained at any security apparatus; rather, he should be handed over to his family. If he has no family, he should be handed over to delinquent housing within no more than 24 hours.
Only by necessity may a delinquent over age 12 be detained at a police station and for no more than 24 hours (Article 11 of the Delinquent Law). The attorney has the right to hand over a delinquent to any housing within no more than a week, which period can be extended only by court request (Article 12 of the Delinquent Law). The delinquent has the right to a lawyer while at a police station or in prosecution.
It's preferable to free the delinquent at any phase of investigations or ruling if his release doesn't pose any risk to society (Article 13 – Delinquents). Contact between the delinquent and his family should be facilitated. Delinquents shouldn't be imprisoned or detained with adults and there should be no mixing between males and females in government housing centers.
Recommendations and solutions:
1. Extending and strengthening legal protection programs to include all detention centers and all stages of the legal process. Civil society organizations also should play an important role in defending human rights.
2. Enacting the role of prison attorneys to record cases inside prisons, inform about the illegal existence of underage prisoners and coordinate with concerned authorities to release them.
3. Coordinating between concerned authorities affiliated with social affairs to follow the cases of delinquents in those governorates without juvenile detention centers in order to transfer them to such centers in other governorates.
4. Building government housing for female delinquents in order to receive those girls who are rejected by their families and thereby ensure them a secure life following their completed terms.
5. Encouraging civil society efforts aimed at adopting children born in prison or those accompanying their mothers in prison in order to protect them from the risks of prison.
Afrah Ba-Dowailan heads the Supreme Juvenile Court in the Capital Secretariat. One of Yemen's first judges, she's known for her strong and constructive initiatives regarding children's rights.