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Anderson v. R

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Court/Judicial body: High Court of Tuvalu
Date: 26 September 2003 CRC
Provisions: Article 37: Torture and deprivation of liberty
Domestic provisions: Tuvalu Constitution, section 80(1)(e): Governor General has authority to reduce the length of any jail sentence if advised by the Cabinet to do so Penal Code

Case summary

Background: The applicant was convicted of murder and sentenced to mandatory life imprisonment.  He was aged 16 at the time of the offence, and 17 at the time of conviction.  He sought declarations from the Court that, amongst other things, his age should have been taken into consideration before his sentencing, and this is supported by Article 37 of the CRC, which prohibits giving a life sentence to anyone under the age of 18.
Issue and resolution: Juvenile justice; life imprisonment for children.  Although the Court refused the application (on grounds that it had no power to review an earlier decision made by the same court), it recommended that Tuvalu pass legislation requiring all cases of life imprisonment and very long prison terms to be sent to the Governor General for review after a certain timeframe and at regular intervals.

Court reasoning: Although most have special provisions concerning the punishment of child offenders, Tuvalu’s law has no such provisions.  The Court noted that Tuvalu is a signatory to the CRC, of which Article 37 prohibits life imprisonment for persons under 18 without the possibility of release.  Technically, Tuvalu is in compliance with this Article, because Section 80 of the Constitution gives the Governor General, in conjunction with the Cabinet, an opportunity to commute sentences.  However, the Court pointed out that Tuvalu does not have any automatic process for bringing cases to the Cabinet’s attention, contrasting the situation with other that periodically review long-term prison sentences.  The Court recommended legislation that ensures all cases of life imprisonment and very long prison terms are subject to periodic review.
Excerpt citing CRC and other relevant human rights … There can be no doubt that courts and legislatures around the world are recognising the need to make special provision for the treatment and punishment of young offenders. The law in Tuvalu makes no such provision. Tuvalu is, however, a signatory to the Convention on the Rights of the Child and State Parties to the Convention are required to review their laws in relation to children. I would urge the Government to give priority to such a review. One such matter for consideration is Article 37 which states that no person under 18 years of age shall be sentenced to life imprisonment without possibility of release. In Tuvalu, any sentence of imprisonment is subject to section 80 of the Constitution which gives the Governor General power, acting on the advice of Cabinet, to alter various orders of the court. In particular subsection (1)(e) allows Cabinet, through him to remit the whole or part of any sentence. That provision, therefore, appears to mean that any person sentenced to life imprisonment is not sentenced without possibility of release. However, that is only true if such a review can realistically be expected to take place. The problem with the section is that there is no automatic process by which cases are brought to the attention of Cabinet and thence to the Governor General for consideration. In most jurisdictions a sentence of life imprisonment or of any long term of imprisonment is automatically reviewed at prescribed intervals and it is rare for a person sentenced to life imprisonment actually to stay in prison for his natural life. In order to give real meaning to the provisions of section 80, the Legislature could and, I would suggest with respect, should consider legislation to ensure that all cases of imprisonment for life or very long terms must be submitted with all necessary information to Cabinet and thence to the Governor General after perhaps eight or ten years and then at regular intervals of three to four years as long as the sentence continues. Where the prisoner is a young person when the offence was committed, the initial review should occur much sooner than in the case of older prisoners – possibly after five years.

Follow up: As at the time of writing, Tuvalu still maintains mandatory life sentences for certain offences, and has no age limitations for life imprisonment. Tuvalu does not appear to have passed legislation based on the Court’s recommendation.

CRIN comments: CRIN believes this decision is not consistent with the CRC. As mentioned by the Court, Article 37(a) provides that no person shall be subjected to life imprisonment without the possibility of release for offences committed when they were under 18. Additionally, the Committee on the Rights of the Child has stated that the best interests of the child principle ( Article 3) requires that States implement separate juvenile justice systems and accord different treatment to children, recognising that children’s development and needs differ from adults, and such differences constitute the basis for the lesser culpability of children in conflict with the law.

Citation: [2003] TVHC 27

Link to full judgement: