Court/Judicial body: Supreme Court of Bangladesh, High Court Division (Special Original Jurisdiction)
Date: 11 February 2009 CRC
Provisions: Article 37(b): Torture and deprivation of liberty
Other international provisions: International Covenant on Civil and Political Rights Domestic Law: The Children Act, Bangladesh, 1974: Sections 51 (restrictions on punishment of child), 52 (commitment of child to certified institute), 53 (power to discharge youthful offenders or to commit him to suitable custody) Constitution of the People’s Republic of Bangladesh: Article 28(4) (special provisions in favour of children)
Background: A 16-year-old boy referred to as “Rony” was convicted of taking gold jewellery from a young girl and thereafter killing her. He was sentenced to imprisonment for 10 years and to detention in an institute for youthful offenders until he reached the age of 18. Fahima Nasrin was approached by Save the Children UK to take up the cause of Rony on the ground that he had been illegally transferred to an adult prison upon reaching the age of 18 years old and that he was being detained there without lawful authority. She filed this lawsuit in the form of public interest litigation. Issues and resolution: Juvenile justice; imprisonment of children. Rony was unlawfully transferred to adult prison when he reached the age of 18 because the trial court did not make the findings required under Bangladesh law to justify a sentence of imprisonment upon a child.
Court reasoning: The trial judge could not impose a sentence of imprisonment on Rony in the absence of a clear opinion that alternatives to imprisonment were insufficient punishment for the crime or that the child was too unruly or depraved to be placed in an institute for youthful offenders and other measures were not suitable.
Excerpt citing CRC and other relevant human rights “We are also obliged to implement various beneficial provisions of international conventions, covenants and treaties, such as the UN Convention on the Rights of the Child (UNCRC) and International Covenant on Civil and Political Rights (ICCPR), of which Bangladesh is a signatory. We note also that our Constitution allows for special laws to be enacted in favour of children as well as other specified communities as detailed in Article 28(4) of the Constitution. Therefore, the rights of the child are not only protected by the Children Act, 1974, but are mandated by the UNCRC. Above all, the favourable provision of the law and of the covenants and conventions are to be applied to the benefit of the child as provided by Article 28(4) of the Constitution.” “[I]t is always possible at any time to revert a child from prison, if imprisonment or detention in some other place was ordered. . . . This, therefore, fortifies the view that children should not ordinarily be sentenced to imprisonment, unless absolutely necessary where exceptional circumstances exist, and then only as a matter of last resort and for the shortest appropriate period of time. In this regard reference may be made to Article 37(b) of the UNCRC which provides as follows: ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. 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.’”
CRIN comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, children shall be imprisoned only as a measure of last resort and for the shortest appropriate period of time under Article 37(b). States Parties to the CRC should make every effort not to imprison children in conflict with the law, and courts should seek to link young offenders with appropriate rehabilitative, educational, and social services regardless of the nature of the crime.
Citation: 61 DLR 232
Link to full judgement: http://betterjustice.files.wordpress.com/2013/09/justice_for_children_in_bangladesh_vol-2.pdf (from page 71)