Court/Judicial body: Kosrae State Court Trial Division
Date: July 18, 2005 CRC
Provisions: Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Domestic provisions: KRJP, Rule 10.A
Background: Mirah Ned, aged 15, was charged with assault and battery and offensive behaviour in a public place after scratching the face of another person. Prior to trial, the defence and prosecution presented a settlement agreement the Kosrae State Court for approval, under which the Ned would avoid prosecution on the condition that she complied with certain requirements (e.g. good behaviour). She asserted that the Court should approve the settlement agreement, despite its failure to include a provision requiring the Defendant to perform community service as required under the Rules of Judicial Procedure on the basis that imposing community service would violate the CRC.
Issue and resolution: Juvenile justice. The Court determined that the imposition of community service on Ned would not violate the provisions or spirit of the CRC and ordered to parties to file an amended settlement agreement, incorporating a community service requirement, with the Court if they wish for the Court to approve it.
Court reasoning: The Court reviewed the CRC in detail, in particular Articles 37 and 40, and concluded that the imposition of community service on a juvenile offender would not violate the provisions or spirit of the CRC. Rather, community service could be considered as guidance, supervision, counseling, education and vocational training which would be preferable to detaining the offender. The Court’s view was that community service would benefit Ned, be in her best interests, and be proportionate to the circumstances and offences with which she was charged.
Excerpt citing CRC and other relevant human rights Defendant raised the issue of whether a requirement of community service would violate the United Nations Convention on the Rights of the Child. The Court has reviewed the lengthy Convention on the Rights of the Child to address the Defendant’s concerns. Two relevant articles of the Convention appear to be applicable in the instant matter. These two articles, 37 and 40, are copied verbatim below: Article 37 “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) 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; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
Article 40 “1. States Parties recognize the right of every child alleged as, accused of, or recognized 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. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used; (vii) To have his or her privacy fully respected at all stages of the proceedings. 3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”
Following detailed review of Article 37 and 40, and the remaining articles of the Convention, this Court concludes that the imposition of community service would not violate the provisions or spirit of the Convention on the Rights of the Child. Indeed, community service, which could be considered as guidance, supervision, counseling, education and vocational training, are all preferred alternatives to institutional care (detention), which is also explicitly permitted under the Convention. This Court is persuaded that community service will benefit the Defendant and would be in her best interests, appropriate to her well-being and proportionate to the circumstances and the offenses of assault and battery, and offensive conduct in public.
CRIN comments: CRIN believes this decision is consistent with the CRC in that sentences designed to help a child in conflict with the law reintegrate into the community are neither in contradiction with the rehabilitative goals of juvenile justice or the Convention itself.
Citation: Kosrae v Ned, 13 FSM Intrm. 351 (Kos. S. Ct. Tr. 2005).
Link to full judgement: http://www.paclii.org/fm/cases/FMKSC/2005/11.html