Domestic, Argentina Gisela Sin Gomiz Domestic, Argentina Gisela Sin Gomiz

Civil Association for Equality and Justice (ACIJ) against Government of the City of Buenos Aires (Ministry of Education) and others, EXP 8849/2019-0 CUIJ - Argentina

Background

The case concerns a collective complaint brought by the civil association Asociación Civil por la Igualdad y la Justicia (ACIJ) on behalf of children who had been denied enrolment in private schools for presenting some form of disability. The applicants sought a declaration of the illegality and unconstitutionality of the failure of the Government of the City of Buenos Aires to control, evaluate, audit, and sanction this practice for being in violation of the rights to education, equality and non-discrimination. Prior to this decision, the Court had already ordered precautionary measures to be taken by the local government at the request of the applicant.

Reasoning

The Court declared unconstitutional the failure of the Government of the City of Buenos Aires to control, evaluate, control and sanction the discriminatory practice of private schools in denying the enrolment of children with disabilities, taking into consideration the state’s performance. Firstly, the Court ruled that the local government had failed to comply with the constitutional, legal and regulatory obligation to control the activity of private schools, according to domestic law (CCABA, Article 25; National Education Law, Articles 13 and 121; and Law No. 2.681, Article 1 and Decree No. 107/11, Article 2). Secondly, the Court found that the lack of accessible, specific and effective channels to adequately control the activity of private schools was contrary to national law, which sets out the obligation to provide the necessary mechanisms to facilitate and speed up the receipt of claims and complaints (National Education Law, Article 8). Moreover, the Court criticised a number of procedural omissions by the City of Buenos Aires Government (e.g., absence of notifications, lack of resolution of the issues, etc.) that breached the duty to guarantee the right to due process of those affected by the government’s decisions (Decree No. 107/11, Article 9). Thirdly, the Court noted the limited activity of the City Government in terms of sanctions, the excessive delay in the resolution of appeals filed by private schools against sanctions and the lack of publication of sanctions on the website of the Ministry of Education (Law No. 2.681, Article 10). Fourthly, the Court noted a lack of dissemination of information on the right to inclusive education by the City Government – a right that is expressly recognized by national and international law. The Court also criticised the failure by the City Government to create the Observatory of Public Policies for full educational inclusion provided for in the law (No. 3.331, Article 5). Lastly, the Court highlighted the multiple failures of the City Government to comply with the precautionary measures previously imposed.

The court held that the City Government should implement positive action measures to effectively counteract the structural inequality experienced by children with disabilities. The City Government should do so in compliance with the constitutional and international law provisions projected in the body of law, in particular the CRC (Articles 3, 23, 29), the CRPD (Article 24) and the General Comment No. 4 on the right to inclusive education.

Remedy

Due to the structural nature of the problem, the court avoided imposing a concrete and immutable order. Instead, the defendant (Ministry of Education of the Government of the City of Buenos Aires) was ordered to formulate a proposal involving a diversity of social actors to provide a solution to the case and fulfil its obligations. The minimum content of the proposal was delimited by the court so that its compatibility and adequacy could be analysed by the judiciary.  

Role of children

There were no children directly involved in the case. The children's parents submitted their complaints to Asociación Civil por la Igualdad y la Justicia (ACIJ) and ACIJ filed the collective complaint.

Enforcement and other outcomes

The Government of the City of Buenos Aires was granted a period of 30 days to formulate a proposal to provide a solution to the case and fulfil its obligations. The ruling was appealed by the Government. However, the Ministry of Education has offered to reach an agreement and negotiations with ACIJ are still ongoing.

Significance of the case from a CRSL perspective

In terms of standing, this case is a significant example of an organisation deciding to bring a collective action (acción de amparo colectivo), i.e., a rapid judicial procedure allowing organisations defending collective rights or interests to claim a human rights violation when collective interests or rights are affected (Article 14, Constitution of Buenos Aires), rather than in the name of specific children.

This case is also significant because public schools in Buenos Aires can no longer exclude students with disabilities and the City Government was obliged to make a new inclusive educational public policy. The court’s judgment prompted a change in the current educational system of the city and opened future opportunities for children with disabilities to have the same rights and opportunities as other children without disabilities.

Country

Argentina

Forum and date of decision

First Instance Administrative and Tax Court Nº 6, Judicial Authority of the City of Buenos Aires.

June 26, 2022

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

For the Respondent:

Amicus curiae:

Case documents

Secondary documents

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Domestic, Guatemala Gisela Sin Gomiz Domestic, Guatemala Gisela Sin Gomiz

Child and Adolescence Court of Zacapa, No. 19003-2011-0637-Of.3ª (Mayra Amador Raymundo) and four ors. - Guatemala

Background

Following a fall in the price of coffee, which triggered an economic crisis, 88.88% of residents of the Camotan municipality fell below the poverty line with 38.20% of residents living in extreme poverty.

In 2009, a group of 14 CSOs from Guatemala advocated for the creation of an international fact-finding task force (“Mission”) with the objectives of, first, verifying possible cases of violations of the right to food and other related human rights in Guatemala, and second, drawing the attention of the competent authorities, the media, the international community and regional and international human rights bodies and agencies. The Mission, which was composed of a range of international human rights organisations, found evidence of chronic malnutrition of children, lack of food, lack of work, lack of access to land and lack of basic services (water, housing and sanitation).

This situation prompted Asociación Nuevo Día, a CSO under the umbrella of the Campaign Guatemala sin Hambre (a coalition of NGOs), to survey the children living in the municipality. The aim of the survey was to identify possible legal claims to create a national legal precedent for the protection of the human rights of children.

With the support of Guatemala Sin Hambre, the parents of five children, Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García, filed claims against the State, on behalf of their children. They argued that there were violations of the rights to food, to life, to health, to education, to housing and to work by the state under national and international law.

The legal viability of each of the cases was carefully assessed. The main challenge was to demonstrate that the State was responsible for the deteriorating health of the children, and not the parents. This was necessary so as to avoid the Attorney General's Office (PGN) deciding to remove the children from the care of their parents and placing them in alternative care.

Reasoning

The Court first recalled the constitutional obligation (articles 1, 2, 47 and 51) of the State to protect the individual and the family and to protect the physical, mental and moral health of children, guaranteeing their right to food, health, education, security and social security, among others. It also referred to the best interests of the child as a primary consideration when taking measures in relation to children (CRC, art. 3 and Law on the Protection of Children and Adolescents, art. 5), to children’s right to express their views (Law on the Protection of Children and Adolescents, art. 116), the right of the child to an adequate standard of living for the child's physical, mental, spiritual and social development (CRC, art. 9) and the right to special care and assistance for all children (arts. 25(1) and 25(2) of the Universal Declaration of Human Rights). The Court also noted that the Law on the Protection of Children and Adolescents (arts. 5, 18, 19, 53, 54 and 112) obliges the state to "adopt appropriate legislative, administrative, social and educational measures to protect children against all forms of neglect or negligent treatment".

The Court stated that the right to food, recognised in a number of international law treaties ratified by Guatemala, should be interpreted broadly, in accordance with the definition provided by the UN Committee on Economic Social and Cultural Rights in its General Comment No. 12, as the "right to have regular, permanent and free access, either directly or through direct purchase, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the population to which the consumer belongs, and which ensures a physical and mental, individual and collective, free of distress, satisfying and dignified life". Therefore, the Court reasoned that there are three levels of State obligation related to the right to food and nutrition, those being to (i) respect (refrain from adopting measures that will prevent or impede access to food and nutrition); (ii) protect (adopt measures to prevent private companies or individuals from impeding access to food and nutrition); and realise (initiate activities with the aim of strengthening access to food and nutrition, where the State is responsible to guarantee access when the individual is not able to do so themselves and in a way that does not interfere with the enjoyment of other human rights contained in domestic and international legal instruments).

As such, and due to the serious effects that the state failings at issue had on the physical and psychological development of the children (see, “Peritajes” in all four cases) as well as the principle of the best interests of the child, the Court found that the State had violated the right to food (Law on the National System of Nutritional Security, arts. 28, 29, 30, 31 and 32; Constitution, arts. 55 and 99; and ICESCR, art. 11), the right to life (Constitution, art. 3), the right to an adequate standard of living (CRC, art. 27 and Law on the Protection of Children and Adolescents, art. 4), the right to health (Constitution, arts. 51, 93 and 94) and the right to housing (Housing Law, arts. 6, 30 and 32, and ICESCR, art. 11) by omission, meaning that it had failed in its obligation to realise said rights.

Remedy

The Court made orders directing a range of measures to be implemented by specific state entities (Ministry of Agriculture, Livestock and Food, Ministry of Communications and Infrastructure, Ministry of Public Health and Social Assistance and Municipal Mayor, among others), including providing regular access to food, drinking water and medical treatment to the five plaintiff children as well as providing the families with the land and farming equipment for harvesting.

Additionally, the Court ordered the State to implement a protocol (“Protocolo para el ejercicio del derecho humano a la alimentación”) to prevent future violations of this nature, involving multiple ministries, and specified the minimum content that Protocol should contain in terms of coordination, intervention and monitoring mechanisms and administrative timelines.  

Role of children

The case was brought on behalf of five children by their parents with the support  of Guatemala Sin Hambre, a group of 14 NGOs.

Enforcement and other outcomes

In December 2013, FIAN International and the Campaign Guatemala Sin Hambre conducted a monitoring visit on the implementation of the decisions. This revealed that the living conditions of the families had not substantially improved due to severe delays and shortcomings in state compliance with the measures ordered in the judgments.

The decisions issued by the Child and Adolescence Court of the Zacapa Department were upheld by the Guatemalan Constitutional Court on 1 October 2015, after the Ministry of Communications, Infrastructure, and Housing filed an appeal. The Constitutional Court ruled that the State must meet the requirements of the decisions by all means available to it.

According to a 2019 report resulting from the work promoted by the Task Force on Right to Food, the situation of the children had not changed significantly. The situation resulted in the death of one of the girls due to malnutrition in 2017 and the forced emigration of two of the children. In addition, measures were not adopted to address the condition of physical and cognitive disability of two of the children, which worsened as a result of chronic malnutrition. Furthermore, the lack of participation of the children and their families in the design, implementation, adjustment and follow-up of the measures resulted in a lack of adaptation to their needs, perceptions and proposals.

Significance of the case from a CRSL perspective

The role of civil society organisations in the CRSL is particularly noteworthy due to their involvement in the investigations prior to the filing of the CRSL claim, in the preparation and presentation of the claim, as well as in the follow-up and monitoring of compliance with the judgments. The group of 14 NGOs that supported and guided the children's parents to bring the cases before the Court deliberately sought to establish jurisprudence and judicial means for addressing children’s economic, social and cultural rights. They also sought to influence existing social policies and ensure that they had a child rights perspective.

These cases created legal precedent that furthers the enjoyment of children’s rights, including potentially in the context of CRSL. In the first instance, the fact that the State’s scope of liability has been widened both incentivises the State to enact policies that prevent further children’s rights violations and opens up the court system for future claims. In the second instance, it explicitly ordered the State to prevent future violations by enacting a plan requiring the collaboration of multiple State entities, which should benefit other children and contribute to advancing children’s rights in Guatemala.

Country

The Republic of Guatemala

Forum and date of decision

Child and Adolescence Court of the Zacapa Department

April 3, 2013 (Dina Marilú and Mavèlita Lucila Interiano Amador)

April 12, 2013 (Brayan René Espino Ramírez),

May 10, 2013 (Mayra Amador Raymundo)

May 31, 2013 (Leonel Amador García)

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

The parents on behalf of the children (5) Dina Marilú, Mavèlita Lucila Interiano Amador, René Espino Ramírez, Mayra Amador Raymundo, and Leonel Amador García.

In support of the applicants:

Campaign Guatemala sin Hambre (coalition of NGOs)

2a calle 4-50, Zona 2 Ciudad de Guatemala, Guatemala

The respondents:

State of Guatemala

Amicus curiae:

International Commission of Jurists (ICJ)

Rue des Buis 3
P.O. Box 1740
1211 Geneva 1, Switzerland

Case documents

Secondary documents

Agudo A, 'Guatemala: El Hambre Que Cien Años Dura' El País (2019), accessed 19 May 2022

Baires Quezada R, 'Cinco Niños Olvidados Ganan Juicio Al Estado' Plaza Pública (2013), accessed 16 May 2022

Central de Organizaciones Indígenas Campesinas Ch'ortí Nuevo Día, Guatemala Sin Hambre and Procurador de los Derechos Humanos, 'Informe Sobre El Cumplimiento De Las Sentencias De Camotán. "Sin Horizontes De Desarrollo Humano"' (2019), accessed 19 May 2022

Comisión Interamericana de Derechos Humanos (CIDH), 'Situación De Derechos Humanos En Guatemala' (2017), accessed 16 May 2022

FIAN Internacional et al., 'El Derecho A La Alimentación En Guatemala. Informe Final Misión Internacional De Verificación' (Magna Terra editores 2022), accessed 19 May 2022

FIAN International, 'FIAN International’s Submission On Children’S Right To Food And Nutrition To The Committee On The Rights Of The Child Day Of General Discussion: “Children’S Rights And The Environment”' (2016), accessed 17 May 2022

'Guatemala Condenado Por Violaciones Al Derecho A La Alimentación' (International Commission of Jurists, 2013), accessed 16 May 2022

'Judge Declares State Of Guatemala Responsible For Right To Food Violations' (Fian.org, 2013), accessed 19 May 2022

-       Mogollón V, Cano M, and Wolpold-Bosien M, 'El Derecho a La Alimentación – Acciones Y Omisiones Del Estado. Informe Del Monitoreo De Las Sentencias En El Caso De Desnutrición Infantil En Camotán, Guatemala' (Fian Internacional and Campaña Guatemala sin Hambre 2014), accessed 17 May 2022

Radio Urbana, 'Magali Cano Sobre La Campaña Guatemala Sin Hambre' (2016), accessed 17 May 2022

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Domestic, United States of America Gisela Sin Gomiz Domestic, United States of America Gisela Sin Gomiz

Boimah FLOMO, et al., Plaintiffs–Appellants, v. FIRESTONE NATURAL RUBBER CO., LLC, Defendant–Appellee, No. 10–3675 - United States of America

Background

The applicants, a group of Liberian children, sued Firestone National Rubber Company (the Defendant) under the Alien Tort Statute, 28 U.S.C. § 1350. They alleged use of hazardous child labour in a rubber plantation which the defendant was operating in Liberia in violation of customary international law. The district court granted summary judgment in favour of the defendant. The applicants appealed the judgment. Green Advocates, a Liberian non-profit organisation, acted as local liaison in Liberia during the handling of this case.

Reasoning

The Court rejected the defendant’s argument that it was immune from liability under the Alien Tort Statute because it was a limited liability company. The Court considered relevant precedent, which held to the contrary, and noted that the failure to prosecute corporations for violations of customary international law in the past did not mean there was no norm forbidding them to commit such violations. The Court also highlighted the deterrent value of corporate liability, since it raises the expected costs of misconduct. However, the Court acknowledged the scope of corporate liability should be limited to cases in which violations are directed, encouraged or condoned at the corporate defendant’s decision-making level.

However, the Court affirmed the district court’s grant of summary judgment, as it found that the applicants failed to furnish concrete evidence of the customs and practices of States to show that States have a legal obligation to impose liability on employers of child labour. In particular, the Court stated that the three primary international conventions cited by the applicants as evidence of an international norm against child labour were vague and/or did not give rise to enforceable obligations. Additionally, the court noted that the working conditions at the Firestone plantation “while bad, were not that bad”, and that the applicants hadn’t presented “evidence that would create a triable issue of whether they [were] that bad”.

Remedy

The Court affirmed the district court’s grant of summary judgment. The Court found that a corporation can be held liable under the Alien Tort Statute. However, applicants failed to present sufficient evidence to create a triable issue of whether defendant violated customary international law.

Role of children

The applicants in this case were a group of 23 Liberian children working in the Firestone’s rubber plantation, who filed a suit with the assistance of their adult legal guardians. The ages of the children ranged from 5 to 18.

Enforcement and other outcomes

The case made a significant difference to Firestone's plantation workers. Shortly after it was filed, and due extensive media coverage, Firestone took steps to reduce child labour on the plantation and to improve schools in the area. The workers formed an independent union, the Firestone Agricultural Workers Union of Liberia (“FAWUL”), to negotiate a new contract with the company. In the following years, the conditions of these workers generally improved.

Significance of the case from a CRSL perspective

This case established that corporations can be held liable under the Alien Tort Statute for violations of customary international law, including laws pertaining to children’s rights, and offered insights on what makes a child labour claim viable under the Alien Tort Statute. This outcome has several potential benefits for future CRSL in this area, including notably that future plaintiffs will not have the burden of responding to the defence that corporation are immune from liability under this statute.

Additionally, this is the first case in which an applicant’s claims satisfied the jurisdictional requirement of the Alien Tort Statute (See Bergman, 2011). The district court rejected the Defendant’s motion to dismiss for lack of subject-matter jurisdiction, holding that its jurisdiction to hear the case stemmed from the fact that the applicants alleged an arguable violation of the law of nations and did not depend on whether the Alien Tort Statute created a private cause of action for violations of children’s rights. This was important because it means that it should be sufficient that future CRSL plaintiffs are able to allege an arguable violation of the law of nations for the courts to have the competence to hear a case.

Country

United States of America

Forum and date of decision

United States Seventh Circuit Court of Appeals

July 11, 2011

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Terrence P. Collingsworth and Christian Levesque, Attorney, Conrad Scherer, LLP, Washington, DC.

Paul Hoffman, Attorney, Schon-burn Desimone Seplow Harris Hoffman Harrison, LLP, Venice, CA.

The defendants:

Brian J. Murray (argued), Attorney, Jones Day, Chicago, IL.

List of amicus curiae:

Case documents

Amicus curiae briefs:

Secondary documents

Bergman, Jessica (2011) “The Alien Tort Statute and Flomo v. Firestone Natural Rubber Company: The Key to Change in Global Child Labor Practices?”, Indiana Journal of Global Legal Studies: Vol. 18: Iss. 1, Article 18.

IndustriAll Global Union, “Liberian Unions Demand Better Working Conditions at Firestone Rubber Plantations” (IndustriALL August 23, 2018), accessed October 31, 2022

 Metlitsky, Anton (2013) “The Alien Tort Statute, Separation of Powers, and the Limits of Federal-Common-Law Causes of Action,” Columbia Journal of Transnational Law: Vol. 52: Iss. 53.

Lowe A, (2013) “Customary International Law and International Human Rights Law: A Proposal for The Expansion of the Alien Tort Statute,” Vol. 23: Iss. 3.

International Rights Advocates, “Flomo, Et Al. v. Firestone Natural Rubber Company” (IRAadvocates), accessed October 26, 2022

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Head of the Llano Grande Educational Institution v Governor’s Office of Boyacá and the Secretary for Education of the Department of Boyacá, Judgement T-279/18 - Colombia

Background

The Head of the Educational Institution Llano Grande of the municipality of Nuevo Colón, Boyacá, Colombia, brought a tutela action against the Secretary for Education of the Department of Boyacá in defence of the children who studied in the institution. He did so on the grounds that the children’s constitutional rights to health, life, personal integrity and to receive quality educational services in conditions of dignity (Arts. 44, 49 and 67 of the Constitution) were seriously threatened, due to the fact that the Secretary for Education of the Department of Boyacá had refused several times to provide the institution with an additional employee to provide cleaning services. The Secretary justified their decision on the basis of article 3 of the Resolution no. 2314 , which provided that only two employees could be appointed in institutions with less than 300 students, which was the case with Llano Grande. The Head of Llano Grande requested that a judicial inspection be ordered, as well as the appointment of an employee to carry out the functions in question, and that the authorities be ordered not to engage in such practices again, nor to ignore petitions aimed at protecting the fundamental rights of children in Boyacá's educational institutions. The injunction was denied by both the Third Labour Court of the Circuit of Tunja (31 October 2017) and the Labour Chamber of the High Court of the Judicial District of Tunja.

Reasoning

The Court found that the head of the educational institution had standing to intervene on behalf of the children studying at the institution because their fundamental rights were seriously threatened by the sanitary conditions caused by the lack of staff to carry out cleaning work (art. 44 of the Constitution, art. 11 of the Code on Children and Adolescents and Ruling T-498 of 1994).

The Constitutional Court found that the absence of administrative personnel would not necessarily constitute a violation of the right to access to education of the underage students. However, where the absence or interruption of a general or administrative service (such as cleaning service) represented a barrier to access, obstructed the stay of students in an educational institution or affected the right of children to receive education in decent conditions, such an interruption constituted a violation of their fundamental right to education (art. 67 of the Constitution). Thus, when the absence of cleaning staff led to a serious deterioration in the health and hygiene conditions of an institution, the right of children to receive an education in decent conditions was violated.

The Court also stated that the right to accessible education carried with it a corresponding obligation on the part of the State to take deliberate, concrete and targeted steps towards the implementation of education. Failure to do so violated the rights to education and to equality of opportunity, which means that the fundamental right to education entails a positive obligation to provide the material conditions (through administrative supervision, cleaning, transport and secretarial services) in educational institutions that will encourage students to learn and guarantee that children can access education in conditions of dignity.

The Court declared that the Secretary for Education of the Department of Boyacá may waive the limit on the number of employees established by Article 3 of Resolution no. 2314 in order to guarantee the right to education in accordance with article 67 of the Constitution.

Remedy

The Court ordered the Secretary of Education of Boyacá to assign, within a period of one month, a provisional employee for cleaning duties, and the permanent assignment of such personnel within a period of one year. It also ordered the Ombudsman's Office to prepare and submit trimestral reports to the judge for a period of one year. In addition, it warned the Ministry of Education to refrain from engaging again in the conduct that gave rise to the violation of fundamental rights and, in this regard, to take effective measures in a timely manner when children's right to education is threatened or has been violated. The Court ordered the headmaster, in compliance with his legal duty to ensure the quality of the educational service (in line with Article 10.14 of Law 715 of 2001), to instruct students to understand that they must fulfil their duties to care for and preserve communal property and spaces in good condition.

Role of children

Children were not directly involved in the litigation. The Head of the Educational Institution Llano Grande brought the tutela action on behalf of the children in that institution, whose fundamental rights were being violated. Articles 44 of the Constitution and 11 of the Code on Children and Adolescents granted him standing in the tutela action. Furthermore, Ruling T-498 de 1994 (relied on in this case) provided that institutions other than children’s legal representatives may take action “provided that the letter or request states that the violation of [children’s] fundamental rights is imminent, or the absence of a legal representative”, which was the case in this instance.

Enforcement and other outcomes

There is no publicly available information that confirms compliance with the court's orders.

Significance of the case from a CRSL perspective

The tutela action led to the recognition that a legal provision may not apply in circumstances where it would result in the fundamental rights of children are violated. The court also ruled that the obligation of public institutions to guarantee education not only consists of the provision of education itself, but also of the material conditions to guarantee that children can access education in conditions of dignity, thus concretising the substance of this obligation. All of the above may be used for argumentation in the future to advance children’s rights in Colombia and benefit other groups of children as well.

Country

Colombia

Forum and date of decision

Constitutional Court of Colombia

July 17, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Head of Llano Grande Educational Institution

153627, Nuevo Colón (Boyacá), Colombia

The respondents:

Secretary for Education of the Department of Boyacá

Carrera 10 No 18-68. Tunja (Boyacá) Colombia

List of amicus curiae:

Ministry of Education of Colombia

Committee on Economic, Social and Cultural Rights

Case documents

Secondary documents

“ÍNDICE Sintético De La Calidad Educativa -ISCE” [Quality Index for educational institutions] (Portal Ministerio de Educación Nacional - Presentación), accessed October 11, 2022

Villegas García Mauricio and others, Separados y Desiguales: Educación y Clases Sociales En Colombia (Dejusticia 2013)

Góngora Mera Manuel Eduardo (Defensoría del Pueblo 2003) publication

“Education in Colombia: Highlights 2016” (OECD 2016) publication

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Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Supreme Court of India, Gaurav Jain v. Union of India and others, 9 July 1997, [1997] 8 SCC 114 - India

Background

The case was initiated by Gaurav Jain, an advocate who filed a Public Interest Litigation (PIL) after having read an article on the situation of children of sex-workers and the difficulties and discrimination they faced on their upbringing and education. Mr Jain requested the Indian Supreme Court (the “Court”) to establish separate educational institutions and accommodations for these children in Gaurav Jain vs. Union of India & Ors. [1990 Supp. SCC 709]. The Court observed that "segregating children of prostitutes by locating separate schools and providing separate hostels" would not be in the interest of the children and the society at large and that they "should be segregated from their mothers and be allowed to mingle with others and become a part of the society" (see headnote). However, the Court considered that "accommodation in hostels and other reformatory homes should be adequately available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified" (see headnote).

The Court ordered to set up a committee (the “Committee”), made up of fouradvocates and three social workers, to assess the economic and social circumstances and mental condition of children of sex-workers and to prepare a report giving suggestions for appropriate action to the Court. The judgment at hand was issued based on this report, eight years after the Committee was formed.

Reasoning

The main questions that the Court considered were: (i) what were the rights of the children of female sex workers and the ways to segregate them from their mothers and others so as to give them protection, care and rehabilitation “in the mainstream of the national life”; (ii) what scheme should be put in place to prevent and eradicate prostitution, including child prostitution, for enduring results; and (iii) what aid and what support could be provided to the victims of prostitution.

As to the first question, the Court based its reasoning on a number of international law provisions (Articles 3, 4, 6, 7, 9, 14, 17, 18, 19, 28, 29, 32, 34, 36, 37 of the CRC; Principles of the Declaration on the Rights of the Child; Articles 1, 2, 3, 4, 5, 6, 7, 8 of the UDHR; Article 8 of the Declaration on the Right to Development; Articles 1, 2, 5, 12, 13, 16 of the CEDAW) and Indian legal standards (Part III and IV of the Constitution; Section 2 (a) of the ITP Act; Sections 5, 7, 9, 10, 11, 12, 13, 14, 15 of the Juvenile Justice Act 1986) on human rights and fundamental rights of women and children. The Court found all of these applied directly to this case. In particular, the Court found that the children of the sex-workers have the right to equality of opportunity, dignity, care, protection and rehabilitation and to be part of the “mainstream of social life” without any attached “pre-stigma”.

With regard to the second and third questions, the Court observed that “counselling, cajoling by persuasion and coercion” (the latter as a last resort, according to the Court) were necessary to ensure the successful rescue and rehabilitation of sex-worker’s children. More specifically, based on the Committee’s findings and considering the actions already taken throughout the country to help children of sex-workers, the Court decided that the state was obliged to establish and make available juvenile homes for these children. Noting that the existing state-operated juvenile homes were not yielding the desired results, the Court also ruled that coordination amongst “the officers in charge of the juvenile homes, the welfare officers and the probation officers” should take place in order to guarantee the protection and the rehabilitation of these children. The Court added that NGOs needed to be more involved in the management of the Child Development and Care Centres (CDCC). In this context, the Court cited a detailed catalogue developed by the Committee as how such management should look, repeatedly giving concrete, additional “suggestions” and/or “directions” to the State, including to provide the funding for the institutions. The Court also found that the children of sex-workers should not be separated from their mothers unless this was the best solution in terms of the child’s interests.

Further, the Court ruled that sex-workers should be rehabilitated through self-employment schemes and invited the state to evolve procedures and principles to ensure that sex-workers would also enjoy their fundamental and human rights.

Remedy

The Court went beyond the initial petition and instructed the state of India to take a range of specific measures to, first, eradicate prostitution and, second, better protect the children of sex-workers.

Role of children

There were no children directly involved in the case.

Enforcement and other outcomes

Notably, the decision was later partially overruled by the Supreme Court of India (Gaurav Jain And Another. Vs. Union Of India And Others 1998(3) ALL MR 433 (S.C.)). The decision’s part regarding measures to protect the children of sex-workers was not overturned, however.

As of early 2023, children of women in prostitution still face discrimination and abuse from other children in schools due to stigma and many of them are out of school, especially girls. There is still a need to strengthen existing laws and pass legislation to regulate access to foster homes while guaranteeing that the system ensures that these children receive the same treatment and opportunities as other children and that stigma is overcome.

Significance of the case from a CRSL perspective

This decision is significant because it expressly recognised the rights of children of sex-workers (to equality of opportunity, dignity, care, protection and rehabilitation) and established that the state has a duty to protect those rights. The court directly applied the provisions of international law, such as the Convention on the Rights of the Child.

This case is the first of three major cases upholding the rights of children of women in prostitution (see ABC v. State (NCT of Delhi), (2015) 10 SCC 1, on the issue of parentage, guardianship and parental responsibility, and Sakshi v. Union of India, AIR 2004 SC 3566, on the issue of prevention of sexual abuse of children). It was not, however, cited in these latter decisions.  

Country

India

Forum and date of decision

Supreme Court of India

July 9, 1997

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

Gaurav Jain, Advocate (filing a Public Interest Litigation)

Case documents

Secondary documents

Bhartiya Kisan Sangh, “Educational Status of Children of Traditional Sex Workers in India” (National Commission for Protection for Child Rights December 2018), accessed November 8, 2022

Chawla S, “Raised in Brothels: The Children of Delhi's Red Light District” (FairPlanet July 22, 2022), accessed November 9, 2022

PTI, “Sex Workers's Children Face Discrimination in Schools by Other Kids: Study” (The Indian Express January 24, 2019), accessed November 8, 2022

Rattan K and others, “A Red-Light Trap: Society Gives No Chance to Prostitutes' Offspring” (India Today November 26, 2013), accessed November 7, 2022

Sinha S, “Born in Brothels: Rights of Children of Sex-Workers” (CRC CNLU, PatnaMarch 28, 2021), accessed November 8, 2022

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Domestic, Eswatini Gisela Sin Gomiz Domestic, Eswatini Gisela Sin Gomiz

Swaziland National Ex-Miners Workers Association v The Ministry of Education and Others (2168/09) [2010] SZHC 258 (19 January 2010) - Eswatini

Background

In March 2009, the High Court of Swaziland ruled that every Swazi child attending primary school had a constitutional right to free education (Section 29(6) of the Constitution as read together with section 60 (8)) and that the Government of the Swaziland had the obligation to provide education free of charge to every child so entitled (Swaziland National Ex-Miners Workers Association and Another v The Minister of Education and Others (335 of 2009) [2009] SZHC 104). They did so in the context of a case involving an urgent application to make free education in public schools available, brought by the Swaziland National Ex-Miners Workers Association (SNEMA), an association of former mine workers and parents of school-aged children. However, the Court declined to require the Government to produce its education policy. On the basis that these declaratory orders had no legal consequences, in June 2009, the SNEMA brought a second case seeking mandatory orders to compel the Government to comply with said right straight away given that the three-year period had expired and that failure to do so amounted to a violation of the Constitution.

Reasoning

The applicants’ case was dismissed. While the Court stated that the right to free education is “positive” in nature in that it requires government action to in order to realise the right, it found that, in response to the declaratory orders of the earlier Court judgment, the respondents had already put in place a Free Primary Education Implementation Plan with a detailed Programme of how they intended to comply with their constitutional obligations with an associated budget allocation. Instead of immediate implementation for all primary aged children, that plan foresaw the progressive implementation of free primary education by means of a staggered approach beginning with grades 1 and 2. 

The Court found that there was no evidence that the Government had resources available at that time to fulfil its constitutional obligation and that the steps taken by the Government to comply with its obligation in an incremental manner were reasonable and satisfactory in view of the limited resources at its disposal.

This decision was appealed to the Supreme Court of Swaziland, which dismissed the appeal in Swaziland National Ex-Miners Workers Association v. The Minister of Education and Others (2 of 2010) [2010] SZSC 35 (28 May 2010), stating that that the decision of the High Court from 19 January 2010 was “pragmatic and appropriate”.

Role of children

There was no direct participation of children in the litigation.

Enforcement and other outcomes

Although the decision was not favourable, by bringing the current case and an earlier case, the applicants put pressure on the Government to make progress on its Constitutional obligation to provide free education to children of primary school age in Eswatini and to provide details on its implementation programme for giving effect to its obligations.

Significance of the case from a CRSL perspective

Although the overall impact of the SNEMA’s cases on children’s access to free primary education in Eswatini is somewhat difficult to gauge, SNEMA’s use of the legal process may prompt others to follow suit.

Country

Eswatini

Forum and date of decision

High Court of Swaziland at Mbabane

January 19, 2010

CRC provisions and other international law provisions/sources

None

Domestic law provisions

Related information

The applicants:

The respondents:

Case documents

Secondary documents

“Ex-Miners Fight for Justice in Swaziland” (Kenworthy News Media February 9, 2011), accessed November 15, 2022

Dlamin M, “Free Education in Doubt as Ex-Miners Run to Court” (Times of Swaziland January 9, 2010), accessed November 15, 2022

Dlamini M, “Ex-Miners Call for Urgent Special Sitting for Appeal” (Times of Swaziland March 9, 2010), accessed November 15, 2022

Kamga SD, “The Legal Battle for the Universal Access to Primary Education in Swaziland” (2019) 52 De Jure Law Journal

van der Berg S and others, “A Report on Out-of-School Children in Eswatini” (UNICEFJuly 2018), accessed November 15, 2022

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Domestic, Germany Gisela Sin Gomiz Domestic, Germany Gisela Sin Gomiz

Neubauer et al. v Germany, Case No. BvR 2656/18/1, BvR 78/20/1, BvR 96/20/1, BvR 288/20 - Germany

Background

The case concerned a number of constitutional complaints regarding the German Federal Climate Protection Act of 2019 (“the Act”). There were made by children and young people from Germany, Bangladesh and Nepal, some institutional complainants and supporting organisations, such as Fridays for Future, Greenpeace and Friends of the Earth (BUND). The complainants argued that the domestic German climate targets and annual greenhouse gas (“GHG”) emissions allowed until 2030 under the Act (which envisaged a reduction by 55% from levels existing in 1990) were insufficient to reach the targets of carbon neutrality by 2050 agreed to by Germany under the Paris Agreement . The complainants alleged that the insufficiency of those targets were incompatible with their fundamental rights and freedoms rights under the Federal German Constitution (“Basic Law”), including the rights to life and physical integrity (Art 2), to property (Art 14.1), and to a “humane future” or a “future consistent with human dignity” (paras. 1 and 38) (which the claimants argued derived from provisions of the Basic Law). Further, they alleged that the Act failed to protect the natural foundations of life in taking responsibility for future generations as required under Art. 20a of the Basic Law, as a result of the Act’s failure to provide any specifications with respect to further emission reductions from 2031 onwards.

Reasoning

By its order dated 24 March 2021, the Court unanimously (but partially) found for the individual complainants residing in Germany (Claims BvR 96/20/1 and BvR 288/20) and struck down parts of the Act for their incompatibility with the complainants’ fundamental rights for failing to set sufficient provisions for emissions reductions from 2031. The Court decided not to engage in an assessment of the responsibility of the German State with respect to the rights of the children of Nepal and Bangladesh.

The Court confirmed that the state’s duty to protect life and physical integrity under the Basic Law, encompassed impairment caused by environmental pollution and the duty to protect life and health against risks posed by climate change. Against that backdrop, the Court found that although the GHG emission reduction targets under the Act were not obviously unsuitable or completely inadequate, by setting the reduction targets by 2030 at a level that the Court agreed was relatively low, these measures placed an unreasonable burden on future generations, as they will be required to adopt more severe measures after 2030 in order to reduce emissions. The severity of these measures will have the capacity to jeopardise practically every type of freedom protected by fundamental rights. However, the Court noted that Art. 20a of the the Basic Law required that the reduction burdens should be evenly “distributed over time and between the generations to the detriment of the future” (para. 192). Therefore, the Court continued, "one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden . . . and expose their lives to serious losses of freedom” (para. 192).

Consequently, the Court found the existing provisions unconstitutional, given that they would irreversibly require major emission reduction after 2030, thereby violating the complainants’ fundamental rights and freedoms given the future burden that would be placed on them. 

It should be noted that the Court did not consider the substance of the arguments based on the claims that the current GHG emission levels impaired the complainants’ right to a “humane future” or “future consistent with human dignity” (paras. 113-115), as it found that such rights did not confer standing to lodge a constitutional complaint. Further and in any case, the Court noted that the obligation to maintain minimum ecological standards were essential for other fundamental rights, which made it obligatory to afford protection from environmental degradation of “catastrophic or even apocalyptic proportions” (para. 114).

Remedy

In addition to finding that parts of the Act were incompatible with fundamental rights, the Court ordered the legislature to set clear provisions for reduction targets from 2031 onwards by the end of 2022.

Role of children

This case was initiated primarily by young people, including children, who were concerned that they would be faced with an unreasonable and disproportionate burden in the future given that the current measures related to reduction of GHG emissions were, in their view, insufficient.

Enforcement and other outcomes

The German Government responded to the judgment immediately and launched its reform of the Act less than two weeks after the decisions was rendered. Two months later, the Parliament approved significant amendments to the Act, which introduced more ambitious GHG emission reduction targets: a 60% emission reduction from 1990 levels by 2030 and 88% by 2040, leading to net zero emissions by 2045, bringing the zero net emissions target forward by 5 years.

The revised 2030 targets will require that Germany’s energy industry adapts quickly to clean solutions, as it will only be permitted to emit up to 108 million tonnes of CO2, instead of 175 million tonnes previously allowed.

Nevertheless, the Government in January 2022 announced that it had missed its emission reduction targets set for 2021, and it would likely fall short in 2022 and 2023 as well. This means according to German Vice Chancellor Robert Habeck that Germany will have to “triple the pace of emissions cuts” to reach its 2030 goals.

Significance of the case from a CRSL perspective

This case, brought by predominantly children and young complainants, was the first successful climate litigation before the Federal Constitutional Court in Germany. The Court decision was a huge win for the youth climate activist who brought the landslide change in mind-set.  As noted by Professor Frank Biermann, the decision firmly established that “the current delay in effective climate policies is not only an outrage — it is a violation of the constitutional rights of the youth.”

Generally the decision has been hailed as historical, sensational and a breakthrough because it significantly strengthened climate action as, for the first time, the Federal Constitutional Court ruled that failing to guarantee climate protection could constitute a violation of the fundamental rights of citizens, especially those of future generations.

Further, the Court did not shy away from reviewing the adequacy of the GHG emissions reception targets in light of the existing knowledge. In fact, the Court carried out a thorough analysis of climate science and of the moral and political dimensions involved in climate policy.

Country

Germany

Forum and date of decision

Federal Constitutional Court

March 24, 2021

CRC provisions and other international law provisions/sources

  • Charter of Fundamental Rights of the European Union, Article 47

    Paris Agreement adopted by the Conference of the Parties (COP) 21 on 12 December 2015

  • Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013

  • Regulation (EU) No 525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting greenhouse gas emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC

Domestic law provisions

Related information

The applicants:

There were number of individual complainants whose names were anonymised in the judgment (see paragraphs I-IV).

Institutional complainants and supporting organisations included:

Complainants legal representation (as reported by the press) 

Case documents

Secondary documents

Amelang S et al, Landmark ruling from German top court: key climate legislation falls short”, Clean Energy Wire, published on 29 April 2021 https://www.cleanenergywire.org/news/landmark-ruling-german-top-court-key-climate-legislation-falls-short

Appunn K, “Cabinet decides climate law reform, tougher section emissions budget included”, Clean Energy Wire, published on 12 May 2021  https://www.cleanenergywire.org/news/cabinet-decide-climate-law-reform-tougher-sector-emission-budgets-expected

Biermann F, “Germany's climate law ruled unconstitutional: First reflections”, Global Sustainability Governance, blog entry dated 30 April 2021 (updated on 11 May 2021)  https://www.frankbiermann.org/post/germany-s-climate-law-ruled-unconstitutional-first-reflections

Connolly K, “’Historic’ German ruling says climate goals not tough enough”, The Guardian, 29 April 2021  https://www.theguardian.com/world/2021/apr/29/historic-german-ruling-says-climate-goals-not-tough-enough  

Federal Constitutional Court press Release No. 21/2021 of 29 April 2021 entitled “Constitutional complaints against the Federal Climate Change Act partially successful”  https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html

Garofalo C, “On intergenerational duties and the courts’ role in guiding climate policy: a reflection on the Neubauer case”, Climate Footnotes, dated 29 June 2021 https://climatefootnotes.com/2021/06/29/on-intergenerational-duties-and-the-courts-role-in-guiding-climate-policy-a-reflection-on-the-neubauer-case/

Kotze LJ, “Neubauer et al. versus Germany: Planetary Climate Litigation for the Anthropocene?” German Law Journal (2021), 22, pp. 1423–1444

Kurmayer NJ, “Germany ‘must triple pace of emissions cuts’ to meet 2030 target”, Climate Home News dated 12 January 2022 https://www.climatechangenews.com/2022/01/12/germany-must-triple-pace-emissions-cuts-meet-2030-target/

 

Mührel J, “All that Glitters Is Not Gold”, Volkerrechtsblog, 3 May 2021   https://voelkerrechtsblog.org/all-that-glitters-is-not-gold/

 

Nolan A, 'Democracy Is Failing To Protect The Environment For Future Generations. So The Courts Are Stepping In - Prospect Magazine' (Prospect Magazine, 2021) <https://www.prospectmagazine.co.uk/world/democracy-future-generations-environment-climate-german-constitutional-court> accessed 13 April 2022

UNICEF, Office of Research-Innocenti, “Climate Change and Intergenerational Justice” dated 25 October 2012 https://www.unicef-irc.org/article/920-climate-change-and-intergenerational-justice.html#:~:text=With%20respect%20to%20intergenerational%20justice,natural%20resources%20can%20be%20used

White A and O Callaghan-White L, “Taking Governments to Court Climate Litigation and its Consequences”, The Institute of International and European Affairs, dated July 2021 https://www.iiea.com/images/uploads/resources/Taking-Governments-to_Court_1.pdf

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Domestic, Democratic Republic of the Congo Gisela Sin Gomiz Domestic, Democratic Republic of the Congo Gisela Sin Gomiz

Batumike et al. (“Affaire Kavumu”), RPA N° 139/2018 - Democratic Republic of the Congo

Background

This was an appeal of convictions obtained before a special sitting of the Military Court of Bukavu in December 2017. The trial court had found that the 11 defendants were members of a militia known as Jeshi La Yesu, which was active in the region of South Kivu under the leadership of a provincial lawmaker, Frédéric Batumike, and many of the charges on which they were convicted were related to acts of insurrection and attacks on the Congolese armed forces and local political figures. The most significant aspect of the case from a children’s-rights perspective was the conviction of Batumike and ten others for rape as a crime against humanity arising out of the militia’s practice, between 2013 and 2016, of kidnapping very young girls (aged 18 months to ten years) in Kavumu and raping them in order to gather their blood for its supposed ritual power to make them impervious to bullets.

Civil society groups had a fundamental role in this case. Local actors (leaders of local associations, teachers, lawyers, NGO representatives and human rights defenders) advocated for international actors and the State to get involved in the case, denounced and documented the violations and stood alongside with the victims. Experts from international organisations, among which Physicians for Human Rights (PHR) and Trial International, collaborated with local experts in the investigations and in building and defending the case.

Reasoning

The High Military Court upheld the convictions of all 11 defendants found guilty of rape as a crime against humanity as defined in Article 7.1(g) of the Rome Statute of the International Criminal Court. The Court held that the rapes could be prosecuted as a “widespread and systematic” crime against humanity even though they occurred at different times over a period of years, as long as they were part of “a plan conceived to further the policy decreed by” the militia (p. 63). The Court also recognized that all members of the militia could be criminally liable provided that one member was involved in an act that was part of the “plan” of the larger organization (p. 73).

Remedy

The High Military Court upheld the sentence of penal servitude for life for all 11 defendants found guilty of rape as a crime against humanity. It also upheld the trial court’s award of compensation in an amount equivalent to 5,000 USD to each of the 37 child victims. The Court, however, rejected the victims’ request that it hold the Congolese state civilly liable, partly on the grounds that the state was itself engaged in armed conflict with Jeshi La Yesu and that the militia had attacked Congolese soldiers. 

Role of children

Local clinicians, supported by Physicians for Human Rights (PHR) and Trial International, conducted forensic examinations of the victims and recorded their testimonies out of court following child-protective best practices. The case represented one of the first uses of such protections in the DRC. 

Enforcement and other outcomes

The High Military Court recognized and explicitly ordered financial compensation to be paid to the child victims for the serious physical, emotional, and developmental harms they suffered (p. 74). Each of the victims was awarded compensation in an amount equivalent to 5,000 USD by the trial court, and this award was upheld by the High Military Court. The severity of the sentences given to the defendants and the High Military Court’s reaffirmation that their crimes met the thresholds of gravity and systematicity to constitute crimes against humanity under the Rome Statute represent a significant contribution to both Congolese and international criminal case law. Concerns remain, however, as to the ability of the victims to recover the sums awarded to them from defendants who lack the financial means to pay.  

Significance of the case from a CRSL perspective

The case represented a reaffirmation of the dignity and welfare interests of the young girls of Kavumu. The High Military Court recognized not only the physical but also the emotional and developmental harms inflicted on the victims, including stigmatization, loss of self-esteem, impaired personal development, and poor school performance.

The case, built on the multisectoral work of several civil society organisations, which collected evidence and promoted, carried out investigations into the crimes committed by the armed militia and advocated for these to be investigated by the authorities. The case also included a groundbreaking use of medico-legal best practices. Trainings offered by Physicians for Human Rights (PHR) through its Programme on Sexual Violence in Conflict Zones helped professionals from Panzi General Hospital to document the findings from the victims. Physicians for Human Rights (PHR) also mobilized a task force formed by civil society stakeholders, such as health professionals and lawyers, police officers, local community activists, local non-governmental organisations, MONUSCO and Trial International, and facilitated expert consultations to support the forensic evaluations and the police investigations. The local movement V-Men, led by local health professionals from the Panzi Hospital, carried out an awareness-raising campaign. Physicians for Human Rights (PHR) and Trial International organized a consultation with 36 child victims with the support of paediatric psychologists and physicians authorized by the Court, through which they collected video interviews, following strict procedures to ensure that children were not retraumatised and obtaining informed consent at every stage of the process, which served in the place of the children’s appearance in Court.

Finally, the case represents a strong precedent both in the DRC and worldwide for the use of international criminal law and significant domestic criminal sanctions to punish widespread and serious harms to children by armed groups. The conviction of Batumike was the first conviction of a sitting lawmaker in the DCR for sexual violence as a crime against humanity and resulted from a decision from the Court to strip him of his parliamentary immunity. Both the trial court’s verdict and the High Military Court’s decision were heavily publicized as examples of the fight against impunity and models for the successful prosecution of similar cases in the future.

Country

Democratic Republic of the Congo

Forum and date of decision

High Military Court

July 26, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

  • State of the Democratic Republic of Congo

  • The Military Prosecutor

  • 42 plaintiffs whose identity is not revealed to protect their privacy right; the claim is litigated under pseudonyms

 The defendants:

  •  F. Batumike Rugimbanya

  • J. M. Lwaboshi Mulimbwa

  • J. Magadju Masirika

  • L. Mobutu Cibinda Basoda

  • E. M. Mushagalusa Mirindi Musale

  • P. Safari Kalere

  • J. Bufole Bulimbi

  • L. Ciza Cishagara

  • L. Mugaruka Bunane

  • N. Polepole

  • P. O. Zirimingi Mirindi

  • P. Chiamboki Malira

  • K. Shamavu Mutera

  • C. Zihindula Moussa

  • B. Imani Malinda

  • J. Shamanvu Midero

  • I. Sumahili Zairois

  • G. Ngufu Mudugu

  • J. Malashi

  • D. Mushobekwa Muhanzi

Civil Society Organisations that supported the victims:

Case documents

Batumike et al. (“Affaire Kavumu”), RPA N° 139/2018 (in French)

Secondary documents

TRIAL International, “Kavumu Trial: High Military Court Confirms All Condemnations,” July 26, 2018. <https://trialinternational.org/latest-post/kavumu-hmc-confirms-all-condemnations/>

TRIAL International, “Kavumu Case: The Key Role of Local Actors,” Jan. 23, 2018. Available at <https://trialinternational.org/latest-post/kavumu-case-the-key-role-of-local-actors/>

TRIAL International, “Justice is Delivered for the Children of Kavumu,” Dec. 13, 2017. Available at <https://trialinternational.org/latest-post/justice-is-delivered-for-the-children-of-kavumu/>

TRIAL International, “Kavumu Case: Young Girls Abducted at Night and Raped,” Oct. 13, 2017. Available at <https://trialinternational.org/latest-post/kavumu-case-young-girls-abducted-at-night-and-raped/>

Physicians for Human Rights, “Medical-Legal Collaboration Leads to Justice in Serial Rape Case in Democratic Republic of the Congo,” June 19, 2019. Available at <https://phr.org/news/medical-legal-collaboration-leads-to-justice-in-serial-rape-case-in-democratic-republic-of-the-congo/>

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Colombia Supreme Court - Sentencia STC 4360-2018, Radicación No. 11001-22-03-000-2018-00319-01 - Colombia

Background

The petitioners, a group of children and young persons aged between 7 and 25, brought an action (acción de tutela) against the Colombian Government and governmental agencies (the Respondents) based on their rights to enjoy life, health and a healthy environment. The petitioners alleged that these rights were affected by the continued deforestation of the Colombian Amazon and that the government had failed to comply with its obligations under the Paris Agreement and the domestic Law 1753 of 2015, to ensure that this deforestation ceased.

Reasoning

The Colombian Supreme Court overturned the decision of the High Court of Bogotá –which had rejected the action on the basis that the acción popular (class action), and not the acción de tutela, is the right means to protect collective rights– and declared the admissibility of the acción de tutela. According to the Supreme Court, the jurisprudence had exceptionally accepted this form of  action to be admissible when the impairment of collective interests also impaired individual guarantees. In this case, according to the Court, environmental protection entails the protection of individual guarantees enshrined in legislation superior to ordinary law, such as life, health, freedom, and human dignity, and any person, including children, may bring the action.

In addition, the Supreme Court found that the effects of the Amazon’s deforestation entailed a serious and imminent harm for the petitioners and, in general, for all Colombians of present and future generations (p. 34), as “the fundamental right to life, health, basic needs, liberty and human dignity is significantly linked to and determined by the environment and the ecosystem” (p. 13). Finally, the Supreme Court stated that the Amazon deforestation is contrary to environmental principles (precaution, intergenerational equity and solidarity) and to Colombia’s international obligations (such as the Andean Environmental Charter and the Paris Agreement). The Court also recognized the Colombian Amazon as a subject of rights, whose conservation, maintenance and restoration are the responsibility of the State and the different territorial entities, in order to protect this ecosystem for the global common good.

However, although the petitioners had also grounded the tutela action on the principle of participation, the Court did not address this principle in its reasoning. The petitioners had claimed their right, and that of all citizens, to “prior, representative, free, informed, active and effective participation” (see pp. 109-111 of the tutela action) in decisions that affect or may affect the environment, as recognised by the Constitution, various international legal instruments and the Court itself on previous occasions. Participation was indeed contemplated by the Court in the remedy. Another principle that was mentioned in the tutela action and which was not addressed by the Court was the best interests of the child.  

Remedy

The Court ordered the Colombian Presidency, the Environmental and Sustainable Development Ministry, and the Agriculture and Rural Development Ministry, to develop a plan and draft an intergenerational agreement in order to adopt measures that will initially reduce and ultimately fully eliminate deforestation (Pacto intergeneracional por la vida del Amazonas colombiano - PIVAC), with the participation of the petitioners and public in general.

It also ordered the municipalities of the Colombian Amazon to design a plan to reduce to zero the deforestation rate in their territories, and ordered environmental agencies in the Amazon to develop a plan, including police, legal and administrative measures, to counteract deforestation.

Role of children

The plaintiffs were a group of 25 children, adolescents, and young adults, between the ages of 7 and 25 years, who initiated the action with the support of Dejusticia, a civil society organisation.

Enforcement and other outcomes

The Supreme Court ordered the respondents to comply with its orders within a period of 4-5 months following the judgment rendered in April 2018. The respondents have yet to comply with those orders (see article by Dejusticia). In fact, by the time such deadlines expired, the respondents had made little progress (see Red-DESC and Ministerio de Agricultura). A year after the judgment was entered, on 5 April 2019, the petitioners asked the Superior Tribunal of Bogotá to declare the respondents’ to be in non-compliance.

As reported by Dejusticia, the Colombian organization that supports the petitioners in this case, deforestation in the Colombian Amazon has increased between 2019 and 2020.

Significance of the case from a CRSL perspective

This was the first lawsuit of this type (acción de tutela) filed by children in Colombia regarding climate change and the rights of future generations.

The judgment sought remedies that would have a positive impact on children, in particular, on those who live in areas most at risk for climate change.  In fact, the aim of the Supreme Court’s orders was to reduce deforestation rate and, consequently, reduce the negative effects of greenhouse gases and climate change for future generations.

The case also confirmed children’s standing to bring an acción de tutela. In addition, the Supreme Court admitted an action that is generally used to protect individual rights (acción de tutela), to protect a collective right, based on the connection between the protection of the environment and children’s individual rights to life and health.

Country

Colombia

Forum and date of decision

Colombian Supreme Court, Civil Chamber of Cassation/Corte Suprema de Justicia, Sala de Casación Civil.

5 April 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

  • Dejusticia, a Colombian research and advocacy organization, supported the petitioners in this action.

    Calle 35 No. 24 - 31 Bogotá, Colombia

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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Domestic, Peru Gisela Sin Gomiz Domestic, Peru Gisela Sin Gomiz

Hernán César Canales Uzcátegui y otros vs. Ministerio de Educación, No. 23822 – 2017 - Peru

Background

A collective called Padres en Acción brought a class action (acción popular) against the Ministry of Education, seeking to repeal the National Curriculum for 2017 as it included a section on gender identity suggesting that beliefs regarding what is masculine or feminine are products of our lived experiences.  The action was based on the alleged violation of the parents’ right to choose their children’s education and to freedom of thought, resulting from the parents’ lack of participation in the creation of the curriculum. The applicants specifically claimed a violation of the American Convention on Human Rights (article 12(4)), the Universal Declaration of Human Rights (article 26(3)), the Constitution (articles 2(4), 6, 13 and 59), the General Law of Education (Law N° 28044) (articles 7, 22, 24, 68), the Supreme Decree No. 011-2012-ED (article 15), the Civil Code (Legislative Decree N° 295) (article 423(2) and the Code of Children and Adolescents (Law No. 27337) (article 74(c)).  

The Superior Court of Lima granted the applicants’ request for relief only with respect to the section on gender, declaring that section to be null, for going beyond “natural conceptions” of gender and introducing a new view or form of human sexuality without participation of parents. Both parties appealed and the case went to the Supreme Court.

Reasoning

The Court found that the First Instance Court erred in repealing the section regarding gender identity, grounding its decision on the fact that the goal of the section was to promote gender equality and human dignity, which are fundamental and constitutionally protected rights. Since constitutional rights do not need society’s approval,  the Court stated that such a section could not be subject to the consent of society, much less a subsection of society (i.e., parents of school-aged children). Moreover, it established that a parent’s right to choose his/her child’s education does not supersede the need for national curriculum to include constitutional values. Therefore, no one’s rights had been violated by the inclusion of constitutional rights in the national curriculum.

The Court conceptualised the notions of sex, gender and gender identity in order to explain that gender identity of children and adolescents would not be impacted by the curriculum, since it is determined by the inner and individual experience of gender of each and every person, which does not necessarily correspond to the sex assigned at birth.

The Court confirmed that education plays a fundamental role in promoting constitutional values and that acknowledging gender inequality in the national curriculum teaches young citizens the need to value people of all genders equally, as required by the constitution. The Court specifically noted that such inequality affects even children and can eventually lead to violence (p. 28). Additionally, the Court noted that by incorporating lessons of gender equality in the national curriculum, the state was complying with international obligations such as those established by the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, both of which have constitutional status and are directly enforceable.

Remedy

The Court revoked the First Instance Court’s ruling and dismissed the case.

Role of children

Children were not directly involved in this case.

Enforcement and other outcomes

The National Education Curriculum for 2017 remained in effect.

Significance of the case from a CRSL perspective

The central issue of the case was education and the extent to which parents and society have a right to influence the educational objectives of the state. Although the strategic litigation initiated by the civil society organisation Padres en Acción was unsuccessful, it turned into a case that protected children’s rights by guaranteeing an education that ensures and promotes gender equality and respects and includes all gender identities by including the gender perspective in the school curriculum.

The case is also significant in terms of the Court’s finding that gender equality and the right to gender self-identification are part of the fundamental human right to dignity. The Court found that the national curriculum can, and should, seek to promote and protect constitutional values and internationally recognized human rights- something that will be relevant to future curriculum-oriented CRSL in Peru.

Country

Peru

Forum and date of decision

Permanent Constitutional and Social Law Chamber of the Supreme Court of Justice/ Corte Suprema de Justicia de la República, Sala de Derecho Constitucional y Social Permanente

April 1, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

  • Padres en Accion Perú (Francisco Javier Pacheco Manga, Hernán Canales Uzátegui, Rodolfo Martín Cotrina Barrantes, José Francisco Estrada Cotrina, Ninoska Violeta Valladares Peña y Giuliana Calambrogio Correa de Balmaceda)

    contacto@padresenaccionperu.org

  • Public Prosecutor of the Ministry of Justice and Human Rights

For the Respondent:

Case documents

Secondary documents

Secondary documents:

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Domestic, Brazil Gisela Sin Gomiz Domestic, Brazil Gisela Sin Gomiz

Supreme Federal Court of Brazil, Habeas Corpus nº 143.641 / SP - Brazil

Background

The case was brought on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves, by the Defensoria Pública da União (Public Defenders’ Office), the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU), and other solicitors to challenge the automatic adoption of preventative detention of these women.

The applicants affirmed that preventive imprisonment, which disproportionately affected poor women and their families, by confining pregnant women in precarious prisons, denying them access to prenatal health programs, regular assistance during pregnancy and after childbirth, and also depriving children of adequate conditions for their development, constituted inhuman, cruel and degrading treatment that violated the constitutional principles related to the individualization of punishment, the prohibition of cruel punishment and respect for the physical and moral integrity of the prisoner. They reported that, despite the entry into force of Law no. 13.257/2016, which amended the Code of Criminal Procedure to enable the substitution of pre-trial detention for house arrest for pregnant women and mothers of children, this option had been rejected by the judiciary in approximately half of the cases due to the seriousness of the alleged offence and the need to demonstrate the inadequacy of the prison environment in each specific case. They also claimed that the lack of nurseries and mother-child centres in these facilities (as required by the Law of Criminal Enforcement (LEP)) affects the development of children, “which not only affects their learning and socialization capacity, but also seriously violates their constitutional, conventional and legal rights” (p. 6).

This was the first time that the Supreme Federal Court of Brazil admitted a collective habeas corpus.

Reasoning

First, Justice Ricardo Lewandowski recognised that collective actions were probably "the only viable solution to ensure effective access to justice, especially for the most socially and economically vulnerable groups" (p.1) in the country and that the use of a a collective habeas corpus was justified given that it was intended to safeguard one of the most important fundamental human rights, which is freedom.

Justice Lewandowski affirmed that, as emerged from the decision ADPF 347 MC/DF, there was a deficiency of structural character in prison and a “culture of incarceration” (p. 9) revealed by the overuse of provisional imprisonment for poor and vulnerable women. Therefore, women were effectively subjected to degrading situations, especially being deprived of pre-natal and post-natal medical care and children were suffering from the lack of nurseries and day-care centres. He referred to the case Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) to illustrate the State’s inability to ensure maternity care for the female population. He stressed that, as stated in Millennium Development Goal (MDG) 5 and Sustainable Development Goal (SDG) 5, attention to maternal health was considered one of the priorities to be observed by the different countries in terms of their commitment to promoting development. By protecting maternal, newborn and child health, as well as reproductive health, the Judge held that the State would also be giving also effect to the Constitution (arts. 5(II), 5(XLI), 5(XLV), 5(L), 5(XLVIII) and 5(XLIX)) and to the Law no. 11.942/2009, which promoted changes in the Criminal Enforcement Law in this regard. However, Justice Lewandowski concluded that neither the Constitution nor the above mentioned domestic laws had been respected by the authorities responsible for the prison system and that evidence and reports showed that “there [was] a systematic breach of constitutional, conventional and legal rules regarding the rights of women prisoners and their children" (p. 20). This conclusion was also consistent with international standards (Universal Declaration of Human Rights , the International Covenant on Civil and Political Rights , the American Convention on Human Rights, the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas , the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders ('the Bangkok Rules')) and the position of the Federal Supreme Court (Repercussão Geral de número 423).

Justice Lewandowski stated that children under the responsibility of these women unjustly suffered the consequences of their imprisonment, contravening articles 227 and 5(XLV) of the Constitution, articles 7, 8 and 9 of the Early Childhood Statute (Law no. 13.257/2016) and article 318 and 319 of the Criminal Procedure Code (Law no. 3.689/1941).

Remedy

Pregnant women, mothers of children up to the age of 12, and mothers of children with disabilities were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants, in which case their imprisonment has to be analysed on a case-by-case basis by the judges.The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Role of children

Children under the age of 12 of women in pre-trial detention in the national were represented by Defensoria Pública da União (Public Defenders’ Office) and the Coletivo de Advogados em Direitos Humanos (Collective of Human Rights’ Solicitors) (CADHU).

Enforcement and other outcomes

Pregnant women, mothers of children up to the age of 12, and mothers with disabled children were granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the women’s descendants. The judgment also allowed women under those circumstances who had been arrested prior to the ruling and not yet been placed under house arrest, to be entitled to that remedy.

Following the Federal Supreme Court's decision, Law 13.769 was enacted on 19 December 2018 , introducing amendments to article 318-A in the Criminal Procedure Code (Law no. 3.689/1941). This law not only regulated the substitution of pre-trial detention for house arrest for pregnant women and mothers or women responsible for children under 12 or persons with disabilities, but went further and established similar conditions for serving a prison sentence for women convicted in the same situation. To a great extent it was the result of the Federal Supreme Court's effort to reduce the imprisonment of women.

The implementation and enforcement of the decision has been limited. According to Prison Insider, “between December 2018 and December 2019, 6,357 women were preventively arrested in the state of São Paulo”, of which 3,168 were women that met the requirements of the law for house arrest. Of the total number of women who meet the requirements of the law, 915 remained provisionally imprisoned, meaning that “29% of mothers, pregnant women or those responsible for people with disabilities had not the benefit of house arrest”. In the Brazilian central region, where the largest number of potential women benefiting from the Legal Framework of Early Childhood were concentrated, “of the 1,435 women in custody, 78% fit the criteria, but 33% remained in prison” by the end of 2019.  11 out of 16 prison units inspected by the Secretariat of Penitentiary Administration (SAP) answered affirmatively to whether the data collection of the arrested women contained matters related to maternity as required by the law, while the other 5 prison units did not respond. This absence of data on maternity in compliance with the law “impaired the monitoring of conditions of women prisoners” and “the right to information and transparency of public bodies”.

Significance of the case from a CRSL perspective

This was the first collective habeas corpus that was admitted by the Supreme Federal Court of Brazil and it was applicable to the whole national territory.

Children were identified as a priority group in circumstances where it is not appropriate to place women in preventative incarceration, subjecting their children to the precarious incarceration facilities. The judgment considered the effects of having the children taken from their mothers who are incarcerated in circumstances where no family members could take over their care, placing them in a situation of vulnerability, and breaking the familial bond of the child and the mother, with potentially nefarious psychological consequences to children.

The judgment sought to ensure that the issues above were minimized by the requirement that the relevant group under consideration is granted the right to await trial under house arrest, instead of in detention, as long as the crime pending trial was non-violent and not committed against the children.

Country

Brazil

Forum and date of decision

Supremo Tribunal Federal, Segunda Turma (Supreme Federal Court of Brazil, 2nd panel)

February 20, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

Applicant’s information:

(on behalf of all women in pre-trial detention in the national penitentiary system, who were pregnant, had recently given birth or were mothers with children under 12 years of age under their responsibility, and the children under 12 themselves)

Amici Curiae:

Av. Gal Afonso Albuquerque Lima
Edifício Seplag - 2ºandar
Cambeba - Fortaleza, CE

State of Parana

Rua José Bonifácio, 66 - Centro
80020-130 - Curitiba - PR

State of Amapa

Avenida Raimundo Álvares da Costa, 676

Centro, Macapá - AP

State of Espirito Santo

Praça Manoel Silvino Monjardim, nº54 - Centro

Vitória - ES

State of Goias

Alameda Cel. Joaquim de Bastos, nº 282

Qd. 217, Lt. 14 - Setor Marista

State of Maranhao

Rua da Estrela, 421

Praia Grande, Centro

São Luís - MA

State of Para

Rua Padre Prudêncio, nº 154

Belém - Pará

State of Paraiba

Rua Deputado Barreto Sobrinho, 168

Tambiá, João Pessoa - PB

State of Pernambuco

Rua Marques do Amorim, 127,

CEP 50070-330, Boa Vista,

Recife-PE

State of Piaui

Rua Nogueira Tapety, nº 138,

Noivos – Teresina-PI

State of Rio Grande do Norte

Rua Sérgio Severo, 2037,

Lagoa Nova, Natal-RN

State of Rondonia

Av. Jorge Teixeira, nº: 1722

Embratel, Porto Velho – RO

State of Roraima

Avenida Sebastiao Diniz, nº 1165

Centro, Boa Vista -RR

State of Rio Grande do Sul

Rua Sete de Setembro, 666 – Centro Histórico

Porto Alegre - RS

State of Sergipe

Travessa João Francisco da Silveira, n° 44,
Bairro Centro - Aracaju - Sergipe

State of Sao Paulo

State of Tocantins

Quadra AA SE 50, Avenida Joaquim Teotônio Segurado,

Plano Diretor Sul, Palmas - TO

State of Bahia

Avenida Ulisses Guimarães, nº 3.386, Edf. MultiCab Empresarial
CEP - 41745-007, Sussuarana, Salvador/Bahia

State of Distrito Federal

SCN Qd. 01, Conjunto G, Lote 01

Ed. Rossi Esplanada Business

State of Minas Gerais

Rua dos Guajajaras, 1707 - Barro Preto Belo Horizonte, Minas Gerais

State of Rio de Janeiro

Rua dos Guajajaras, 1707

Barro Preto Belo Horizonte, Minas Gerais

State of Mato Grosso

Rua Engenheiro Agrônomo Arnaldo Duarte Monteiro, s/nº

State of Mato Grosso do Sul

Case documents

Secondary documents

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Zimbabwe, Domestic Billy Quarterman Zimbabwe, Domestic Billy Quarterman

Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14, CC 12-15) [2015] ZWCC 12 (20 January2016)CCZ 12/2015 - Zimbabwe

Background

The two applicants in this case, two women aged eighteen and nineteen respectively, brought a claim to the Constitutional Court of Zimbabwe to declare the Marriage Act [Chapter 5:11], Section 22(1) and the Customary Marriages Act [Chapter 5:07] in contravention of Section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013. They claimed that this provision infringed on the fundamental right of underage girls.

It should be noted that the standing of the applicants was questioned by the respondents as, at the time of the claim, both were of age and had not entered into an official marriage union under the challenged legislation.

Court reasoning and findings

The applicants’ claim rasied four questions that for the Court to address, those being:

1) Do the applicants have standing?

2) Does Section 78(1) set the minimum age of marriage to eighteen years?

3) If Section 78(1) changes the minimum age of marriage, does it invalidate previous laws allowing for marriage unions under the age of eighteen?

4) If these laws are invalidated, what is the appropriate remedy?

For the first question, the Court acknowledged that the applicants’ rights were not directly affected by the laws in question. Regardless, the Court found that, under Section 85(1)(d) of the Constitution, the applicants were allowed to bring a claim as under “public interest”. The Court considered that, since children fall under the category of “weak and vulnerable people” in society and, thus, the applicants could bring an action to protected children’s fundamental rights without being directly affected by the infringement.

For the question of whether Section 78(1) set the minimum age of marriage at eighteen, the Court looked at the body of international law to interpret the section. The question here was whether there should be a literal interpretation of the text (“[e]very person who has attained the age of eighteen years has the right to found a family”), understanding that granting the right to “found a family” from the age of eighteen does not imply that the minimum age for marriage is eighteen. Here, the Court decided that it was evident that, given the body of international law as well as the harm suffered by young girls forced into marriage, Section 78(1) intended to set the minimum age of marriage to eighteen.

Court order or remedy

The Court declared that:

1) Section 78(1) of the Constitution of Zimbabwe sets the minimum age of marriage at eighteen years

2) Any law allowing for any person under the age of eighteen to marry is unconstitutional and is void

3) No person can marry under the age of eighteen.

Notably, the Court did not exercise its powers, under Section 175(6)(b) of the

Constitution, to retroactively declare unions entered into with girls under the age of eighteen void.

Role of children

In this case, the role of children was indirect. Meaning, the applicants that brought the claim were of age at the time, but were requesting the court to declare child marriages illegal. It should be noted the applicants of the case were subjected to an informal marriage union at the age of fifteen, but this did not give rise to a claim against the legislative framework as the union was informal.

Enforcement and other outcomes

The Court’s decision declared that the all legislation that allowed for a marriage union involving a minor was unconstitutional. This triggered a set of reforms, including changes to the Marriage Act and the Customary Marriages Act that increased the minimum age for marriages to eighteen, as well as a commitment by the Government to harmonize the relevant laws with the Constitution (see page 33 of In-Depth Review of Legal and Regulatory Frameworks on Child Marriage in Zimbabwe).

Significance of the case from a CRSL perspective

From the CRSL perspective, this case is relevant in three ways.

First, the Court’s decision has opened the door for human rights litigation to be brought by parties seeking to remedy a violation without being directly affected by it. In doing so, the Court has allowed for children’s rights – and the rights of other vulnerable members of society – to be addressed in court without them being brought by the subjects of the violation.

Second, the Court’s use of Zimbabwe’s international obligation – in particular the CRC and the ACRWC – is an important precedent for the harmonization of the international consensus on the right of children with the interpretation of the Constitution.

Third, by declaring that the Constitution sets the minimum age for marriage at eighteen, this decision has triggered legislative reform to address the problematic of child marriages. Additionally, this case has had an impact in the region, triggering similar litigation in Tanzania (see page 10 of Recent developments Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review).

Country

Zimbabwe

Forum and date of decision

Constitutional Court of Zimbabwe, 20 January 2016

CRC provisions and other international law provisions

  • The Convention on the Rights of the Child (CRC), Articles 1, 2, 3, 24.3, 38,

  • The African Charter on the Rights and Welfare of the Child (ACRWC), Article 21

  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Article 16

  • Universal Declaration of Human Rights (UDHR), Article 16

  • The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages (the Marriage Convention)

  • The Vienna Convention on the Law of Treaties, Article 18

Domestic law provisions

The Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013, Sections 44, 78(1), 81(1), 85(1), 175(6)(b)

  • Marriage Act [Chapter 5:11], Section 22(1)

  • Customary Marriages Act [Chapter 5:07]

  • Child Abduction Act [Chapter 5:05], Section 2

  • Children’s Protection and Adoption Act [Chapter 5:06], Section 2

Related information

Information on groups and individuals involved on the case

For the applicants:

- Loveness Mudzuru

- Ruvimbo Tsopodzi

For respondents:

- Minister of Justice, Legal & Parliamentary Affairs

- Minister of Women’s Affairs, Gender & Community Development

- Attorney General Of Zimbabwe

Case documents

Links to:

- Application

- Decision

Secondary documents:

- In-Depth Review of Legal and Regulatory Frameworks on Child Marriage in Zimbabwe, Plan International

- Recent developments Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & 2 Others: A review

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Domestic, Kenya Gisela Sin Gomiz Domestic, Kenya Gisela Sin Gomiz

Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR, Petition No. 266 of 2013 - Kenya

Background

This case relates to the rights of intersex children, that is children born with reproductive or sexual anatomy that doesn’t fit the typical definitions of male or female, to be legally recognized as Kenyan citizens. The case was filed by a mother (the petitioner) on behalf of her child and other intersex persons.  The petitioner alleged that the form required for the issuance of a birth certificate did not give her child legal recognition and thus discriminated against her child because the form called for the selection of a gender as either male or female and her child did not fit in either category.  She requested that the Court order that a third category, “intersexual”, be included for purposes of gender designation on the form for the issuance of a birth certificate. The petitioner also challenged the lack of set guidelines and regulations for the performance of corrective surgery on intersex persons as well as the lack of data collection and retention by the Kenyan government relating to intersex persons in Kenya.  She requested that the court promulgate guidelines relating to surgery on intersex persons and that the government collect data relating to intersex persons.

Reasoning

Regarding the petitioner’s discrimination claim, the Court reviewed the legislation providing for the registration of birth in Kenya—the Births and Deaths Registration Act and the Interpretation and General Provisions Act Cap 2 (Laws of Kenya)—to determine whether these legislation allowed a broad interpretation of the term “sex” so as to include “intersexual” as a third category of gender on the form for the issuance of a birth certificate.  The Court found that neither the Births and Deaths Registration Act nor the Interpretation and General Provisions Act Cap 2 (Laws of Kenya) defined the term “sex,” but that the former Act provided that the sex of a child was either male or female.  The Court also found that although the Constitution did not define “sex,” it prohibited discrimination based on sex.  The Court concluded that intersex persons, including children, were entitled to all rights under the Constitution.  However, the Court refused to create a third category of sex called “intersexual” on the basis that this issue had to be addressed by the legislator and, thus, was beyond the Court’s mandate (i.e., to interpret the law as written).  Moreover, the Court held that the petitioner failed to submit any evidence of actual discrimination (thereby impliedly rejecting the petitioner’s contention that the absence of a category on the form for “intersexual” persons per se constituted discrimination) and ruled that the rights of the petitioner’s child had not been violated in any way. 

The Court found that there was a need for guidelines, rules and regulations for surgery on intersex persons and a need for the government to collect data on intersex persons, but that it was beyond the Court’s mandate for the Court itself to issue such guidelines or to regulate the collection of data.

Remedy

The Court directed the Kenyan government (i) to submit to parliament an appropriate legal framework governing issues relating to intersex persons, including a statute regulating the place of intersex persons as a sex category and guidelines and regulations for corrective surgery for intersex persons, and (ii) to consider the issue of collecting data relating to intersex children and persons and to submit to the Court within 90 days of the judgment the name of the agency in charge of the collection and retention of data on intersex persons.

Role of children

The first petitioner “Baby A” was represented by the mother.

Enforcement and other outcomes

The case helped to trigger reform on the rights of intersex people in Kenya. In 2014, Persons Deprived of Liberty Act was enacted and defined “intersex” within Kenyan legislation for the first time. The Attorney General formed the Taskforce on Policy, Legal, Institutional and Administrative Reforms Regarding Intersex Persons in 2017 which reported in December 2018, making recommendations for law reform to recognise and protect the rights of intersex people, including specific recommendations regarding intersex children. In 2019, Kenya became the first country in Africa to include data on intersex people in its census.

Significance of the case from a CRSL perspective

According to a write up about the case by CRIN in 2015, Baby A’s mother sought assistance from CRADLE, a child rights organisation. CRADLE supported Baby A’s mother so that she would see the case through and not abandon it due to embarrassment.

The organisation also brought together other legal experts to contribute to the arguments, and a Kenyan human rights lawyer, John Chigiti, agreed to argue the case probono. All of these features indicate that this case is an example of CRSL.

The case also dealt with key issues affecting gender non-conforming individuals, as Chigiti was clear about the need to separate gender from sexuality, and this was clear in the argumentation. However, the focus of the case was on Baby A and the impediments to birth registration of Baby A and other similarly situated children.

The impact of this case has been considerable, in the sense that law and policy reforms aimed at advancing children’s rights have been clear outcomes. The significance of the case is naturally limited by the fact the number of children affected is small, and this curtails the reach of the case.

Country

Kenya

Forum and date of decision

The High Court of Kenya at Nairobi, Constitutional and Human Rights Division,

December 5, 2014

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

  • Baby “A” (Suing through her mother, E.A.)

    John Chigiti

  • The Cradle-the-Children Foundation

    Swiss Cottages (Apartment no. 1), Ring Road Kileleshwa off Riverside drive Nairobi P.O BOX 10101 - 00100 Kenya

For the Respondent:

  • Attorney General

    Sheria House, Harambee Avenue, Nairobi, Kenya

    P.O. Box 40112-00100, Nairobi, Kenya

  • Kenyatta National Hospital

    Hospital Rd, Nairobi, Kenya

    P.O Box 20723-00202, Nairobi, Kenya

  • The Registrar of Births and Deaths

    Hass Plaza 4th Floor, Lower Hill Road, Nairobi, Kenya

    P.O Box 49179- 00100, Nairobi, Kenya

For interested parties:

Amicus curiae:

Case documents

Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014] eKLR, Petition No. 266 of 2013

Secondary documents

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Domestic, United States of America Gisela Sin Gomiz Domestic, United States of America Gisela Sin Gomiz

Miller v Alabama; Jackson v. Hobbs No. 10–9646 (and No. 10–9647) US Supreme Court 25 June 2012 - United States of America

Background

Two 14-year-olds were convicted of murder and sentenced to life imprisonment without the possibility of parole. The relevant state sentencing regimes mandated these sentences and the sentencing judges had no discretion to impose a different punishment.

In both cases, the children unsuccessfully appealed the severity of the sentences to the relevant superior state court, being the Arkansas Supreme Court and Alabama Court of Criminal Appeals, and the sentences were upheld. Amici Curiae subsequently applied on behalf of the children for the United States Supreme Court to review the decisions of the Arkansas Supreme Court and Alabama Court of Criminal Appeal.

Reasoning

The court held that mandatory sentencing legislative schemes which require children convicted of homicide to be sentenced to life in prison without the possibility of parole were unconstitutional as they breached the Eighth Amendment’s ban on cruel and unusual punishment.

In considering mandatory schemes, the court examined the fundamental principles of sentencing and held, first, that the case for retribution was not as strong with children as with adults because retribution related to blameworthiness. Second, that the same characteristics that made children less culpable than adults (immaturity, recklessness and impetuosity) made them less likely to consider potential punishments prior to an act and so undermine the deterrent effect of sentences. Third, that sentence of life without the possibility of parole removed any scope for rehabilitation.

Such mandatory sentencing schemes were not considering critical factors relating to children and youth (“immaturity”, “irresponsibility”, “impetuosity”, “recklessness” (pp. 15, 17) and failure to appreciate risks and consequences) when determining if the harshest term of imprisonment was proportional to “the distinctive attributes of youth” (p.9) and to their diminished culpability.

Remedy

The court reversed the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and returned the cases for further proceedings for re-sentencing not inconsistent with the Supreme Court’s opinion.

Role of children

The applicants were both children at the time they were sentenced, though they were adults at the time that the Supreme Court considered their cases.

Enforcement and other outcomes

At the time of the judgment, more than half of the states in the United States had mandatory sentencing schemes which required judges to sentence children to life imprisonment without the possibility of parole. Following the judgment, the majority of these States have brought their sentencing schemes in line with the Supreme Court’s’s ruling.

It is important to note that certain states have since abolished mandatory life sentences without the opportunity of parole but still require mandatory sentences for the duration of a child’s meaningful life expectancy without the opportunity of parole.

Significance of the case from a CRSL perspective

The case abolished mandatory life imprisonment sentences without the possibility of parole for children convicted of homicide in the United States. It confirmed that children are different to adults and judges should retain the ability to take a child’s inherent mitigating factors into account when sentencing them for homicide.

The case built on previous decisions of the Supreme Court relating to the Eighth Amendment and challenging the death penalty and the sentence to life without parole (LWOP), such as Roper v Simmons, Graham v Florida and Montgomery v Louisiana. The court had previously prohibited a sentence of life without parole for a child who committed a non-homicidal offence. However, many US states still permit life sentences for children without parole for homicide – it just is not mandated. Further, many US States still permit what are considered to be “de facto life sentences” for children (50 plus years) which arguably contravenes the Court’s position in this case. Alongside the judicial processes, campaigns were conducted by civil society organisations, such as the Campaign for Fair Sentencing of Youth, which was responsible for lobbying and media work.

Country

United States of America

Forum and date of decision

Supreme Court of the United States

June 25 , 2012

CRC provisions and other international law provisions/sources

Not applicable. The decision considers domestic law provisions only.

Domestic law provisions

Related information

For the applicants:

For the Respondent:

List of amicus curiae:

The amicus curiae comprised 67 organisations and 25 individuals as set out in the Appendix of the Amicus Curia Brief.

In support of petitioners:

In support of respondents:

Case documents

Miller v Alabama; Jackson v. Hobbs No. 10–9646 (and No. 10–9647) US Supreme Court 25 June 2012

     Amicus Curiae: 

Secondary documents

Equal justice initiative (EJI), 'Miller v Alabama EJI won a landmark ruling from the Supreme Court striking down mandatory death-in-prison sentences for children' (Equal Justice Initiative (EJI)) <https://eji.org/cases/miller-v-alabama/#:~:text=EJI%20won%20a%20landmark%20ruling,its%20companion%20case%2C%20Jackson%20v. > accessed 11 May 2021

Marshall M, 'Miller V. Alabama And The Problem Of Prediction' (2019) 119 Columbia Law Review <https://columbialawreview.org/content/miller-v-alabama-and-the-problem-of-prediction/ >

Dharmavarapu P, 'Categorically Redeeming Graham V Florida And Miller V Alabama: Why The Eighth Amendment Guarantees All Juvenile Defendants A Constitutional Right To A Parole Hearing | The University Of Chicago Law Review' (Lawreview.uchicago.edu) <https://lawreview.uchicago.edu/publication/categorically-redeeming-graham-v-florida-and-miller-v-alabama-why-eighth-amendment > accessed 21 February 2022

L. Piel J, 'Term-Of-Years Sentences Since Miller V. Alabama' (2020) 50 Journal of the American Academy of Psychiatry and the Law Online <http://jaapl.org/content/early/2020/01/24/JAAPL.003918-20 > accessed 28 February 2022

'The Aftermath Of Miller V. Alabama: Hope For Those Sentenced To Life Without Possibility Of Parole For Juvenile Crimes - National Center For Youth Law' (National Center for Youth Law) <https://youthlaw.org/publication/the-aftermath-of-miller-v-alabama-hope-for-those-sentenced-to-life-without-possibility-of-parole-for-juvenile-crimes/ > accessed 28 February 2022

A. Stevenson B, and F. Stinneford J, 'Interpretation: The Eighth Amendment | The National Constitution Center' (Constitutioncenter.org) <https://constitutioncenter.org/interactive-constitution/interpretation/amendment-viii/clauses/103 > accessed 28 February 2022

H. Boone B, 'Treating Adults Like Children: Re-Sentencing Adult Juvenile Lifers After Miller V. Alabama' [2015] Minnesota Law Review <https://minnesotalawreview.org/article/treating-adults-children-re-sentencing-adult-juvenile-lifers-miller-v-alabama/ > accessed 28 February 2022

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Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Bachpan Bachao Andolan v. Union of India and Others [2011] INSC 403; Writ Petition (C) No. 51 of 2006 - India

Background

Bachpan Bachao Andolan (“the petitioner”) is an NGO that has campaigned for the removal of children from circuses in India since 1996. The petitioner conducted a study on child labour in Indian circuses starting in 2002, which found that children were trafficked from poor parts of India and Nepal and subjected to physical, emotional and sexual abuse in circuses. The petitioner descibed rights violations related to the following broad categories: (i) insufficient space, (ii) quantity and quality of food, (iii) erratic sleep times, (iv) unhygienic sanitary conditions, (v) no provision of health care, (vi) danger due to high risk factor of work, (vii) poor/manipulated salaries, (viii) bound by long term contracts, (ix) loss of all-round development (incl. education, play, recreation) by isolation from outside world.  

The petitioner filed this case seeking an order requiring the Indian government to (i) issue appropriate guidelines for the persons engaged in circuses; (ii) to conduct raids in all circuses to liberate the children and to investigate violations of their rights; (iii) appoint special forces to ensure actions and check on cross border trafficking; (iv) apply the provisions of the Juvenile Justice Act and make the violations offences under the Indian Penal Code /Juvenile Justice Act; (v) empower child welfare committees to award compensation to all victims rescued, and (vi) lay out guidelines prohibiting the employment/engagement of children up to the age of 18 in any form in circuses.

Reasoning

The petition was very broad in scope, and the judgment sets out the petition elaborately. However, the court decided to focus on the issue of children working in circuses, and in particular, the violation of the right to education of such children. The court noted that under the 2005 Constitution of India the right to education was now a fundamental right.

The Court found that “[f]rom the […] submissions made by the learned Solicitor General it is abundantly clear that the Government of India is fully aware about the problems of children working in various places particularly in circuses” (para. 67). The court indicated its intention to deal with the broader problem of children’s exploitation systematically, but limited its ruling to children working in circuses in the first instance.

Remedy

The court ordered: (i) the Central government to issue suitable notifications prohibiting the employment of children in circuses; (ii) respondents to conduct raids on all circuses to liberate the children living in them; (iii) the respondents to ensure that the rescued children live in protective homes until the age of 18; (iv) the respondents to contact the parents of children to enable their return home where possible; and (v) the respondents to provide proper schemes of rehabilitation for rescued children; (vi) the Secretary of the Ministry of Human Resources Development, Department of Women and Child Development to file a report on compliance with the court within ten weeks.

Role of children

Children did not act as party to the case, but a child rights NGO filed the public interest petition.

Enforcement and other outcomes

 In 2015, several years after the first order, the Supreme Court found that there had been a failure of compliance with its earlier orders relating to children in circuses. The judgment in 2015 mentions an order dated 12 December 2014, which led to a meeting being convened by the Secretary, Ministry of Women and Child Development and attended by the Secretary, Minister of Labour, as well as by several officers from the various States. As part of its monitoring role, the Supreme Court issued notices for the Union government and all the states to file affidavits, but the only state that complied within the time frame was the State of Punjab. After considering a report of the Ministry of Women and Child Development, the Court issued a directive that the Central Government should monitor the activities of the circuses through National Commission for the Protection of Child Rights and State Governments, and indicated that the petitioner or any other person was at liberty to approach the court or any other appropriate authority if any instance of child labour or child abuse was found in any circus.

Significance of the case from a CRSL perspective

The case was recognized as a landmark decision to protect children coerced to work in circuses. In particular, the Supreme Court noted that the government was fully aware of the problems children face working under such conditions.

Also, only shortly after the decision (on May 5, 2011), India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) after having signed it already on December 12, 2002. The outcome of this case served as a catalyst for this move. Prior to the judgment, India had struggled with a comprehensive definition for the crime of human trafficking.  In the aftermath of the 2012 Delhi gang rape case, a committee known as the  Justice Verma Committee  was set up to review and make recommendations to update the Indian Criminal Law. In 2013 the Committee released its report, and recommended the adoption of the definition of human trafficking used in Bachpan Bachao Andolan v Union of India case. The Committee pressed upon Parliament the need to update the national laws concerning human trafficking.

Country

India

Forum and date of decision

Supreme Court of India

April 18, 2011

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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Domestic, Malawi Gisela Sin Gomiz Domestic, Malawi Gisela Sin Gomiz

Moyo v Attorney General of Malawi [2009] MWHC 83 - Malawi

Background

Evance Moyo (applicant) was convicted of a murder he committed at the age of 16.  He was ordered to be detained at Chilwa Approved School during the pleasure of the President in lieu of the then mandatory death sentence for murder on account of the fact the applicant was a child at the time of commission of the offence (consistent with section 11(1) of the Children and Young Persons Act and section 26(2) of the Penal Code).

Prior to trial, the applicant had been remanded in the adult section of a maximum security prison for approximately 5 years.

 The main issues the court considered were whether (i) the applicant’s rights had been violated in being incarcerated together with adults; (ii) section 11(1) of the Children and Young Persons Act and section 26(2) of the Penal Code were unconstitutional; (iii) the applicant should be released immediately or his case be urgently considered by the Board of Visitors; and (iv) the applicant should be compensated.

Reasoning

The Court found that the incarceration of the applicant with adults before and after his trial was a “blatant violation of his fundamental human rights to freedom” (p. 6) under the Constitution (section 42(2) (g)), the Children and Young Persons Act (section 31) and the CRC (Art. 3).

The Court did not find that sentences detaining a child at the pleasure of the President were unconstitutional, citing in particular the comparable provision under the Powers of Criminal Courts (Sentencing) Act 2000 of the United Kingdom (section 90). The Court held that where a child was detained at the President’s pleasure, the implications were that the situation of the child would be constantly reviewed and that the child must have “access to education and all other amenities that will help him develop into a productive citizen”. The detention system must prioritise the welfare of the child and any incarceration must be for the shortest time possible and as a last resort. The Court held that a sentence at the pleasure of the President was to be equated to an indeterminate sentence which cannot be held to be unconstitutional.

The Court ordered the immediate release of the applicant having regard to the fact that he had been detained for so long without review and that subjecting the matter for further review of the Board of Visitors and then the President would serve only to delay his inevitable release.

The Court ordered no compensation be paid. The Court’s view was that the applicant was incarcerated following due process and that such incarceration was not arbitrary. Despite his incarceration being a violation of the applicant’s human rights, the Court’s view was that immediate release was the best compensation.

Remedy

The Court ordered the immediate release of the applicant with no compensation for the applicant and awarded costs in his favour.

Role of children

Evance Moyo was a child at the time he committed the offence with which he was convicted, but an adult at the time of this case.

Enforcement and other outcomes

The case led to the applicant’s release. In 2012, the Children and Young Persons Act 1969, under which Moyo was sentenced at the pleasure of the President, was replaced by the Child Care, Protection and Justice Act 2010, which does not contain any provision that allows for the sentencing of a child at the pleasure of the President. The Child Care, Protection and Justice Act 2010 sought, among others, to recognise the principles of the Convention on the Rights of the Child. While section 26(2) of the Penal Code remains in force, it has been amended such that sentencing at the pleasure of the President is now to be made only on the advice of the Child Case Review Board.

Significance of the case from a CRSL perspective

This case is significant in terms of the development of strategic litigation on criminal justice issues involving children in Malawi. In it, the Court confirmed that the Convention on the Rights of a Child is binding on Malawi and all of its public or private institutions, and therefore national practices should be in line with CRC standards. The CRC has been referred to in other subsequent cases in Malawi relating to the sentencing of children as adults (e.g., The State (ex parte Stanford Kashuga) v. the Second Grade Magistrate Court (Thyolo) and Malawi Prison Service (2015)).

Country

Malawi

Forum and date of decision

The High Court of Malawi

August 25, 2009

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

  • Mr M Mambulasa, of Counsel for the Applicant

For the Respondent:

  • Mr S Kayuni, Senior State Advocate, of Counsel for the Respondent.

List of amicus curiae:

Case documents

Moyo v Attorney General of Malawi [2009] MWHC 83

Secondary documents

Odala, V., 2012. The Spectrum for Child Justice in the International Human Rights Framework: From "Reclaiming the Delinquent CHild" to Restorative Justice. AM. U. INT’L L. REV., [online] 27(3). [Accessed 8 June 2022].

Salc Bloggers. 2009. Evance Moyo Judgement Handed Down in Malawi. [online]. [Accessed 8 June 2022].

Southern Africa Litigation Centre, 2009. Malawi's Constitutional Court Hands Down Evance Moyo Judgement. [online] Southernafricalitigationcentre.org. [Accessed 8 June 2022].

The Nation Online. 2015. Court rules on Executive, Judicial powers - The Nation Online. [online]. [Accessed 14 June 2022].

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Constitutional Court of Colombia, Second Review Chamber, Auto N° 251 de 2008 - Colombia

Background

In Sentence T-025 of 2004 (T-025-04), the Constitutional Court declared a state of unconstitutionality with respect to the Colombian State’s failure to protect the constitutional rights of victims of forced displacement, and in particular, displaced children and adolescents. This Auto (in Colombia, autos are judicial decisions that “resolve an incident or substantive issue” (art. 161 Law 906 of 2004)) was a review of the State’s response to the T-025-04 Decision and presents information concerning the current situation of displaced children.

Reasoning

The Court affirmed that victims of forced displacement are entitled to special State treatment. More specifically, the Court, relying on the Constitution, stated that, “each individual case of children displaced by armed violence in Colombia, was, in itself, an extreme manifestation of profound, serious, systematic and simultaneous violations of fundamental rights”, given their “state of grave victimisation and defencelessness” (p.2). Displaced children were affected by the following specific cross-cutting problems: lack of protection from several risks and dangers that threaten their rights; hunger and malnutrition; preventable physical and mental health deficiencies; shortcomings in the educational system and lack of opportunities for recreation and participation in society as well as for exercising their rights. The impact of these issues on children was further aggravated by changes to family structures due to displacement, the trauma of displacement itself, childhood, adolescence, gender inequality, ethnic divergence and disability.

The Court noted that violent crimes by armed groups (including “social cleansing”), forced recruitment into armed groups or illicit businesses (e.g., drug trafficking and child trafficking), sexual abuse (in the context of armed groups and at home) and coercive pressure by illegal armed groups were the principal causal factors of the forced displacement of children.

To address the unique vulnerabilities of displaced children and the unique and disproportionate impact displacement has on them, specific measures were required from the State. However, the Court considered that the Colombian State had failed to implement such measures. In the opinion of the Court, the State response to the specific needs of displaced children had been "(i) irregular and fragmented, neither systematic nor comprehensive, (iii) non-specific, (iv) late, (iv) lacking resources, (v) legal and formal, with no practical realisation, and (vi) lacking a preventive approach” (p. 23). The failure to treat these children, in practice, as subjects of international and domestic law with prevailing and directly enforceable rights and as subjects of special protection, attempted against their human dignity.

The Court observed that displaced children were generally “invisible” to the State and society at large. This was due in part to a lack of registration of displaced persons, caused by widespread distrust of authorities and a lack of awareness of constitutional rights amongst displaced persons.

Given the multiplicity of factors affecting displaced children and the absence of measures aimed specifically at them, the State’s efforts to date were inadequate and amounted to a breach of its domestic and international legal obligations.

Remedy

The Court ordered the relevant public authorities to remedy the state of unconstitutionality by adopting concrete measures exclusively aimed at displaced children that are preventative and that address their specific needs. In particular, it ordered the creation and implementation of a programme based on pilot projects, which were also ordered in the decision, for the protection of children, containing prevention and care elements and giving response to the risks, cross-cutting problems and factors that aggravated these children’s situations. The Court also required the State to guarantee the participation of at least those civil society organisations that are listed in the decision in the elaboration of pilot projects.

Role of children

While the case addressed displaced Colombian children in general, 18,000 children were individually identified to the Court. The Court ordered the State to address these children’s specific situations. Displaced children were heard at a public technical information hearing held on 28 June 2007 before the same Chamber and their testimony was cited throughout the judgment.

Enforcement and other outcomes

The Court ordered the relevant State authorities, under the coordination of Acción Social, to:

(i) design and implement a new programme specifically aimed at the protection of displaced children. The programme shall focus on: (1) preventing the disproportionate impact of forced displacement on children; and (2) giving attention to displaced children;

(ii) design and implement fifteen (15) pilot projects across Colombia to address risks related to armed conflict and the most concerning specific problems; and

(iii) give specific attention to the approximately 18,000 displaced children whose individual circumstances were reported to the court.

Progress in this regard was monitored directly by the Constitutional Court through autos (see auto 756 of 2018). Auto 756 of 2018 offered a full review of the extent to which the State implemented the measures ordered by the Court. Existing public policies aimed at forcibly displaced children were deemed inadequate, and the State’s level of compliance to orders issued in Sentence T-025-04 and Auto 251 was deemed low. The Court ordered a series of concrete actions to redress this situation.

Significance of the case from a CRSL perspective

The case highlighted barriers to the enjoyment of displaced children’s rights (including right special protection, right to food, right to physical and mental health, right to education and right to participation). It also resulted in increased legal protection of children’s rights in this and future CRSL cases through its identification of legal provisions obliging the State to provide a differential treatment to displaced children which meets their specific needs.

Through detailed analysis of the causes and features of forced displacement of children, the Court identified the complexity of factors that prevent children from enjoying their constitutional right and which must be addressed in a targeted and appropriate manner in order to ensure the effective enjoyment of rights of forcibly displaced children. These include cultural and social factors on a family, community and national level.

Country

Colombia

Forum and date of decision

Constitutional Court, Second Review Chamber, Republic of Colombia / Corte Constitucional, Sala Segunda de Revisión, República de Colombia

October 6, 2008

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

Colombian State Entities addressed by the Auto:

NGOs to be involved in the design of programmes ordered by the Auto:

Amicus curiae:

Other relevant entities/parts:

Case documents

  • Auto N° 251 de 2008

  • 'Informes De La Comisión' (Consultoría para los Derechos Humanos y el Desplazamiento (CODHES)) <https://codhes.wordpress.com/comision-de-seguimiento/informes-de-la-comision/> accessed 30 March 2022

  • Nal, 'Primera Infancia, Niñez Y Adolescencia En Situación De Desplazamiento Propuesta De Indicadores De Goce Efectivo De Derechos' (National University of Colombia and Plan International 2011) <http://equidadparalainfancia.org/wp-content/uploads/2011/10/Desplazamiento-INDICADORES-DE-GOCE-EFECTIVO-DE-DERECHOS-OBSI.pdf> accessed 30 March 2022

  • 'Lineamientos Jurídicos Y Administrativos Del Estado Colombiano Para La Atención A Los Niños, Niñas Y Adolescentes Desvinculados Del Conflicto Armado' (Procuraduría General de la Nación and UNICEF Bogotá DC, Colombia 2006) <https://www.acnur.org/fileadmin/Documentos/Publicaciones/2007/5523.pdf?view=1> accessed 30 March 2022

  • 'Estado Nutricional, De Alimentación Y Condiciones De Salud De La Población Desplazada Por La Violencia En Seis Subregiones Del País' (World Food Programme 2005) <https://documents.wfp.org/stellent/groups/public/documents/liaison_offices/wfp086486.pdf> accessed 30 March 2022

  • Ojeda G, and Murad R, Salud Sexual Y Reproductiva En Zonas Marginadas (Asociación Probienestar de la Familia Colombiana (Profamilia) and Agencia para el Desarrollo Social (USAID) 2005) <https://repositorio.unal.edu.co/handle/unal/53238;jsessionid=DAA04FD22ABB0D8BFB85FE4C61BFE95F>

  • UN Committee on the Rights of the Child: Concluding Observations, Colombia CRC/C/COL/CO/3, 8 June 2006 <https://www.refworld.org/docid/45377ee30.html>

  • UN General Assembly, Children and armed conflict: report of the Secretary-General, 21 December 2007, A/62/609–S/2007/757, 21 December 2007 <https://www.refworld.org/docid/479f54592.html>

  • General Secretariat, Organization of the American States, 'Violence And Discrimination Against Women In The Armed Conflict In Colombia' (Inter-American Commission on Human Rights 2022) <https://www.cidh.oas.org/pdf%20files/InformeColombiaMujeres2006eng.pdf> accessed 30 March 2022

Secondary documents

  • 'Volver A Estudiar, La Agonía De Los Niños Desplazados' (Vanguardia, 2013) <https://www.vanguardia.com/colombia/volver-a-estudiar-la-agonia-de-los-ninos-desplazados-DCVL235305> accessed 30 March 2022

  • 'Acción Integral Contra Minas Antipersonal - AICMA' (Government of Colombia) <http://www.accioncontraminas.gov.co/AICMA> accessed 4 April 2022

  • Patiño-Montaña Y, 'Cómo Vive El Desplazamiento La Población Infantil Aquitanense, Víctima Del Conflicto Armado' (2018) 14 Derecho y Realidad <https://doi.org/10.19053/16923936.v14.n28.2016.7816>

  • González Ocampo L, and Bedmar Moreno M, 'Población Infantil En Situación De Desplazamiento Forzado En Colombia Y Sus Manifestaciones De Ciudadanía' (2016) 2 Derecho y Realidad < https://doi.org/10.19053/16923936.v2.n24.2014.4548>

  • Sánchez Cubides P, 'La Política Pública Como Garantía De Derechos De La Primera Infancia En Colombia' (2018) 16 Derecho y Realidad <https://doi.org/10.19053/16923936.v16.n31.2018.9105>

  • UNICEF Colombia, 'Infancia En Tiempos De Guerra: ¿Los Niños De Colombia Conocerán Por Fin La Paz?' (UNICEF 2016) <https://www.unicef.org/sites/default/files/press-releases/glo-media-UNICEF_CHILD_ALERT_COLOMBIA_ESPANOL_19_03_16__FINAL.pdf> accessed 4 April 2022

  • Alianza por la Niñez Colombiana, 'Niñez víctima de un conflicto armado que persiste. Informe de seguimiento a la implementación de recomendaciones del Comité de los Derechos del Niño a los informes periódicos IV y V combinados de Colombia' (2018) <https://www.refworld.org.es/pdfid/5bec60444.pdf>

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United States of America, Domestic Gisela Sin Gomiz United States of America, Domestic Gisela Sin Gomiz

Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons, 543 U.S. 551 (2005), No. 03-633 - United States of America

Background

Simmons was convicted of committing a murder carried out when he was 17 years old and sentenced to death when he was 18. The case centred on whether the death penalty constituted cruel or unusual punishment as prohibited under the Eight Amendment to the United States Constitution when applied for offences committed while under the age of 18.

Reasoning

The Supreme Court held that the prohibition against “cruel and unusual punishments” (543 U.S. 551, 6 (2005)) must be interpreted according to its text, history, tradition, purpose and the evolving standards of decency that mark the progress of a maturing society. Citing earlier case-law (Atkins v. Virginia), the court determined that society views children as “categorically less culpable than the average adult criminal” (543 U.S. 551, 13 (2005)). Therefore, the Eighth Amendment requires the rejection of the imposition of the death penalty for offences committed under the age of 18.

The Court relied on three general differences between children and adults in its reasoning. First, the acts of children are “less morally reprehensible” (543 U.S. 551, 15-16 (2005)) than adults because of their level of maturity. Second, children are more susceptible to negative influences and pressure. Third, the character of children is not as fully formed as that of an adult.

The Court held that “when a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity” (543 U.S. 551, 4 (2005)).

Remedy

The Supreme Court declared that the Eighth and Fourteenth Amendments forbid imposition of the death penalty for offences committed by persons who were under the age of 18 at the time when the crime was committed. The decision of the Missouri Supreme Court (State ex Rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003)) to set aside Simmons’ death sentence in favour of life imprisonment without eligibility for release was affirmed.

Role of children

The plaintiff was sentenced to death at age 18 for committing a murder at age 17 and filed the petition for state post-conviction relief.

Enforcement and other outcomes

The death penalty was immediately abolished for all offences committed by persons under the age of 18 within the United States. The decision rendered unconstitutional the legislation of 19 states at that time, of which six states had carried out executions since 1989 for crimes committed as children. The court order also cancelled the death sentences of approximately 70 people for crimes they committed while younger than age 18, leading to resentencing.

Significance of the case from a CRSL perspective

This case abolished the death penalty for offences committed under the age of 18 overturning the sentences of every person in the United States serving such a sentence and prohibiting any jurisdiction within the country imposing the sentence. The judgment also paved the way for future strategic litigation before the United States Supreme Court against sentences of life without the possibility of parole for offences committed by children, which built on the reasoning of the Court in applying the Eighth Amendment prohibition on cruel and unusual punishment. The American Psychological Association intervened, introducing evidence of the psychological development of children throughout adolescence, which became an important part of future US litigation relating to the sentencing of children. Litigants also cited the UN Convention on the Rights of the Child (CRC) in their submissions, which was explicitly cited in the Court’s judgment (543 U.S. 551, 22 (2005)), despite the fact that the United States has not ratified the CRC. This development laid the foundation for the use of the CRC in future cases before the Supreme Court, recognising that the affirmation of certain fundamental rights by other nations highlights the relevance of those same rights within the U.S. legal system.

Country

United States of America

Forum and date of decision

Supreme Court of the United States

1 March 2005

CRC provisions and other international law provisions

Domestic law provisions

Related information

For the petitioner:

  • Stephen D. Hake, Assistant Attorney General, Jefferson City, Missouri

For the Respondent:

  • Jennifer Herndon

Amici curiae:

Further Information on the representation of Christopher Simmons

Case documents

Link to the decision Roper, Superintendent, Potosi Correctional Center v. Christopher Simmons, 543 U.S. 551 (2005), No. 03-633

Secondary documents

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Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

Constitutional Court of Colombia, Sentencia T-025 de 2004 - Colombia

Background

This case involved 108 files that had been joined by the Court. These concerned 108 tutela actions submitted by 1150 family units, all belonging to the displaced population, and composed mainly of women heads of household, elderly persons and children, as well as some indigenous persons. A number of these tutela actions were filed by civil society organisations on behalf of displaced persons. The complainants claimed that authorities were not fulfilling their mandate to protect the displaced population in terms of fundamental rights enshrined in the Constitution and were failing to respond effectively to the complainants’ requests for housing, health care, education, humanitarian aid and access to state aid for their integration into the labour market and the implementation of economically profitable projects. The majority of these tutela actions had been rejected by the judges at the lower courts.

Reasoning

The Court stated that due to the conditions of extreme vulnerability in which the displaced population finds itself, as well as the repeated omission to provide them with timely and effective protection on the part of the various authorities responsible for their care, the rights of both the actors in the case and the displaced population in general were violated. Specifically, it referred to the right to a dignified life and to personal integrity (Arts. 1 and 12 of the Constitution and UN Guiding Principles 1, 5, 6, 8, 10, 11, 12, 13 and 15), to equality (Art. 13 of the Constitution and UN Guiding Principles 1 to 4, 6, 9 and 22), to petition, to work and to social security (Art. 6 of the Constitution , Law 387 of 1997 and UN Guiding Principles 1, 3, 4, 11 and 18), to health (Arts. 49 and 50 of the Constitution and UN Guiding Principles 1, 2 and 19), to education (Art. 67(3) of the Constitution and UN Guiding Principle 23), to the minimum conditions for life (UN Guiding Principles 18, 24 and 27) and to the due special protection (Arts. 42 and 44 of the Constitution and UN Guiding Principles 2, 4, 9 and 17) for the elderly, women heads of household and children.

The Court defined the minimum levels of protection that must be guaranteed in a timely and effective manner to the displaced population in the face of insufficient resources or deficiencies in institutional capacity. According to the Court, this determination of minimum standards implies that “(i) in no case may the essential core of the fundamental constitutional rights of displaced persons be threatened and (ii) the State has to satisfy the minimum level of the rights to life, to dignity, to physical, psychological and moral integrity, to family unity, to the provision of urgent and basic health services, to protection against discriminatory practices based on the condition of being displaced, and to the right to education up to the age of fifteen in the case of children in a situation of displacement.” (p. 32).

The existence of an unconstitutional state of affairs with regard to the situation of the displaced population was declared by the Court on the basis of the lack of concordance between (a) the seriousness of the impact on constitutionally recognised rights developed by law, and (b) the volume of resources allocated to ensure the effective enjoyment of such rights and the institutional capacity to implement them. The Court also relied on the high number of tutela actions filled by displaced persons, which confirmed the impact these violations had had on a large part of this population group, and the structural nature of the issue, since the violations were attributable to various state bodies.

Remedy

The Court ordered a series of actions related to the unconstitutional state of affairs aimed at guaranteeing the rights of the entire displaced population, regardless of whether they had sought protection of their rights through tutela actions. The aim with the order was to force the government to reassess and restructure the actions or omissions that led to the violation of the Constitution and legislation in the shortest possible time, providing sufficient opportunities for the participation of displaced people’s representatives, to ensure that displaced people, including children, could effectively enjoy their rights. The Court also ordered a series of actions aimed at responding to the specific requests of the complainants in the tutela action in line with the Court’s previous jurisprudence on the rights of displaced population. These actions included: (i) addressing requests to access financial support programmes (including temporary jobs, business projects, training and food security) and housing, (ii) determining whether requests for registration in the Unified Registry of Displaced Populations meet the objective conditions of displacement and, if so, giving them immediate access to the assistance envisaged for their protection, (iii) effectively granting the requested humanitarian aid to those who applied for it, (iv) guaranteeing the complainants’ effective access to the health system, ensuring that they are provided with the required medicines, (v) ensuring effective access to the education system for children until the age of fifteen and (vi) registering information regarding displaced people’s land properties in order to effectively protect them.

Role of children

Children were petitioners in the tutela actions. They were represented by adults, mostly legal representatives of the civil organisations involved.

Enforcement and other outcomes

The decision forced the government to reassess and restructure the actions and omissions that led to the violation of the Constitution and the legislation in the shortest possible time to ensure that displaced people, including children, could effectively enjoy their rights. The court ordered a series of concrete actions to be carried out by the authorities to this end. This decision is followed by two orders (Autos 251-05 and 756-08), which focus specifically on assessing and monitoring the rights of displaced children. In these Autos, the Constitutional Court described progress in this regard as “low”.

Significance of the case from a CRSL perspective

Although the litigation was not brought solely to protect the rights of displaced children, its aim was to stop the massive violation of fundamental rights of displaced people, which affects displaced children as well. The decision forces the government to reassess and restructure the actions or omissions that led to the violation to ensure the effective enjoyment of the rights of this vulnerable group. This implies the obligation to adopt clear policies in favour of displaced people, including children. The state of unconstitutional affairs enables the Constitutional Court to make the effects of the decision applicable to all and to directly monitor compliance with the ruling (see Autos 251-08 and 756-18).

Country

Colombia

Forum and date of decision

Constitutional Court, Third Review Chamber, Republic of Colombia/Corte Constitucional, Sala Tercera de Revisión, República de Colombia

22 January 2004

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

  • Municipal ombudsman of Neiva - Jorge Osorio Peña

    Personería de Neiva

    Calle 8 no. 12-22 Neiva-Huila

  • Fundación Ayudémonos FUNDAYUDE - Javier Augusto Silva Madero, legal representative

  • Asociación Humanitaria de Colombia (ahudeco@hotmail.com) - Jorge E Peralta de Brigard, legal representative

  • Asociación de Desplazados del Caribe Colombiano - Juvenal Navarro Arroyo, legal representative

  • Asociación por un mejor vivir feliz - Deyanira Herrera, legal representative

  • Asociación Nueva Vida (alonsovifi@hotmail.com) - Eduardo Orozco, legal representative

  • Asociación Nuevo Horizonte - Pedro Pacheco, legal representative

    Calle 1B # 55 – 74 Cali-Colombia

  • Asociación Desplazados Unidos - Ismael Maestre, legal representative

  • Asociación Asodespente - Juan Montes, legal representative

  • Asociación Justicia y Paz (cauca@justiciaypazcolombia.com) - Jony Meriño, legal representative

  • Asociación Renacer (asorenacer@yahoo.es) - Luis Carlos Fernández, legal representative

  • Asociación de Familias Desplazadas (ASOFADECOL) (luzmarinac59@yahoo.es) - Henry Rivera Acosta, legal representative

  • Asociación de Personas Desplazadas de Fonseca, ADESFONGUA - Eustacio Fonseca Barraza, legal representative.

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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Domestic, Philippines Gisela Sin Gomiz Domestic, Philippines Gisela Sin Gomiz

Minors Oposa v. Secretary of the Department of Environment and Natural Resources 33 I.L.M. 173 (1994) - Philippines

Background

This action was initiated by (among others) a group of children in the Philippines, who represented themselves and generations yet to be born, and The Philippine Ecological Network, Inc.  They demanded that the Department of Environment and Natural Resources (“DENR”) discontinue existing and further timber license agreements (“TLA”) in view of deforestation, on the basis of a fundamental right to a balanced and healthful ecology which was embodied in the Constitution and various legislations.  Their action was however dismissed at lower court on the basis that (i) there was a lack of a legally recognised wrong giving raise to the claim, (ii) the issue raised was a political question and (iii) on the ground of the non-impairment of contracts clause in the Constitution. The applicants appealed to the Supreme Court, which had to rule on whether there was a legally recognised wrong that could give raise to a claim to "prevent [and stop] the misappropriation or deterioration" (p. 2) of the Philippine rainforests.

Reasoning

The Supreme Court first considered the procedural issue in respect of standing, which it concluded that not only were the child applicants entitled to represent themselves and others of their generation, they were also entitled to sue on behalf of the future generations based on the concept of intergenerational responsibility.  By asserting their right to a healthy environment, the applicants were also, at the same time, performing their obligation to protect the right to full enjoyment of a balanced and healthful ecology for the future generations.

The Court recognised that the right to a balanced and healthful ecology was so fundamental that it was “assumed to exist from the inception of humankind” (p. 9).  Such right was provided for in the Constitution and various legislations, hence imposing upon the state a correlative obligation to preserve the right to a balanced and healthful ecology. DENR’s duty to protect and advance the right to a balanced and healthful ecology was also clearly stated under its mandate and by virtue of its statutory powers and functions. Hence, DENR’s refusal to refrain from harming the environment by continuing to grant and/or renew the TLAs would therefore constitute a legally recognised wrong that could give raise to a claim, as it was an act or omission in violation of the plaintiffs’ legal rights.  The Court further concluded that the issue in question was not one concerning policy formulation or determination by the state, rather, it involved the enforcement of a certain right in the face of formulated policies and written legislation.  Lastly, the court considered that all TLAs could be revoked or rescinded by executive action, given that the TLAs were simply instruments for the state to regulate the utilization and disposition of forest resources, instead of contracts or properties being protected by the Constitution.

Remedy

The court found in favour of the applicants and set aside the lower court’s dismissal order. The Court ruled that the applicants might amend their complaint to include as respondents the holders or grantees of the challenged timber license contracts.

Role of children

Forty-five children based in the Philippines were the applicants in this case and asserted their rights to a balanced and healthful ecology.  The children applicants also represented the succeeding generations based on an intergenerational responsibility.

Enforcement and other outcomes

In practice, the case did not result in the cancellation of the existing TLAs. Indeed, since the early 1990s the issuance of TLAs had been discontinued. However, it had an immediate effect contributing to forest protection in the Philippines: a logging ban from 1991 was imposed in old-grown forests and the number of TLAs holders was reduced. Legal remedies to stop threats or degradation to the environment are now available and documented in the Rules of Procedure for Environmental Cases (2010).

Significance of the case from a CRSL perspective

This case declared that the constitutional right to a balanced and healthful ecology is justiciable. More importantly, this case expressly confirms the standing of future generations to sue, where future generations would be able to assert their rights through the present generations.  As a result, this case paved the way for other strategic litigation cases on the basis of intergenerational equity and justice, and has since opened up opportunities for future child rights litigation particularly in the area of climate litigation (e.g Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay) as well as being cited in by litigators in other countries seeking to assert the environmental rights of children and future generations.

Country

Republic of the Philippines

Forum and date of decision

Supreme Court

July 30, 1993

CRC provisions and other international law provisions/sources

Not applicable

Domestic law provisions

Related information

For the applicants: No information available.

For the Respondent:

Case documents

Minors Oposa v. Secretary of the Department of Environment and Natural Resources 33 I.L.M. 173 (1994)

Secondary documents

Child Rights International Network, ‘Submission for the report of the Special Rapporteur on human rights and the environment on healthy ecosystems and human rights: sustaining the foundations of life’ (May 2020)

Rachel Johnston, "Lacking Rights and Justice in a Burning World: The Case for Granting Standing to Future Generations in Climate Change Litigation”, Tilburg Law Review 21 (2016) 31-51

Zena Hadjiargyrou, ‘A Conceptual and Practical Evaluation of Intergenerational Equity in International Environmental Law’, International Community Law Review 18 (2016) 248-277 

Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’, The Georgetown Environmental Law Review, Vol 32:569, 569-589

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