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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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, 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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