Sixteen-year-old Pheakdei and Sakngea (not their real names) were jailed for two years for stealing a mobile phone worth just $20. The boys spent 18 months in detention awaiting trial, which was postponed twice because the prosecutor did not turn up, and once their case was heard they were sentenced to six months in prison – despite already having served time.
It’s not unusual for minors to have their human rights violated in Cambodia’s judicial system, say INGO workers in the region, despite ratification of the UN Convention on the Rights of the Child (UNCROC) in 1992.
Cambodian children are often held in pretrial detention where they wait months to have their cases heard; are tried without legal counsel in ordinary criminal courts; are given long and inappropriate sentences for petty crimes such as theft; and are placed in adult jails, where they can experience physical and sexual abuse from adult prisoners and prison staff. Child witnesses and victims of crime are also often subjected to violations, including giving testimony in open court, where they have direct exposure to the perpetrator and their supporters, and they can face harsh cross-examination.
The impact of this system on minors can be great. As Kimleng Ouk, the legal director of Legal Aid Cambodia (LAC), a Khmer-run INGO that offers pro bono legal services to Cambodia’s poor, says, children in contact with the law are at risk of “prolonged interruption to their family life, education and their personal development”.
However, a major initiative seeks to make a difference. Children’s Rights International (CRI), an Australian-based organisation that promotes the rights of children mainly in developing countries, is working in partnership with LAC, as well as the department of justice (through a joint working party consisting of government and a range of NGOs such as Unicef and Save the Children) to introduce a child-friendly legal system in Cambodia.
“Children represent the future of Cambodia,” says Alastair Nicholson, CRI’s chair and a former chief justice of the family court of Australia. “If the system respects their human rights, children are more likely to develop as law-abiding citizens and the future is good. If not, it is bleak.”
CRI’s programme related to Cambodia’s treatment of children will run over the next three years, and longer if necessary. It will consist of mainly volunteer Australian legal and social justice professionals who will work with Cambodian judges, prosecutors, court administrators, police, correction officials and others to raise awareness and expertise of child-friendly procedures that are in line with UNCROC principles.
The programme will include the treatment of child offenders, victims and witnesses; the development and implementation of diversion programmes for child offenders away from the criminal justice system; improvement of court administration and case management in relation to children; and the care, custody and protection of children in contact with the law.
CRI’s programme coincides with the Cambodian government’s draft juvenile justice law, which is anticipated to come into effect in 2013 after an 11-year gestation. Nicholson says that while this law won’t create a separate specialist children’s court, it is expected to incorporate important reform around non-custodial sentencing of minors and their diversion from the traditional justice system. CRI’s programme, with its educational and training focus, will help Cambodia’s police officials, prosecutors, judges, local authorities and community organisations, who often lack understanding of children’s rights, in applying this law.
The CRI programme and the new law come at a critical time. According to figures provided by Unicef, there has been a 92 percent increase in the number of under-18s in prison – from 403 in 2005 to 772 in 2010. These figures in large part reflect the hardship and turmoil caused by Cambodia’s history. French colonialism, the Vietnam war, the genocide of the Khmer Rouge, a Vietnamese invasion and civil war have devastated the country economically and socially, leaving many youths to fall into conflict with the law just to survive.
Other NGOs have sought to address the violations children have been subjected to with a number of important services: monitoring and advocacy work; training professionals such as lawyers, prosecutors, judges and prison officials about best practice; offering legal representation to children; providing minors with healthcare, education and vocational programmes in prisons; and providing public education about the rights of children.
For example, LAC’s child justice programme trains government authorities and law enforcement officers in proper practices, establishes diversion programmes for children and advocates for the protection of children against unlawful pretrial detention.
“When LAC came, my life has changed,” says Nhean (not his real name), who was 12 years old when he went to jail for seven-and-a-half years for theft – a crime that he says he didn’t commit. He has never fully understood what he was supposed to have done.
“The beatings stopped. We had our own rooms [a small number of prisons have separate cells for children; however, they can have up to 50 children in them] so we did not have to be under the influence of the not-so-nice adult prisoners … I would have extra food, bathing materials and some laundry soap. They have encouraged us to learn some skills: hair cutting, electronics and motorcycle repair.”
The challenges are great. Institutional constraints, lack of resources, inadequate training of legal and social justice professionals in child-friendly approaches, low levels of cooperation, and corruption will all need to be tackled.
But there is hope.
Says Nicholson: “I think it fair to say that it [Cambodia] has adopted child-friendly principles and this project is about putting them into practice. The developments to date give rise to confidence that Cambodia is serious about achieving these objects.”