Means of enhancing the guarantees of trial of children in the context of the constitutional entitlements

Prof. Mohammad Ahmad

Introduction:

Before delving into the guarantees of trials, in general, and children’s trials, in particular, and the significance of this as the child represents a member of the family, which is considered the basic unit of society and the natural environment for the growth and well-being of all individuals, and because the child needs, due to his physical and mental immaturity, special protective measures and care, including appropriate legal protection, the international community recognized the importance of this and adopted the International Convention on the Rights of the Child, which was signed by 193 countries, including the Arab Republic of Egypt, which ratified the Convention on 24/5/1990 and it came into effect on 2/9/1991. Then the convention became binding to the State as Article 93 of the Egyptian Constitution 2014 stipulated that: “The State is committed to adhere to the agreements and international covenants and conventions and pacts on human rights that were ratified by Egypt, and they acquires the force of law after publication according to the established procedures.”

The principles of this Convention are summarized in the term “non-discrimination”. Efforts are being made for maintaining the best interests of the children, their right to survival, their right to develop and the right to respect the child’s opinion. This agreement includes fair trial guarantees for children accused of violating the provisions of the Penal Code.

Accordingly, the Egyptian Constitution was made to comply with these principles and Article 80 stipulated the following: “A child is an individual who is under the age of eighteen years of age and every child has the right to have a name, identification papers, compulsory vaccinations, free and health care, and original family or alternative family care, basic nutrition, shelter, religious education, intellectual and educational development; the State shall guarantee the rights of children with disabilities and their rehabilitation and integration into society. The State shall be committed to the taking care of and protecting the child from all forms of violence, abuse, maltreatment, sexual and commercial exploitation; every child is entitled to get early education in a childhood center up to the age of six years. It is prohibited to force children to work before the age of completion of basic education and it is prohibited to make them work in jobs that endanger their lives. The state is committed to establishing a special judicial system for child victims and witnesses. It is not permissible to hold a child accountable of a crime or detain him except in accordance with the law and for the periods specified therein. He shall be provided with legal assistance and shall be detained in appropriate places not the places dedicated for the detention of adults. The state shall work on maintaining the best interests of children in all procedures taken against them. “Thus, means of strengthening the guarantees of the trials of children in the context of constitutional entitlements require that we should first define the fair trial of children and secondly the guarantees that the accused child enjoys during the trial and the practical reality.

First: the definition of a fair trial of children

Within the framework of the international concept of human rights, the concept of criminal justice aims at that the human being should enjoy certain guarantees both in the pre-trial stage, during the trial or after the trial. Hence, the national legislation of any country takes these criteria into account. The Egyptian Constitution set a number of guarantees in the third section which is dedicated for rights, freedoms and public duties. These guarantees are summarized as follows:

  1. The right of the accused to be informed of his rights

Article 54 of the second paragraph of the Egyptian Constitution stipulates that “… anyone whose freedom is restricted shall be immediately informed of the reasons of this and shall be informed of his rights in writing…”

  1. The right of a person to be informed of the reasons of arresting him

Article 54 of the second paragraph of the Egyptian Constitution stipulates that “… anyone whose freedom is restricted shall be immediately informed of the reasons of this and shall be informed of his rights in writing…”

 

 

  1. The right to choose a lawyer

Article 54 of the Egyptian Constitution stipulates that: (an arrested person) would be enabled to contact his family and his lawyers immediately and be sent to the investigating authority within 24 hours from the time of restriction of his freedom; the investigation shall not be initiated unless in the presence of his lawyer. If he does not have a lawyer, a public lawyer shall be assigned to him. Under all circumstances, the defendant may not be tried for crimes in which he may be imprisoned for except in the presence of his lawyer or an assigned lawyer.”

  1. The right not to be subjected to torture

Article 52 of the Constitution states that: “Torture in all its forms represents a crime that is not dropped by the passage of time.”

Article 55 of the Constitution stipulates that “Anyone who is arrested, imprisoned or whose freedom is restricted shall be treated with dignity and shall not be subjected to torture, intimidation, coercion or any physical or moral harm …”

  1. The right not to use against him sayings, statements or confessions obtained by torture

Article 55 of the Constitution stipulates that: “Anyone who is arrested, imprisoned or whose freedom is restricted shall be treated in a manner that preserves his dignity and shall not be subjected to torture, intimidation, coercion or any physical or moral harm; his detention or imprisonment shall be confined to places designated for that purpose. The state shall be obliged to provide necessary facilities for the disabled and not abiding by this is considered a crime punishable by law. The accused shall have the right to remain silent, and any confessions proved to have been taken from a detainee through previously mentioned means or through threatening of using them shall be considered null and void”

6 – Application of the principle of legality

Article 95 of the Constitution stipulates that “penalty is imposed on the doer of the crime; crime or penalty shall be imposed only under a law and no penalty shall be imposed except by virtue of a judicial verdict and that penalty shall only be imposed relevant to acts committed subsequent to the date the law entered into force.”

Article 54, paragraph one of the Constitution provides that “personal freedom shall be a natural right and shall be inviolable and, except if an individual is caught in the act of committing an offense, no one shall be arrested, searched, imprisoned or his freedom shall be restricted in any way except by reason of an investigation warrant”

Article 58 of the Constitution stipulates that: “For the purposes of the law, except for cases of danger or calling for help, houses may not be entered, searched, monitored or eavesdropped except through a reasoned judicial order specifying the place, timing and purpose as per conditions mentioned in the law and in the manner specified in it. When entering or inspecting houses, residents should be warned and they should be shown the order issued in this regard).

Article 95 of the Constitution stipulates: “penalty is for the doer of the crime; crime or penalty shall be imposed only under a law and no penalty shall be imposed except by virtue of a judicial verdict; penalty shall only be imposed relevant to acts committed subsequent to the date the law entered into force.”

  1. Presumption of innocence

Article 96 of the Constitution stipulates that “the accused shall be presumed innocent until proven guilty in a fair trial in which he shall be guaranteed to defend himself …”.

  1. Elements related to the court (jurisdiction for the court – independence of the judiciary system – impartiality)

–  Jurisdiction of the Court

Article 80 of the Constitution stipulates that “… the State shall also undertake to establish a judicial system for child victims and witnesses …”

  • Independence and impartiality of the judiciary system

Article 94 of the Constitution stipulates that “the rule of law shall be the basis of the rule and the State shall be abiding by the law; the independence of the judiciary, its immunity and its impartiality are the sole guarantees for the protection of rights and freedoms.”

Article 184 of the Constitution stipulates that “the judicial authority shall be independent and shall be practiced by courts of various types and degrees and they shall issue their judgments in accordance with the law. The law shall specify their powers; interference in matters related to justice is a crime that is not dropped by the passage of time.

Article 186 of the Constitution states: “Judges are independent and cannot be sacked from their jobs. Only law governs their functioning. They are equal in rights and duties … in a manner that preserves the independence of the judiciary and judges and their impartiality and prevents conflicts of interest. The law defines the rights, obligations and guarantees prescribed for them)

In a nutshell, trial guarantees were mentioned in the new constitution and they did not differentiate between adults and children. The Criminal Procedures law and the Penal Code regulate these rights in general. Law 12 of 1996, amended by Law 126 of 2008 regarding children, provides for special procedures for children’s trials as article 122 of the Penal Code stipulates that “Child court shall be competent only in the matters relevant to children when they are charged of committing one of the crimes or became delinquent …. In exception of the provisions of the previous paragraph, the criminal court or the Supreme State Security Court, as the case may be, shall have competency to consider cases of crimes in which a child exceeding the age of fifteen years at the time of the occurrence of the crime, is involved, if an adult participates in committing the crime, and it was necessary to file a criminal case against the adult jointly with the child. In this case, the court must look into the all aspects of the life of the child before passing its verdict. It might resort to experts it deems necessary in those fields.).

This also led to the formation of special courts comprising social experts to try children. Article 121 states that: “The child court shall consist of three judges. The court shall be assisted by two experts, one of them at least shall be a female. Their presence during the trial proceedings shall be obligatory. The two experts shall submit their report of all aspects of the life of the child to the court before the court issues its verdict … and the appeal of the judgments issued by the child court shall be submitted to an appellate court that is formed in each court of first instance comprising three judges, two of them at least shall be presidents of courts and the provisions of the two preceding paragraphs should be taken into account in the formation of the court.

The law also exempted from penalty the children who did not exceed twelve years of age at the time of the commission of the crime. Article 94 of the Penal Code states that “criminal responsibility shall not be imposed on a child who has not exceeded full twelve Gregorian years at the time of the commission of the crime. However, if the child has exceeded the age of seven and has not exceeded twelve years of age and he committed an offense that represents a felony or a misdemeanor, the child court shall only be competent to consider his case and it can give its verdict as per one of the measures provided for in Articles 1, 2, 7, and 8 of Article 101 of this law; the law does not punish children, who have not been older than five years of age at the time of the commission of the offense, with freedom restricting penalties. However, the law set up provisions relevant to measures for reforming them; Article 101 stipulated that (one of the following measures shall be taken against a child who has not exceeded the age of fifteen calendar years if he committed a crime:

1 – Reprimand

2- Handing him over  to parents

3 – Accession to training and rehabilitation

4 – The obligation to perform certain tasks

  1. Judicial examination

6 – Work for the public benefit in such a way that does not harm the physical or psychological health of the child. The executive regulations of this law shall specify the types and controls of this work.

7 – Admission to a specialized hospital

8- Admission to a social care institution

Article 111 stipulates that “If a child who is over 18 years of age commits an offense, he shall be sentenced to death, life imprisonment, or aggravated imprisonment. And without prejudice to the provisions of article 17 of the penal code, if a child who is over 15 years old committed a capital offense, that is punishable by death sentence, life imprisonment, or aggravated imprisonment, he shall be imprisoned, and if the crime is punishable by imprisonment, he shall be sentenced to a period that is not less than 3 months….)

As it is decided in Article 119 (the child who did not exceed fifteen years of age may not be provisionally imprisoned and the public prosecution may admit him to one of the observation facilities for a period that does not exceed one week and to send him back at demand if the circumstances of the case call for keeping him in custody. The period of custody should not exceed one week unless the court orders the extension of this period in accordance with the rules of preventive detention provided for in the law of proceedings.

It also mentioned the rules prescribed by the Procedures law, for which no provision was made in the Children’s Law no. 124 and the prevention of taking a civil action against the child (129). It also stipulates the necessity of the presence of a lawyer with the child in cases relevant to crimes and misdemeanors punishable by imprisonment in both stages of investigation and trial (125). It also banned the enforcement of summoning by means of physical coercion (139) and exempted the child from fees (140).

Al the above show that the Constitution and the legislations have produced the guarantees that ensure a fair trial of children, but the practical reality shows flaws in applying these guarantees.

Examples indicating a presence of flaws in the application of the law

1 – A child named A.M.A whose age is 13 years was accused in case No. 1128 for the year 2013, delinquent children, Cairo, of committing (rape); a report was filed against him accusing him of raping a child. He was arrested from his house without obtaining a warrant from the prosecution to arrest him and. When the court considered his case it adjudicated the acquittal of the child. However, the prosecution appealed the verdict.  At the appellate session the child came in the company of his parents, without a lawyer. The court unanimously annulled the acquittal verdict and sentenced him to imprisonment for one year, in violation of article 101 of Law 12 of 1996, amended by Law 126 of 2008 which stipulated that “A child who is under the age of fifteen shall be punished by one of the following measures…. “The child challenged the ruling in the court of cassation, but he remained in custody for two months in Al Marg Penal Institution until the completion of the procedures of challenging the verdict and the sentence was suspended till the challenge is considered.

2 – A Child named H.A.H who is 16 years old was accused, in the case No. 677 of 2016, misdemeanor, children cases, Giza, of participating in a demonstration without a permit and he was arrested in the street on the day of “Al Ard” demonstrations; he was going out of a facility where he received private tuition and was walking in the street when he was arrested; after being detained for three days he was released. However, the court of misdemeanors sentenced him to 5 years of imprisonment in absentia without notifying him of the date of the session. The child challenged the verdict but he did not attend the session personally because he was taking his midyear exams. His lawyer attended with a power of attorney. The challenge was considered null and void, the court rejected postponement to give the child the chance to attend and appealing the verdict. The court acquitted the child.

  1. A child named M.M.A who was aged 16 years was accused in case No. 699 of 2015, Supreme State Security case; he was arrested at his house at dawn on charges of joining a banned group without having a permission from the prosecution to arrest him or search his house; the warrant was issued seven days after his arrest. Upon his arrest, his mother sent telegraphs to the Attorney General and the Minister of the Interior complaining about what had happened. It was confirmed that he was arrested but he was held in custody for three months and then released. The case is still under investigation up till now.

conclusion

At the end, we hope to activate the Child law and all its provisions so that the purpose of the legislators relevant to achieving better justice for the benefit of all the society can be carried out and we wish to add reconciliation approaches in extensive way to child cases in order to achieve the best interest of the child. We also hope that there will be specialists comprising policemen, prosecutors and judges to deal with children in conflict with the law.

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