FROM INDIVIDUAL CASES TO SYSTEMIC CHANGE IN BURUNDI JUVENILE SYSTEMIn Burundi, the new Code of Criminal Procedure brought important judicial innovations, raising the age of criminal responsibility from 13 to 15 years and establishing an alternative to incarceration. The code also made legal representation mandatory for children under 18. Despite this significant legislative progress, it is clear that these innovations remain textual, as many children continue to face prosecution without legal representation. In order to bridge this gap between law and practice, International Bridges to Justice has provided support for 8 young children since April 2014. Among these cases, four juvenile defendants were prosecuted for rape, an offense that is severely punishable by law. Those cases are pending before Bujumbura Mairie courts where IBJ lawyers actively work to ensure fair trials to these children. One of the defense lawyers’ strategies is to get judges to refer to the new Penal Code, which states that for an offense wherein the accused is punishable by life imprisonment, a child is sentenced to five to 10 years of imprisonment. And for an imprisonment limited in time, the conviction, in practice, should not exceed four years. Lawyers also emphasized that sentences often reflect only the seriousness of the offense regardless of the offender's age. This strategy is beginning to bear fruit to the extent that a 16-year-old juvenile defendant, who was charged with robbery (who faced a sentence of five to 15 years if convicted), was sentenced to only eight months of imprisonment, which was the time the juvenile had already spent in jail awaiting trial. At the conclusion of the requests, the prosecution petitioned for a criminal sentence of one year, but the judge agreed with the IBJ lawyer’s request for a sentence of eight months. IBJ notes with satisfaction that even in difficult jurisdiction tangible changes can be made to influence the justice system positively. This position reflects the active role that IBJ lawyers play to encourage judges to make decisions that are in the spirit of the legislation when laws were enacted. Upon release, the young defendant called the IBJ lawyer who defended him, trembling with joy. He says he hopes to enroll in professional training courses, and hopes to earn a living to meet his needs and those of his family. IBJ believes that such approaches need to be replicated in other regions of the country in order to positively affect the lives of juveniles accused of crimes who are not lucky enough to have a lawyer. IBJ in Burundi is determined to continue such work, not only to bring joy to families of young children, but also to influence systemic change in the functionings of the juvenile justice system.
A JOY TO SEE AGAIN: A CHILD PROSECUTED WITH 10 YEARS OF IMPRISONMENT Thanks to the support of donors and supporters, the project,“Fight juvenile illegal detention in Burundi,” has experienced significant progress such that the number of children in pre-trial detention is decreasing.However, it is necessary to maintain the momentum in the fight against illegal juvenile detention. For the past 3 months, 5 cases involving minors were assisted in the province of Cibitoke and 1 case in Bujumbura rural. One case is about Celeus, the co-accused of theft of home articles. The principal accused, who had already avowed the crime after being caught with stolen articles in his possession, was given provisional release. The IBJ lawyer, Astère Muyango, argued that the specific juvenile procedures introduced by the new Code of CriminalProcedureswere violated. The defense lawyer showed different procedural irregularities, which, according to him, violated the provision of Article 224 of the new law that declares any interrogation of a minor under 18 years void when it does not take place in the presence of a lawyer or any other person duly authorized by the judicial authority in charge of the case and who also has knowledge of juvenile justice matters.The prosecution responded that the defendant was not a minor because he was 18 years old, having been born in 1996.At this point, the defense lawyer relied on the content of Article 29 of the Penal Code, which sets penalties when the offender is under 18 at the time of the offense. In this case, the acts Celeus was charged for occurred in 2013. The prosecution continued to call for the defense to produce a document that proved his client was indeed a minor; the defense said the burden of the proof belonged to the prosecution and that this should have been produced before the date of the hearing. The defense lawyer continued that in such a case, the court had to consider the age stipulated by the prosecution in his notes to the court.Thereafter, the prosecutor asked for an additional delay in order to summon the co-accused currently on bail. The defense said that this would violate legal provisions that protect minors since it is stipulated that the detention of a minor must be a measure of last resort. Since the prosecution did not do anything to summon the adult defendant on bail, the defense’s client should be released due to the prosecution’s negligence and the special protection afforded to the defendant. Lawyer Astère interviewing his client Lawyer Aline Nijimbere interviewing her clientA month later, one of Celeus’s family members called IBJ expressing his joy to once again see the child the prosecution had asked to punish with 10 years of imprisonment.Despite this step reached in the fight against illegal juvenile detention in Burundi, IBJ finds it imperative to continue conducting training with the police and prosecutors in order to put particular emphasis on the nullities found in law where juveniles are interviewed without a lawyer present.
2013 QUATERLY REPORT: FIGHTING ILLEGAL JUVENILE DETENTION IN BURUNDI
During the last three months, International Bridges to Justice (IBJ) has continued to assist children in conflict with the law, in the provinces of Bujumbura, Mairie, Bujumbura Rural, Mwaro and Cibitoke.
The roundtable discussions, organized by IBJ, focused on juvenile justice relevant innovations that have been brought about by the new Criminal Procedure Code. As a consequence of these discussions, it was noticed that there has been better implementation of Article 166 of the Code which mandates the defense of juveniles by a qualified lawyer. A notable example of the impact of IBJ’s work is the case of Bernard, 17, who was accused of rape. As per the law in Burundi, a person is considered to be a ‘juvenile’ if he/she is under 18 years of age. In Bernard’s case, the Court of Bujumbura, Rural refused to proceed with the matter since the 17 year old boy was not represented by a lawyer. The judges postponed the case to another date, and in the meantime, IBJ was called upon to assist in the matter. The network of juvenile legal aid providers in Bujumbura, ‘Coordination de l’assistance judiciaire des mineurs en conflits avec la loi’ refers many criminal cases to IBJ. One of its members has said about IBJ – ‘IBJ lawyers have proven their competencies in assisting children accused of crimes’.
Besides Bujumbura, Mairie and Bujumbura Rural, IBJ lawyers also assisted juveniles in the provinces of Mwaro and Cibitoke. These are two of the seven provinces in Burundi which do not have prisons situated within their geographical limits. This situation creates a unique problem for juvenile detainees. Since they are detained in prisons remotely situated from the competent court, their trials are not conducted in a timely manner. To overcome this challenge, itinerant hearings of the courts are organized to expedite the case of juveniles detained in these remote prisons. In the provinces of Cibitoke and Mwaro, transportation of Magistrates is supported by the Belgian Technical Cooperation.
One of the cases that IBJ has dealt, within these past three months, is a case of robbery wherein three children and two adult men have been jointly accused.
In this case, the two accused adults were not in detention; one of them had been released by the police, while the second had escaped from prison. What is shocking to note is that the case has been pending for a long time due to the absence of the two co-accused adults and, for this entire period, the three juveniles were detained in prison.
IBJ petitioned for the case to either be re-heard, or in the alternative, for the three juveniles to be released until the two co-accused adults are apprehended and brought before the court. Eventually, the Court decided to re-start the trial and Jean Claude Barakamfitiye represented the three juveniles on behalf of IBJ.
It is worth noting that significant improvements with relation to juvenile justice have been made by the new law on criminal procedure. The Code of Criminal Procedure now obliges trials involving children to be conducted in the presence of a lawyer or any other person skilled in juvenile justice matters. It also mandates that any interrogation of a child must be done in the presence of a lawyer or any other skilled person as directed by the court.
In the matter dealt with by Jean Claude Barakamfitiye, the children had not been interrogated in the presence of a lawyer. The defense demonstrated many irregularities in the evidence against the three children, which were to be considered by the Court. The defense argued that these children had been involved in the crime by adults who had, surprisingly, been released. The children stated before the Court that, “We had been promised payment for transporting these items. But we did not know that they were stolen goods”. This raised many doubts about the role of these children in the robbery. The prosecution argued that, from the confession of the children made to the police, it was evident that they had committed the crime. Eventually the prosecutor sought a sentence of 8 years of imprisonment for the three young children. Subsequently, the three boys were sentenced to 2 years of imprisonment.
For the year 2014, IBJ thinks it is necessary to organize trainings on criminal justice for juveniles since it has come to light that children are being prosecuted in an illegal manner. In the above mentioned case, the court was sensitive to the accused juveniles and agreed to conduct the trial in-camera. However, the prosecutor sought punishment of imprisonment of 8 years for the children although, according to the new criminal code of procedure, the maximum sentence against a child in conflict with the law may not exceed 4 years.
In total, IBJ has taken up thirteen cases in these past three months, and in January 2014, six other cases have been referred to IBJ via the network of the juvenile legal aid.
Contributing to Provide IBJ Lawyers to Every Minor Accused of Crimes in Three Judicial Provinces in BurundiDuring the last third quarter, International Bridges to Justice has continued its mission of supporting the Burundian judicial system in the implementation of the new provisions related to juveniles within the new Code of Criminal Procedure, which render the legal assistance for children accused of crimes compulsory.The new Code of Criminal Procedure also provides that the hearings in proceedings involving minors are held in camera sessions, even if in principle hearings are public. However, although the legal framework recently introduced seems to align with the content of the Convention on the Rights of the Child signed by Burundi in 1990, the daily practice seems to remain far from the written law.In order to contribute to reducing the gap between practice and the written law, International Bridges to Justice continues to provide legal assistance to children accused of crimes in Burundi. From July to September 2013, IBJ lawyers and volunteers have traveled to three provinces—namely, the judicial province of Mwaro in the central region of the country, Cibitoke which is located in north east, and Bujumbura, a rural province which is located in east. During this period, 18 children received free legal assistance.Among the beneficiaries of IBJ’s assistance is Bukuru, 17 year-old, who dropped out of school after the death of his parents due to the 12-year civil war that occurred in Burundi and was forced to work to earn a living. However, the sudden loss of his parents led the boy to alcohol abuse and gambling. His fate went wrong in October 2012, when he was arrested for willfully administered beatings and death threats to a woman.The prosecution in the case requested a sentence of 10 years against the defendant.The IBJ fellow Astère Muyango defended the child and in his introduction, he explained to the court that the crime for which his client was being prosecuted should be well-qualified because the investigation records, as well as the confessions of the defendant, highlighted his client’s state of drunkenness on the date in question.In addition, Astère Muyango recalled the basic legal principle that in circumstances, wherein there are contradictory statements leading to doubt, the benefit belongs to the accused. This principle proved useful in this case because the statements of the judicial police officer who was a witness in this case and the victim's statements reinforced a well-founded about the existence of a threat of attack against the person in this case.At the end of the hearing, the case was taken under deliberation, and a month later , the child was released after after 11 months of pretrial detention. Bukuru was happy to resume his normal life, but he worried about the possibility of finding enough money to continue to run his small business.What is perhaps most noteworthy is that after trainings organized by IBJ aimed toward the education of various criminal justice system actors, the demands to hold hearings related to juveniles in camera sessions continue to get increasingly positive responses. International Bridges to Justice will continue its efforts until it sees every minor accused of a crime provided with a competent lawyer.
With the help of IBJ, provisions regarding juvenile justice under the new criminal procedure code are implemented.
In Burundi, the eagerly awaited code on the criminal procedure was finally promulgated on 3rd April 2013 by the President of the Republic of Burundi. It contains within it several improvements and provisions softening the treatment of Children accused of crimes. Amongst them, it should be noted that under the realm of this new Criminal Code, the legal assistance of a child accused of a crime is mandatory. Then, every inquiry to be done by the police officer must be undertaken in presence of a lawyer or any other person having sufficient knowledge in juvenile justice. Unless this is respected, the minutes of the inquiry must be nullified.Furthermore, this new code enacts alternative solutions to the detention of a child by allowing the judge to decide to place the child with a foster family or within a reformation center. Similar powers have also been granted to the police officer and the prosecutor who can only decide if the child is to be kept by his parents, guardian or any other person who can be trusted. Thus, this new code aims to limit the detention of children, which according to its terms, must be decided “as a last resort” (Article 222, paragraph 3). Another major improvement is shortening to a non–renewable seven-day period under which a child in conflict with the law can be under warrant of arrest.
The enforcement of the above-mentioned innovation is a core concern of IBJ’s lawyers since it is still a provision well written within texts, but not implemented.In that regard, among 126 accused defended over the last three months by IBJ lawyers in Bujumbura, Cibitoke and Mwaro, 11 were juveniles. These 11 would not have been defended if IBJ had not provided them with lawyers.
One of them, a boy of 17 years old is accused of assassination. The child had been arrested in February 2013, two months before the promulgation of the new code on criminal procedure. The police inquiry has been done without legal assistance. On June 18, 2013 in the public hearing heldthereof, the prosecutor was requesting for the case to be taken in the criminal chamber of the court. If done in this way, this could result in a potential heavy penalty against this child who pleaded innocent from the beginning of the proceedings. The rapid treatment of the case would not be achieved as this would have taken at least one further month for the hearing to be reorganized. Also, the prosecutor was calling for perpetuity as a penalty to be pronounced by the court against the child.
This position of the prosecution has been deemed illegal by Astère Muyango who assisted the case. First, the lawyer proved his client was born in 1996. In addition, under the realm of the new code on criminal procedure, the child, whatever the crime he is accused of, is to be heard in the Special Chamber for Minors not in the criminal chamber. Furthermore, as pleaded by the IBJ lawyer and according to the criminal code, no child can be sentenced to life imprisonment since the article 29 of the criminal code specifies the maximum of sentences for juveniles.
This case proves how it is hard for criminal justice actors to overcome the old practices and truly implement new practices enacted under the new legal framework.
A need for rights awareness activities remains. IBJ intends using its training tools to popularize this new code on criminal procedure. This was also emphasized on the 26th day, a world date dedicated to the fight against torture, where, IBJ fellow Astère Muyango, was invited by the National Independent Commission for Human Rights (CNIDH) to a one hour radio show of five more listened-to radio stations (National Radio, RPA, Isanganiro, Bonesha and Rema FM) which were broadcasting the same program and at the same time in a media synergy. All the speakers, among whom was the vice president of the CNIDH, converged on the great need for trainings and rights awareness. Since it affects juveniles accused of crime, it is important for all stakeholders to help in the implementation of Burundi obligations born after the signature of CAT in 1993.
1) Janvier Ncamatwi and Astère Muyango, the IBJ fellow lawyers
2) After legal assistance of the juvenile in public hearings
3) & 4) From right to left, Astère Muyango (IBJ lawyer, Sonia Ndikumasabo (vice president of CNIDH, Serges Nibizi (journalist), Armel Niyongere (President of ACAT), and Fidèle Havyarimana (from the Republic Prosecutor’s department)
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