Children
 Burundi
Project #8324

Fight illegal juvenile detention in Burundi

by International Bridges to Justice



Throughout December 2014 IBJ provided a significant amount of legal assistance to prisoners from Cibitoke. IBJ legal fellows handled a total of 33 cases, with assistance from a group of volunteer advocates who were motivated by a desire to protect the rights of the indigent accused to legal representation.

It appears that all except 2 cases were to be held in ordinary chambers, rather than criminal chambers, despite the fact that one of the cases concerned a child defendant, called Bigirimana Toto. None of the case files brought before the judges were marked out as different, and his case was treated alongside adult defendants’ cases.

While defending Toto, who claimed to be 17 years old, the advocate raised the issue of his client being a minor. He demonstrated that, under the new Code on Criminal Procedure, Toto’s case should be held in a special chamber for children. In fact, under the new Code the case should have been treated differently from the stage of arrest onwards, however the investigating police officer had not paid attention to the details of the case.

The court did not believe that the case of a child defendant would be treated alongside those of adult defendants, and the prosecutor therefore attempted to prove that the defendant was lying about his age. He demanded that Toto provide his birth certificate.

The child’s lawyer did not consider it necessary to demand that Toto provide his birth certificate, since he had stated the same age consistently from the police stage of his case onwards.

The prosecutor was, however, obliged to find out the true age of the defendant while he was instructed on the case. It therefore took a long time for the lawyer to convince the bench. The fact that the defendant could not provide supporting evidence for his age was creating doubt around his legal situation, and the only way to address this was to provide the birth certificate, which was not easy to find. The defendant was imprisoned in Bujumbura, whereas his family, absent on the day of the trial, were in Cibitoke Province.

Finding the certificate could take a long time, and the child would have to spend further time in detention without a trial.

The lawyer therefore took advantage of the doubt surrounding the child’s age, asserting the legal principle of in dubio pro reo to argue that the court should give Toto the benefit of the doubt, assume that he was a child, and treat him accordingly.  

Fortunately, the court accepted this argument, and decided to hold Toto’s case in camera.


This changed everything. Toto was accused of robbery, and pleaded guilty. The prosecutor had initially called for a sentence of 5 years’ imprisonment, however after conceding that Toto was a child, he called for a sentence of only 2 years.

His lawyer has explained that, in the light of his guilty plea and his age, Toto is likely to be  given a light penalty of no more than 6 months’ imprisonment. Hopefully he will be tried as a child, and will benefit from the clement measures for children in the new Code on Criminal Procedure.


Attachments:

HE KEEPS IN MIND THE ORGANIZATION WHICH HELPED HIM TO RECOVER HIS FREEDOM

The UN Convention on the Rights of the Child sets out distinctly that arrest, detention or imprisonment of a child shall be a measure of last resort.
Although Burundi has made a step forward in integrating this principle in the new Code of Criminal Procedure enacted in April 2013, there are still many children in custody in Burundian prisons. The majority of them are detained for the commitment of minor crimes whilst a large number of them are pretrial detainees.
In addition, there is no legal aid system supported by the state for defendants who are unable to pay for a lawyer themselves. In other words, legal assistance in any form is not provided by the state.
Although the Committee on the Rights of the Child has enacted the right to be assisted by counsel as a fundamental right where states must ensure that every child facing criminal justice must have, it is evident that juveniles continue to face criminal charges without any legal assistance.

In order to fill this gap, IBJ established a Defense Resources Center in 2009 where IBJ lawyers are able to particularly take cases of children accused of crimes and deal with other cases as well.
Since the opening of the centre, many children accused of various crimes have been acquitted thanks to the high quality of legal defense provided by the IBJ trained lawyers.
Some of the acquitted youth go back school, while others run small businesses in order to meet their needs as well as those of their families.

One example is that of Jimmy, who serves among children who coordinate public parking in the capital city of Bujumbura. In order to earn a little money,  Jimmy helps people to park their cars and then offers to guard them. In return, he is paid with a lump sun of money.
Two months ago, an IBJ lawyer, who was parking his car, saw a child running after him telling him to secure the vehicle in case of theft of mirrors, flashing lights or headlights. Later, when the lawyer returned, he was going to pay the young man, who replied: “No sir, I cannot make you pay anything since I always remember the organization through which you assisted me in the court; the reason why I am free.”

The IBJ lawyer, after asking his name as well as the details of his case, was pleased to see the joy and gratitude Jimmy had while telling his story  about how IBJ saved his life.
This is undoubtedly a true sign of how donations given to IBJ have a strong and positive impact on the lives of vulnerable children.


Attachments:

FROM INDIVIDUAL CASES TO SYSTEMIC CHANGE IN BURUNDI JUVENILE SYSTEM

In 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.


Attachments:

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 client


A 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.


Attachments:

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.

 

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Organization Information

International Bridges to Justice

Location: Geneva - Switzerland
Website: http:/​/​www.ibj.org
Project Leader:
Sanjeewa Liyanage
International Program Director
Geneva, n/a Switzerland

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