[Kosovo] Protection of Juveniles in Detention and Deprived from Liberty During the COVID-19 Pandemic

This content was suggested by: 
14 Apr 2020

Terre des hommes Kosovo addressed a public letter to the Minister of Justice, Ms. Albulena Haxhiu, requesting the release of all children deprived of liberty during the COVID-19 pandemic. Terre des hommes is calling on the Ministry of Justice and other RoL institutions to release and/or accelerate the release of children deprived of liberty in criminal justice or protection facilities, and employing instead non-custodial measures in order to ensure children's health, safety and reintegration into families and communities during the pandemic. This public letter provides a list of recommendations for all relevant institutions.

Find below the whole letter:

 

PUBLIC LETTER

Protection of juveniles in detention and deprived from liberty during the COVID-19 pandemic
Due to the situation of the COVID-19 pandemic, the Terre des hommes delegation in Kosovo calls on the Ministry of Justice and its subordinate institutions to guarantee the protection of the rights and health of juveniles in conflict with the law in detention, imprisonment, as well as juveniles to whom institutional measures of committal to an educational-correctional institution has been imposed.
During the COVID-19 pandemic, Terre des hommes, which is a Swiss foundation working in the field of child protection across 40 countries in the world, is calling on states/institutions to release all children from detention and accelerate the release of children deprived of liberty in criminal justice or protection facilities. Urgent attention should be given to the implementation of non-custodial measures to ensure children's safe reintegration into families and communities. Once the children are released, the responsible institutions must ensure proper monitoring and follow-up of the children benefitting from these alternative measures. In rare cases where children cannot be released, states should implement measures to safeguard children’s health. ​ 
While children in general are not a demographic that is most susceptible to more severe forms of COVID-19, health experts have alerted authorities that children in poor health are going to be hit harder by COVID-19 than others. There has been longstanding recognition that detention facilities, which are often dilapidated, overcrowded, and equipped with poor health, water and sanitation infrastructure, present multiple risks for children’s health. Several studies have reported elevated rates of communicable diseases in detention facilities. In addition, children who are deprived of liberty are more likely to use substances such as alcohol, tobacco and illicit drugs, which are detrimental to their physical and mental health. In such settings, the most recent recommendations by the World Health Organisation, such as washing hands, sanitising communal spaces and social distancing, may be simply impossible to apply.
We are aware that the Kosovo Correctional Service (KCS) has drafted an operational plan, 'Corona Virus', on the basis of which it is operating during these days of pandemics. Juveniles are receiving more frequent medical treatment; are supplied with hygienic material, as well as sufficient and controlled food. Although visits are prohibited for justifiable reasons, in these circumstances juveniles find it impossible to maintain contact with his/her family through correspondence and visits, and this is a violation of their fundamental rights.
In the correctional and detention facilities, there are no positive cases of juveniles with Covid-19. However, unfortunately, within the KCS staff, there are three officers infected with the coronavirus. This represents a high risk to staff as well as to all juveniles in detention, imprisonment, as well as juveniles to whom an institutional measure of committal to an educational-correctional institution has been imposed.
While in detention on remand, the juvenile shall receive social, educational, vocational, psychological, medical and physical assistance, in view of his age, gender and personality. During the time of deprivation from liberty imposed as a penalty, a juvenile offender shall receive educational, psychological and, if necessary, medical assistance to facilitate his rehabilitation.
In pandemic circumstances, it is very difficult and almost impossible for minors to exercise these rights guaranteed by law.
To reduce the risks of infection and transmission of COVID-19 in criminal justice institutions, specific actions should include:
  • Drastically reducing the number of children in detention, imprisonment, and educational-correctional institutions.
  • Ceasing arrest and detention in police custody of children who are accused of committing minor offences and juveniles with health problems. Instead, favour police-initiated diversion programs and pre-court interventions such as caution, restorative measures, warning or reprimand. When a juvenile is in detention, the authorities that carry out the proceedings shall be obliged to act with urgency. The best interest shall be the prevailing consideration during the whole procedure and actions taken against the child and juvenile.
  • Giving priority to the imposition of diversity measures as well as educational measures such as:  Judicial admonition or measures of intensive supervision instead of institutional measures such as: Measure of Committal to an Educational-correctional Institution or Committal to a special health care facility.
  • Accelerating the release of children from detention by prioritising those who are pending trial or sentences for petty crimes, those nearing the end of their sentences, and those with medical conditions (such as with diabetes, lung and heart disease). Children nearing the end of their sentence should benefit from early release through clemency and amnesty.  Measures for depriving children of liberty should be commuted into non-custodial and community-based measures. The conditions of release should account for specialised support to enable children’s safe reintegration into their family and community environments.
  • When it is possible, the imprisonment sentence should be replaced with another sentence such as fine or order for community service work. Institutional educational measures should be replaced with judicial admonition or measures of intensive supervision.
  • A person sentenced to juvenile imprisonment may be conditionally released if he has served at least one-third of the sentence that has been imposed. During this period of pandemic we recommend to authorize these juveniles to take leave, to visit his parents, adoptive parents, guardian spouse, children, adopted child, brothers and sisters. Depending on how the situation will unfold, juveniles may be allowed additional leave until the risk is exceeded.
  • Review of institutional educational measures to avoid as much as possible the institutional educational measures such as committal of a juvenile to an educational-correctional institution and committal of a juvenile to a special care facility. Suspension of execution of institutional educational measure or when it is possible and doesn’t affect the juvenile negatively.
  • Where it is not possible to release children in conflict with the law, then institutions must ensure that children in detention enjoy the same standards of health care that are available in the outside community. This entails reinforcing preventive measures such as WASH practices, and social distancing. Child-friendly quarantine measures which are respectful of human rights and children rights, such as video counselling, communication with families, access to health services and access to information, should be ensured.
This call to accelerate the release of children from detention is based on various relevant children's rights, such as the right to life and survival (article 6 CRC), the right to health (article 24 CRC), the rule that deprivation of liberty may only be used as a measure of last resort and for the shortest appropriate period of time (article 37(b) CRC), and the state obligation to ensure that non-custodial measures are available (article 40(4) CRC)); the right 'to be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age' (article 37(c) CRC and the United Nations Rules for the Protection of Juveniles Deprived of Liberty (Havanna Rules), including as regards the rights to health, to education (for instance, schools may close in institutions and digital education may not be possible), to a confidential counselor, and to visits. 
We are in a global emergency which is very difficult to control, therefore we recommend urgent actions by the responsible authorities to protect juveniles within these institutions. States have a responsibility to protect children who are deprived of liberty from the risks associated with the COVID-19 pandemic.
The juvenile justice system shall seek the well-being of the juvenile. Furthermore, the best interest shall be the prevailing consideration during the whole procedure and actions taken against the child and juvenile. Considering the current circumstances and the emergency situation, we hope our recommendations will be considered by you!
 
Sincerely,
 
Florina Duli Sefaj
Country Director                                                   
Terre des hommes Kosovo
Topic(s): 

This project is funded by: