The CLEAR-Rights project aims to enhance access to quality legal aid, and pro bono and specialized legal aid for children in conflict with the law. The project is coordinated by Terre des hommes regional office in Europe. Mr. Raul Alexandru Nestor, judge at the Court of Appeal of Ploiești (Romania) and Technical Expert Group member within the CLEAR-Rights project, spoke to Terre des hommes Romania.
- In general, what kind of juvenile cases have you encountered in court? Can you give us one or two examples?
As a judge specialised in criminal law since 2005, I have seen many cases in which children are directly involved in judicial procedures, as the accused, victim or witness.
In terms of accusation, the most common crimes are robbery and theft: I can remember a case of children who stole bags and wallets from people in the street. In the end, one victim reconciled with the children, while the other victims did not ask for compensation in court. Lack of education and financial resources play a key role, pushing children into these offences.
Another impressive case involved an injured child who was sexually abused by her father. Her mother, a witness, sought to protect her husband from criminal liability. She even tried to convince the court that her daughter injured the area where she was assaulted by falling from a high chair.
- Where can a child who felt wronged in a trial ask for assistance? How can he access this assistance?
A child who feels wronged in a trial should turn to a lawyer. Direct contact between a dissatisfied child and ex officio appointed defence counsel takes place at the court headquarters or in the courtroom. Despite the lawyer's efforts, the time to prepare a defence is extremely short. I think it is necessary to create a branch of specialised lawyers to deal with juvenile justice cases.
Other institutions may also help, namely, the services of a probation counsel, as well as the Romanian Child Advocate and the General Directorate for Social Assistance and Child Protection. The Romanian Child Advocate can intervene in situations regarding physical, mental and sexual abuse, disappearances of children, bullying, poverty, children in state care, relationships in schools and kindergartens, social integration of disabled children, the situation of children with parents working abroad, as well as in any situation where children's rights are not respected. Yet, the Child Advocate cannot provide legal assistance and cannot intervene in ongoing trials. The General Directorate for Social Assistance and Child Protection also includes a legal office that can request the support of a specialized lawyer for children.
In rare cases, NGOs can hire lawyers to support children. I remember the case of a 15-year-old child accused of theft who did not have a birth certificate because his birth had not been registered. This child was remanded in custody, and during the criminal trial, a lawyer hired by an NGO contributed to the late birth registration procedure. Without their support, a late birth registration would have been extremely difficult, even impossible for that child.
- What are the obstacles faced by a child seeking legal aid when accused or suspected?
A court has the obligation to appoint an ex officio defence counsel for an accused child. Sometimes, the child defendant or his family hire the lawyer, who thus becomes a chosen lawyer and will become more involved in the situation of the child defendant.
Even though both the ex officio appointed lawyer and the chosen lawyer have the obligation to ensure a qualified defence, in accordance with the European Convention on Human Rights, things are not always like this. The ex-officio lawyer concludes the case hastily, sometimes even leaving it to the court's discretion; he can be inclined to treat the case hurriedly because he is involved simultaneously in other trials.
Contact between the juvenile defendant and his lawyer sometimes becomes merely a formal matter. Very often, upon the ex officio lawyer’s advice, the juvenile defendant agrees with an abbreviated trial based on the recognition of accusations, or tempted by a mitigated sanction. I believe that such advice can negatively affect the accused child in the long run, as he will be inclined to plead guilty for a milder sanction.
The greatest risk that an accused child may face is that his defence is performed as a mere formality, only envisaging the reduction of a sentence, while neglecting the aspects related to the environment where he lives, his behaviour, school performance or entourage. Instead, social and moral reintegration must be a priority, so the child may become a valuable member of society. Temporary removal from society by detention must remain a last resort, for extremely serious crimes, when other legal means have failed.
- What do you advise the pro bono lawyers who take over cases of children accused in court?
Any lawyer involved in such cases must consider that all accused children have the right to justice. Lawyers who take over cases of accused children pro bono must have multidisciplinary training: being a parent is not enough to guarantee a child-friendly approach. Thorough study of the case, and professional social interaction with the defendant and/or his family are essential.
The lawyers must have a positive attitude and avoid, as much as possible, becoming overwhelmed with a negative state of mind, because it is difficult not to get involved emotionally. A trained lawyer empathizes with the client's situation. Emotionally, cases involving children are the most difficult for lawyers.
- Children in conflict with the law are often insufficiently informed, or do not have the courage to speak up for their rights. How do we inform and encourage them?
I think that school curricula should include basic legal education. A high school student should know what an infringement is, the difference between an infringement and a crime, and what his rights are if he is accused of committing an offence. It would also be useful to develop information campaigns in which legal professionals go to schools and explain such topics with practical examples.
Regardless of the process, the court should inform the accused child of his rights, namely the right to a lawyer, to request a hearing in the presence of a psychologist, or to request, as a witness, reimbursement of their travel expenses. It is extremely important for the child to know that he has the right to make a request, the deadline for submitting his request and to whom it should be addressed. This information could, for instance, be posted on the court website, in a section on children in conflict with the law.
Often, a criminal case involving a child is treated as routine, without any child-friendly adjustments. It is very important to inform the child defendant that he has the right not to make statements, to request the presence of a parent in the courtroom, to request presentation of evidence, etc. Such information should be provided before the juvenile defendant enters the courtroom.
- From your experience, do children from disadvantaged communities, or Roma children, have access to quality legal aid as easily as other children? Are they represented in court as well as others? Is there any difference? Is there any discrimination?
Regardless of ethnicity or financial status, the law grants the same rights to all juvenile defendants, providing an ex-officio lawyer to those lacking financial resources. In the case of children from disadvantaged communities, the presence of a chosen lawyer is very rare and it can impact the outcome of the process.
According to the procedure, an ex-officio lawyer is appointed in the criminal investigation phase, but another ex-officio lawyer is appointed to appear in court. This lack of continuity affects the defence to a great extent. Instead, appointing the same lawyer for the whole process would ensure continuity, and a lawyer specialised in juvenile matters would make the judicial act much more successful. To ensure this continuity in defence and for the sake of better assistance, the child-defendant’s family can hire, as his chosen lawyer, the lawyer initially appointed ex officio. In fact, in most cases, there is a big difference between the performance of a chosen lawyer and an ex-officio one, who sometimes is interested in cashing the fee paid by the state as soon as possible.
I believe that it is possible to better defend the interest of children by creating a branch of lawyers specialized in juvenile justice in each bar association.
CLEAR-Rights is a project coordinated by Terre des hommes regional office in Europe. It is implemented in partnership with the Alliance of Lawyers for Human Rights, Defense for Children Belgium, Defense for Children the Netherlands, PILnet and Terre des hommes Romania. The project is co-financed by the Justice Programme of the European Union (2014–2020).