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Detention of a 12 Year Old Child in Santo Prison [2003] VUOM 2; 2003.02 (24 February 2003)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PMB 9081
Port Vila
Vanuatu

PUBLIC REPORT

ON THE

DETENTION OF A 12-YEAR-OLD CHILD IN SANTO PRISON

24 February 2003

0114/2002/02

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PUBLIC REPORT ON THE
DETENTION OF A 12 YEAR OLD
CHILD IN SANTO PRISON

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

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1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government and related bodies including police and prison authorities. The Ombudsman cal also look into defects in laws or administrative practices, including the conditions under which citizens are detained in custody.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this paper is to present the Ombudsman's findings as required by the Constitution.

2.2 The scope of this investigation is to establish the facts about the detention of the then 12-year-old Parmabet Tuia in Santo Prison awaiting his trial and determine the legality of the detention practices adopted in his case.

2.3 For clarity, the Ombudsman wishes to state that the scope of this investigation does not include:

∑ The decision of the police to arrest Parmabet Tuia;

∑ The decision of the Court not to grant bail; or

∑ The conviction or sentence handed down by the Court at his trial.

3. RELEVANT LAWS, REGULATIONS AND RULES

3.1 Relevant parts of the following laws are reproduced in Appendix C.

CONSTITUTION OF THE REPUBLIC OF VANUATU

OMBUDSMAN ACT NO.27 OF 1998

CONVENTION ON THE RIGHTS OF THE CHILD (RATIFICATION) ACT NO.26 OF 1992

CONVENTION ON THE RIGHTS OF THE CHILD

4. OUTLINE OF EVENTS

4.1 In September 1999, when aged 12 years, Parmabet Tuia killed a nine-year-old child in his village.

4.2 He was taken by police to court, charged and remanded in custody. He was not granted bail.

4.3 While in custody awaiting trial, he was held in Santo prison for five months in the same cells as other, adult, prisoners.

4.4 On 2 March 2000, Parmabet Tuia appeared before the Supreme Court and was found guilty of unintentional harm causing death. He was sentenced to 8 months imprisonment, less five months he had already served, and the remaining three months was suspended for two years.

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Responses from Sgt. Peter Dini and
Cpl. Wycliff Tarilenga are reproduced in appendices A and B.

5.2 Also, a working paper was provided prior to preparation of this public report to give the individuals mentioned in this report another opportunity to respond. No responses were received to the working paper.

6. FINDINGS

6.1 Finding 1: The Ombudsman finds that the detention of Parmabet Tuia in the same cells as adult prisoners breached Vanuatu's international obligations under the Convention on the Rights of the Child.

6.1.1 Article 37(c) of the Convention on the Rights of the Child states that children held in custody must be separated from adults unless it is in the best interests of the child not to do so. There were no countervailing interests of the child in this case.

6.2 Finding 2: The Ombudsman finds that no suitable facilities exist in Santo nor in the country as a whole for detention of children.

6.2.1 Accordingly, police and prison officers cannot be blamed for the decision to place Parmabet Tuia in prison with adult prisoners.

6.3 Finding 3: The Ombudsman notes previous reports by this office that have found prison conditions in both Port Vila and Santo to be grossly unacceptable and in breach of Vanuatu's obligations under various international treaties and conventions relating to human rights.

7. RECOMMENDATIONS

7.1 The Ombudsman is aware of continuing efforts by various governments and the Ministry of Internal Affairs to obtain internal or donor funding for new prison facilities in Port Vila and Luganville. Given that the maladministration detailed in this report was principally caused by lack of proper detention facilities and that there is an acknowledged lack of funds for new facilities, the Ombudsman can only recommend that Government continue its efforts to attract much needed funding.

7.2 In the on-going effort above, relevant authorities should consider alternative means of detention of children and minor offenders.

Dated the 24th day of February 2003.

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

1. Copy of letter dated 1 August 2001 from Mr Peter Dini, Commander TORBA Province, to the Ombudsman.
   
2. Copy of letter dated 4 April 2002 from Cpl. Wycliff Tarilenga, Prosecution Department, to the Ombudsman.
   

100. Relevant laws.
     

APPENDIX C

CONSTITUTION OF THE REPUBLIC OF VANUATU

ENQUIRY BY OMBUDSMAN

62.(1) The Ombudsman may enquire into the conduct of any person or body to which this Article applies -

(a) upon receiving a complaint from a member of the public, (or, if for reasons of incapacity, from his representative or a member of his family) who claims to have been the victim of an injustice as a result of particular conduct;

(b) at the request of a Minister, a member of Parliament, of the National Council of Chiefs or of a Local Government Council; or

(c) of his own initiative.

(2) This Article shall apply to all public servants, public authorities and ministerial departments, with the exception of the President of the Republic, the Judicial Service Commission, the Supreme Court and other judicial bodies.

OMBUDSMAN ACT NO.27 OF 1998

FUNCTIONS OF THE OMBUDSMAN

11.(1) The Ombudsman has the following functions:

(a) to enquire into any conduct on the part of any government agency;

(b) to enquire into any defects in any laws or administrative practice appearing from any matter being enquired into;

(4) To avoid doubt, conduct on the part of any officer, employee, member or agent of a government agency in his or her capacity as an officer, employee, member or agent of the government agency is taken to be conduct on the part of the government agency.

CONVENTION ON THE RIGHTS OF THE CHILD (RATIFICATION) ACT NO.26 OF 1992

RATIFICATION

1.(1) The convention on the Rights of the Child signed in New York on the 23rd day of September, 1990 which is set out in the Schedule hereto is hereby ratified.

(2) The Convention referred to in subsection (1) shall be binding on the Republic of Vanuatu in accordance with the terms thereof.

CONVENTION ON THE RIGHTS OF THE CHILD

ARTICLE 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under a law applicable to the child, majority is attained earlier.

ARTICLE 2

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

ARTICLE 3

1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

3 States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of staff, as well as competent supervision.

ARTICLE 37

States Parties shall ensure that:

(c) Every child deprived of liberty shall 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. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;