Progress Made in the Implementation of Juvenile Justice Reform

Juvenile justice is a very important and sensitive area in terms of human rights observance. The specifics of this area are determined by the fact that children who get in contact with the justice system are witnesses or victims, or even authors of crimes and therefore, each of these categories needs particular, consistent, comprehensive, and professional support, in line with the best international practices and the provisions of the most important international documents in the field of children’s rights to which Moldova is a party 

During the past years, the authorities have made significant progress in strengthening the juvenile justice system by establishing some new mechanisms based on the experience of other states, adjusted to the social realities of our country.

In this context, it is worth mentioning the most important efforts made by the authorities for strengthening the juvenile justice system, among which:

- the amendment and supplementation of the Enforcement Code of Moldova, by which additional guarantees for access to healthcare were introduced, the range of disciplinary sanctions was diversified, and a series of guarantees for the enforcement thereof were added; the time for disciplinary isolation of juveniles was reduced to 3 days and special conditions for the enforcement of this sanction were introduced, thus eliminating the confinement of minors. 

- the amendment of the Law on  Free Legal Aid, which gives to the children victims of crimes the right to free legal aid, including qualified legal aid provided regardless of the level of income.

- strengthening of the mechanism for hearings of children victims/witnesses of crimes under special conditions. In this sense, art. 110¹ of the Code of Criminal Procedure was amended, and child-friendly hearing rooms have been set up in the regions, according to the international standards[1], which aim at avoiding the repeated victimization of the child in the process of legal hearing, by strengthening the national child protection mechanism, based on an individual approach[2].

- strengthening the mechanism of collection and processing of data about the juvenile justice system by approving the common table for collection of statistical data about both the children in contact and those in conflict with the law[3].

The Ombudsperson considers that, in addition to all efforts made by the authorities, it is imperative for the state to provide the necessary financial and human resources for the new legal and institutional mechanisms, in order to ensure the efficient operation and implementation thereof.

In addition, there are some of the problems identified over the past years, for the settlement of which the authorities have not undertaken proper and decisive actions, and those problems are still unsolved.

There is still an institutional and legal vacuum with regard to the children who committed crimes stipulated by the criminal law, but have not reached the age of criminal liability.

Based on the statistics about juvenile criminality for a number of years, the biggest share of crimes committed by minors are crimes against property, committed by minors coming from socially vulnerable families. We consider that this correlation between some categories of crimes and the social status of the minors who committed crimes reveals the lack of a policy for social and economic support to the vulnerable families and the children and young people coming from such families.

In the same train of thoughts, we consider that no significant progress was made in terms of preventing and combating juvenile delinquency, compared to the previous years. This is due to the fact that there is no public policy, no national plan for preventing juvenile delinquency, developed in accordance with the international standards in this area[4], which would provide a holistic, comprehensive, and multilateral approach. 

Recommendations:

-  Ensure proper financial coverage for the reforms during the implementation process;

-  Strengthen the mechanism for collection and processing of data about the juvenile justice system, by ensuring cooperation among the responsible institutions and developing a database in accordance with the indicators approved by joint order of the Ministry of Justice and the Ministry of Interior, No. 19/17 of January 26, 2015;

-  Strengthen the mechanism for hearing of juveniles, by developing and approving the quality standards on the procedures for hearing of minors, the setup of  hearing rooms, and by training of specialists in this area;

-  Create the institutional and legal framework for children who have committed crimes stipulated by the criminal law but have not reached the age of criminal liability; revise the educational measures stipulated in the criminal law, with a view to ensuring a more efficient enforcement thereof;

-  Develop and adopt a national plan for preventing and combating juvenile delinquency, in accordance with the United Nations Guidelines for the prevention of juvenile delinquency, also known as the Riyadh Guidelines.

Ensure participation of children in the development and monitoring of policies concerning them

The right of the child to having his/her views and being listened to such views, is one of the issues that the Ombudsperson Institution indicated in its previous reports.

The UN Convention on the Rights of the Child is based on 4 general principles, 2 of which relate to the observance of the best interest of the child in all decisions that have an impact on them, regardless of who issues them;  as well as consulting and taking into account the opinion of the children regarding the problems that have an impact on them. At the same time, in art. 12, the Convention guarantees the right of the child to having his/her own view.

Until recently, the observance of this right was considered an area related to the activity of non-governmental organizations. However, we observe that public authorities are getting increasingly involved in fulfilling this right and attracting children in the process of development of policies related to the areas that concern them directly.

We welcome the establishment of the National Advisory Board for Children under the Ministry of Labour, Social Protection and Family, in partnership with the NGO “Partnership for Every Child”[5], the objectives of which are to: encourage the participation of children in the identification, prevention and settlement of problems in the area of social protection; promote equal opportunities among their peers and exclude any form of discrimination; create a favourable environment for efficient communication between the children and the central and local public authorities, and with other social actors, on issues that concern them; give the opportunity to children to learn the practice of democratic citizenship, expression, communication, dialogue, negotiation, decision-making, and development of the leadership skills.

Advisory Boards for Children were established in 10 raions (Calarasi, Falesti, Ungheni, Cahul, Orhei, Singerei, Telenesti, Nisporeni, Causeni, and Soroca). The Boards partner with theDirectorates/Sections for Social Assistance and Family Protectionin the development, implementation, monitoring, and evaluation of the local social services, policies, programmes and projects for children.

The members of the Advisory Board for Children participate in the meetings of the Raion Councils on Protection of Child’s  Rights, when there are discussions about the enforcement of the national strategies and programs for protection of the rights of the child and family, development of local programs and action plans on the protection of the child and family, and the planning of thematic vacations for children.

One of the activities in which the authorities have involved the members of the Advisory Boards for Children was the monitoring and evaluation of the social services for children, and the fact that the members of Councils have come up with clear [6]recommendations for social service providers.

With the same view of observing the rights of the children to having their opinions, the Ministry of Education has developed and approved the Regulation on Organisation and Operation of the National School Students’ Council, approved by Order No. 136 of March 26, 2013.

It is important that the professionals in this area benefit from trainings to develop their abilities of working with children, so that they could later involve children in evaluations, development of documents, and to be able to hear the findings and recommendations children.  

Children victims of crimes 

In the recent years, the number of cases of child victimisation through attacks upon the life, health, development, dignity or morals thereof has increased. Unfortunately, in many cases the abusers are the parents, the legal representatives or other persons who take care of the children.

According to the data of the General Prosecutor’s Office, in 2015, 1334 criminal cases were initiated, in which 1381 children were victims of crimes; this is 24% more than in the similar period of 2014, when 1073 criminal cases were initiated.

Children were victims of the following types of crimes:

• property crimes (theft, robbery) – 348 criminal cases (391 cases in 2014);

• domestic violence – 118 criminal cases (117 in 2014);

• violation of the road traffic rules  – 84 criminal cases (87 in 2014);

• hooliganism – 53 criminal cases (47 in 2014);

• bodily injury of children  – 32 criminal cases (35 in 2014);

• crimes against life  – 6 cases (7 in 2014).

In 332 criminal cases, children were victims of crimes related to sexual life; in 39 cases they were sexually abused in their families (by the biological father -11 cases, by mother’s cohabitee - 13, by other relatives - 15 cases).

In 2015, there were 214 cases of violence against children, committed within the education institutions, including between peers - 182 cases. Children often use violence during the breaks or after classes.

The suicide among children continues to be a serious problem. During 2015, the number of suicide attempts among minors increased to 103 cases (96 - in 2014), particularly among those aged 13-16 (70 children). At the same time, there were 5 cases of child suicide (2 girls and 3 boys) aged 13-16.  In all cases, the suicide was by strangulation.

Among the reasons leading children to such actions, specialists list the academic or emotional failure, difficulties of adaptation, emotional imbalance, supplemented by lack of efficient communication with the parents or the relatives. 

In most of the suicide cases or attempts, children grew up and were educated in single-parent families, or the parents left the country and the minors remained with the grandparents or other relatives. Sometimes, the tense relationship between the parents, the divorce, and other domestic problems discourage children and the most sensitive of them resort to extreme actions.

In the light of the facts mentioned above, we consider it very important for parents to know and realize the need for an efficient communication with their child. This subject is also tackled in art.6 of the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse[7], which recommends that Each Party take legal or other measures to ensure that all children receive information on the risks of sexual exploitation. Child information has to be ensured through cooperation with the parents.

A study focused on the analysis of the university programs, conducted by UNICEF Moldova in 2010[8], revealed that the Curricula of the universities and junior colleges do not include subjects for improving parental abilities and skills.  Most often, the subjects related to parental education are integrated in the topics of pedagogy, educational psychology of family, etc. 

In this context, we welcome the efforts of the Ministry of Education in developing the draft “2015-2021 Cross-Sector Strategy for Developing Parental Abilities and Competences”[9], with a view to ensuring a proper family environment for every child to reach the highest development potential and become a responsible adult.

The Ombudsperson welcomes the fact that the draft Strategy aims at creating a unitary, correlated, and complex system of parent education at national level, as well as the fact that the Strategy provisions have been aligned with the relevant policy documents, the reforms initiated in the education system, and other reforms in the area of child and health protection.

Recommendation: The Ombudsperson recommends approving the 2015-2021 Cross-Sector Strategy for Developing Parental Abilities and Competences without delay, and ensuring its proper implementation by all relevant actors.

Observance of child’s rights within the educational system

Inclusive education

Actions are taken at national level to ensure the rights of children with disabilities, through further implementation of social inclusion programs.

The inclusion of the children with special educational needs represents a provision of a number of regulatory acts[10], and, as mentioned in the Report on Human Rights Observance for 2014[11], this process implies developing support services for the teaching staff, the parents, and the children with special needs.

Inclusion of children with special educational needs has been developed as a logical continuity of a global process, which is very important for the observance of the rights children and their education and development within a family environment, specifically the deinstitutionalization of children from auxiliary-boarding schools.

Therefore, at the beginning of the academic year 2014-2015, 101 children with SEN from the special boarding schools studied in the primary and lower-secondary cycle, while at the beginning of the academic year 2015-2016, the number of children increased to 591. 

The monitoring of the development of the inclusive education services revealed that the support services have been continuously increasing, which is a positive factor for the proper implementation of the reform.

In the 2014 Report on Observance of Human Rights in the Republic of Moldova The Ombudsperson mentioned that the authorities had to develop work tools for the specialists involved in the process of educational inclusion, and to organise the training of professionals. In this context, we should mention that, to ensure an efficient process of inclusive education, on October 6, 2015, the Ministry of Education jointly with the Republican Centre for Psycho-Pedagogical Assistance and with the support of UNICEF Moldova, launched the project “Promoting Inclusive Education in Republic of Moldova in 2015-2018”. 

The project actions will be focused on bringing the Concept of Inclusive Education in Republic of  Moldova up to date, developing the Concepts on inclusion of children with severe disabilities, sensory impairments, development of the Concept of Psychological and Psycho-Pedagogical Service, and Support Teacher in Inclusive Education, training specialists of the Psychological Assistance Centre in data management, and developing a web portal as a resources for inclusive education.

During the previous year, actions were taken with regard to the graduation exams for the school students with special needs, with a view to providing equal opportunities to the students with special educational needs; this problem had been noted in the Ombudsperson’s Report for 2014.

In this respect, the Guidelines on Specific Procedures for Examination of School Students with Special Educational Needs were approved by the Ministry of Education on March 20, 2015. The Guidelines establish the specific procedures for organization and conduct of the examinations for graduation of the lower and upper secondary cycles for the students with special educational needs, who studied based on the general curriculum and who request special examination conditions. 

The Guidelines contain clear provisions about the way in which the student with disabilities shall take the graduation exams, the procedure for examination of requests and the personal file of the student who requests taking the exams under special conditions, as well as the templates of documents to be attached to the graduate’s personal file.

By the adoption of the Guidelines on the Specific Procedures for Examination of the Students with Special Educational Needs, a systemic gap was eliminated; in 2014, this gap caused difficulties for a minor with special educational needs to enjoy her right to education. The proper response by the authorities to the recommendations of the Ombudsperson has contributed to avoiding other similar situations. 

Recommendations: The Ombudsperson recommends the authors to make efforts to adapt the classrooms and the study buildings to the needs of the children with disabilities.

Transportation of students to the district schools

The structural reform of education started as early as 2009 and is still ongoing; its goal is to ensure access of every child to quality education. 

The core of the reform consists in reorganizing the education institutions to optimize the costs per student for the education process and conditions, as there were high costs incurred in order to maintain an institution attended by a very small number of students, as a consequence of the demographic regress, particularly in the rural area.  

Therefore, district schools have been created, where students from the neighbouring localities are transported. When the reform started, there were no sufficient resources to ensure the transportation of students to the district schools and there were cases when students were walking distances longer than 3 km, or the conditions in which students were transported did not comply with the traffic security rules. At the same time, there was no regulatory act establishing the conditions for transportation of students[12]. The Ombudsperson drew the attention on these problems in the previous reports.

The process of student transportation to the district schools was monitored in 2015 as well, and the results of the monitoring revealed that the Directorates of Education in partnership with the local public administration and the education institutions identify solutions to ensure the transportation of students to the district schools.

If the Directorate for Education or the education institution does not own any transportation units, they rent the transportation means or they pay for the round-trip of students.  

The education institutions have identified financial resources for hiring a person to accompany[13] the students during their travel by such transportation units. Usually such person is employed for 0.25 salary units.

Because expenses for feeding of students in the 5th-9th grades are not covered from neither the state budget nor the budget of the administrative-territorial units, students do not participate in extracurricular activities.

Recommendation: identify solutions to ensure participation in extracurricular activities for children who travel to the district schools on a daily basis.

Nutrition of students within education institutions

According to the regulatory framework on nutrition of students at the education institutions, only students in the primary grades and students in grades 5th-7th of the raion education institutions in the Eastern raions of Moldova subordinated to the Ministry of Education, and the education institutions from the raions of Dubasari, Causeni and Anenii Noi, situated in the security zone, receive feeding free of charge[14]. At the same time, only students of the 5th-12th degrees, coming from socially vulnerable families, receive feeding free of charge, covered by the local public administration authorities.

The financial rate for free feeding of students in 2015, set by the Ministry of Education, was 7 MDL/day[15], only for the breakfast or the lunch. Certainly this amount cannot cover the real nutrition needs for a child aged 7-11, which include animal proteins (i.e. cheese, eggs, fish), fruit and vegetables, on a daily basis.

Another issue is the fact that foodstuffs are purchased through public procurement process[16], and the product supplier is selected based on the “lowest price” criterion. Given the amount of financial resources allotted for this purpose and provisions of the procurement procedure, the purchased foodstuffs are not qualitative (damaged packaging, unfrozen fish, expired products, etc.).

Some education institutions do not have school canteens and students eat in the classrooms or in the canteens of kindergartens (raions of Calarasi, Stefan-Voda, etc.).

The Ombudsperson considers that the problem of non-qualitative food provided in improper conditions speaks of the fact that the state clearly admits the violation of the child’s rights to health, which affects the proper physical and intellectual development of children.

Recommendation:

1)                 In order to ensure the feeding of children, particularly those from vulnerable families, for whom this meal sometimes represents the nutrition for the entire day, the Ombudsperson recommends the Ministry of Education and the Ministry of Finance to revise the financial norms for feeding of students within education institutions.

2)                 At the same time, a recommendation to be taken into account by the Agency for Securing Food Quality and the Public Procurement Agency, is to secure qualitative food products for the education institutions, by amending the criteria for selecting the suppliers of foodstuffs to include not only the lowest price criterion, but also product quality criteria.

3)                 Set up spaces for feeding of students to meet the corresponding requirements in this area.

Ensure compulsory education for all children

Another aspect related to the reforms implemented in education is the approval of the Guidelines on Preventing and Combating School Absenteeism and the Action Plan for Preventing and Combating Dropout and Absenteeism within the General Education System[17].

According to the provisions of the Education Code, which came into force on October 24, 2014[18], compulsory education starts with the preschool preparatory group and ends with the high-school education or secondary and post - secondary technical and vocational education, and ends at the age of 18. The persons responsible for ensuring compulsory education of children up to the age of 16 are the parents or other legal representatives, and the local public administration authorities of the first and second level. 

Therefore, to ensure schooling of children, the Guidelines provides a set of recommendations/actions for the  class master, who has to clarify why the student misses the classes and identify measures for solving the problem, as well as for the administration of the education institution and the local authority responsible for education.

According to the Ombudsperson, the actions taken by the education authorities aim at contributing to the development of the child, but it is important that the Government passes the draft “2015-2021 Cross-Sector Strategy for Developing Parental Abilities and Competences”, and that responsible persons ensure the implementation of policy documents and intervene promptly in each case.

Social protection of orphan children and children without parental care

The most vulnerable category are the orphan children and children without parental care.  The failure to ensure housing for the orphans and the graduates of boarding schools has remained a problem in 2015 as well.

During the reporting year, the Ombudsperson brought up again to the attention of the central public authorities the problem of the orphans and asked them to identify solutions for providing housing to this category of children, in accordance with the provisions of art.19 par. (3)[19] of the Law on the Rights of the Child No.338-XIII of December 15, 1994 and the provisions of art. 41 par. (2) of the Housing Code. 

On April 30, 2015, the Parliament of the Republic of Moldova adopted the Law on Housing No. 75. When this law came into force, the Housing Code of the Moldovan SSR, approved by Law of Moldovan SSR No.2718-X of June 3, 1983 was repealed.

The new legal act uses the term “social housing”, which is a dwelling designed for persons in need of social protection, rented out under the conditions of Law No.75. 

Thus, according to the said Law, social housing is rented out to individuals under the monitoring of the line public authorities or to families whose monthly income per member does not exceed the minimum subsistence level for the country. One category of beneficiaries who have a priority right to receive a dwelling are orphans who have reached the age of majority and have not benefited from housing provided by the state[20].

In order to implement the provisions of this Law, the Government is responsible for developing and approving the state’s housing policy, including with regard to the provision of funds from the state budget to the local public authorities to build and purchase social housing, staff housing, and transfer housing; for providing financial assistance (lump-sum benefits), within the limits of its competences, in case of construction, reconstruction or purchase of dwellings for persons who benefit from this right, as well as in the case of some natural disasters, etc.

The law does not set out the conditions under which the children/young people under the monitoring of local public authorities can benefit from the right to social housing.

In response to the Ombudsperson’s letter with regard to the provision of housing to the orphan children/young people who graduate residential institutions, the Ministry of Labour, Social Protection and Family[21] and the Ministry of Education[22] referred to Government Decision No.870 of July 28, 2004 on approval of the Provisional Expenditure Norms for orphan students and students under guardianship/trusteeship from secondary vocational, specialised upper-secondary, and higher education, boarding schools and children’s homes.

The Ombudsperson considers that the Moldovan authorities have failed again to observe the legal provisions, or, the Ombudsperson has requested specifically to the Government to identify solutions for providing housing to the orphans, given the main areas of activity of the Government[23], which is mandated to develop the concept for social and economic development of the country; establish an efficient social protection system for the population; create conditions for improving the living standards; secure the observance and enforcement of laws, Parliament Decisions, decrees of the President of Moldova, and the international treaties to which Moldova is a party, etc.

The response of the authorities is evasive and does not provide solutions for the situation of the graduates of residential institutions, who have to benefit from housing, in accordance with the provisions of Law No.338-XIII of December 15, 1994 and the Housing Code (with reference to the period before April 30, 2015).

As regards the provisions of Government Decision No.870 of July 28, 2004[24], it was designed to ensure social protection of the orphan children and the children under guardianship/trusteeship studying in education institutions. The Government Decision stipulates that, upon graduation, the orphan graduates and those under guardianship/trusteeship benefit from a lump-sum benefit in the amount of 5000 MDL or 10,000 MDL, depending on the type of the institution they graduated. The Government Decision No.870 of July 28, 2004 is not the mechanism for implementation of the provisions of the Housing Code.

Another aspect related to the provisions of Government Decision No.870 is the fact that it does not include all types of education institutions existing Moldova.  As a result, high-school students, as well as students of private education institutions or institutions subordinated to other ministries that the Ministry of Education, may not benefit from the provisional expenditure norms mentioned.

In 2013, The Ministry of Labour, Social Protection and Family developed the Regulation on Establishment and Payment of Benefits for students without temporary parental care and those without (permanent) parental care from secondary vocational, specialised upper-secondary, and higher education, boarding schools and children’s homes.

During the process of endorsement of the draft Regulation, the Ombudsperson made some additions. Therefore, in order to avoid confusions about the enforcement of the norms, it was proposed to include in the title and the text of the regulatory act all types of education institutions[25]subordinated to the line ministries[26], in which children without temporary parental care and those without (permanent) parental care study or may study, or that such institutions be mentioned in an annex to the Government Decision by which the said Regulation would be approved.

This need has arisen following the examination by the Ombudsperson of a petition which mentioned that the administration of the boarding school and the line Ministry refused to pay the benefit, justifying this by the fact that the term ”boarding high-school”  is not included in the Government Decision No.870 of July 28, 2004. Due to the considerations above, the regulatory act to be approved should include the term mentioned, which would avoid erroneous misinterpretation.

The Regulation was not adopted, and in 2015, the Ombudsperson examined another petition where the petitioner, an orphan child, student of a theoretical high-school, was deprived of the right to benefit from the Provisional Expenditure Norms approved by Government Decision No 870 of July 28, 2004.

With a view to ensuring the orphan children and children under guardianship/trusteeship with social benefits, regardless of the type of education institution they study in, the Ombudsperson calls on the Government to pass the draft of the New Regulation on Establishment and Payment of Benefits for students without temporary parental care and those without (permanent) parental care from the educational institutions, developed by the Ministry of Labour, Social Protection and Family, with the additions suggested by the Ombudsperson Institution.

After the entry into force of the provisions of Law No. 40 on Special Protection of Children at Risk and Children separated from their Parents, the Government has approved a set of amendments to the regulatory framework, bringing it in line with the provisions of the Law.

In 2015,[27] the Regulation on the Establishment and Payment of Benefits to Adopted Children and Children under Guardianship/Trusteeship, approved by Government Decision No.581 of May 25, 2006 was amended.

Previously, the benefits for orphan children and children under guardianship/trusteeship used to be paid from the budgets of the local public administration; however, some mayors did not pay the said benefits justifying it by the lack of financial resources, while the amendments made to Government Decision No 581 of May 25, 2006 stipulate that the benefits shall be established and paid by the directorates/sections for social assistance and family protection/Municipal Directorate for Protection of Child’s Rights of Chisinau, from the state budget through earmarked transfers to the budgets of territorial administrative units of the second level.

   In connection with the amendments adopted, the guardianship bodies shall ensure the information of the adoptive parents and the guardians/trustees about the right to receive the monthly benefit in accordance with the provisions of Government Decision No.581 of May 25, 2006, since the said benefit is provided only upon a written request. 

Special protection of children at risk

On January 1, 2014 the Law No. 140 on Special Protection of Children at Risk came into force. The law stipulates clearly the duties of the guardianship authorities in terms of protection of child’s rights.  The said law stipulates that the identification, record-keeping, evaluation, assistance and monitoring of children at shall be done by the guardianship authority[28].

Evaluation, assistance, and monitoring of the child at risk is done through the case management method[29]. However, there are cases when the guardianship authority fails to fulfil its duties.

For instance, during 2015, the Ombudsperson had to intervene in several serious cases of inaction by the guardianship authorities, which represented serious forms of violation of the rights of children without parental care. It was necessary to get the prosecution bodies involved in order to reinstate the rights of the children and punish the persons responsible for having admitted such violations. 

Recommendation: The Ombudsperson recommends the Ministry of Labour, Social Protection and Family, and the representatives of local public authorities of the second level to ensure that the staff of the social assistance services fulfil their job duties in accordance with the legislation in force, by continuously overseeing their activity, providing training and testing the knowledge required in order to provide qualitative social assistance services to citizens.