Child Detention under the Jurisdiction of Sweden

Overview of the position on Child Detention under the Jurisdiction of Sweden

The position of Sweden on child detention will be considered here and also an analysis of other factor related to child detention. The position of the Swedish jurisdiction on the implementation of detention is placed on the basis of treatment rather than punishment. The most type of crime committed by young offenders would be theft, however there has become a more prominent issue because violent crimes are far more usual then theft, variations in violent crimes will disappear in general reports.[1]

Definitions to consider of child detention

The definition of “young offenders” in Sweden is offenders who have reached the age of 15, in Sweden a child under the age of 15 is considered capable of committing a crime, but have not yet turned 21. The age has been lowered to 18, but special circumstances still apply to offenders aged between 18 and 20. The number of young people suspected of offences set out in the Swedish Penal Code has remained more or less unchanged over the past 30 years, where fluctuations in the number of suspected persons between the ages of 15 and 20 have in principle followed changes in population figures. But, the overrepresentation of young people does not mean that young people are responsible for the majority of crimes committed; people over the age of 20 make up a far greater amounts of the population and are as such responsible for a larger number of crimes in total.[2]

Art 40.3 (a) of the UNCRC provides for the establishment of a minimum age below which children shall be presumed to lack capacity to infringe the law. The United Nations Standard Minimum Rules for the Administration of #justice in Rule 4.1 provides further guidance when the age of criminal capacity is concerned “the beginning of that age shall not be fixed at too low an age level bearing in mind the facts of emotional, mental and intellectual maturity”. Neither of these conventions however outline a particular fixed age limit is a decisive factor when determining those children in trouble with the law who can be subjected to and sentenced in criminal proceedings.[3]

Detention of children unaccompanied with their parents or relatives is prohibited in many EU countries, they must be accommodated in dedicated facilities for minors. However the lack of these child specified facilities or short comings in the identification process could result in the accommodation of a child in a centre for adults or even a placement of detention. Children may be detained when there is an issue over the real age, where, the child claims to be under the age of 18, while the state maintains that the child is an adult.[4]

Children are classified according to their migration status before being seen as children. There is limited information on the numbers of children administratively detained for immigration reasons. The limited amount of information available is as a result of a general failure on the part of the state to collect data on the number of children detained, on regards to the duration of the detention and the reasons for their detention. Where official statistics or documents are available, they are often out-of-date, not comprehensive, not disaggregated or may have been collected using different methodologies. Restricted NGO’s access to places of detention.

The conditions children are placed in include being deprived of rights to which they are entitled to when detained, such as right to education, physical and mental health, privacy, information, and rest and leisure. They can also find themselves detained with adult and subject to adult regime and treatment. Art 37 (d) of the CRC gives children the right to challenge the legality of their detention or restriction of their liberty, before a court or other competent independent and impartial authority, and to a prompt decision on any such action.[5]

 

However children may not know of their right to challenge, be afraid to challenge authority that it may damage their case, or simply have no access to legal representation or assistance to mount such a challenge. The impact of such results in the child being highly traumatized especially if vulnerable, that they have a perception that life is unsafe, uncertain, unstable, unpredictable (PTSD). Detention also aggravated previous traumas experienced in their home country or during migration. As well as that the children are less capable to understand why while they have been detained, are limited opportunities to play and why their parents are treated without any dignity. Disruption of family unity and parental role have a negative impact in their psychological development.[6] Oldest children tend to then take on the role of parenting: emotional burden disproportionate for their age.[7]

The law to consider in relation to Child Detention

The Migration Board, the Migration Court or the Migration Court of Appeal, the Government or the police are the bodies that authorise whether to detain you or place you under supervision in accordance with the Aliens Act. Here you are entitled, when placed under detention or under supervision, to the same daily allowance and health care as other asylum seekers. In regards to child detention neither children/their parents/ guardian may be placed into detention if that separates them from each other. However children and their parents/guardians can be detained together if there is a legal reason for doing so. The maximum detention period of 72 hours can be extended by an additional 72 hours if special circumstantial grounds exist. A child that has come to Sweden alone can be placed in detention under exceptional circumstances if he/she must leave the country as the result of a refusal of entry/expulsion decision.[8]

Children, according to the Aliens Act, may be detained with their custodian. Unaccompanied minors may be detained only if they don’t have a custodian in Sweden and there are “exceptional grounds” for detention (2005, Ch.10, S.2-3). Minors may not be placed in prisons or police facilities (Aliens Act 2005, Ch. 10, S.20).

The Council of Europe consists of Resolution 1701 (2010) “vulnerable people should not as a rule be placed in detention and specifically unaccompanied minors should never be detained” and Resolution 1810 (2011) “unaccompanied children  must be treated first as children…the child’s best interest must be a primary consideration…regardless of the child’s migration or residence status”. EU Commission urged Member States to seek alternatives to detention as a “win-win scenario” for them as well as migrants.[9]

Under the European Convention, deprivation of liberty may only be ordered for the purpose contained in Art 5 UDHR, this does not specifically mention detention on security grounds, and the only way administrative detention for security reasons is lawful under the European Convention is under a declared state of emergency and derogation from the right of liberty.[10]

The Aliens Act also provides alternative control measures for persons who might otherwise be placed into detention. Both adults and children may be placed under “supervision,” which entails an obligation to report to the police or to the Swedish Migration Board regularly. 

Children may be detained for 72 hours, subject to renewal of another 72 hours in exceptional circumstances (Aliens Act 2005, Ch.10, S.5). Detention orders are reviewed at regular intervals—two weeks or two months from the beginning of the order depending on the grounds for detention. Supervision orders are re-examined every six months (Aliens Act 2005, Ch. 10, S.9). Given that detention exceeding the set time is possible on “exceptional grounds,” Sweden does not yet fulfil the EU “Return Directive” criterion of having specified a maximum length of Detention.[11]

It is possible to submit an appeal against the Migration Court against a decision to detain you, to which will be sent from the Migration board to the court.[12]

In Sweden no child under 18 may be held in detention for more than three days, however in extreme circumstances it can be six days. After this period the child is released with the family at a refugee centre. Where a member of the family is understood to pose a potential threat to national security, or where a person’s identity cannot be verified, the family is notified that the father is to be held in detention, while the mother and children are released into group homes and allowed to visit him during the day.[13]

Like detention practices in other Nordic countries such as Finland, Swedish officials emphasise a social service approach to detention. This management arrangement stands in contrast to that of many other countries, where detention centres are often managed by security personnel (Swedish Migration Board 2009a).During a recent visit by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Sweden received a favourable review of its detention infrastructure, which has led to its characterisation as a European role model (Le Figaro 2009). The CPT, in its preliminary observations, noted that there were no allegations of abuse and that detention centre staff were sufficient in number and skills and that “many detainees interviewed spoke positively about the staff.”[14]  

Article 3 of the UDHR, Article 9 of the ICCPR and Article 37 of the CRC are the key provisions in international human rights law that limit the use administrative detention. In addition, the Human Rights Committee’s General Comment No. 8 emphasises the most of the elements of Art 9 of the ICCPR have effect to all types of deprivation of liberty, including all forms of administrative detention. While part of Art 9(2) and 9(3) are only used against persons whom criminal charges are brought, the rest, including control by the court of the legality of the detention, - applies to all other persons deprived of liberty by way of arrest of detention. Art 37 of the CRC also limits the use of administrative detention, and adds additional restrictions on the use of administrative detention.

In addition, the UN’s, Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), provide a further limitation on detention. Even under the circumstances that detention should be used as a last resort, you are also to place a child in detention, limited to exceptional cases. The Beijing Rules reiterates that any detention should be brief and states that this should only occur where the child has committed-a serious act involving violence. The right to liberty and security of the person is mirrored in regional human rights instruments, including Art 5 of the Arab Charter on Human Rights (Arab Charter), Art 6 of the Banjul Charter, Art 7 of the American Convention, Art 1 of the American Declaration on the rights and Duties of Man and Art 5 of the European Convention. Further Duties can also be found in the body of Principles.

Art 3 of the CRC requires that – 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 must be the primary consideration. This means that the issue of whether the best interests of the child have been a primary consideration must be taken into account in underlining whether the detention is appropriate. Other human rights standards, such as non-discrimination are also relevant. For instance, the administrative detention of a particular group of children chosen on the basis religion, race, nationality or ethnicity is likely to be regarded as unlawful.[15]

In order to comply with the UN Declaration on the Rights of the Child, that juvenile offenders shall be kept separate from adult offenders, a new sanction has been placed to the Swedish Panel Code. This allows juveniles who otherwise would have been sentenced to prison, to be sentenced to closed juvenile care in special institutions run by the National Board of Institutional Care. Should a juvenile be sentenced to prison, however, they are to be housed separate from adult prisoners unless it is considered to be in their best interests to be housed with adult prisoners.[16]

When an administrative decision is taken to detain an unaccompanied child or family with children, little thought is given by the States to the best interests of the child. Reports from international bodies, state bodies and NGOs, as well as case law from regional bodies and the Human Rights Committee lead to the likely conclusion that children’s are not a priority and are not fully implemented by immigration detention centres.[17]

 

It should be considered, however, that you might decide that instead of being detained you might consider being placed under supervision. Children can also be placed under supervision under certain circumstances. If you are under supervision, you must report at the time and place you are informed about and provide your passport or other identifications over, also there may be special conditions that must be complied with. The decision can be withdrawn if there is no longer any reason to keep you under supervision. Whereas the decision will be considered within six months. However you cannot appeal against a decision to place you under supervision.[18]

 

The proportion of adults responsible for committing offences also tends to increase with the degree of seriousness of the offence. The pattern of high juvenile crime which decreases from the age of 20 is not unique for Sweden. This indicates that crime at a young age may be seen as a passing phase in a large majority of cases.  

The main sanctions in the SPS include fines, probation, suspended sentence and imprisonment (or alternatively intensive supervision with electronic monitoring). These sanctions may be imposed in combination and may also be subject to special conditions, e.g. probation in combination with community service or an order on undertaking to follow a treatment. Further sanctions include waiver of prosecution, psychiatric care and treatment according to the Act on Treatment of Drug Misusers.

Young offenders can be sentenced to special sanctions for young people, but also to other sanctions. The special sanctions youth care and youth service are based more on the best interests of the child and on the young person’s social situation than on the penal value of the crime. Closed youth detention is intended as an alternative to prison in the case of especially serious crimes, and is determined entirely on the basis of the penal value of the offence.[19] 

Other Areas to consider in relation to Child Detention

Youth care

Youth care is regarding the handing over to the social services of young people deemed to be in need of care or other measures. The aim of the social services’ measures should be to assist in the positive development of the individual and to counteract the risk of further offences. When deciding what measures to take, the social services are to make an assessment of the young person’s overall social situation and not only look at the crime. The most common measures today include talks, contact persons, placements in a family home or an institution, drug tests and measures in the family.

Youth service

Youth service is about carrying out unpaid work for 20 to 150 hours under the supervision the social services. The sanction, which was introduced as an independent sanction in 2007, is intended as an alternative to fines and deprivation of liberty for less than one year, primarily for young people between the ages of 15 and 17, and who are not in need of care under the Social Services Act. Young people aged between 18 and 20 can also be sentenced to youth service if there are special reasons for this.

Youth care and youth service can be placed for offences at both fine and imprisonment level. The most common categories of crime receiving such sanctions in 2008 were assault and theft. Youth care and youth service require the consent of the young person concerned; youth care can, however, be enforced without consent in certain circumstances under the Act with Special Provisions on the Care of Young People.

Closed youth detention 

At the beginning of 1999, changes were introduced to the sentencing system for young offenders. A new feature was closed youth detention. Young persons who have committed serious crimes can be sentenced to closed youth detention at a special youth detention centre instead of prison. The aim is to reduce the detrimental effects of time spent in prison. The length of the sentence is determined on the basis of the penal value of the crime and can vary from fourteen days to four years, ten months being the average. There is no conditional release.

The report from the City of Stockholm notes that youth service is a sanction that has worked well for a large group of what may be characterised as “normal young people” without social problems and previous criminal records. However, it has not succeeded in changing the pattern among young people who had started a criminal career even before the age of 15 and who come from socially vulnerable conditions[20]

In conclusion there is wide range of analysis to be made through child detention within Sweden. There has be consideration given to the conditions, implantations and result of child detention, and also the law that convers this are, in which covering most areas. An analysis also on the courts don’t give much thought towards the interests of the child in particular circumstances.

Ibrahim Chaudhary

GCD FLAC 

Bibliography

·         Jerzy Samecki, Felipe Estrada, Juvenile crime in Sweden: A trend report on criminal policy, the development of juvenile delinquency and the juvenile justice system.

·         Erik Axelsson Riksdag, Young Offenders and Juvenile justice in Sweden, Research Service, Stockholm, Sweden.

·         Karolin Johansson and Therese Palm, Children in Trouble with the law: Child Justice in Sweden and South Africa.

·         Maria Pia Belloni Mignatti, Migrant Children in Detention in Europe: Psychosocial Issues. Problems and Solutions, http://ngomigration.files.wordpress.com/2013/09/migrant-children-in-detention-in-eu-2-pdf-version.pdf, 17/02/14.

·         Dudley M, Steel Z, Mares S. Newman L, Children and young people in immigration detention, University of New South Wales, 2012.

·         Detention and Supervision, http://www.migrationsverket.se/download/18.5e83388f141c129ba6313f2a/1381926474480/forvar_en.pdf, Mars 2006, Date 12/02/14

·         Prof. Carolyn Hamilton, Kirsten Anderson, Ruth Barnes, Kamena Dorling, Administrative detention of children: a global report, Children’s Legal Centre, University of Essex, http://www.unicef.org/protection/Administrative_detention_discussion_paper_April2011.pdfEs, 17/02/14.

·         Global Detention Project, www.globaldetentionproject.org/countries/.../sweden/introduction.html, Date 26/10/13.

·         International Detention Coalition, Children in Immigration Detention Position Paper’, May 2009.

·         Ministry of Justice, Sweden, Information about the Swedish prison and probation service, http://www.government.se/content/1/c6/01/61/94/0602f648.pdf , Date 26/10/13.

·         Erik Axelsson Riksdag, Young Offenders and Juvenile justice in Sweden, Research Service, Stockholm, Sweden.

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[1] Jerzy Samecki, Felipe Estrada, Juvenile crime in Sweden: A trend report on criminal policy, the development of juvenile delinquency and the juvenile justice system, www.esc-eurocrim.org/.../youth_crime_in_sweden_sarnecki_estrada_fin...‎ , Date:25/10/13

[2] Erik Axelsson Riksdag, Young Offenders and Juvenile justice in Sweden, Research Service, Stockholm, Sweden.

[3] Karolin Johansson and Therese Palm, Children in Trouble with the law: Child Justice in Sweden and South Africa, International Journal of Law, Policy and the Family, 2003.

[4] Maria Pia Belloni Mignatti, Migrant Children in Detention in Europe: Psychosocial Issues. Problems and Solutions, http://ngomigration.files.wordpress.com/2013/09/migrant-children-in-detention-in-eu-2-pdf-version.pdf, 17/02/14.

[5] Maria Pia Belloni Mignatti, Migrant Children in Detention in Europe: Psychosocial Issues. Problems and Solutions, http://ngomigration.files.wordpress.com/2013/09/migrant-children-in-detention-in-eu-2-pdf-version.pdf, 17/02/14.

[6] Dudley M, Steel Z, Mares S. Newman L, Children and young people in immigration detention, University of New South Wales, 2012.

[7] Maria Pia Belloni Mignatti, Migrant Children in Detention in Europe: Psychosocial Issues. Problems and Solutions, http://ngomigration.files.wordpress.com/2013/09/migrant-children-in-detention-in-eu-2-pdf-version.pdf  ,17/02/14.

[8] Detention and Supervision, http://www.migrationsverket.se/download/18.5e83388f141c129ba6313f2a/1381926474480/forvar_en.pdf, Mars 2006, Date 12/02/14.

[9] Maria Pia Belloni Mignatti, Migrant Children in Detention in Europe: Psychosocial Issues. Problems and Solutions, http://ngomigration.files.wordpress.com/2013/09/migrant-children-in-detention-in-eu-2-pdf-version.pdf ,17/02/14.

[10] Prof. Carolyn Hamilton, Kirsten Anderson, Ruth Barnes, Kamena Dorling, Administrative detention of children: a global report, Children’s Legal Centre, University of Essex, http://www.unicef.org/protection/Administrative_detention_discussion_paper_April2011.pdfEs, 17/02/14.

[11] Global Detention Project, www.globaldetentionproject.org/countries/.../sweden/introduction.html, Date 26/10/13.

[12] Detention and Supervision, http://www.migrationsverket.se/download/18.5e83388f141c129ba6313f2a/1381926474480/forvar_en.pdf, 12/02/14.

[13] International Detention Coalition, Children in Immigration Detention Position Paper’, May 2009.

[14] Global Detention Project, www.globaldetentionproject.org/countries/.../sweden/introduction.html, Date 26/10/13.

[15] Prof. Carolyn Hamilton, Kirsten Anderson, Ruth Barnes, Kamena Dorling, Administrative detention of children: a global report, Children’s Legal Centre, University of Essex, http://www.unicef.org/protection/Administrative_detention_discussion_paper_April2011.pdfEs, 17/02/14.

[16] Ministry of Justice, Sweden, Information about the Swedish prison and probation service, http://www.government.se/content/1/c6/01/61/94/0602f648.pdf , Date 26/10/13.

[17] Prof. Carolyn Hamilton, Kirsten Anderson, Ruth Barnes, Kamena Dorling, Administrative detention of children: a global report, , Children’s Legal Centre, University of Essex, http://www.unicef.org/protection/Administrative_detention_discussion_paper_April2011.pdfEs, 17/02/14.

[18] Detention and Supervision, http://www.migrationsverket.se/download/18.5e83388f141c129ba6313f2a/1381926474480/forvar_en.pdf, Mars 2006, Date 12/02/14

[19] Erik Axelsson Riksdag, Young Offenders and Juvenile justice in Sweden, Research Service, Stockholm, Sweden.

[20] Erik Axelsson Riksdag, Young Offenders and Juvenile justice in Sweden, Research Service, Stockholm, Sweden.