3. State Party ReportsBenin[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40](...) II. DEFINITION OF THE CHILD 43. Article 1 of the Convention on the Rights of the Child defines a child as any human being below the age of 18 years. Beninese legislation contains no precise definition of a child. It refers to minority and majority. The latter varies according to whether the context falls within the scope of civil, criminal or social legislation. 44. Under Ordinance No. 69-23/PR/MJL dated 10 July 1969, relating to treatment by the courts of offences committed by minors, the age of majority in the field of criminal law is fixed at 18. For electoral purposes, under article 4 of Law No. 94-013, dated 17 January 1995, a person who has reached age 18 on the day of the voting is deemed to have attained majority. 45. Article 388 of the Civil Code stipulates that a minor is a person of either sex who has not yet reached age 21. 46. Thus any minor under age 21 is required to obtain authorization from his parents before taking a test or a competitive examination for admission to any public or semi-public administration. He has no locus standi in the courts and may not on his own initiative consult a lawyer or a doctor without the consent of his parents. However, in the informal sectors, this minimum age is not respected, and the principle is often violated in practice. In urban areas, for instance, girls under age 21 undergo abortions without parental authorization. 47. However, minors who feel that their physical, moral or psychological health is threatened sometimes do not hesitate to consult a social worker, a juvenile court judge or even the members of the criminal investigation unit working in the Brigade for the Protection of Minors. In so doing he is exercising his right of referral in accordance with articles 375ff of the Civil Code, which provide for measures of educational assistance to ensure the social protection of a minor who is thus threatened. (...) (f) Criminal liability 56. Minors under age 18 charged with an offence are tried before a juvenile court, which is a court of special jurisdiction. Under criminal law majority is attained at age 18. No penalty may be inflicted on a minor under age 13, who benefits from an unchallengeable presumption of irresponsibility in criminal law (absolute legal irresponsibility in criminal law). A minor aged 13 or over may be sentenced to deprivation of liberty, provided that the penalty may not exceed half that which he would have incurred if he had been over 18 years of age. (...) IV. CIVIL RIGHTS AND FREEDOMS (...) (g) The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment 94. Article 37 of the Convention stipulates that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment or to capital punishment. 95. Article 18 of the Constitution provides that "no person shall be subjected to torture, nor to maltreatment, nor to cruel, inhumane or degrading treatment". 96. Article 312 of the Penal Code provides for the prosecution and punishment of parents or guardians guilty of ill-treatment or neglect of their children. 97. In Benin there are special juvenile courts, handling cases of juvenile delinquency, within the jurisdictions of the courts of first instance in Cotonou, Porto-Novo and Ouidah. These courts were established in pursuance of Ordinance No. 69-23/PR/MJL, dated 10 July 1969, which provides for special treatment for persons under age 18. 98. The specific provisions of this ordinance include measures providing for guardianship and education; it also provides that a delinquent minor under age 13 may not be subjected to any penal sanction, but only to measures of educational assistance (art. 23). A minor aged over 13 may be sentenced to a penalty not exceeding half of that to which he could have been sentenced if he had been 18 years of age or over. 99. Under article 32 a minor found guilty of a crime may be sentenced to detention or re-education. He may not be sentenced to capital punishment. At most he may be condemned to 10 to 20 years' imprisonment in an appropriate establishment. If he incurs a sentence of imprisonment for a fixed period, the duration of that imprisonment may not exceed half of the period to which he could have been sentenced if he had been over age 18. 100. Article 20 prohibits publication of records of proceedings, or of the identity or personality of delinquent minors; article 18 stipulates that hearings shall take place in camera. Under article 9 a lawyer is automatically assigned to a minor charged with a breach of the law. 101. In most of the eight detention centres and civil prisons in Benin, the prison authorities detain children in special compounds for minors. 102. As part of the social mobilization campaign on behalf of children in moral danger and with a view to the social reintegration and re-education of young delinquents, the National Centre for the Protection of Children and Young Persons (CNSEA), established under Decree No. 316/PR/MJL, dated 9 September 1967, was reopened in April 1995. Since 1982 it had been closed for rebuilding work. 103. With a view to ensuring the protection, re-education and reintegration into society of delinquent minors, a juvenile court judge may at any stage in the proceedings issue a reasoned order providing for detention and re-education measures, to be implemented either in an institution or, where educational assistance is given to the child and his family, in a non-custodial environment (arts. 20, 25 and 40 of the Constitution). 104. The provisions of article 37 of the Convention are in line with the Ordinance of 10 July 1969 concerning the judgement of offences committed by minors under age 18. 105. A major effort to prevent juvenile delinquency is being made by the Brigade for the Protection of Minors, which has nationwide competence. This brigade is a section within the criminal police; it was established in pursuance of Decree No. 83-233, dated 29 June 1983, concerning the establishment, organization and functioning of the Ministry of the Interior and Public Safety. It was subsequently reorganized by Order No. 045/MISAT/DGPN, dated 28 February 1991. 106. Its assigned responsibilities and tasks are:
It specializes in investigations relating to minors in physical or moral danger. The statistics for 1994 are as follows:
(...) VIII. SPECIAL PROTECTION MEASURES FOR CHILDREN (...) (b) Children in conflict with the law; the administration of juvenile justice | ||||||||||||||||||||||||||||||||||||
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204. The administration of justice in Benin is governed by Ordinance No. 69-23, dated 10 July 1969, relating to offences committed by persons under age 18. This ordinance divides minors into two categories: those under age 13 and those aged 13 or over. 205. A minor under age 13 who commits an offence can only be subjected to supervision, surveillance or re-education measures. He may not be subjected to any penal sanction (art. 23 of Ordinance 69-23 of 10 July 1969). 206. If charges are brought against a minor aged 13 or over, the Public Prosecutor refers the case to the juvenile court. The latter may either order guardianship or re-education or, in the event of a repeated offence, award a penal sanction. In the latter case, the sentence awarded may not exceed half the sentence which an adult would have incurred. 207. There are currently provisions in force permitting the issue of banning orders, covering periods of not less than 5 years and not more than 10, against minors. However, it should be pointed out that measures to abolish these provisions, which are not in conformity with the spirit of the Convention, are under consideration. Treatment of minors deprived of liberty 208. The current tendency is to avoid sending minors to prison. However, cases may arise in which a minor is provisionally deprived of liberty during the period of investigation on account of the seriousness of the offence committed or because the minor is a habitual offender. In these specific circumstances he or she may be placed in preventive detention in a local prison. 209. It must unfortunately be recognized that the conditions of incarceration of these children are not conducive to their normal development on account of overcrowding in the central prison, which makes it impossible to set aside a special compound for minors. Thanks to the joint action of the Government, NGOs and the Benin Human Rights Commission for the Protection of Persons Deprived of Liberty, measures have been taken to remedy this situation. The officials of the prison administration now ensure that minors in detention are kept apart from adults. 210. At present only the prisons in Cotonou and Porto-Novo have compounds for minors. It should be mentioned that, under a project for the rehabilitation and construction of local prisons organized by the Aid and Cooperation Fund (FAC), all the prisons in Benin will have special compounds for minors. It is equally important to point out that at present there are no children in detention in the prison in Cotonou. Two minors are currently being held in Porto-Novo pending placement in appropriate facilities for re-education. Institutions admitting children in conflict with the law 211. The National Centre for the Protection of Children and Young Persons (CNSEA) is at present the only State institution concerned with the admission, re-education and social reintegration of minors in difficult circumstances. It admits minors on a reasoned order from a juvenile court judge. 212. The Listening and Guidance Centre (CEO) of the archbishopric of Cotonou, an institution of medium capacity, admits delinquent minors sent by the Office of the Juvenile Court or by the Brigade for the Protection of Minors; it gives them vocational training to enable them to reintegrate into social and working life. This institution also helps juvenile court judges to find the families of children. 213. Delinquent minors can commit the same offences as adults. There is abundant evidence to show that many offences usually committed by adults are now being committed by minors. In the 17-18 age group one encounters gangs, trafficking in children, fraud, confidence trickery, possession of and trading in Indian hemp, abandonment of newborn children, etc. (see statistical table of offences below). STATISTICS OF CRIMES AND OFFENCES COMMITTED BY MINORS, 1985-1990 (Age group: 12-18 years)
STATISTICS OF CRIMES AND OFFENCES COMMITTED BY MINORS, 1990-1995 (Age group: 12-18 years)
STATISTICS OF CRIMES AND OFFENCES COMMITTED BY MINORS, 1990-1995 (continued) (Age group: 12-18 years)
OFFICE OF THE JUVENILE COURT JUDGE OF THE COURT OF FIRST INSTANCE IN PORTO NOVO, 1995-1996 (Age group: 12-17 years)
ESD project, COTONOU: CONDENSED STATISTICS (...) [Further information in State party report relating to the administration of juvenile justice] (...) Difficulties encountered in the implementation of legislation 15. Benin is a country with oral traditions and comprises many illiterates, who have no knowledge of the legislation and are consequently unaware of their rights and duties, this notwithstanding the efforts made in recent years by the State in the fields of extension, dissemination and development of awareness. 16. The administration of justice for minors in Benin is based on Ordinance No. 69-23/PR/MJL, dated 10 July 1969, relating to offences committed by persons under 18 years of age. Article 13 of that ordinance stipulates that "the judge shall, by means of a social investigation, obtain information on the material and moral situation of the accused minor, his character, antecedents and personality, the persons he frequents in school, his attitude in school, the conditions in which he has lived and been brought up and the appropriate means of re-educating him, and also the moral and material situation of his parents". Thus the judge orders the social service attached to the court to conduct a social investigation relating to the minor (his parents, his frequentations, etc.). Once the findings of the investigation have been received, the juvenile court judge may decide either to assign custody of the child to his or her parents under the supervision of the social workers or to place him or her in a centre of a social nature to be re-educated and integrated into society. 17. Judges often encounter difficulties of various kinds in the performance of this task. One example is the inadequacy of the reception facilities; Benin has only one centre with nationwide competence (the National Centre for the Protection of Children and Young Persons). However, it should be mentioned that Decree No. 96-299, dated 18 July 1996, concerning the powers, organization and functioning of the Ministry of Justice, Legislation and Human Rights, provides for the establishment of a centre in each département. Institutions and organizations acting for the benefit of children Government institutions |
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18. There are seven ministries dealing with different aspects of problems relating to children. They are: the Ministry of Health, Social Protection and the Condition of Women (which handles matters relating to the improvement of the health of mothers and their children); the Ministry of National Education and Scientific Research (which endeavours to secure equality of opportunity for boys and girls within the educational system); the Ministry of Justice, Legislation and Human Rights, which, through its different agencies and specialized institutions (which include the National Centre for the Protection of Children and Young Persons - CNSEA), is concerned with the monitoring of children placed under supervision; the Ministry of Planning, Economic Restructuring and Employment Promotion, which coordinates the National Programme for Women and Children and the Benin/UNICEF Cooperation Programme; the Ministry for Youth, Sports and Leisure, whose tasks include the provision of opportunities for relaxation and leisure for children; the Ministry for the Public Service, Labour and Administrative Reform, which, among other things, establishes regulations concerning child labour and supervises their implementation; and the Ministry of the Interior, Security and Territorial Administration, which protects children in difficult circumstances through the agency of the Brigade for the Protection of Minors. Non-governmental institutions, associations and organizations 19. Benin has encouraged the creation of national organizations, institutions and associations. The following exist:
20. The Government of Benin is planning a number of activities of conventional types parallelling the various activities being conducted by these institutions and organizations. (...) V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE (...) (j) Periodic review of placement (article 25) 136. A child who has been placed by the competent authorities for the purposes of care, protection or treatment is entitled to a periodic review of the placement. 137. In Benin articles 48ff of Ordinance No. 69-23/PR/MJL, dated 10 July 1969, concerning the judgement of offences committed by minors under age 18, lay down the procedures for periodical examination and review of placements. 138. The re-education of minors placed on probation or required to undergo education in a non-custodial environment is conducted under the authority of the juvenile court judge, who coordinates the activities of the social workers, the children's delegates and all other persons concerned. 139. Individuals, institutions or heads of public or private vocational schools responsible for providing children with apprenticeship for a trade are required to submit periodic reports on the behaviour and activities of children placed with them and on the result of their interventions. 140. The purpose of educational assistance is to protect a child in danger or in difficult circumstances and to remedy the difficulties which are compromising his or her normal development. It does not seek permanently to organize the existence of a minor in isolation from his or her family. 141. The flexibility of this procedure enables changes to be made at any time in the measures in force in the light of elements in the situation and its development. However, the judge must endeavour to obtain the support of the family for any measure he envisages. Finally, the minor and his or her parents enjoy certain procedural guarantees. Source: Initial reports of States parties due in 1992: Benin, UN Doc. CRC/C/3/Add.52, paras. 15-17, 19, 43-47, 56, 94-106, 136-141, 204-213 (4 July 1997) |