CR I MI N A L L AW A N D FAIR T RIAL RIGHTS P ROTECTIO N N OT ES This Act provides broad protections to children who are in contact with the law (victims and witnesses) as well as in conflict with the law (accused of a crime). These protections should be made available to Rohingya children accused or convicted of a crime or who are victims of or witnesses to a crime.34 Where accused of committing a crime, Rohingya children may exclusively be tried by Children’s Courts (Section 17). The trial and punishment of children by Mobile Courts and their detention in juvenile correction centres is unlawful, as per a recent (31 October 2019) interim ruling by the Supreme Court’s High Court Division.35 The various provisions of this Act aimed at providing children in conflict with the law alternatives to undergoing formal trial should be applied wherever possible in cases involving Rohingya children, such as: • release by the police with a warning (Section 47.2); • alternative dispute resolution (Section 37); • diversion (Section 48). Under no circumstance may Rohingya children under the age of nine be arrested or detained (Section 44.1), and where children nine years or older are arrested or detained, police are prohibited from using handcuffs to restrain them (Section 44.3). Upon the arrest of a child, police officers must inform the parents or guardians of the child (Section 45) and administer necessary first aid/medical attention. Police must also provide necessary mental support, and alert the relevant probation officer with whom diversionary or bail measures should be assessed. As a last resort where other measures are not possible, police should arrange for the immediate placement of the child in a Safe Home (Section 14.e), separate from adults and from children who have been convicted of a crime until the child can be brought before the Children’s Court (Section 44.5). In no case should a charge sheet accusing a child of an offence be submitted jointly with any adult accused (Section 15). The probation officer assigned to the accused child must ensure that the child has access to legal advice and representation, either by an NGO or under the Legal Aid Services Act, 2000 (Section 6.b(v)). In proceedings before the Children’s Courts, Rohingya children must be provided with interpretation services free of charge (Section 27.2). Where release with a warning or diversion are not possible, police officers should release any child accused of an offence on bail (with or without sureties) into the custody of their parents, caregiver/guardian, extended family, or probation officer, regardless of whether the offence of which they are accused is deemed bailable by other acts of law (Section 52). Arrested children should only be denied bail by police officers if the nature of the offence they are accused of is heinous or if the granting of bail would go against the best interests of the child (e.g., due to likelihood of reprisal) or the interest of justice would otherwise be jeopardized by doing so (Section 52.3). Where not released on bail, children should be brought before the courts within 24 hours and the Children’s Courts should either grant bail (Section 52.4) or order the child be kept in a Safe Home or Child Development Centre until and during trial (Section 52.5). With respect to sentencing, children found guilty of an offence normally punishable with death or imprisonment for life may be ordered to be detained in a Child Development Centre (Juvenile Correction Centre) for a minimum of three years and a maximum of ten years, whereas all other offences carry a maximum detention period of three years (Section 34.1). The Children’s Courts may release children on admonition or probation in lieu of detention (Section 34.6), under the supervision of a probation officer, their parents, or caregiver (Section 34.7). Furthermore, all orders issued by the Children’s Courts must provide for periodic review and release with or without conditions (Section 35). Where Rohingya children are ordered to reside in a Child Development Centre for the duration of judicial proceedings or under corrective detention, vocational training including proper education is to be provided (Section 63.4). Under no circumstance may Children’s Courts impose the death sentence or life imprisonment on a child, and imprisonment of a child is only possible in cases of such heinous offences that the Courts are satisfied that detention in a certified institute would be unsuitable (Section 33.1). In this case, the child sentenced to imprisonment must still be kept separate from adult prisoners (Section 33.2). Recognizing the vulnerable position of Rohingya refugee children living in Bangladesh, Children’s Courts should consider the use of alternative care in lieu of detention as authorized under Section 84, and where Rohingya children cannot be provided alternative care under the custody of their own parents, caretakers, or extended family, they should be considered “disadvantaged children” under Section 89, thereby qualifying for institutional care such as residence in government children homes and participation in training an rehabilitation programmes (Section 85). 37 BE YOND REFU GE: ADVANCING LEG AL PROTECTIONS FOR ROHINGYA C OMMUNITIES IN BANGL ADESH