Juvenile Justice

Justice Renate Winter

International Standards The UN Standard Minimum Rules for the Administration

of Juvenile Justice, “the Beijing Rules”, General Assembly resolution 40/33, 29 November 1985;

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, General Assembly resolution 43/173, 9 December 1988;

The UN Guidelines for the Prevention of Juvenile Delinquency, “the Riyadh Guidelines”, General Assembly resolution 45/112, 14 December 1990;

The UN Standard Minimum Rules for Non-custodial Measures, “the Tokyo Rules”, General Assembly resolution 45/110, 14 December 1990;

International Standards UN Rules for the Protection of Juveniles

Deprived of their Liberty “the Havana Rules”, General Assembly resolution 45/113, 14 December 1990;

Guidelines for Action on Children in the Criminal Justice System, Economic and Social Council resolution 1997/30, 21 July 1997;

Guidelines on justice for child victims and witnesses of crime, Economic and Social Council 2004/27, 2004.

Child Right Convention –CRC- Gives a comprehensive listing of the

obligations of State parties Direct (providing protection) Indirect (enabling others to carry out duties)

The four important “P’s” Prevention (e.g. Art. 2: Non-discrimination) Provision (e.g. Art. 3: Best interest of the child) Protection (e.g. Art. 6: Right to life etc.) Participation (e.g. Art. 12: Respect for views of

child)

Categories of Children Children in conflict with the law

(Penal justice)

Children at risk (Prevention)

Children as victims/witnesses (Protection)

Art. 37 CRC No torture No capital punishment or life imprisonment No deprivation of liberty

unlawfully/arbitrarily (only measures of last resort for the shortest appropriate period of time)

Deprivation of liberty in a humane way, coherent with needs of a person AND SEPARATED FROM ADULTS

Prompt access to legal assistance

Principle of Proportionality Appropriate to circumstances

Appropriate to facts

Appropriate to child

Appropriate to goal

Art. 40 of CRC Child has the duty to respect and freedoms of others Child has the right to have rights and freedoms

respected Presumption of innocence Prompt information of charges Determination of the matter without delay Not to be compelled to give testimony or confess guilt Right to appeal Right to free interpreter Establish of age of penal responsibility Diversion

Diversion and Alternatives Diversion – before / instead of trial

Alternatives Before trial: police, prosecutor, judge

(Instead of trial) During the trial: judge

(Instead of conviction) After trial: judge

(Instead of sentence)

UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)

Fundamental Principles Active direction towards children to non-

criminogenic attitudes Efforts of entire society Best interest of the child from early age on Child oriented measures with child’s participation Permanent reconsidering of prevention measures

without criminalizing / penalizing the child

UN Rules for the Protection of Juveniles Deprived of their Liberty (JDLs)They apply to: All persons under 18 All forms of deprivation of liberty

(police custody, pre-trial detention, imprisonment, placement in closed institutions)

All legal actors (police, administration, justice)

Fundamental Principles of the JDLs Deprivation of liberty is matter of last resort For exceptional cases For a minimum period

Institutions should be: Small facilities separated from adults Providing meaningful education / training /

life skills

Un Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) General principles (proportionality,

diversion, alternatives, deprivation of liberty as last resort)

Investigation and prosecution (specialization within the police, alternatives, speedy trial)

Adjudication and disposition (free legal assistance, alternatives such as care, probation, community service, group counseling)

Un Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (Continued) Non institutional treatment (social

workers / probation officers, open educational centers)

Institutional treatment (open, small facilities with meaningful programmes)

Research, planning, policy formulation, evaluation (participation of universities, and policy makers)

Further International Instruments The Hague convention on the protection of

children and cooperation in respect of Intercountry adoption

ILO convention 138 and 182 concerning the minimum age for admission to employment and work under difficult circumstances (C138 minimum age convention 1973 – C182 worst forms of child Labour convention 1999)

Further International Instruments (Continued) The additional protocol to the CRC I

(optional protocol to the convention on the rights of the child on the involvement of children in armed conflict)

The additional protocol to the CRC II (optional protocol to the convention on the rights of the child on the sale of children, child prostitution, and child pornography)

Open discrimination

Hidden discrimination

Girls

Victims (problems with education, on the labor market, -prison! special schools!-)

Art 2: Non-discrimination

Rule of procedure (evaluation)

Substantive right

Fundamental principle

Interpretative legal principle

Art 3: Best interest

Physical needs

Psychological needs

Emotional needs

Educational needs

Art 3: (continuation)

Separate juvenile justice system: restorative justice

Repression versus rehabilitation

Retribution versus reintegration

Art 3 (Continuation)

Life: medical problems, Survival: preparation for exceptional

circumstances (war, catastrophes….)

Development: school as well in closed institutions,

Prevention!

Art 6: Right to life, survival development

Child: subject of right,

In all judicial and administrative procedures

To be heard personally (choice to remain silent, protection)

Danger in the adversarial system: leading questions!

Art 12: right to be heard