Professor Kirsten Sandberg, Committee Member

1. Professor Kirsten Sandberg, Committee Member Juvenile justice and children’s rights: The position of the UN Committee on the Rights of the Child

2. Introduction • CRC committee very engaged in Juvenile Justice, members ask many questions • Also promotes child-friendly justice in other areas • General Comment No 10 (2007) on juvenile justice • Concluding observations to states: • Concerns • Recommendatons

3. General Comment no. 10 on Children’s rights in juvenile justice • Encourages states to establish a juvenile justice system in line with CRC, including • Prevention • Alternative measures to judicial procedures • Promotes other international standards • the “Riyadh Guidelines”, UN Guidelines for the Prevention of Juvenile Delinquency, • the “Beijing Rules”, UN Standard Minimum Rules for the Administration of Juvenile Justice, and • the “Havana Rules”, UN Rules for the Protection of Juveniles Deprived of their Liberty

4. CRC’s four general principles • Non-discrimination: • Particular attention to children in vulnerable situations. Some groups are overrepresented in juvenile justice (e.g. children in street situation, children from minorities) • Children are in no circumstances to be treated worse than adults. Any conduct which is legal by an adult must not be considered an offence if committed by a young person

5. CRC’s four general principles, cont. • The best interests principle requires a different treatment of children than adults • Right to life and development: Delinquency has a negative impact on development, and more so for deprivation of freedom • Right to express views must be respected at all stages

6. Main concerns in concluding observations to states • Prevention: Child protection system is malfunctioning • Minimum age of criminal responsibility is too low • No special justice system for those below 18 • The use of alternative measures is rare • Deprivation of liberty is in many cases the first option • Children are deprived of their liberty unlawfully or arbitrarily • They do not get legal assistance or only of poor quality

7. Mian concerns, continued • Re deprivation of liberty: • Pretrial detention, for long periods • Long prison sentences • Abuse and ill-treatment by police and in detention • Poor conditions in detention, no education • Children not separated from adults, girls not separated from boys • Lack of monitoring and complaints mechanism • No contact with families • Lack of reintegration and rehabilitation programs

8. Summing up the concerns • Child protection system insufficient • Age issues • Detention instead of restorative measures • Legal safeguards missing • Deprivation of liberty: Too long periods, violence, poor conditions, no education, no monitoring • No rehabilitation

9. Obstacles faced by states • Lack of understanding • of the importance of prevention in a broad sense • that persons below 18 are still children, and little respect for children in general • of what detention and violence does to a child • of the advantages of restorative justice • Lack of qualified personnel trained in human rights and sensitised to the needs of children, judges as well as police and prison officers • Lack of political will

10. Prevention • Not in the best interests of a child to grow up with a risk of being involved in criminal activities • Need for a system of support to vulnerable families (money and services) • Assist and educate parents in child-rearing • Special care and attention to young persons at risk, especially children who drop out of school • Use of peer group support (friends) • Strong involvement of parents • Community-based services and programmes that respond to the needs of children at risk

11. Age issues • The minimum age of criminal responsibility has to be raised, not lowered • Below 12 is not internationally acceptable. Discussion of this age limit. It should in general be higher • Between minimum age and 18: If subject to penal law, should be treated in separate juvenile justice system, with trained judges and other professionals

12. Diversion: Measures without judicial proceedings • Should be a well-established practice that can and should be used in most cases • What is it: community-based programmes • community service, • supervision and guidance by for example social workers or probation officers, • family conferencing • restorative justice, including restitution to and compensation of victims.

13. Restorative justice, the ideas • Repair the harm done by the criminal offence • Allowthe victim and the offender and all willing stakeholders to meet, to discuss the harm and how to bring resolution • Can lead to transformation of people, relationships and communities. Not merely repair, but deeper understanding

14. Restorative justice, the process • Meeting between victim and offender, with family members, other supporters, community members • Mediation, Conferencing, Peacemaking Circles • Victim and offender tell their story of the crime and its impact on their lives. Common understanding, recognition of the harm done • A facilitator prepares the parties and is present to help them carry out their conversation in a productive, respectful way • The parties find their own soultions

15. Values underlying restorative processes • Mutual respect – recognizing the humanity of the other • Collaboration – working together to find solutions • Voluntary – allowing parties to decide whether or not to participate • Empowerment of participants – giving the participants the tools and space to develop solutions to their own problems.

16. Reasons to use restorative justice • Less recidivism • Better for the offender • More security for the people • More economical than detention • Better for the victim

17. When can it be used • Minor offences (shoplifting, theft and burglary with limited damage) • First-time child offenders • But not only, also more serious offences involving violence

18. Legal safeguards • Compelling evidence that the child committed the offence • He/she admits responsibility, freely and voluntarily • He/she gives an informed consent to diversion • States may require parental consent below 16 • Diversion must be regulated in the law: what cases, powers to the police etc. • Legal assistance to the child in making the choice • Completed diversion should lead to a definite and final closure of the case. If registered, should be for maximum a year

19. Conclusion: You could encourage your governments to … • Raise the criminal age • Treat persons below 18 differently, separate system • Train professionals to deal with below 18s • Avoid detention, not least pretrial • Improve conditions in detention, stop violence! • Ensure legal safguards • Use restorative justice!

20. Useful references • General Comment No 10 (2007) Children’s Rights in Juvenile Justice, http://www2.ohchr.org/english/bodies/crc/comments.htm • European Network for Restorative Justice http://www.restorativejustice.org/editions/2003/June/RJ%20Network

21. UN report on violence against children within the juvenile justice system, A/HRC/21/25 http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-25_en.pdf • Human rights of juveniles deprived of their liberty, A/HRC/21/26 http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-26_en.pdf