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Juvenile Justice

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;

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Juvenile Justice

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  1. Juvenile Justice Justice Renate Winter

  2. 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;

  3. 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.

  4. 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)

  5. Categories of Children • Children in conflict with the law • (Penal justice) • Children at risk • (Prevention) • Children as victims/witnesses • (Protection)

  6. 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

  7. Principle of Proportionality • Appropriate to circumstances • Appropriate to facts • Appropriate to child • Appropriate to goal

  8. 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

  9. 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)

  10. 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

  11. 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)

  12. 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

  13. 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)

  14. 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)

  15. 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)

  16. 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)

  17. Art 2: Non-discrimination • Open discrimination • Hidden discrimination • Girls • Victims (problems with education, on the labor market, -prison! special schools!-)

  18. Art 3: Best interest • Rule of procedure (evaluation) • Substantive right • Fundamental principle • Interpretative legal principle

  19. Art 3: (continuation) • Physical needs • Psychological needs • Emotional needs • Educational needs

  20. Art 3 (Continuation) • Separate juvenile justice system: restorative justice • Repression versus rehabilitation • Retribution versus reintegration

  21. Art 6: Right to life, survival development • Life: medical problems, • Survival: preparation for exceptional circumstances (war, catastrophes….) • Development: school as well in closed institutions, • Prevention!

  22. Art 12: right to be heard • 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!

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