10 August 2006 - CRINMAIL 805
Special Edition on Children in Conflict with the Law
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- GUIDE: International Norms and Standards for Juvenile Justice
- FACTS AND FIGURES: Children in the Criminal Justice System Around the World [fact sheet]
- SOUTH AFRICA: Justice System Grapples to Deal with Children [news]
- GOOD PRACTICE: Working with Children in Conflict with the Law
- TURKEY: Children May Be Tried Under New Anti-Terror Law [news]
- JUVENILE JUSTICE INDICATORS: Fifteen Indicators Developed to Increase Visibility and Protection for Children in Conflict with the Law
- RESOURCES: Publications and Recommended Websites
- EUROPE: Second International Conference on Juvenile Justice – A Framework for Integration [conference]
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Your submissions are welcome if you are working in the area of child rights. To contribute, email us at [email protected]. Adobe Acrobat is required for viewing some of the documents, and if required can be downloaded from http://www.adobe.com/products/acrobat/readstep.html If you do not receive this email in html format, you will not be able to see some hyperlinks in the text. At the end of each item we have therefore provided a full URL linking to a web page where further information is available.
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GUIDE: International Norms and Standards for Juvenile Justice
United Nations Human Rights System
Two articles of the UN Convention on the Rights of the Child relate to the situation of children in conflict with the law: Article 37 on Torture and Deprivation of Liberty and Article 40 on the Administration of Juvenile Justice.
More specifically, Article 37 states that no child shall be subjected to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty. Both capital punishment and life imprisonment without the possibility of release are prohibited for offences committed by persons below 18 years. Any child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so. A child who is detained shall have legal and other assistance as well as contact with the family.
Article 40 states that a child in conflict with the law has the right to treatment which promotes the child's sense of dignity and worth, takes the child's age into account and aims at his or her reintegration into society. The child is entitled to basic guarantees as well as legal or other assistance for his or her defence. Judicial proceedings and institutional placements shall be avoided wherever possible.
The Committee on the Rights of the Child held a General Day of Discussion at its ninth session in May 1995 on the Administration of Juvenile Justice. It recommended that States adopt “a child-oriented system, that recognises the child as a subject of fundamental rights and freedoms and stresses the need for all actions concerning children to be guided by the best interests of the child as a primary consideration”.
Full report: http://www.crin.org/resources/infoDetail.asp?ID=483
Provision of Complaints Procedures for Children Whose Liberty is Restricted
Despite the recent focus of child rights organisations on the importance of children's own views about decisions that affect them, children who are in conflict with the law are rarely listened to. The following is an extract from the Implementation Handbook on the Convention on the Rights of the Child which looks at article 12 of the Convention (the right to be heard) in relation to children in conflict with the law:
Complaints procedures
The Committee has interpreted article 12 of the Convention as requiring the provision of complaints procedures for children and has highlighted the particular need for complaints procedures for children whose liberty is restricted.
The report on the Committee’s General Discussion on "Administration of juvenile justice" notes that children involved with the juvenile justice system "were ... often denied the right to lodge complaints when they were victims of violation of their fundamental rights, including in cases of ill-treatment and sexual abuse..." (Report on the tenth session, October/ November 1995, CRC/C/46, para. 220)
As noted above, the Committee adopted detailed recommendations concerning children’s access to complaints procedures following its General Discussion on "Violence against children" (Report on the twenty-fifth session, September/ October 2000, CRC/C/100, p. 134).
Rule 24 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty requires that "On admission, all juveniles shall be given a copy of the rules governing the detention facility and a written description of their rights and obligations in a language they can understand, together with the address of the authorities competent to receive complaints, as well as the address of public or private agencies and organizations which provide legal assistance.
For those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension."
Rule 25 says: "All juveniles should be helped to understand the regulations governing the internal organization of the facility, the goals and methodology of the care provided, the disciplinary requirements and procedures, other authorized methods of seeking information and of making complaints, and all such other matters as are necessary to enable them to understand fully their rights and obligations during detention."
In addition, rules 75 to 78 require that juveniles have the opportunity to make requests or complaints to the direction of the detention facility and his or her authorized representative, to the central administration, the judicial authority or other proper authorities through approved channels.
"Efforts should be made to establish an independent office (ombudsman) to receive and investigate complaints made by juveniles deprived of their liberty and to assist in the achievement of equitable settlements" (rule 77).
"Every juvenile should have the right to request assistance from family members, legal counsellors, humanitarian groups or others where possible, in order to make a complaint. Illiterate juveniles should be provided with assistance should they need to use the services of public or private agencies and organizations which provide legal counsel or which are competent to receive complaints." (rule 78)
Source: UNICEF (2002), Implementation Handbook on the Convention on the Rights of the Child, pp. 503 - 04
Further information on children's voices in the criminal justice system
The UN Secretary-General’s Study on Violence Against Children
The UN Secretary-General’s Study on Violence Against Children will be presented during the next session of the United Nations General Assembly on 9 October 2006. The report will present a set of recommendations that are divided into settings in which violence occurs, one of which includes violence against children in the care and justice system.
According to recent statements by Professor Paulo Sergio Pinheiro who is leading the Study, special attention should be given to the protection of institutionalised children and children in conflict with the law, with an emphasis on the need to reduce institutionalisation.
More specifically, recommendations in the report should include:
Save the Children has made six Recommendations to the UN Study, one of which relates to children in conflict with the law. Read the Recommendation.
Other mechanisms include:
Useful links
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- Visit CRIN’s website on Children and Violence
- See the Call for Action of the NGO Group for the CRC subgroup on the Human Rights Council, which includes a section on children in conflict with the law.
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Regional Mechanisms
The African Union
The African Charter on the Rights and Welfare of the Child, in Article 17, contains detailed provisions applicable to the administration of juvenile justice. The Charter includes similar provisions to the CRC, but also places the child at the centre of the family and community and puts more emphasis on the responsibilities of the African child.
The Special Rapporteur on Prisons and condition of detention in Africa is entrusted to examine the situation of prisons and prison conditions in Africa, and to ensure the protection of persons in detention or in prison. His/her mandate in based on international human rights instruments, including those relevant to children such as: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Second Optional Protocol on the Death Penalty , the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for the Prevention for the Administration of Juveniles Justice, and the Convention on the Rights of the Child.
Other relevant mechanisms include:
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Resolution on the Operationalisation of an independent and effective African Court on Human and Peoples' Rights
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Inter-American System
The American Convention on Human Rights makes provisions for The Right to Humane Treatment in Article 5, the Right to Personal Liberty in Article 7 and the Right to a Fair Trial in Article 8.
Below are some landmark cases of children in conflict with the law which have been presented to the Inter-American Court of Human Rights:
Walter Bulacio vs Argentina, a case where a 17 year old was detained arbitrarily, and beaten so severely that he died the day after his detention as a consequence of the blows. The case, which is currently being processed before the Court, has reached a friendly settlement, where the State has recognised its responsibility, however, still pending is a resolution from the Inter-American Court that includes standards of protection for detained persons, especially children. Go to: http://www.cejil.org, thematic file, children.
Juvenile detention facilities throughout the region continue to be far from achieving their goal of bringing special assistance, therapy, education etc. to minors in order to guarantee their reinsertion into society and family. This is demonstrated by such cases as, the Centro de Detención FEBEM/SP in Brazil, and the "Panchito López" Reformatory in Paraguay. Both cases explore the potential of the Inter-American System to confront situations where the lack of basic necessities, and the prevelance of violence, cruel, inhumane and degrading actions, including sexual abuse and torture, are the norm. Go to: http://www.cejil.org, thematic file, children.
Minors Detained in Adult Prisons vs Honduras: This case abolished the judicial resolution that allowed judges to send minors to adult penitentiaries.
Go to: http://www.cejil.org, thematic file, children.
Further information: ILANUD: Penal law as it concerns children in Latin America by country (Spanish)
Council of Europe
The European Convention on the Exercise of Children’s Rights aims to protect the best interests of children. It provides a number of procedural measures to allow the children to exercise their rights. It sets up a Standing Committee which shall keep under review problems relating to this Convention.
The Convention provides for measures which aim to promote the rights of the children, in particular in family proceedings before judicial authorities. The judicial authority, or person appointed to act before a judicial authority on behalf of a child, has a number of duties designed to facilitate the exercise of rights by children. Children should be allowed to exercise their rights (for example, the right to be informed and the right to express their views) either themselves or through other persons or bodies.
Among the types of family proceedings of special interest for children are those concerning custody, residence, access, questions of parentage, legitimacy, adoption, legal guardianship, administration of property of children, care procedures, removal or restriction of parental responsibilities, protection from cruel or degrading treatment and medical treatment.
Each Party is required to specify at least three categories of family proceedings to which this Convention is to apply. This European legal instrument will also facilitate the implementation by Parties of the United Nations Convention on the rights of the child.
Further information: http://www.crin.org/resources/infoDetail.asp?ID=9692&flag=report
Other information
- Recommendation No. R. (88) 6 of the Council of Europe Committee of Ministers on Social Reactions to Juvenile Delinquency among young people among migrant families. Adopted by the Committee of Ministers 18 April 1988.
- Recommendation Rec (2003)20 of the Committee of Ministers to member statesconcerning new ways of dealing with juvenile delinquency and the role of juvenile justice. (Adopted by the Committee of Ministers on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies) Useful links
- Mechanisms for Juveniles and Vulnerable Prisoners – a guide developed by Penal Reform International with links to mechanisms, country examples, a Ten Point Plan for Juvenile Justice, etc.
Visit: http://www.crin.org/resources/infodetail.asp?id=9711
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FACTS AND FIGURES: Children in the Criminal Justice System Around the World [fact sheet]
Children in the Criminal Justice System Around the World
- There are 1 million children in detention today.
- 90% of children in conflict with the law are petty offenders.
- Four out of five children who commit an offence only commit one in their life time.
- The majority of children who end up in the criminal justice system are from deprived communities and discriminated against minorities.
- In the UK, 50% of children in detention have either been in care or involved with the social services. A significant proportion have also suffered violence or sexual abuse at home.
- In Uganda, 70% of children taking part in a study on children in conflict with the law said that their main reason for stealing was to get food and meet basic needs.
- In Kenya, research found that 80 – 85% of children in police custody or correctional facilities were children in need of care and protection and had committed no offence. 33 countries and territories still permit corporal punishment as a court sentence for children.
- 6 countries still permit the death sentence for crimes committed by children and 15
Read the full fact sheet from Save the Children UK
Further information
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SOUTH AFRICA: Justice System Grapples to Deal with Children [news]
[7 August 2006] - Crimes committed by young people are on the rise in South Africa but the country is ill-equipped to appropriately deal with children who are in trouble with the law.
Children who are awaiting trial, are in detention, used by adults to commit crime and involved in organised armed violence and the sentencing of children to life remain a major challenge for the judicial system as South Africa has no concrete laws for dealing with child offenders.
Last year 30,000 South African children were successfully taken out of the legal system and diverted into educational and life skills programmes instead of serving a sentence or awaiting trial at a correctional facility. Children receive no schooling while awaiting trial. However, at present a decision on the future of a child offender depends almost entirely on the goodwill of the prosecutor.
These were the concerns raised during a conference on child justice held in Pretoria last week. Calls were made for Parliament to tighten up legislation on child offenders and implement the Child Justice Bill. The United Nations Committee on the Rights of the Child (Uncroc) chairman Professor Jaap Doek told the conference there was a real concern in many countries over the "juvenile delinquency phenomenon".
"Crimes (committed by child offenders) are increasing, becoming more violent and are happening at an earlier age. On the one hand there is a call for being tougher on crime, where heavier penalties and longer sentences are being encouraged. On the other hand children's rights must be kept in mind when holding them responsible for their crimes," said Doek.
He said from the age of 12 children were criminally responsible. "Most of the crimes are petty offences such as assault on property and people. Most child offenders were not repeat offenders."
He said it was costly and ineffective to put a child in jail. "They should be diverted to community service, apologise to those involved or repair what was damaged. The child should be diverted from the traditional ways of dealing with criminals in this way...Armed robbery, murder and other violent crimes committed by children is a category which needs to be dealt with to ensure the child becomes a constructive member of society."
Addressing the conference, Judge Yvonne Mokgoro of the Constitutional Court said: "No matter how heinous and no matter how vile their actions, children always have the right to be treated as children."
Currently, children in conflict with the law are dealt with in terms of the Criminal Procedure Act, which does not adequately provide procedural protection measures for juvenile offenders, according to the Open Society Foundation SA and the Child Justice Alliance. However, children's rights were protected in the Constitution.
In a statement, the organisations said: "The Child Justice Bill has not been revisited since it was debated in Parliament in 2003, even though the government departments involved all support it and the implementation of the legislation has already been planned for and budgeted...It is now awaiting adoption by Parliament"
Child rights advocates, the department of justice, the National Prosecuting Authority, the Civil Society Prison Reform Initiative, the University of Pretoria's Centre for Child Law, judges, the SAPS, international agencies like the United Nations and other stakeholders were represented at the conference to address the "urgent need for change" in the South African justice system.
Doek said the root causes needed to be addressed. He felt the lack of education, poor socio-economic circumstances and children with little to lose were most at risk of getting involved in crime. He called for the standardisation of diversion policies which are purpose-made counselling, and educational and life skills programmes which deal with the child offender in an efficient and appropriate way.
"There are many opportunities where the young offender can be diverted out of the legal system back into their family and community or special diversion programmes, such as during the child's interaction with the police, the prosecutor and even with judicial officers who can recommend alternative measures to detention in a correctional facility.
"It is important not to overreact to the first petty offence," said Doek. He said the objective was to limit the number of children prosecuted and sentenced in court.
Source: Pretoria News
Visit: http://www.crin.org/resources/infoDetail.asp?ID=9712&flag=news
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GOOD PRACTICE: Working with Children in Conflict with the Law
The following guides are examples of good practice for working with children in conflict with the law. If you would like to share your organisation's initiatives, please email CRIN at [email protected].
Inter-Agency Coordination Panel on Juvenile Justice, Protecting the Rights of Children in Conflict with the Law (2005)
This report presents a compilation of articles of information on members of the Inter-Agency Coordination Panel on Juvenile Justice - their missions, mandates and activities – which include NGOs as well as UN organisations. The papers also present examples of innovative practices in areas such as legal support, alternative sanctions, capacity building, and public awareness and advocacy.
The Coordination Panel argue that whilst there have been efforts by many State Parties to comply with the Convention on the Rights of the Child, at the same time there is a lack of implementation of the improved law and regulations. There is also the concern that the UN Rules and Guidelines on the Administration of Juvenile Justice, on the Deprivation of Liberty and on the Prevention of juvenile delinquency are often not implemented, partly due to lack of knowledge.
Read the report in English: http://www.crin.org/violence/search/closeup.asp?infoID=5583
The report is also available in Arabic, French and Spanish
Website
The Inter-agency Coordination Panel on Juvenile Justice, created by ECOSOC resolution 1997/30 aims at coordinating international technical advice and assistance in juvenile justice provided by UN agencies and non-governmental organisations under the guidance of the UN Committee on the Rights of the Child. It will soon be launching its website at www.juvenilejusticepanel.org
The member organisations are: The Office of the High Commissioner on Human Rights (OHCHR), UNICEF, Defence for Children International (DCI), Organisation Mondiale Contre La Torture (OMCT) , Penal Reform International (PRI), Save the Children UK, Terre Des Hommes Foundation
Save the Children UK: The Right Not to Lose Hope (November 2005)
The Right Not to Lose Hope addresses the issues facing children who are in conflict with the law. Part 1 analyses the experiences and situation of these marginalised children. Rather than focusing solely on children in the justice system, it looks at the broader context of these children’s lives – in particular, the failure of care and protection systems and criminalisation of children’s coping strategies.
The second part of the report looks at eight projects around the world that are working to support children in conflict with the law. It contains detailed case studies of community-based responses in Honduras, Laos, the Philippines, Kenya, Ethiopia, China, Uganda, and Bosnia and Herzegovina.
Read the report: http://www.crin.org/resources/infoDetail.asp?ID=6465&flag=report
Other examples of good practice
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TURKEY: Children May Be Tried Under New Anti-Terror Law [news]
[ANKARA, 31 July 2006] - The Initiative to Structure Children's Justice System consisting of children rights activists and backed by a number of leading Turkish NGOs has asked for the newly ratified version of the Anti-Terror Law (TMK) to be abolished on the grounds that it violates children's rights.
Initiative representatives Lawyer Seda Akco and Mustafa Ruhi Sirin have written to President Ahmet Necdet Sezer and main opposition Republic Peoples Party (CHP) chairman Deniz Baykal this week, asking them to take the law to the Constitutional Court for it to be abolished due to an article that allows children above the age of 15 being tried by High Criminal Courts for TMK offences.
According to the Initiative, the article contravenes articles 1, 2 and 40 of the United Nations Convention on the Rights of the Child, article 6 of the European Convention on Human Rights and the 37th article of the Turkish constitution that provides special legislation for the trial of minors.
"Children cannot be protected from terror with their most basic rights being restricted and their protection under the constitution being lifted" the Initiative representatives said.
The new law allows all children above the age of 15 to be put on trial at High Criminal Courts in cases which involve TMK offences.
The Initiative argues that with this legislation children will not be tried by a children's court but one that is "offence specific" and under the judicial procedures used for adults.
"Practices based on this law will lead to the violation of children rights" it says.
The initiative for "A Justice System Specific to Children" is supported by the "Children's Foundation, Gundem Children's Association, Association for Solidarity with Youth Deprived of their Freedom, New Freedom for Children Foundation in Turkey and the Foundation to Promote Guidance and Educate Leaders in Higher Education".
Turkey's new TMK entered into force on July 18 2006 and can be challenged in the Constitutional Court up to 60 days after being published in the Official Gazette which sets 18 September as a deadline.
Further information
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JUVENILE JUSTICE INDICATORS: Fifteen Indicators Developed to Increase Visibility and Protection for Children in Conflict with the Law
A set of 15 Juvenile Justice Indicators have been developed by UNICEF, the UN Office on Drugs and Crime and other members of the Inter-Agency Panel on Juvenile Justice to increase visibility and protection for children in conflict with the law. These indicators have been developed as a global baseline definition to monitor progress towards international standards and for advocacy purposes; to increase protection of children in conflict with the law by engaging local actors in information collection and preventing children from ‘slipping through the net’; and to introduce accountability by reviewing policy, programmes and practice nationally and regionally.
Quantitative indicators
1. Children in conflict with the law
Number of children arrested during a 12 month period per 100,000 child population
2. Children in detention (CORE)
Number of children in detention per 100,000 child population
3. Children in pre-sentence detention (CORE)
Number of children in pre-sentence detention per 100,000 child population
4. Duration of pre-sentence detention
Time spent in detention by children before sentencing
5. Duration of sentenced detention
Time spent in detention by children after sentencing
6. Child deaths in detention
Number of child deaths in detention during a 12 month period, per 1,000 children detained
7. Separation from adults
Percentage of children in detention not wholly separated from adults
8. Contact with parents and family
Percentage of children in detention who have been visited by, or visited, parents, guardian or an adult family member in the last three months
9. Custodial sentencing (CORE)
Percentage of children sentenced receiving a custodial sentence
10. Pre-sentence diversion (CORE)
Percentage of children diverted or sentenced who enter a pre-sentence diversion scheme
11. Aftercare
Percentage of children released from detention receiving aftercare
Policy indicators
12. Regular independent inspections
13. Complaints mechanism
14. Specialised juvenile justice system (CORE)
existence of a specialised juvenile justice system
15. Prevention
Existence of a national plan for the prevention of child involvement in crime
A full report on these indicators will be launched shortly. In the meantime, for further information, contact UNICEF, the United Nations Office on Drugs and Crime Prevention or the Inter-Agency Panel on Juvenile Justice
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RESOURCES: Publications and Recommended Websites
Council of Europe: The Human Rights Dimension of Juvenile Justice (July 2006)
http://www.crin.org/resources/infoDetail.asp?ID=9089&flag=report
The Howard League for Penal Reform: The Carlile Inquiry - Treatment of Children in Institutions Unacceptable (February 2005)
http://www.crin.org/resources/infoDetail.asp?ID=7289&flag=report
Save the Children UK: Breaking Rules: Children in Conflict with the Law and the Juvenile Justice Process (May 2005)
http://www.crin.org/violence/search/closeup.asp?infoID=5558
Save the Children UK: Children in Conflict with the Law in Cebu: Profile and Experience with the Juvenile Justice Process (May 2005)
http://www.crin.org/violence/search/closeup.asp?infoID=5559
Ateneo Human Rights Center, Save the Children UK: Research on the Situation of Children in Conflict with the Law in Selected Metro Manila Cities (May 2005)
http://www.crin.org/violence/search/closeup.asp?infoID=5560
Human Rights Watch: The Rest of Their Lives - Life without Parole for Child Offenders in the United States (2005)
http://hrw.org/reports/2005/us1005/
Kenya Alliance for the Advancement for Children: Juvenile Justice Guidebook (2002)
http://www.crin.org/resources/infoDetail.asp?ID=2763&flag=report
Legal analysis
Children's Legal Centre, Rachel Harvey: From Paper to Practice: An analysis of the juvenile justice system in Honduras (April 2005)
http://www.crin.org/resources/infoDetail.asp?ID=9716&flag=report
Children's Legal Centre, Rachel Harvey: Juvenile Justice in Sierra Leone: An Analysis of Legislation and Practice (September 2000)
http://www.essex.ac.uk/armedcon/story_id/000013.htm
Max Planck Institute for Foreign and International Criminal Law: United Nations standards and norms in the area of juvenile justice in theory and practice - An empirical study on the use and application of UN rules for the protection of juveniles deprived of their liberty in South African practice (2001)http://www.crin.org/resources/infoDetail.asp?ID=1746&flag=report
Recommended websites
International Centre for Prison Studies
http://www.prisonstudies.org/
The Annie E. Casey Foundation
http://www.aecf.org/
Observatorio Internacional de Justicia Juvenil (OIJJ)
http://www.oijj.org
United Nations Office on Drugs and Crime
http://www.unodc.org/unodc/index.html
Children in Organised and Armed Violence: Website and Virtual Library
The content of the Children in Organised and Armed Violence (COAV) website www.coav.org.br is now hosted will now be hosted at the website and virtual library Comunidad Segura www.comunidadsegura.org. Comunidad Segura has been designed to foster interaction on the topic of public security, and build partnerships and networks and will provide news, stories, articles, interviews, good practices, dossiers and legislation about COAV, along with additional information on related topics and new interactive tools.
The current COAV site www.coav.org.br will continue to exist, dedicated to information related to the “Neither War nor Peace” report, the COAV Cities project.
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EUROPE: Second International Conference on Juvenile Justice – A Framework for Integration [conference]
Date: 24 – 25 October 2006
Location: Brussels, Belgium
The goal of the International Juvenile Justice Observatory (IJJO) is to raise public awareness about children's rights, particularly of children in conflict with the law.
Every two years, the IJJO organises an International Conference on juvenile justice for professionals, institutions and universities and other organisations working on this issue.
The Second International Conference of the International Juvenile Justice Observatory will explore the challenges of promoting harmonisation of legislation and common methods of prevention, treatment and integration policies for children in conflict with the law.
The First International Conference, Justice and the Prevention of Juvenile Delinquency in a Globalised World, took place in Salamanca, Spain, in October 2004, with the participation of more than 300 people from 30 countries from all over the world.
To extend this work on looking at different strategies for juvenile crime prevention, the International Juvenile Justice Observatory helped draft a European Opinion on Prevention of Juvenile Delinquency. The Models of Treatment of Juvenile Delinquency and the Role of the Juvenile Justice in the European Union was submitted to the European Economic and Social Committee (EESC), by Mr. José Maria Zufiaur, President of the Latin American Follow-up Committee and Adviser of the EESC.
Visit: http://www.crin.org/resources/infoDetail.asp?ID=7817&flag=event
For more information, contact:
International Juvenil Justice Observatory (IJJO)
Head Office: C/ Cáceres, 55. 28045. Madrid, Spain.
Tel: + 34 923 194 170. Fax: + 34 923 194 171
Email: [email protected]
Website: www.oijj.org
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