Thomas Hammarberg: Children should not be treated as criminals

There is a disturbing trend in Europe today to lock up more children at an earlier age. The age of criminal responsibility is already very low in some countries, such as the United Kingdom. Suggestions to lower the age limit to 12 years old have recently been made in France, while a similar law has been adopted in Georgia. In my opinion the time has come to move the argument away from fixing an arbitrary age for criminal responsibility and find a more childfriendly solution to juvenile justice.

A caring society responds promptly, resolutely and fairly to juvenile offences. Juveniles are certainly not helped by a laissez-faire response if they violate the law. It is imperative that young persons are taught to take responsibility for their actions.

However, experience has shown that criminalisation, and in particular imprisonment, tends to undermine efforts to assist juveniles in reintegrating positively into the community. Criminalisation and periods spent in juvenile detention centres may have the reverse effect of turning these juveniles into adult criminals.

Young offenders are children first and foremost and should be protected by all the agreed human rights standards for children. This is one of the messages of the United Nations Convention of the Rights of the Child (“CRC”) which calls for a separate system of justice for children. Under the CRC, which has been ratified by all European countries, children are defined as those who are under 18 years old.

This point has been stressed by the European Network of Ombudspersons for Children (ENOC) in a position statement issued in 2003. These experts urged States “to review their juvenile justice systems against the requirements of the CRC and European human rights instruments”.

We need to separate the concepts of “responsibility” and “criminalisation”. It is essential to establish responsibility for conduct which contravenes the law. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the age and the capacity of the child. However, this does not have to be a criminal process nor involve the criminalization of children.

Once the facts of an offence are established, there would need to be a multi-disciplinary assessment of what is required to ensure awareness of the offence by the child. Such an assessment would also determine how best to respond to the needs of the victim and prevent the child from re-offending. Such measures would, where necessary, be compulsory. The proceedings would not identify the child publicly and would not be formally linked to the adult criminal justice system.

Imprisonment should generally be avoided. Any arrest or detention of a child should only be used as a measure of last resort and for the “shortest appropriate period of time”. The only justification for detaining children should be that they pose a continuing and serious threat to public safety. This requires frequent periodic review of the necessity of detention in each case. The conditions of any detention must be humane and focused on rehabilitation. Schooling should be provided as set out in the 2008 European Rules for Juvenile Offenders.

In many of my assessment reports, I underline the importance of keeping juveniles separate from adult offenders. A recent judgment of the European Court of Human Rights against Turkey highlights the possible dire consequences of not respecting that important principle.

Guidelines on child-friendly justice are currently being discussed within the Council of Europe. The debate on the reform of the juvenile justice system should include the desirability of avoiding criminalisation and putting the best interests of the child at the forefront of the discussion.

In promoting such policies and procedures which respect the human rights of young offenders, the rights and concerns of victims are not neglected. Victims must receive appropriate reparation and support from the State. But victims’ interests – and those of the wider society - are not served by a system which fails to rehabilitate offenders.

During my visits to European countries I have met a number of juvenile inmates in prisons and detention centres. Many of them have suffered neglect and violent abuse within their own families and have received little support from society at large. Understanding the origins of violence and serious offending in children does not mean condoning or sympathising with it.

An effective and humane policy would put strong emphasis on prevention. Social workers are more important than prison guards in this context. Certainly, broader reforms for genuine social justice have to be part of a strategy to tackle the problem of youth offending.

Unfortunately, this has not been the focus of the public debate in several countries. Instead, people’s justified concerns about juvenile behaviour have been exploited for populist political purposes: children and young persons have been demonised and described as major threats to society.

The CRC encourages a minimum age to be set for criminal responsibility. Below such an age, it is presumed that a child does not have the capacity to infringe the penal law. Children in Scotland can be held criminally responsible at the age of eight years old. In England, Wales and Northern Ireland the minimum age is 10. In many of the Nordic countries the age for criminal responsibility is set at 15 and in Belgium it is 18 years old. The Council of Europe’s European Committee of Social Rights (which monitors State compliance with the European Social Charter), the UN’s Committee on the Rights of the Child and other UN Treaty Bodies have all recommended substantial increases in a number of member states.

I would like to move the debate on from fixing an arbitrary age for criminal responsibility. Governments should now look for a holistic solution to juvenile offending which does not criminalise children for their conduct.

The United Nations Guidelines for the Prevention of Juvenile Delinquency, while adopted 19 years ago, still provide the right benchmark. “Labelling a young person as ‘deviant’ or ‘delinquent’ or ‘pre-delinquent’ often contributes to the development of a consistent pattern of undesirable behaviour by young people…”.

Yes, it is in all our interests to stop making children criminals. We should therefore treat them as children while they are still children and save the criminal justice system for adults.

Thomas Hammarberg