Professor Kirsten Sandberg, Committee Member
Juvenile justice and children’s rights:
The position of the UN Committee on
the Rights of the Child
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
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
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
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
Main concerns in concluding
observations to states
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•
•
•
•
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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
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
Summing up the concerns
•
•
•
•
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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
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
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
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
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.
Restorative justice, the ideas
• Repair the harm done by the criminal offence
• Allow the 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
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
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.
Reasons to use restorative justice
• Less recidivism
– Better for the offender
– More security for the people
• More economical than detention
• Better for the victim
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
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
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!
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
• UN report on violence against children within the
juvenile justice system, A/HRC/21/25
http://www.ohchr.org/Documents/HRBodies/HRCoun
cil/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/HRCoun
cil/RegularSession/Session21/A-HRC-21-26_en.pdf