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 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 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, htm European Network for Restorative Justice RJ%20Network

UN report on violence against children within the juvenile justice system, A/HRC/21/25 cil/RegularSession/Session21/A-HRC-21-25_en.pdf Human rights of juveniles deprived of their liberty, A/HRC/21/26 cil/RegularSession/Session21/A-HRC-21-26_en.pdf