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Children and the justice system

“Young people today are unbearable, without moderation... Our world is reaching a critical stage. Children no longer listen to their parents. More and more children are committing crimes and if urgent steps are not taken, the end of the world as we know it, is fast approaching.” These words sound familiar but are from the Greek poet Hesiod writing in the 8th Century BC.

 Jorge Cardona, a member of the UN Committee on the Rights of the Child, quoted Hesiod in his address to the March 2012 session of the Human Rights Council discussion on the Rights of the Child and the administration of justice. Professor Cardona was debunking the myth that every generation appears to believe that its young people are ‘lost’, that delinquency has increased and that penalties for child offenders should be strengthened as a deterrent.

In her address, UN Human Rights Chief Navi Pillay described as “alarming” the public perception that juvenile delinquency is increasing. “Such perceptions, not grounded upon evidence but based on media reports of a few serious cases, influence political discourse and too often lead to the adoption of legislation on the treatment of young offenders that weaken children’s rights,” she said.

Under international law, children should only be imprisoned as a last resort, Pillay said. “In every case where a child is deprived of his or her liberty, we must ask ourselves what we hope to achieve in doing so – whether it is to punish, to rehabilitate, or to simply remove difficult children from sight,” she said.

Susan Bissell, Chief of the Child Protection Section at UNICEF cited statistics estimating a million children world-wide are incarcerated.

Connie de la Vega, Professor and Director of the International Human Rights Clinic at the University of San Francisco reflected on the positive influence the various UN bodies have had in promoting abolition of the death penalty and life imprisonment without possibility of release for juveniles: both practices have been abolished in most countries.

However, much remains to be achieved, she said. Although only one country, Iran, executed juvenile offenders in the past two years, La Vega said, in 13 countries, there are still laws which allow sentences of life imprisonment. Although Iran has now amended its penal code to end the death penalty for juvenile offenders, commentators have noted it could still be imposed for certain crimes, she said.

In at least 42 countries, according to La Vega, juvenile offenders may be sentenced to corporal punishment which can include caning, flogging, stoning, and amputation.

Antonio Caparros Linares, a 28 year old from Spain and a former juvenile in conflict with the law, recounted his personal experiences. He spent time in a corrections centre but reoffended when released. Facing incarceration, he agreed to exchange a prison term for time in a rehabilitation centre.

The decision to seek rehabilitation rather than prison, he says, allowed him to regain control of his life. He learnt, Linares says, “to live by the rules” and to understand the importance of respecting his community and family and the value of education. Today, Linares has a family and although he is currently unemployed, he says he now believes he has a future.

The High Commissioner drew attention also to “the trend towards lowering the minimum age of criminal responsibility.” The Committee on the Rights of the Child has established 12 as the absolute minimum age and recommends that it be set higher at 14 or 16. The High Commissioner said she supported the standards of the Committee.

Several speakers emphasized the importance of finding alternatives to the formal justice system. Julia Sloth Nielsen, Dean of the Faculty of Law at the University of the Western Cape and Member of the African Committee of Experts on the Rights and Welfare of the Child said that on the African continent many children grew up under the umbrella of customary law systems, with justice administered by elders and chiefs. The diversion of children away from formal justice processes and the use of alternatives to custodial sentencing and detention are internationally recognized and domesticated in a large number of legal frameworks, she said.

A signing ceremony was held earlier during the March session of the Council for a new human rights treaty – the third Optional Protocol to the Convention on the Rights of the Child.
When the Protocol enters into force, children themselves will be able to take complaints of rights violations to the Committee on the Rights of the Child. The Committee can ask States to provide interim protection for the children involved and if violations are proven can also recommend appropriate actions.

Pillay encouraged Governments to sign the Optional Protocol “to give child victims of violations direct access to an international human rights complaints mechanism.” Twenty States signed it that day. Ratification by ten States is required for the new communications procedure to enter into force.

26 March 2012

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