8 March 2012
Examines Worrying Trends and Best Practices Regarding Children in Judicial Processes
The Human Rights Council this morning opened its annual full-day meeting on the rights of the child by holding a discussion on children in conflict with the law, debating key challenges, worrisome trends and best practices regarding children in contact with judicial systems.
Navi Pillay, United Nations High Commissioner for Human Rights, introducing the discussion, said the theme of children and the administration of justice focused on the harsh reality of millions of children who were in conflict with the law. Their rights were often violated from the first contact they had with the justice system. Forms of legalized violence against children such as capital punishment, life imprisonment without parole and corporal punishment were clear violations of the rights of the child. One alarming concern was the public perception that juvenile delinquency was increasing despite a lack of evidence which had led to the adoption of legislation on the treatment of young offenders that weakened children’s rights. The trend toward lowering the minimum age of criminal responsibility was a concern.
The panellists were Antonio Caparros Linares, formerly a juvenile in conflict with the law; Susan Bissell, Chief, Child Protection Section, Associate Director, Programme Division, United Nations Children’s Fund in New York; Jorge Cardona, member of the Committee on the Rights of the Child and Professor of Public International Law at the University of Valencia; Julia Sloth Nielsen, Dean of the Faculty of Law at the University of Western Cape and Member of the African Committee of Experts on the Rights and Welfare of the Child; Connie De La Vega, Professor and Director of the International Human Rights Clinic at the University of San Francisco; and Renate Winter, Judge at the Appeals Chamber of the Special Court of Sierra Leone.
Mr. Linares said that he had committed his first criminal offence when he was 16 and spent several years in a rehabilitation centre, where he had an opportunity to reflect on his life. Thanks to psycho-social programmes run by a foundation, Mr. Linares saw the consequences that his behavior had and the impact of his actions on his loved ones and corrected his course.
Ms. Bissell said that more than one million children were in detention and two million were in residential care; it was estimated that tens of thousands of children in at least 16 countries were associated with armed forces. Those were the children who came in contact with the justice systems, and they benefitted from the justice for children approach whose goal was to ensure that all children had access to the justice system and were fully protected by it.
Mr. Cardona said that there was a perception of the increase in crime committed by children though the data showed this was false. Data on the real situation of juvenile delinquency would dismantle myths and the fear that children were committing serious crimes. Children who had been victims of abuse or were in irregular situations should not be sent to the juvenile justice system; that system should only be used as a last resort when alternative measures were not working.
Ms. Sloth Nielsen said that the majority of children in Africa 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 alternatives to custodial sentencing and detention were desired objectives that had become internationally recognised and domesticated in a large number of legal frameworks.
Ms. De la Vega said that two most inhuman sentences that were still imposed on juvenile offenders were the death penalty and life imprisonment without the possibility of release. Only one country, Iran, reportedly executed juvenile offenders in 2010 and 2011, while only the United States imposed in practice the sentence of life imprisonment without the possibility of release.
Ms. Winter said that Sierra Leone had developed a lot of alternative measures that resolved conflicts existing behind the offence. Those measures were mainly based on the traditions of the State and rested on a triangle victim-offender-community. Alternative measures did not always cost money to develop; they could cost nothing, for example warning by the police or community service. The most important issue was to balance the principle of proportionality with the appropriate response and to decide whether the contact with the judicial system was needed in the first place.
In the ensuing interactive dialogue, speakers urged the abolition of practices of the death penalty and life imprisonment without the possibility of release for minors. Any reaction to juvenile offenders had to be in proportion to the circumstances of both the offenders and the offence. There was also a need to study the background and circumstances in which the juvenile was living. Lack of birth certification and age determination processes put children at risk of being treated as adults and led to human rights violations. States were interested in hearing more about preventive measures crucial for lowering the number of children in conflict with the law and for ensuring that there was zero violence in closed institutions. Further, speakers asked about other measures the Council could take to prevent extreme sentencing and execution of juvenile offenders and to ensure the end of these practices once and for all.
In the interactive discussion, the following delegations spoke: European Union, Australia, Qatar, Thailand, Pakistan on behalf of Organization of Islamic Cooperation, Paraguay, Mauritania on behalf of the Arab Group, Guatemala, Iran, Cuba, Sudan, Austria, Sri Lanka, Uruguay on behalf of the Latin American and Caribbean Group, Hungary, Poland, Ireland, France, India, Honduras, Namibia, Nepal, Saudi Arabia, Belgium, United Arab Emirates, and Malaysia.
The non-governmental organizations taking the floor were: International Juvenile Justice Observatory in a joint statement, Amnesty International, Human Rights Advocates and Consortium for Street Children.
The Council will at noon resume its interactive dialogue with the Special Representative of the Secretary-General on violence against children and the Special Rapporteur on the sale of children, child prostitution and child pornography. Time allowing, it will also hear the Working Group on the right to development present its report. The annual debate on the rights of the child will continue today at 3 p.m., with a discussion on the protection and realization of the rights of children deprived of their liberty and children of incarcerated parents.
NAVI PILLAY, High Commissioner for Human Rights, said that the theme of children and the administration of justice focused on the harsh reality of millions of children who were in conflict with the law, many of whose rights were violated from the first contact they had with the justice system. Articles 37, 39 and 40 of the Convention on the Rights of the Child as well as the numerous international standards and norms in the field of juvenile justice had set a clear basis for a functional juvenile justice system. General Comment N. 10 of the Committee on the Rights of the Child provided clear guidelines for States to establish such a system including the use of alternative measures such as diversion and restorative justice. However, in working to turn these standards into reality, enormous challenges remained. One alarming concern was the public perception that juvenile delinquency was increasing despite a lack of evidence which had led to the adoption of legislation on the treatment of young offenders that weakened children’s rights. The trend toward lowering the minimum age of criminal responsibility was also a concern. The Committee on the Rights of the Child had encouraged States parties to the Convention to increase the minimum age of criminal responsibility to the age of 12, as the absolute minimum and Ms. Pillay applauded those States who had set it at a higher age, such as 14 or 16.
Children deprived of liberty could suffer anxiety, depression and feelings of hopelessness. Data and research showed that the majority of children who were deprived of their liberty had not actually been convicted of an offence and very few had committed a serious crime. In certain countries, children could spend months or even years in pre-trial detention, which constituted a serious violation of article 37 (b) of the Convention on the Rights of the Child. Forms of legalized violence against children such as capital punishment, life imprisonment without parole and corporal punishment as a sentence for a crime were clear violations of the rights of the child. Around 30 countries permitted corporal punishment in sentencing children for crimes, which in some countries included flogging, stoning or amputation. In more than 60 countries corporal punishment and other forms of violence were legally permissible disciplinary measures in penal institutions. Ms. Pillay noted that the Committee on the Rights of the Child had considered all but two of the 193 States that were a party to the Convention and hoped that juvenile justice systems would be designed to serve the aims of justice, rehabilitation and social reintegration of every child in conflict with the law and in full conformity with international human rights law.
Statements by Panellists
ANTONIO CAPARROS LINARES, formerly a juvenile in conflict with the law, said that he was now living a stable life with his wife and worked occasional jobs in construction, carpentry, cooking and others; he was currently unemployed. His youth had been very unstable and he had been involved with groups that enabled his delinquent behaviour and drug use. He had committed his first criminal offence when he was 16 and spent several years in a rehabilitation centre, where he had an opportunity to reflect on his life. Mr. Linares saw what happened in his life as an opportunity to regain that life and had an opportunity to choose. He had been involved with psycho-social programmes with a foundation which had made him see the consequences of his behaviour and the impact his actions had on his loved ones. In closing, Mr. Linares thanked the Council for an opportunity to share his experiences and for the work to ensure the full social integration of juveniles in difficult situations.
SUSAN BISSELL, Chief, Child Protection Section, Associate Director, Programme Division, United Nations Children’s Fund in New York, said that the goal of justice for children as an approach was to ensure that all children had access to the justice system and were fully protected by it; it represented a shift from previous thinking in that it recognized that children did come in contact with the judicial system, for example in case of divorce. Justice systems could be formal and informal; a whole range of traditional and customary justice mechanisms existed and it was estimated that 80 per cent of all disputes were resolved through those less formal systems. They were often considered to be closer to children as they were softer and more familiar. At the most fundamental level was the need to ensure that key principles of the Convention on the Right of the Child were applied, including the right to life, the right to be heard and the best interest of the child. More than one million children were in detention and two million were in residential care; it was estimated that tens of thousands of children in at least 16 countries were associated with armed forces. Those were the children who came in contact with the justice systems, and they benefitted from the justice for children approach.
GEORGE CARDONA, Professor of Public International Law, University of Valencia and Member of the Committee on the Rights of the Child, said that there was a perception of the increase in crime committed by children though the data showed this was false. In Panama despite an increase in overall criminal offences, the participation by adolescents had stayed at 14 per cent and yet in the last five years pre-trial detention for children had increased as well as the number of offenses punished by the deprivation of liberty and the length of detention for children. Mr. Cardona said there was a need to dismantle myths about the fear that children were committing serious crimes with data on the real situation of juvenile delinquency. Behaviours that were not a violation of criminal law should not be criminalized. Children who had been victims of abuse or were in irregular situations should not be sent to the juvenile justice system. Judicial approaches should only be used as a last resort when other forms of mediation were not working. Good practices in alternative remedies to the justice system had produced excellent results in preventing child crime. Children should not be treated worse than adults, however, in many countries juvenile criminal law was not underpinned by the same guarantees as those in the adult justice system. It was critical that children in conflict with the law be granted special protections with a focus on rehabilitation and social integration so that the international community could embark on a path toward the decriminalization of childhood.
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 the African Committee of Experts on the Rights and Welfare of the Child, an organ of the African Union to oversee the implementation of the African Charter on the Rights and Welfare of the Child (1990), ratified by 46 of the 53 Member States of the African Union, was the only regional human rights instrument dedicated to the rights of the child. On the African continent the majority of 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 alternatives to custodial sentencing and detention were desired objectives that had become internationally recognised and domesticated in a large number of legal frameworks. Ms. Nielsen noted that Malawi, Botswana, South Africa, Kenya and Lesotho provided good examples in Africa. Experience and research showed that insensitivity to the child’s right to dignity, to privacy, to prompt assistance, to their need for information concerning the progress of the matter in a language and in format that the child understood, and to the need for a conclusion of the matter in a time-frame appropriate to the child’s age and maturity, was endemic in justice systems throughout the world. Insensitivity to the needs of children led to secondary victimisation as children were doubly traumatised through their contact with the justice system.
CONNIE DE LA VEGA, Professor and Director of the International Human Rights Clinic at the University of San Francisco, said that the two most inhuman sentences that were still imposed on juvenile offenders were the death penalty and life imprisonment without the possibility of release, even though the international community made it clear that these sentences were prohibited. A great deal of progress had been made on eradicating the practice of the death penalty and only one country, Iran, reportedly executed juvenile offenders in 2010 and 2011, down from three countries in 2009. Due to a lack of birth registration, juvenile defendants were sometimes sentenced as adults. Thirteen countries had laws allowing the sentence of life imprisonment without the possibility of release to be imposed on juvenile offenders, but only one actually imposed it in practice: the United States. One solution to combat the extreme sentencing of juveniles was to follow the mandates of the treaties themselves; best practices suggested that juveniles not be tried as adults. The measures need not be one size fits all, and indeed many countries had taken different approaches to ensuring that juveniles were tried as juveniles. Ms. De la Vega urged the Council to continue to address these issues through both the thematic procedures and country procedures including the Universal Periodic Review.
RENATE WINTER, Judge at the Appeals Chamber of the Special Court of Sierra Leone, said that bringing a child in contact with the juvenile system had consequences and it was important to decide whether that contact indeed was needed. The most important issue for the justice system dealing with a child was that of proportionality and how it was balanced with appropriate response to an act of the child. A lot of alternative measures had been developed in Sierra Leone that resolved conflicts behind the offence and most of them were embedded in the traditions of the State. Those were based on a triangle composed of the victim, the offender, and the community. Restorative juvenile justice could be used in all phases of child’s contact with the judicial system, before, during and after. Many said that development of alternative measures cost money, but that was not true as some alternative measures cost nothing, such as warning by the police, community service or giving the child a responsibility, for example. What was needed to implement juvenile justice systems were alternatives to proceeding, sentencing and punishment; networks by civil society organizations and non-governmental organizations including half way houses; and training and capacity-building.
European Union asked for information on preventive measures crucial for lowering the number of children in conflict with the law. What measures could States take to ensure that there was zero violence in closed institutions and that rehabilitation really worked?
Australia asked how States coordinated policy across jurisdictions to ensure children were afforded protection.
Qatar said Qatar’s legislation sought to implement the best interests of the child in all walks of life and specifically with regard to parental allowance and custody.
Thailand had introduced the application of restorative justice as an alternative to punitive justice, notably through family and community meetings since 2003, and was aware of the challenges remaining, such as raising the minimum age of criminal responsibility.
Pakistan, speaking on behalf of the Organization of Islamic Cooperation, said any reaction to juvenile offenders had to be in proportion with the circumstances of both the offenders and the offence and there was also a need to study the background and circumstances in which the juvenile was living.
Paraguay asked the panellists in which areas there had been the most progress in the application of juvenile justice.
Mauritania, speaking on behalf of the Arab Group, said an Arab Plan for Children was established in 1992 and other countries had established national plans based thereon.
Guatemala gave special protection to children who were victims of trafficking and sexual exploitation and had an integrative model for this purposes. Even so, there was still room for improvement in the Guatemalan system.
Iran was of the view that public awareness raising, national capacity building, creating a culture of respect for children, strengthening the institution of family as well as promoting moral and ethical values among society would contribute to the promotion and protection of the rights of the child.
Cuba asked the panel how States could better address the issue of the administration of justice for children.
Sudan said a law of 2010 had given a sense of prerogative to units to coordinate with agencies responsible for dealing with children in violation of the law.
Austria asked for more information on the rate of recidivism. What were the costs of diversion compared to sending children to prison? Austria asked Mr. Caparros Linares how he dealt with the stigma of having been in prison.
International Juvenile Justice Observatory, in a joint statement, urged United Nations agencies to put on their agenda the issues of juveniles in pretrial detention and the prevalence of mental health problems amongst juveniles who came into contact with the criminal justice system. They should also agree on minimum standards.
Amnesty International asked whether there were other measures the Council could take to prevent sentencing and execution of juvenile offenders and to ensure the end of these practices once and for all.
Uruguay, speaking on behalf of the Group of Latin American and Caribbean Countries, said that international law clearly stipulated that there should be a special criminal system for juvenile offenders, that children should benefit from special protection, and that a positive approach to prevention and reintegration of juvenile offenders was a priority.
Hungary said that 2012 was the year of the Child-Friendly Jurisdiction and that it was necessary to reinforce the protection of children involved in judicial cases and to create a safe environment to help children to better understand their rights.
Poland said that Poland had launched awareness raising campaigns on the protection of the rights of children involved in courts and children witnesses, and that it was taking measures so that children could be heard in a friendly and not intimidating environment.
Ireland said that the best interest of the child must be taken into consideration for all freedom deprivation decisions, and that such measures should be used only as a last resort.
France stressed the problem of the death penalty for minors, saying that the death penalty was a failure of justice and an inhuman treatment.
India said that its juvenile justice care and protection systems had been reformed in order to strengthen the protection of children, and that the social reintegration of juveniles should be prioritised over punishment.
Honduras, also on behalf of India and Nepal, said that there was a need to make progress with regards to prevention, and that international cooperation was needed to share good practices and would enhance the protection of children in the justice system.
Namibia said that it was committed to ensure that children received all assistance when involved in judicial cases, including as witnesses. Namibia had enacted legislation to protect children from domestic violence and to ensure that children had access to diversion programmes.
Nepal said the administration of justice had to ensure the specific protection of children, and that the Government had been implementing a 10-year plan of action to protect the rights of the child.
Belgium said that it had made mandatory mediation during criminal procedures involving children and that the protection of children witnesses was also guaranteed in the judicial system. The presence of a psychiatrist was mandatory. Training of law officers had been carried out.
Saudi Arabia said that the protection of family bonds between children and parents was fundamental in accordance with Sharia law. Saudi Arabia was committed to the protection of the rights of children and to supporting international efforts in this field.
United Arab Emirates said that children often got into criminal activities because of the poor economic situation in the country. Alternative measures were being implemented in the United Arab Emirates, including re-education centres and rehabilitation programmes.
Malaysia shared the view that alternative measures were necessary to ensure the protection of children from ill treatment. Repressive systems only were not appropriate for juvenile offenders, and imprisonment should be used as a last resort.
Human Rights Advocates said that the death penalty was used against child offenders in several countries, in violation of international law, and called upon States to commute life sentences to other sentences.
Consortium for Street Children said that street children were often victims of violence, police brutality and round ups, and that States should repeal legislation prohibiting begging, loitering, vagrancy and running away.
ANTONIO CAPARROS LINARES, formerly a juvenile in conflict with the law, in concluding remarks on prevention measures, said that schools should teach young people not to consume substances and drugs and not to get into bad company. It was important for personnel from psycho-social support programmes to approach juveniles with respect, dignity and affection.
SUSAN BISSELL, Chief, Child Protection Section, Associate Director, Programme Division, United Nations Children’s Fund in New York, in closing remarks, stressed the importance of a holistic approach to the issue of children in conflict with the law. It was important to interlink justice systems with social and education systems. Birth registration and age determination were essential to ensure the protection of children; there were currently 220 million children under the age of five who did not have birth certificates. The critical part in prevention was family strengthening.
JORGE CARDONA, member of the Committee on the Rights of the Child and Professor of Public International Law at the University of Valencia, said in concluding observations that many States asked for guidance on protecting children, and that it was important to think about restorative justice. Specialized justice systems for children should be based on the principles of the Convention and should use new approaches and alternative measures; in short, they should be adapted to young people. Judicial proceedings and incarceration should be used only in extreme cases, and instead States should resort to use other measures such as mediation between victims and offenders or community-based approaches. It was necessary to think about new realities; children were clearly showing qualitative and quantitative reduction in “traditional” offences. New forms of offences were emerging such as cyber crime or crimes committed in families and judicial systems were not ready to deal with them.
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 introducing a floor of basic social security was the most important preventative measure, as well as preventing children from falling into extreme poverty. Identification of children most at risk of social exclusion was also an important preventative measure, as these children overpopulated all forms of detention. The most progress in juvenile justice had been made in legislative reform and the impact of legislation. The role of international cooperation was vital to developing capacity and justice systems worldwide. There was also a wealth of programmatic and academic information that could be used to adapt programmes and policies to specific contexts.
CONNIE DE LA VEGA, Professor and Director of the International Human Rights Clinic at the University of San Francisco, said preventative measures were important to protect children from childhood onwards, particularly from abuse by parents. It was important to have support for mental problems as well. Children with mental problems or suffering from abuse were more likely to be sentenced to extreme punishments. It was important to change the laws so extreme penalties could not be applied to minors. This was important to ensure that regions, in addition to federal level prohibitions, took up prohibitions. Earmarking enough money for the issues being discussed was important as well. When the death penalty was abolished people should not continue to be sentenced to life in prison without the possibility of release.
RENATE WINTER, Judge at the Appeals Chamber of the Special Court of Sierra Leone, said regarding the overcrowding of prisons, there were the principles of the entrance door, avoiding detention as much as possible, and the exit door, using probational parole as soon as necessary and to the greatest extent possible. In most countries, recidivism was at 80 per cent. Where there were diversion mechanisms, depending on the offenses included in the law, there was a maximum rate of recidivism of 20 per cent, but it was mostly around 2 to 4 per cent. The costs of diversion, including indirect costs, if the costs of the prisons, its employees, food and education were included, amounted to the cost of a four-star hotel. For the same cost, a probation officer could be provided with the salary of a president. Children that came out of prison were stigmatized, probably would not work and would not pay taxes. This would be costly as well since social welfare was generally provided due to recidivism later in life. Stigmatizing children by language had costs, but this could be avoided cost-free. As soon as there was the possibility of parole or probation, an officer had to be provided immediately.
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