UNICEF Guidance note for CEE/CIS on responses to children who have infringed the law

UNICEF Guidance Note for CEE/CIS On responses to children who have infringed the law but are under the minimum age for prosecution as a juvenile offender

UNICEF GUIDANCE NOTE FOR CEE/CIS On responses to children who have infringed the law but are under the minimum age for prosecution as a juvenile offender This Guidance Note issued by the UNICEF Regional Office for CEE/CIS (Central and Eastern Europe and the Commonwealth of Independent States) is primarily designed to assist UNICEF offices in the region in dealing with policy and practice issues regarding juvenile justice. The guidance is founded on relevant international standards and principles and builds on the Critical Mass exercise of the CEE/CIS Regional Office. March 2010

UNICEF Regional Office for Central and Eastern Europe and The Commonwealth of Independent States (CEE/CIS) March 2010 Cover photo: UNICEF Kyrgyzstan/2008/Alimjan Jorobaev

Background Under the Convention on the Rights of the Child (Article 40.3[a]), States Parties must seek to promote “the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.” This age, often known as the ‘minimum age of criminal responsibility’ (MACR)1, is referred to in the present document as the ‘minimum age for prosecution as a juvenile (offender)’ or, more concisely, the ‘minimum age’ or ‘minimum age for prosecution’. All countries in the CEE/CIS region have set such a minimum age – in many cases, two distinct minimum ages for prosecution have been established to deal with offences of a greater or lesser severity. The most appropriate age below which a child may not be prosecuted – even before a special juvenile court – is one of the most controversial and high profile issues debated in the context of juvenile justice policy. The minimum age stipulated varies from 6 to 16 worldwide, and the criteria upon which the minimum age is decided are equally diverse and disputable. Unfortunately, the debate over minimum age has invariably overshadowed a far more significant policy issue, namely the appropriate responses envisaged for a child aged 8, 10, 12, 14 or 16 who is alleged or shown to have committed an offence or crime, regardless of the minimum age set for prosecution as a juvenile offender in the country in question. The Convention on the Rights of the Child and, in particular, the Beijing Rules set out standards and measures that may be considered for child offenders above the minimum age in force who are dealt with by the justice system. Neither instrument, however, provides much, if any, practical guidance or discussion around requirements in regard to children below that age who come into conflict with the law (hereafter called ‘underage offenders’2). Symptomatically, in its General Comment on juvenile justice, the Committee on the Rights of the Child goes no further than to propose: “For these children special protective measures can be taken if necessary in their best interest”,3 requesting that States Parties “inform the Committee in their reports in specific detail how children below the MACR set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and 1 For example, in the commentary of Rule 14.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules; 1985) and the Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice (2007). This term, and the acronym MACR, is retained in the present document in quoted texts. 2 The term ‘offender’ is appropriate because the children concerned have, or are alleged to have, infringed the law, even though they cannot be prosecuted for the infringement. 3 Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice, CRC/C/GC/10, 9 February 2007, para. 31. 3

what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above the MACR.”4 The present document seeks to underline the importance of paying greater attention to the treatment of underage offenders, and also to provide justification for, and guidance on, advocacy by UNICEF CEE/CIS offices on behalf of underage offenders. Causes of concern In a significant number of cases worldwide, the ways in which underage children are dealt with do not correspond to their status, needs or international norms. Contrary to conventional wisdom, no correlation exists between the minimum age set by a country for prosecution as a juvenile and that country’s compliance with the spirit and letter of international juvenile justice standards as a whole. Certain countries have a very low minimum age but in practice adopt a non-punitive approach, for example, by making real efforts to use deprivation of liberty only as a last resort. At the other end of the spectrum, some countries with a relatively high minimum age5 – as is the case for most CEE/CIS region countries – make quite frequent use of ‘protective custody’ and other detention measures for underage offenders imposed by non-judicial bodies. Thus, according to the most comprehensive global study on juvenile justice to date, the way that countries handle underage offenders “may be predominantly retributive or punitive in orientation, such that their nominal MACRs cannot reasonably be accepted at face value.” Furthermore, “there are indications that [these problems] are particularly salient among countries with historic Soviet law influences.”6 The same study goes on to state: “in many of these cases, countries follow administrative procedures, without full due process rights … Commissions on Minors, Commissions on Minors’ Affairs, and similar authorities may order the deprivation of liberty of such children, in special correction schools, special education institutions, and re-education institutions, etc.”7 At the same time, there exists in some countries the widely held view that society has few or no grounds for intervening proactively in cases involving an underage 4 Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice, CRC/C/GC/10, 9 February 2007, para. 33. 5 The Committee on the Rights of the Child has suggested that 12 years is the lowest internationally acceptable minimum age. 6 Cipriani, Don, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, Ashgate Publishing, Farnham, 2009, p. 261. 7 Ibid., p. 264. 4

offender, since the child concerned is not ‘responsible’ for his or her infringement of the law. As a result, the response to minor offences by a child varies from resigned recognition of the inability to act to dismissal with an admonition or police caution, neither of which takes account of or addresses the child’s situation and potential need for assistance. According to Cipriani, “The most common outcome worldwide seems to be no systematic response at all to such children.”8 This is despite the results of a study conducted in the United States of America, which found: “children who begin to commit delinquent acts between the ages of 7 and 12 are two to three times as likely to become serious, violent and chronic offenders versus children who begin to offend at older ages.”9 In sum, the major negative consequences for a child offender below the minimum age for prosecution as a juvenile can include lack of systematic response; no access to due process or an equivalent guarantee; and removal from parental care and transfer to a residential facility for a potentially lengthy period of time on the basis of a purely administrative decision (this may constitute arbitrary detention and may not be subject to regular review). Finally, it must be noted that underage children invariably come into contact with law enforcement officials at the time of offending, and special attention must be paid to the treatment of children in such circumstances. Principles to be observed 1. Responsibilities for dealing with underage children from the moment of apprehension must be clearly established, known and accepted by all concerned. Ideally, this will involve developing criteria and a transparent oversight procedure for the transfer process applied by police; and establishing legally binding cooperation between the police and social services sector, whereby the latter takes immediate responsibility for underage children who come into contact with law enforcement officials. 2. Any law enforcement official, not just specially trained youth police, may come into contact with underage children who have infringed the law. All law enforcement officials must therefore be trained in how to deal with children on apprehension and fully informed of the procedures to follow for the transfer of responsibility. 8 Cipriani, Don, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, Ashgate Publishing, Farnham, 2009, p. 269. 9 Ibid., p.274, citing Loeber, Rolf, et al. ‘Child Delinquency: Early Intervention and Prevention’, Child Delinquency Bulletin Series, US Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Washington DC, May 2003. 5

3. Systematic consideration must be given to the most appropriate response by the social services sector to each and every case. Inaction in the face of behaviour that infringes the law is never useful to the child. 4. The response must be constructive. While prompted by the child’s transgression of the law, the response should not be conceived as a punishment but rather as an opportunity to help the child understand the unacceptable nature of his or her behaviour and its consequences. The response should also address those issues that will help the child to refrain from similar acts in the future and must be proportionate and individualized. If the child’s family situation is unknown or gives cause for concern, or if the nature and circumstances of the child’s behaviour suggest that special measures may be required, determination of the response should be based upon a social enquiry report. This must take account of the motivation for committing the offence and the familial and social circumstances of the child as well as his or her particular characteristics and needs. In such cases, the enquiry should be carried out expeditiously by the social services sector and appropriate interim support measures put in place pending its outcome. 5. The range of appropriate responses includes family support; the offer of appropriate treatment for substance abuse in the family or serious behavioural problems exhibited by the child; enhancement of parenting skills; structured recreational and cultural activities; supplementary educational tutoring; day centres; life skills courses; individual or family group counselling; mediation; and mentoring. 6. The decision-making process must respect the human rights of the child concerned and, in particular, must provide the child a full opportunity to be heard and to contest any or all of the allegations in regard to his/her behaviour. Among other things, the process should involve exchanges between the child and specially prepared persons in a child-friendly setting, and interviews of his/her primary caregivers, teachers, etc. All reasonable efforts should be made to verify the grounds for any allegations that the child denies. 7. If the child and/or the parents refuse to cooperate with, or give consent to, duly decided support measures directed towards them or requiring their involvement, the grounds for and feasibility of the measures should be reviewed and, if appropriate, modified by the decision-making body. The competent authority may consider measures that are more constraining if these are deemed necessary to protect the best interests and other rights of the child. 8. The response must take full account of Convention on the Rights of the Child obligations to enable the child to be brought up by his or her parents as far as possible (Article 7) and to ensure that deprivation of liberty is used 6

only a last resort and for the shortest appropriate period of time (Article 37). Deprivation of liberty occurs when a child is placed in any kind of facility, including for educational or protective purposes, from which he or she is not allowed to leave at will (Havana Rules). 9. Any decision involving measures that deprive the child of his or her liberty must be open to appeal before a court. Nota bene, the involvement of the court in such instances is, of course, to determine only the admissibility of the decision and in no way negates the child’s immunity from prosecution. 10. Schemes (e.g., life skills courses, mediation) and placements (e.g., foster care, residential placements) for underage offenders should, in principle, be conceived and implemented specifically for this group. In particular, such schemes should in no way be designed or perceived as punitive in nature. Consequently, they should not be run by juvenile justice bodies or involve programmes or accommodation used by offenders above the minimum age for prosecution. 11. Special care should be taken when considering the participation in a scheme by, or placement of, an underage offender alongside children who are in need of care and protection but have not contravened the law. No hard and fast rule can be applied here: decisions must be made on a case- by-case basis and should consider the best interests and needs of all children involved. 12. Many underage offenders, while no less in need of care and protection than abused or neglected children, may need such care to be provided in a specialized setting that reflects their particular experience, even trauma. For example, those underage offenders who have been used instrumentally in criminal activities, involved with older groups or gangs, or committed violent acts. Equally, many underage offenders can be suitably cared for in the company of children who have not exhibited, or been induced into, behaviour that infringes the law. 13. Any placement made, whatever the setting, must be subject to regular review in regard to its continuing necessity and suitability, in compliance with Convention on the Rights of the Child (Article 25). 14. Decisions and reviews should involve consultation with the child and his or her family as well as with all professionals who possess direct knowledge of the child, including teachers, doctors and social workers. 7

UNICEF positions One of the five key child protection goals stated in the UNICEF Medium Term Strategic Plan 2006–2009 is: “Children and families identified as vulnerable are reached by key community and government services aimed at reducing their marginalization.” Clearly the commission of offences by underage children is an indicator of potential vulnerability and must be addressed by the social services sector as a component of targeted (secondary) prevention. In addition to defending and promoting the application of the principles set out above, UNICEF’s approach to the development of appropriate responses to underage children includes the following positions: a) UNICEF should resist any moves to lower the minimum age for prosecution in the CEE/CIS region, in accordance with the stance already adopted by the Committee on the Rights of the Child.10 The Committee also recommends abolishing the two-tier minimum age system (for serious and lesser offences) currently adopted by many CEE/CIS countries. This should not, however, mean that the lower of the two ages is automatically applied to serious and lesser offences alike. Furthermore, major adjustments are required in most countries for the juvenile justice system to cater appropriately to the needs of younger children. b) Although the Committee on the Rights of the Child promotes the raising of the minimum age for prosecution wherever possible, UNICEF should only support initiatives to do so in the CEE/CIS region once full consideration has been given to the likely ramifications and effectiveness of such a change from a children’s rights perspective. As noted earlier in the background to the present guidance note, the priority issue is to ensure that responses are appropriate for child offenders, whether they are above or below the minimum age in force. Raising the minimum age does not of itself guarantee increased respect for children’s rights; indeed it may even create conditions where certain such rights are jeopardized. c) UNICEF will encourage and support in-depth reviews of current decision- making procedures in regard to underage children with a view to ensuring, among other things, that the child is able to exercise fully his or her right to be heard during proceedings and that the alleged behaviour prompting those proceedings is corroborated by the facts. 10 Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice, CRC/C/GC/10, 9 February 2007, para. 33. 8

d) UNICEF will also encourage and support in-depth reviews of the extent to which the various possible responses to underage offenders are currently adopted (see non-exhaustive listing in the principles above). As far as is possible, the reviews should also establish the degree to which the outcomes of such responses have been shown to be positive for the children concerned, particularly when compared to the results of ‘educational’ and other measures involving deprivation of liberty. It is hoped that these reviews would provide the basis upon which to advocate for the preponderant use of community- based measures, which fully involve the family and enable the child to remain in, or return to, the normal school setting. e) Consequently, and in the framework of a general effort to bring about progressive deinstitutionalization of care and other services for children, UNICEF will encourage and support initiatives that seek to transform selected residential facilities for underage offenders into day centres and child-focused service units, where the facility in question is suitably located (i.e., accessible) and can provide an appropriate environment for the purposes of its new role. f) In those exceptional cases where a placement involving deprivation of liberty is deemed necessary, UNICEF advocates for a clear, constructive and individualized treatment programme to be established for the child. Specialized multidisciplinary teams with a high staff to child ratio must implement the programme, whilst at the same time maintaining the child’s maximum possible contact with the family and wider community. g) Securing systematic, appropriate and effective responses for each underage child in conflict with the law requires additional financial and human investment that will produce returns in the medium term. UNICEF urges governments to make available the resources that will enable law enforcement agencies and the social services sector to establish specialist teams responsible for developing for every child concerned an individual response plan that takes into account his or her specific needs and circumstances. h) In addition, UNICEF urges that formal procedures be agreed to establish cooperation between law enforcement agencies and the social services sector in dealing with underage children, to enable their respective mandates and responsibilities to be better understood and implemented. i) UNICEF believes that a number of constructive techniques developed within the juvenile justice system, such as mediation and family group counselling, may also be appropriate in confronting the issues that underlie offences committed by certain underage children. UNICEF proposes that social services agencies establish in the first instance pilot schemes inspired by (but separate from) such justice sector techniques, for selected children 9

whose age and situation make them suited to such a response. The outcomes should be monitored and assessed both during and following the intervention to determine its effectiveness and serve as the basis for any adjustments required. 10

Checklist of main issues to be addressed ISSUE STATUS ACTION REQUIRED Minimum age for prosecution set at an internationally acceptable level Existence of moves to lower or raise this age Existence of different minimum ages for serious and lesser offences Existence of moves to set a single minimum age for all offences Existence of a protocol for the transfer of underage offenders from the police to the social services sector Inclusion of children’s rights and child- sensitive responses in the training syllabi of all law enforcement personnel Existence of a recognized and systematic procedure in the social services sector by which to evaluate the appropriate response to each underage offender Procedure in place to determine the need for a social enquiry report in each case Availability of trained personnel to prepare social enquiry reports expeditiously Existence of a range of community-based support and treatment measures specially tailored to underage offenders and their families System in place to monitor and evaluate effectiveness of responses, both in individual cases and overall Existence of a child-friendly decision- making process conducted by qualified specialists Full protections in place to ensure that the process respects the human rights of underage offenders Procedure in place to ensure that any decision involving placement in a residential facility (deprivation of liberty) can be appealed before a court Existence of a mechanism to ensure the regular review of the necessity and suitability of any residential placement in consultation with the underage offender and his or her family Existence of a policy to reduce recourse to residential placements Existence of a policy to transform residential facilities into non-residential service units 11

UNICEF Regional Office for CEE/CIS Palais des Nations CH 1211 Geneva 10 Switzerland www.unicef.org/ceecis © The United Nations Children’s Fund (UNICEF)

UNICEF Guidance note for CEE/CIS on responses to children who have infringed the law

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UNICEF Guidance note for CEE/CIS on responses to children who have infringed the law Document Transcript