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Juvenile Justice in Different Countries Age of Criminal responsibility and Treatment of Juvenile Offenders


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Juvenile Justice in Different Countries
Age of Criminal responsibility and Treatment of Juvenile Offenders
A Compilation by HAQ: Centre for Child Rights

HAQ: Center for Child Rights
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Juvenile Justice in Different Countries Age of Criminal responsibility and Treatment of Juvenile Offenders

  1. 1. 1 Juvenile Justice in Different Countries Age of Criminal responsibility and Treatment of Juvenile Offenders A Compilation by HAQ: Centre for Child Rights In the world, there are three models that inspire administration of juvenile justice The Welfare Model The Justice Model or Control model - Retributive The Restorative Model The age of criminal responsibility and treatment of juveniles thus varies under the different models adopted by various countries. The table below presents some insights from 32 countries. S. NO. COUNTRY NAME OF ACT AGE OF CRIMINAL RESPONSIBILIT Y PUNISHMENT/INCAR CERATION 1. CANADA Youth Criminal Justice Act- 2003 ( Most recent amendment) 12 years The Criminal Code of Canada, section 13, states "No person shall be convicted of an offence in respect of an act or omission on his or her part while that person was under the age of twelve years." The YCJA (Youth Criminal Justice Act) governs the application of criminal and correctional law to those 12 years old or older, but younger than 18 at the time of committing the offence. Youth aged 14 to 17 may be tried and/or sentenced as adults under certain conditions, as described later on in the act. (Sec 61) Though all trials will take place in a youth court under the Youth Criminal Justice Act, for certain offences and in certain circumstances a youth may receive an adult sentence.
  2. 2. 2 2. U.S.A Juvenile Justice and Delinquency Prevention Act ( JJDPA-1974) In 2002, the Act was reauthorized The lowest age is six, in North Carolina. Several states have no set standard, and thus rely on the common law age of seven On June 25, 2012, the US Supreme Court ruled unconstitutional the mandatory sentence of life without the possibility of parole (LWOP) for crimes committed by juveniles. The ruling did not specify whether it applied retroactively to those in prisons or to future juvenile felons. The court banned only mandatory life sentences without parole for those under age 18 convicted of murder; it did not completely banish life (with parole) sentences for such convicts. In most States, cases referred to juvenile court that meet certain criteria may be transferred to criminal court upon the authorization of the juvenile court judge. This mechanism is known as "judicial waiver," since the judge is "waiving" the juvenile court's jurisdiction and giving the case over to the criminal system. Judicial Waiver Under judicial waiver laws, the case
  3. 3. 3 originates in juvenile court. Under certain circumstances, the juvenile court judge has the authority to waive juvenile court jurisdiction and transfer the case to criminal court. State statutes vary in how much guidance they provide judges on the criteria used in determining if a youth’s case should be transferred. Some states call the process “certification,” “remand,” or “bind over for criminal prosecution.” Others “transfer” or “decline jurisdiction.” Almost all states have judicial waiver provisions which is the most traditional and common transfer and waiver provision. Age of Juvenile Court Jurisdiction These laws determine the age of adulthood for criminal justice purposes. They effectively remove certain age groups from the juvenile court control for all infractions, whether violent or nonviolent, and place them within the adult court jurisdiction. Thirteen states have defined the age of
  4. 4. 4 juvenile court jurisdiction as below the generally accepted age of 18 years old. Transfer and Waiver Provisions These laws allow young people to be prosecuted in adult courts if they are accused of committing certain crimes. A variety of mechanisms exist by which a youth can be transferred to adult court. Most states have transfer provisions, but they vary in how much authority they allow judges and prosecutors to exercise. Prosecutorial Waiver These laws grant prosecutors discretion to file cases against young people in either juvenile or adult court. Such provisions are also known as “concur rent jurisdiction,” “prosecutorial discretion,” or “direct file.” Fifteen states have concurrent jurisdiction provisions. Reverse Waiver This is a mechanism to allow youth whose cases are being
  5. 5. 5 prosecuted in adult court to be transferred back down to the juvenile court system under certain circumstances. Half of the states have reverse waiver provisions. Statutory or Legislative Exclusion These laws exclude certain youth from juvenile court jurisdiction entirely by requiring particular types of cases to originate in criminal rather than juvenile court. More than half of the states have statutory exclusion laws on the books. Blended Sentencing These laws allow juvenile or adult courts to choose between juvenile and adult correctional sanctions in sentencing certain youth. Courts often will combine a juvenile sentence with a suspended adult sentence, which allows the youth to remain in the juvenile justice system as long as he or she is well- behaved. Half of the states have laws allowing blended
  6. 6. 6 sentencing in some cases Certain states have recently changed their state laws and are aiming towards removing juveniles from the criminal justice system. ( As of 2011) Four states (Colorado, Maine, Virginia and Pennsylvania) have passed laws limiting the ability to house youth in adult jails and prisons Three states (Connecticut, Illinois, and Mississippi) have expanded their juvenile court jurisdiction so that older youth who previously would be automatically tried as adults are not prosecuted in adult criminal court Ten states (Arizona, Colorado, Connecticut, Delaware, Illinois, Indiana, Nevada, Utah, Virginia and Washington) have changed their transfer laws making it more likely that youth will stay in the juvenile justice system. Four states (Colorado, Georgia, Texas, and
  7. 7. 7 Washington) have all changed their mandatory minimum sentencing laws to take into account the developmental differences between youth and adults 3. ENGLAND & WALES A number of Acts, dating back to 1933, provide for the system of juvenile justice in England and Wales and attempt to ensure that a fair trial and fair treatment is given to children accused of crimes. (Children and Young Persons Act 1933 (as amended by s 16(1) Children and Young Persons Act 1963) The minimum age of criminal responsibility in England and Wales is currently ten years old. Those below this age are considered doli incapax and thus incapable of forming criminal intent. For children to whom preventive methods do not apply, for example, due to the seriousness of the offense, or who have exhausted them, the juvenile justice system then operates in the form of a Youth Court, which hears cases of ten to eighteen year olds. This youth court was established to prevent children and young people from entering into contact or associating with adult suspects during any phase of a trial. Detention and Training Order (DTO) Persons aged between twelve and seventeen: can be given a DTO that lasts for between four months and two years. Half of the time is spent in custody and half in the community. The DTO can be made available by the Home
  8. 8. 8 Secretary for the persons between the ages of eleven and twelve when dealing with a persistent offender. The court has a range of different sentences for young offenders; for example, supervision orders that can have a variety of conditions attached to them or an Action Plan Order, an intensive, three month long community-based programme. More serious custodial methods of punishment are detention and training orders. These orders are normally given to children representing a “high level of risk *to the public, have a significant offending history or are persistent offenders and where no other sentence will manage their risks effectively.” They apply for a minimum period of four months to a maximum period of two years, with half of the sentence being served in custody and the remainder in the community supervised by a “youth offending” team.
  9. 9. 9 Only those offenders over the age of fifteen may be sentenced to detention in a young offenders’ institution, although this latter restriction does not apply to children aged ten and over convicted of murder For very serious offenses, children are prosecuted in the Crown Court. The Crown Court can sentence children between ten and eighteen years old that have committed an offense that is punishable by fourteen or more years’ imprisonment for adult offenders, children that have committed murder, or certain sexual offenses, may be sentenced for up to the adult maximum for the same offense. The young offenders are not placed in prisons alongside adults, but can be placed in secure training centres, secure children’s homes, or young offenders’ institutions. Murder carries a life sentence. For persons convicted of murder that are under eighteen years of age indefinite detention
  10. 10. 10 begins in a social services secure accommodation. The person is then transferred to a young offender institution at eighteen and to prison at twenty one. The Lord Chief Justice sets the length of detention and it is for the Parole Board to determine whether the young person should be released. (See: Section 90 Powers of Criminal Courts (Sentencing) Act 2000, as amended by sections 60 (2)-(3) of the Criminal Justice and Court Services Act 2000) In England and Wales, a person under 21 cannot receive a whole life tariff, the equivalent of an LWOP sentence, because Schedule 21, and 269(4) of the Criminal Justice Act 2003 restricts such sentences to persons aged 21 or older. 4. IRELAND ( Republic of Ireland) Children Act 2001 In October 2006, the age of criminal responsibility was raised from from 7 The juvenile court has been replaced by a new Children’s Court1 under the Children Act (2001). 1 Part 7 of the Children Act (2001) relating to the Children Court has been implemented.
  11. 11. 11 years of age to 12 years of age The age of criminal responsibility in Northern Ireland is 10 years old The Children’s Court has the power to deal with both offending and non-offending children up to 18 years of age – this represents a change from the previous legislation where the court had jurisdiction over children under- 17 years only. The Children’s Court has the power to deal summarily with a child charged with most, but not all, indictable offences. The decision to be tried summarily for an indictable offence depends on the age and maturity of the child as well as other relevant factors.2 Excluded indictable offences include those which are required to be tried by the Circuit Criminal Court or manslaughter. In these cases, young people are treated like their adult counterparts in the adversarial system. The court may take mitigating factors such as the child’s age and level of maturity into consideration when determining the nature of any penalty
  12. 12. 12 imposed, unless the penalty is fixed by law while the fourth principle posits that the penalty imposed on a child for an offence should be no greater (and may be less) than that which an adult would receive for the same offence. On 1 May 2012, an Order was signed by the Minister to end the practice of sending 16-year-olds to St. Patrick’s Institution ( an adult secure prison) and all newly remanded or sentenced 16-year- olds have since been detained in the children’s detention facilities at Oberstown. The last 16-year-old in St. Patrick’s was released in July 2012. The detention of 17- years-olds in St Patrick’s will continue until the completion of the new facility in 2014 Once complete, the three existing child specific facilities on the Oberstown campus and the new detention units will create one single detention facility. This will accommodate all
  13. 13. 13 children on remand or serving a sentence in Ireland, as originally provided for in the Children Act 2001. It is planned that an amendment will be made to the Children Act 2001 to provide a secure legal framework for the operation of the campus as a single integrated facility At present, females aged 16 years and over can be detained in the Dochas Centre which is a facility for adult female prisoners at Mountjoy Prison. For children detained in Children Detention Centres (16-18 year olds) a sentence of detention should not exceed the terms of imprisonment for an adult convicted of the same offence. 5. FRANCE Since the Order of 2nd February 1945, a specific justice system applies to children and adolescents under 18 years of age, namely juvenile justice While the onset of criminal responsibility in France is age 13, children aged 10-12 may be brought before child court judges solely for the In June 2011, French Parliamentarians voted on a new law in the National Assembly introducing a reform of the juvenile justice system. The law provides for the creation of a criminal court with a juvenile judge to adjudicate on recidivist offenders aged 16 to 18
  14. 14. 14 purpose of applying security measures, provided that child is at risk Accordingly, it is possible to apply a minimum age excluding serious offenses. Sentencing young person’s at least 13 but not yet 17 happens as an exception; as a rule, “educational security measures” are applied instead years. The law also introduces new procedures for faster prosecution. The law was largely criticised by civil society as it represents a regression of juvenile justice and puts in danger the specificity of the justice system for minors Juvenile assize courts try serious offences committed by minors from 16 to 18 years of age in accordance with the special procedure applicable to minors. These courts comprise three professional judges and a civilian jury. Minors are considered criminally responsible as soon as they are "capable of discernment". Age of discernment is set roughly between the ages of 8 and 10, from which age minors can be sentenced. Penalties are adapted to the age of the offender: From 10 to 13 years of age, educational penalties can be imposed on minors (such as the confiscation of an object, for example). If the minor concerned does not comply with
  15. 15. 15 the penalty, he or she may be placed in a household or a specialized centre for juvenile offenders; From 13 to 16 years of age, minors may be criminally sentenced; they can receive a prison sentence, but are liable to only half the sentence prescribed for adults; they cannot be remanded in custody, except if they have committed a serious offence; From 16 to 18 years of age, minors can be remanded in custody and the excuse of minority can be set aside. Because juvenile delinquents are now younger and commit more serious offences, juvenile justice has gradually tended to accelerate procedures and to strengthen educational supervision. A new piece of legislation in France allows children between the ages of 16- 18 who have twice or more re- offended to be sentenced as adults and faced with harsh prison sentences.
  16. 16. 16 6. ITALY Italian Penal Code Code of Penal Procedure DPR 448/1988 Article 97 of the Italian Penal Code states that a person who has not yet reached the age of 14 at the moment when he /she commits a crime must not be punished A person who has reached the age of 14 but not 18 at the time of committing a crime and who is” capable of understanding and willing” must be punished but the punishment may be reduced. Between the ages of 14-18 the ability to understand and to form mental intent must be clearly ascertained in each case by the presiding judge Concerning the decisions that the court can impose, the penal code states that the orders and sentences applicable to adults may also be applied to minors with considerable latitude and reductions. If the youth is deemed likely to re offend he/she can be confined to a judicial reformatory 7. NETHERLANDS 1 Children’s Rights Act and Code of Criminal Procedure of the Netherlands 2 Amendment to the Juvenile Criminal Law (1995) Children under the age of 12 cannot be held criminally responsible. Similarly juvenile law can be applied to young people aged In exceptional cases 16 and 17 year olds can be tried according to adult law. The punishment of juveniles with incarceration is generally stipulated for serious crimes, i.e. for crimes that carry a
  17. 17. 17 3 Youth Custodial Institutions Act (Sept 2001) 18–20 years who function mentally at a much younger age punishment of over 4 years imprisonment for adults. Young people who have not yet turned 16 at the time of the crime may be sentenced to a maximum of 1 year in prison. For offenders between 16-18 years, maximum sentence is 2 years in prison. When the punishment of incarceration is necessary for more than 6 months, a report must be obtained from a psychologist who is required to meet the child in prison. In the Netherlands there is the (theoretical) possibility of life imprisonment with the possibility for parole, restricted to juveniles at least 16 years in age. 8. GERMANY The Juvenile Welfare Act (JWA) Minimum age of criminal responsibility is 14 years. A juvenile offender older than 14 and less than 18 years of age can be punished, if Only a small part of the convicted juveniles is sent to prison; in 2009, unsuspended youth penalty was imposed on 2,076 convicted minors only. The minimum length of youth imprisonment is six
  18. 18. 18 he or she has reached a level of moral and intellectual maturity sufficient to enable him/her to understand the wrongfulness of the act and to conduct himself in accordance with such understanding months, the maximum five years, for 14 -17 year-old juveniles. In cases of very serious crimes for which adults could be punished with more than ten years of imprisonment, the maximum length of youth imprisonment is ten years. In the case of 18-20 year-old young adults sentenced according to the JJA the maximum penalty is ten years, too. The preconditions for youth imprisonment are either the “dangerous tendencies” of the offender that are likely to exclude community sanctions as inappropriate, or the “gravity of guilt” concerning particular, serious crimes (like murder, aggravated robbery etc 9. SWEDEN In Sweden there is a special law (1964:167) concerning juvenile perpetrators. This law deals with persons who have not reached the age of twenty one. It is quite an extensive law that cannot The definition of “young offenders” in Sweden is offenders who have reached the age of 15 but have not yet turned 21. The age of criminal liability is 15 and 21 was previously the year in which one Young offenders can be sentenced to special sanctions for young people, but also to other sanctions. The special sanctions youth care and youth service are based more on the best interests of the child and on the young person’s social situation than on the penal value of the crime. Closed youth
  19. 19. 19 be referred to in its entirety came of age. Today the age has been lowered to 18, but special circumstances still apply to offenders aged between 18 and 20. detention is, on the other hand, intended as an alternative to prison in the case of especially serious crimes, and is determined entirely on the basis of the penal value of the offence. 10. BELGIUM Youth Protection Act of 1965 modified May 15th 2006 Law of June 13th 2006 amending the legislation relating to the protection of youth and takes charge of minors who have committed an act qualified as an offence Children aren’t criminal responsible below the age of eighteen. The youth court imposes no punishments like in adult courts, but ‘educational measures’ Besides criminal cases, the youth court is also competent to try cases of children in need of care, and deviant behaviour (i.e. truancy). In practice, it occurs that the police demand juveniles to participate in educational training such as traffic courses or to restore small damages. If the deviant behaviour of a young person reveals a “problematic educational situation”, they can refer him (and his parents) to social support agencies (yet without conditions). While most delinquent minors appear before youth court, the juvenile judge can however, exceptionally decide to refer a juvenile offender aged over 16 to the Public Prosecutor with the intent of prosecuting and sentencing the minor in adult court (‘transfer to adult
  20. 20. 20 court’) 11. INDIA Juvenile Justice (Care and Protection of Children) Act, 2000, as amended in 2006 and 2011 Juvenile Justice (Care and Protection of Children) Rules, 2007 Indian Penal Code, 1860 The Indian Penal Code sets the minimum age of criminal responsibility at 7 years under Section 82 (the doli incapax provision) - “Nothing is an offence which is done by a child under seven years of age.” Section 83 of the Code specifies the age within which children are presumed doli incapax unless the prosecution proves otherwise. This section states, “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that There is no concept of punishment in the Juvenile Justice Act. The law provides for different kinds of orders that may be passed by the Juvenile Justice Board dealing with offences committed by children below the age of 18 years. These include: • Allow the juvenile to go home after advice. • Direct the juvenile to participate in group counselling. • Order the juvenile to perform community service. • Order the parent or the juvenile himself to pay a fine. • Direct to be released on probation of good conduct. • Directing to be sent to a special home subject to a maximum period of three years irrespective of the nature of offence committed. The Board shall obtain & consider the finding of social investigation report (SIR) while making its order.
  21. 21. 21 occasion.” No juvenile found guilty of committing an offence can be sentenced to death or life imprisonment. No juvenile found guilty of committing an can be committed to prison in default of payment of fine or in default of furnishing security. A child in conflict with the law can also be treated as a child in need of care and protection in certain cases such as in the case of a child in the 7-12 year age group caught for a petty offence or in the case of a first time offender. In such cases the child will be transferred to the Child Welfare Committee for care, protection and rehabilitation. 12. PAKISTAN Juvenile Justice System Ordinance, 2000 Section 82 of the Pakistan Penal Code sets the age of criminal responsibility for most offences at seven, while Section 83 it is presumed that children between case Where a child under the age of fifteen years is arrested or detained for an offence, which is punishable with imprisonment of less than ten years, shall be treated as if he was accused of commission of a bailable offence. No child under the age of
  22. 22. 22 of children between 7 and 12 years of age are doli incapax the prosecution and so the prosecution must prove the child knew their acts were 'seriously wrong’ fifteen years shall be arrested under any of the laws dealing with preventive detention or under the provisions of Chapter VIII of the Code. Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life. 13. SRI LANKA The law on juveniles is governed by the Children and Young Peoples Ordinance Minimum age of criminal responsibility is set at eight years. Between eight and twelve years, the judge has discretionary powers to hold a child criminally accountable, or not, based on judge’s judgment on whether the child has attained sufficient maturity of understanding the nature of consequences of his conduct on that occasion. Children above 12 years can be charged with criminal liability regardless of they have attained
  23. 23. 23 sufficient maturity to understand the nature and the consequences of their conduct. Children between 14- 16 are considered as young persons. Children between 16 and 18 are treated as adults by the criminal justice system. 14. MALDIVES LAW ON THE PROTECTION OF THE RIGHTS OF CHILDREN Article 9 of this law requires the establishment of a special procedure in cases involving juvenile delinquents A Juvenile Justice Bill is in its draft stages and the JJU has been placed under the Home Ministry Although the Maldives heralded a modern new democratic Constitution in 2008, much of the corresponding legislation aimed at reforming the criminal justice Minimum age of criminal responsibility, is set at 10 years Children between 16 and 18 years are considered as adults in the Maldives. Juvenile offenders are kept either in Dhoonidhoo where criminal detainees and political prisoners are housed, during investigation. The difference between adults and juvenile detainees are that adults are housed in cells while juveniles are kept in tents. Upon sentencing they are transferred to the regular jail for adults or transferred home to house arrest. Corporal punishment is lawful as a sentence for crime and for disciplinary purposes; Regardless of the outcome of the family conferencing or the court decision, schools are forced to expel children in conflict with the law from school as they need to
  24. 24. 24 system and the juvenile justice system remains comply with regulations set by the Ministry of Education. In 2009, a “Correctional Training Centre for Children” for at-risk young people was established and offers life skills programmes and vocational training. 15. SINGAPORE Children and Young Persons (Amendment) Act of 2001 is the key legislation governing the administration of juvenile justice in Singapore. Welfare of the juvenile is a guiding principle of this Act. The Act determines the jurisdiction of the Juvenile Court for persons aged 7 to under 16 year olds Pre-Court Diversionary Measures a. Release the juvenile with a warning to both the juvenile and the parents or guardians Discharge the case conditionally or unconditionally; b. Place a bond on the parent/guardian to ensure proper care and supervision of the juvenile; c. Place the juvenile under the care of a “fit person”; d. Place him/her on stand alone community service order; e. Place him/her on stand alone weekend detention; f. Place him/her on probation for a period ranging from 6 month to 3 years with or without conditions (which may include requiring him/her
  25. 25. 25 to go for periodic training as a condition of probation) and with or without a condition of residency in a probation hostel for up to 12 months; g. Order the juvenile to be detained for a period not exceeding 3 months and place him/her on probation upon discharge; h. Order him/her to be detained for a period of not more than 6 months; i.Order the juvenile to be committed to an Approved School for juvenile offenders for rehabilitation for a period between 24 to 36 months; j. Require the juvenile and parents to participate in family conferencing; k. Require the parents to go for mandatory counselling Institutionalization of a young offender is considered only as a last resort after all else have failed and when it becomes sufficiently clear that committing a young Offender to an institution is really in his/ her best interest.
  26. 26. 26 16. PHILLIPINES "Juvenile Justice and Welfare Act of 2006. With the signing of the Juvenile Justice and Welfare Act 2006 by President Gloria Macapagal- Arroyo, the Philippines introduced a new juvenile justice system A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. The Juvenile Justice and Welfare Council (JJWC) has opposed a House bill seeking to lower the minimum age of criminal responsibility to over 12 years old. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where
  27. 27. 27 the child resides 17. MALAYSIA The Child Act of 2001 (Act 611) sets the standards for juvenile justice with regards to Malaysian law. (The court handling child matters were known as the Juvenile Court but currently, when the Child Act 2001 came into force in 2002, the court is renamed ‘Court for Children.’) Malaysian Penal Code stipulates 10 to be the age of attainment of criminal responsibility but children between 10 and below 12 who have not shown sufficient maturity may be absolved from criminality as well. Evidence Act 1950 provides an additional protection for boys below 13 where they are presumed to be incapable of committing the offence of rape. Should a child between 10 and 12 be charged; he may invoke ‘infancy’ as a defence. In conclusion, children from 10 to 18 may be liable for any criminal charges in the Court for Children unless the offence is punishable with death3 whereupon the trial will then be conducted in the High Court 18. CHINA It has adopted two independent laws: the Law on the Protection of Minors (adopted at the 21st session of the Seventh National People's Congress in September 1991) and the Law on the Prevention of Juvenile Crimes (adopted at the 10th session of 14 years China holds more than 60 percent of juvenile offenders in custody (either prison or administrative detention) and places only 30 percent on probation. As of January 2013, China’s Criminal Procedure Law requires record sealing for juveniles who have been sentenced to less than five years imprisonment. “Conditional nonprosecution,” a
  28. 28. 28 the Ninth National People's Congress in June 1999). The revised Criminal Procedure Law of the People's Republic of China, which took effect on January 1, 2013, has 11 articles designed to improve the way juvenile offenders are handled by the Chinese justice system. concept modeled after “diversion” practiced in the West, will allow youth who commit minor offenses to avoid jail time by successfully completing six to 12 months’ probation. Although juveniles who commit “extremely serious crimes” can be given up to life imprisonment, maximum terms are rarely used and are discouraged by the national policies of “combining leniency and severity” and “education first, punishment second.” In 1997, revisions to China’s Criminal Law lowered the maximum sentence for juveniles to life imprisonment from “death with two- year reprieve.” The latter is a death sentence that is modified to a term of life imprisonment or fixed-term imprisonment of 25 years, both with the possibility of reduction, as long as no deliberate offense is committed during the initial two years of imprisonment. 19. JAPAN Juvenile law 1949 ( Age of criminal responsibility is The judge may make one of the following
  29. 29. 29 amended in 2000, 2007, 2008) 14 years or older. Treatment of cases of delinquent children under- 14, therefore, is in accordance with educational and welfare perspectives. Children under fourteen years old, however, are handled primarily by the child guidance center, as provided by the Child Welfare Law, when they have committed acts, which, if committed by a person aged fourteen or over, would constitute a crime. decisions: (1) to dismiss the case; (2) to refer the case to the governor of the prefecture or the chief of the child guidance center; (3) to place the juvenile under probation, a support facility, or a juvenile training school; and (4) to refer the case to the public prosecutor. The last decision can be made when the juvenile is fourteen years old or over at the time of the criminal acts and when the judge finds it is appropriate for the juvenile to be treated under the regular criminal procedure. As a general rule, when the juvenile is sixteen years old or over and has caused death by an act done with criminal intent, the court refers him or her to the public prosecutor. When the court chooses decision (3), the juvenile may file an appeal of the case to the higher court. 20. ISRAEL There is no comprehensive Children's Code in Israeli law, rather provisions of particular Children under the age of twelve are not criminally liable. Generally, such children are put A suspect must be released if an indictment has not been filed against him within 75 days of his arrest; if a trial has not commenced within 30
  30. 30. 30 relevance to children can be found throughout a number of Laws and Military Orders. in the care of the child protection services, and their acts are likely to constitute grounds for determining that the minor needs protection under the Youth (Care and Supervision) Law 5720-1960 days of filing the indictment; and if sentencing has not been passed within nine months. These periods may be extended by the Supreme Court in special circumstances. When an indictment has been filed, the court must set the earliest date possible for commencement of the trial. In the case of a defendant who is a minor, "save with the consent of the attorney general, a minor will not be brought to trial for an offense if a year has passed since its commission" 21. SAUDI ARABIA The main laws governing juvenile justice are the Juvenile Justice Act 1975, the Juvenile Justice Regulations 1969, the Law of Criminal Procedure 2001, the Detention and Imprisonment Act 1978, the Detention Regulation and the Juvenile Homes’ Regulation 1975, and the Basic Law of Governance The minimum age for criminal responsibility has reportedly been raised from 7 to 12, but reports are inconsistent and the rise does not apply to girls or in qisas cases. There are three types of offences – qisas (punished by retaliation), hadd (for which the prescribed penalty is mandatory), and ta’zir (for which the punishment is discretionary). Corporal punishment (amputation and flogging) is lawful as a sentence for crime, including for child offenders. Flogging is mandatory for a number of offences (hadd), and can be ordered at the discretion of judges (ta’zir). Sentences
  31. 31. 31 1992. All laws are based on Sharia. ( As of August 2012) range from dozens to thousands of lashes, and are usually carried out in installments, at intervals ranging from two weeks to one month. The Juvenile Justice Regulations (1969) encourage juvenile courts to settle cases without placing children in supervised facilities and to limit penalties to admonishment, guidance, counselling or a reprimand, but under the Juvenile Justice Act (1975) young persons under 18 may be sentenced to corporal punishment, including flogging, stoning and amputation. Under the Law of Criminal Procedure (2001), amputation is carried out pursuant to a Royal Order issued by the King or his representative, and must be witnessed by representatives of the Administrative Governor, the Court, the Bureau of the Promotion of Virtue and Prevention of Vice, and the police. Saudi Arabia also reported the execution of one juvenile in 2011. 22. UAE The main The minimum The Act allows for a
  32. 32. 32 federal laws governing juvenile justice are the Penal Code 1987, amended 2005, the Criminal Procedure Code 1992, amended 2005, the Law of Evidence 1992, and the Juvenile Delinquents and Vagrants Act 1976. age of criminal responsibility under criminal law is seven. The Juvenile Delinquency and Vagrants Act defines a juvenile as a person under 18 at the time of the offence Under Shari’a law, persons typically become liable for Islamic punishments at the onset of puberty juvenile who has reached the age of 16 to be punished under the Penal Code, substituting a sentence of detention not exceeding 10 years for that of capital punishment. Article 9 of juvenile Delinquents and Vagrants Act, 1976, prohibits capital punishment for a juvenile delinquent. There is no provision for corporal punishment as a sentence of the courts in the Penal Code, the Juvenile Delinquents and Vagrants Act or other criminal law. However, child offenders may be subject to corporal punishment under Shari’a law. Punishments include flogging, amputation, and – as retaliation – injury similar to that for which the offender has been convicted of inflicting on the victim. 23. AUSTRALIA New South Wales- Young Offenders Act (1997) Victoria- Children, Youth and Families Act (2005) Queensland- In all Australian jurisdictions the statutory minimum age of criminal responsibility is now 10 years. Between the ages of 10 and From 14 to either 17 or 18 years (depending on jurisdiction), young offenders may be held fully responsible for their criminal acts but are subject to a different range of
  33. 33. 33 Juvenile Justice Act (1992) Western Australia- Young Offenders Act (1994) South Australia- Young Offenders Act (1993) Tasmania- Youth Justice Act (1997) Northern Territory- Youth Justice Act (2005) Australian Capital Territory- Children and Young People Act (2008) 14 years, a further rebuttable presumption (known in common law as doli incapax) operates to deem a child between the ages of 10 and 14 incapable of committing a criminal act. Only if the prosecution can rebut this presumption, by showing that the accused child was able at the relevant time adequately to distinguish between right and wrong, can a contested trial result in conviction. criminal sanctions than adults committing the same offences. 24. NEW ZEALAND Children, Young Persons, and Their Families Act 1989 (CYPF Act) Certain sections of the Act were most recently amended in Dec 2012 Age of criminal responsibility is 13 years except for murder/ manslaughter where the age limit of 10 applies New Zealand has separate justice processes for under 17 year olds – the child offending process for 10 to 13 year olds and the youth justice process for 14 to 16 year olds. The separate systems are based on the premise that the vulnerability of younger people and their generally more immature judgement means that they ought
  34. 34. 34 to be treated differently from adult offenders. Both processes have a dual focus on accountability and rehabilitation. Youth aged 14 to 16 can be formally charged and prosecuted for any offence. Young people aged 17 or over are dealt with in the same manner as adults. When a child or young person faces charges for murder or manslaughter the charge is laid, and the preliminary hearing held, in the Youth Court. If the Youth Court finds there is sufficient evidence to proceed to a full trial, the matter is transferred to the High Court. In the remaining 16% of cases, the young person is arrested and a charge is laid in the Youth Court. As already noted, diversionary mechanisms operate to keep young people away from the Youth Court except in cases of serious or persistent offending. This is achieved, in part, because of the
  35. 35. 35 stringent restrictions on the right of the police to arrest a young person. The CYPF Act strictly limits arrest and in most cases a young person cannot be arrested unless it is necessary, and a summons is considered not sufficient to: • prevent further offending or prevent the loss or destruction of evidence or witness interference; • ensure appearance before the Court, for example in circumstances where the young person refuses to provide his or her name and address to the police 25. BRAZIL Juvenile delinquency is covered under the provisions of the Statute of the Child and Adolescent. This act was established in the Penal Code of 1940 and has been revised several times. The Minor’s Code, for example, had focused on removing delinquent children from the streets; it Children under the age of twelve are not criminally responsible Once arrested, a youth under the age of eighteen should be released to a parent or a responsible adult; deprivation of liberty should be limited to serious cases in which the youth’s safety or the public order requires it. If they are detained, youths may be held in police lockups for no more than five days, after which they must be released or transferred to a juvenile detention center. Youths who are held in police
  36. 36. 36 was replaced in 1990 by the Child and Adolescent Statute, which placed greater emphasis on reinforcing responsible behaviour in children. lockups must be placed “in a section isolated from adults and with appropriate installations. Delinquent youths may be sentenced to any of six “socio- educational measures”: warning, reparations, community service, probation semi liberty, and confinement in a detention center. The strictest of these measures, detention should be imposed only when individually warranted, in exceptional circumstances, and for the shortest possible time. This principle conforms to the standard set forth in the Convention on the Rights of the Child, which provides that arrest, detention, and imprisonment of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time.” Under Brazilian law, detention of a youth may last no more than three years and may not extend beyond the age of twenty- one. Regardless of the length of the sentence, the judge
  37. 37. 37 must reevaluate the decision to detain a child at least every six months. 26. PERU As of August 2012 a new Code for Children and Adolescents has been drafted by the Justice Commission of Congress and will be debated by politicians soon. 12 years In Peru, the majority of juvenile offenders are incarcerated, even in cases of petty crime, with close to 68% having sentences of three years or less. Suspects between the ages of 15 and 17 who are accused of terrorist acts do not have access to the specialized courts, district attorney offices, and defence lawyers that are available to other juvenile offenders. 27. ARGENTINA Law no 22.278 In July 2009, a bill on the legal regime applying to persons under 18 years of age who are in conflict with the law won general approval. This bill, which is in line with international standards in this area, is now in the Chamber of Deputies. 16 years At present, children between 14 and 16 years old are subject to a protective regime that considers them not subject to criminal responsibility but at the same time deprives them of any procedural rights; as a result, they are regularly, arbitrarily deprived of their freedom The law and average lengths of detention are similarly difficult to establish in Argentina as there is no clear limitation on detention and judges hold discretionary power to sentence children in conflict with the law to prison terms, with no need to specify their length. The Ministry of Justice and Human Rights has instructed security forces to ensure that they abide by human rights standards in cases where a person under 18 years of age is arrested on
  38. 38. 38 suspicion of committing a crime. As of June 2010, 1,730 children and adolescents were being held in custodial institutions, chiefly in Buenos Aires, the Autonomous City of Buenos Aires and Córdoba. It has been provided that children and adolescents who have to be held temporarily should be lodged in certain police stations that have been identified as being the most appropriate facilities for that purpose until such time as a new building to provide temporary lodging can be constructed. 28. CHILE Law on Juvenile Criminal Responsibility 14 years The new Chilean law entered into force in 2007, was a progressive first step; however, it still allows for harsh sentences to be applied to children –Fourteen to 16-year- olds may be sentenced to up to a maximum of five years in closed or semi- closed detention centres, where they must take part in social reinsertion programmes. Over- 16s may be sentenced to up to 10 years. However, deprivation of freedom must
  39. 39. 39 always be used only as a last resort. Other penalties provided in the law include parole, community service and making reparations for damages caused. Offenders who need it will be offered drug rehabilitation treatment. 29. BOLIVIA Code on Children and Adolescents – Protection, Responsibility and Jurisdiction Law for Criminal Sentencing and Supervision 12 is the age of social responsibility 16 of criminal responsibility The application of Bolivian law is differentiated into two age groups: The first group comprises adolescents of 12 to 15, whose processing is governed by the Code for Children and Adolescents, and is headed by the Judges of Children and Adolescents. Criminal acts of young people from the ages of 16 to 18 are governed by the criminal laws for adults (Penal Code and the Criminal Procedure Code) and are the responsibility of judges and courts for adults. 30. COSTA RICA The Juvenile Criminal Justice Act entered into force on 30 April 1996 and the Children’s and 12 Years When considering measures applicable to children, the Juvenile Criminal Justice Act further divides them into two legal
  40. 40. 40 Young People’s Code on 6 February 1998, both of which derogate the former legislation on minors. categories: firstly, children between 12 and 15 years of age, and secondly, children between 16 and 18 years of age (Article 4) In Costa Rica there are 2 main organisations responsible for minors deprived of liberty. The National Programme for the Attention of the Penal Juvenile Justice Population, which depends on the Ministry of Justice, is responsible for the implementation of the alternative sanctions. According to Article 131 of the Juvenile Criminal Justice Act, the detention term may be up to 15 years when applied to minors between 15 and 18 years old and up to 10 years when applied to minors between 12 and 15 years old. Furthermore, according to Article 139, minors between 12 and 15 years old shall be kept apart from minors between 15 and 18 years old. 31. MEXICO Federal Law for the Treatment of Juvenile Offenders 10 years Children between 11 and 18 years of age are subject to special courts for juvenile offenders. Juveniles
  41. 41. 41 In 2005, Article 18 of the Mexican Constitution 13 was modified to require each state to design and implement a juvenile delinquency system that operates separately from the adult criminal justice system. are assisted by Guardianship Councils, which are responsible for the care and protection of juvenile defendants. Children that are accused of committing an infraction must be treated fairly and humanely. Ill treatment, incommuni cado detention, psychological coercion or any other action impairing the child’s dignity or physical or mental integrity during legal proceedings are prohibited. Minors who are found responsible of committing an infraction may be subject to a wide variety of measures, including: Counseling Educational and vocational training programs, and other rehabilitating measures. Warning Admonition Prohibition to go to certain places Prohibition to drive motor vehicles Placement in custodial homes Confinement in
  42. 42. 42 educational institutions 32. EGYPT Chapter Eight (“The Criminal Treatment of Children”) of Child Law 12 of 1996 and its implementing regulations. Juvenile offenders under the age of 15 are for the most part not subject to punitive measures from the state. Article 112 of Egypt’s Child Law (Law No. 12 of 1996 Promulgating the Child Law, as amended by Law No. 126 of 2008) states that, “Children may not be detained, placed in custody, or imprisoned with adults in one place,” The Egyptian Code of Military Justice in article 8 (bis) (1) allows military tribunals to try juveniles if they are accompanied by an adult who is subject to military jurisdiction, including military personnel or civilians in military zones. Measures for children “vulnerable to delinquency” and children under 15 who commit crimes range from a rebuke to commitment to a social welfare institution or specialized hospital for up to three years; The penalty for children over sixteen who commit crimes punishable by death is a minimum of ten years imprisonment, or a minimum of seven years imprisonment for
  43. 43. 43 crimes punishable by permanent hard labor. 33. SOUTH AFRICA Child Justice Act 2008 There are 3 categories of children and persons that the Act applies to: 1. Children below 10 years at the time of the commission of the offence – section 9 sets out procedures that apply to children under 10 years of age who have committed a crime 2. Children aged 10 years and older but younger than 18 years at the time of arrest or when the summons or written notice was served on them 3. Persons who are 18 years or older but under 21 years of age and who committed an offence when under 18 years of age – Prosecutions will issue directives on how this section is to be Based on the severity of the offence, a child may be placed in a child and youth care centre. If a child is 14 or older he / she may be placed in a specified prison Section 29 deals with detention of a child in a child and youth care centre and provides that any child charged with any offence can be detained in these facilities. In deciding whether to place the child in a child and youth care the presiding officer, in terms of section 29(2) must take the following factors into account: • The age and maturity of the child; •The seriousness of the offence in question; • The risk that the child may be a danger to himself, herself or to any other person or child in the child and youth care centre; • The appropriateness of the level of security of the child and youth care centre differs according to the seriousness of the offence allegedly committed by the
  44. 44. 44 applied in practice. child. Section 30 deals with detention of a child in prison awaiting trial and provides in section 30(1) that a presiding officer may only send children to prison awaiting trial if: •The child is 14 years or older and charged with a Schedule 3 offence. However, in terms of section 30(5) a presiding officer can send a child 14 years or older charged with a Schedule 1 or 2 offence to prison awaiting trial if, in addition to all the factors listed in section 30(1) and subsection 3, there are substantial and compelling reasons to do so, and these reasons must be placed on the record; The detention is necessary in the interests of the administration of justice or the safety or protection of the public or the child or another child in detention; • There is a likelihood that the child, if convicted, could be sentenced to imprisonment; and • An application for bail has been postponed or refused
  45. 45. 45 or the child has not complied with bail conditions once granted. Broadly speaking, Schedule 1 contains minor offences, Schedule 2 more serious offences and Schedule 3 the most serious offences. There are also maximum time limits for diversion set out in section 53(5) which are linked to both the level of the diversion option and the age of offender. Correctional supervision Correctional supervision in terms of section 276(1)(h) or (i) of the Criminal Procedure Act may be imposed on a child of 14 years of age or older. However, only correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act may be imposed on a child younger than 14 years of age. The reason for this is that correctional supervision in terms of section 276(1)(i) involves a period of imprisonment, and children under 14
  46. 46. 46 years of age cannot be sentenced to prison. Sentence to a child and youth care centre In terms of section 69(3), when considering the imposition of a sentence involving compulsory residence in a child and youth care centre, a child justice court must consider the following: •Whether the offence is of such a serious nature that it indicates that the child has a tendency towards harmful activities; •Whether the harm caused by the offence indicates that a residential sentence is appropriate; • The extent to which the harm caused by the offence can be apportioned to the culpability of the child in causing or risking the harm; • Whether the child is in need of a particular service provided at a child and youth care centre; • The seriousness of the offence, with regard to the amount of harm done or risked through the offence and the
  47. 47. 47 culpability of the child in causing or risking the harm; •The protection of the community; The severity of the impact of the offence on the victim; • The previous failure of the child to respond to non-residential alternatives, if applicable; and •The desirability of keeping the child out of prison In terms of section 76, there are 2 types of sentences to a child and youth care centre. The first involves the sentencing of a child to compulsory residence in a child and youth care centre which provides a programme referred to in section 191(2)(j) of the Children’s Act. A sentence like this may be imposed for a period not exceeding 5 years or for a period which may not exceed the date on which the child in question turns 21 years of age, whichever date is the earliest. The second occurs when a child justice court that convicts a child of an offence referred to in Schedule 3 and which,
  48. 48. 48 if committed by an adult, would have justified a term of imprisonment exceeding 10 years. In such cases the court may, if substantial and compelling reasons exist, in addition to a child and youth care sentence, sentence the child to a period of imprisonment which is to be served after completion of the period of stay in the child and youth care centre. After completion of the time at the child and youth care centre, the child must be brought before the child justice court and the manager of the child and youth care centre must submit a report to the court on the child’s progress regarding whether the objectives of sentencing have been achieved and the possibility of the child’s reintegration into society.
  49. 49. 49 References World Organisation against Torture OMCT, Rights of the Child in Costa Rica, 2000 Republic of South Africa, Child Justice Act, 2008 European Institute for Crime Prevention and Control, Criminal Justice Systems in Europe and North America, 2001 Human Rights Watch, Charged With Being Children: Egyptian Police Abuse of Children in Need of Protection, Vol. 15, No. 1 (E) – February 2003 UNICEF, Improving the Protection of Children in Conflict with the Law in South Asia: A Regional Parliamentary Guide on Juvenile Justice, 2007 Children Rights Alliance, Ireland, Report Card 2013: Is Government Keeping Its Promises to Children? .pdf UNICEF, Juvenile Justice Systems: Good Practices in Latin America, English Edition 2006 Chomil Kamal, Directions of Juvenile Justice Reforms in Singapore Mairéad Seymour, Transition and Reform: Juvenile Justice in the Republic of Ireland
  50. 50. 50 Inter‐American Commission on Human Rights, Juvenile Justice and Human rights in the Americas, July13, 2011 Global Initiative to End All Corporal Punishment of Children, Saudi Arabia Country Report, August 2012 Gregor Urbas, Australian Institute of Criminology, Trends & issues in crime and criminal justice: The Age of Criminal Responsibility, No. 181, November 2000 01AD743F01E1%7Dti181.pdf Defence for Children International, Geneva, From Legislation to Action? Trends in Juvenile Justice, Systems across 15 countries , 2007 cover.pdf Stephen J. O’ Driscoll, Youth Justice In New Zealand: A Restorative Justice Approach To Reduce Youth Offending'Driscoll.pdf CRIN - Child Rights International Network Law library of congress International Juvenile Justice Observatory, Legal assistance for children in conflict with the law Patrick Griffin, Sean Addie, Benjamin Adams and Kathy Firestine, Office of Juvenile Justice and Delinquency Prevention, U.S Department of Justice, Trying Juveniles as adults: An Analysis of State Transfer Laws and Reporting