1. The document discusses the European Rules on juvenile justice, which were established in 2008 by the Council of Europe to provide guidelines for member states on sanctioning and treating juvenile offenders. 2. It outlines some of the key principles established by the Rules, such as implementing sanctions in the best interests of the child, proportionality of punishment, and using deprivation of liberty only as a last resort. 3. However, it notes that the Rules are not legally binding and leave discretion to states on setting minimum ages of criminal responsibility, resulting in variability between jurisdictions. The document then examines various sections and rules of the European Rules in more detail.

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The European Rules and Juvenile Justice by Darya Levchenko
Sculpting a definite depiction of the situation of juvenile justice in Europe is
by far an arduous task. In a bold attempt to rejuvenate the laws surrounding minor
offenders, the Committee of Ministers of the Council of Europe tentatively
formulated the European Rules for juvenile offenders subject to sanctions or
measures.1
The said Rules, albeit possessing a somewhat persuasive character by
effectively acting as guidelines for the 47 Member States of the Council of Europe,
are not legally binding principles. However, it must not go unnoticed that the 2008
Rules set out vital principles and parameters to be adhered to by Member State when
treating juvenile offenders. In this sense, they underscore an extremely crucial
requirement whereby States have a duty to implement sanctions or measures in the
best interest of a child. Thus, the aim of the Rules is to uphold the rights and overall
safety of juveniles subject to sanctions or measures. With the above in mind, for the
purposes of the present analysis, this report will at first briefly consider the context of
juvenile justice in Europe in means to better comprehend the scenery behind the
implementation of the 2008 Rules. Furthermore, this paper will to embark on a
thorough examination of the European Rules and analytically explore various case
law pertinent to the subject matter.
1
Recommendation of Committee of Ministers (CM/Rec (2008) 11 to member states on the European
Rules for juvenile offenders subject to sanctions or measures adopted on 5 November 2008.

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During the recent decade or so the overall trend in Europe appears to
have taken a punitive approach by holding minors –and especially older children-
accountable for crimes they have committed in a manner disturbingly similar to the
treatment of adults in the same position. The said tendency reflects the ongoing
perception that there is an alleged increase of juvenile aggression and violence within
Europe, leading to serious youth crimes. In his article called, “Children and Juvenile
Justice: Proposals for Improvements”, Thomas Hammarberg argues that since the age
of criminal responsibility in a vast majority of European countries is very low,
“incarceration rates [are] a cause of concern [as] the number of children from
minority groups in prison is disproportionate”.2
In addition to this conundrum,
Member States tend to take different approaches with relation to youth offending,
ultimately rendering diversity amongst EU juvenile justice systems. Therefore, a
common legislative approach by way of European mechanisms, such as the European
Rules on juvenile offenders is of dire importance in safeguarding children’s rights and
interests within the criminal justice arena.
In adopting the so-called “European Rules” in 2008, the Council of Europe set
out provisions encompassing vital principles to be adhered to by Member States in
treating juveniles having committed crimes. In a nutshell, the Rules underscore the
requirement to implement sanctions or measures in the best interest of the child, such
as the principle of proportionality, which encompasses the notion that the punishment
for a crime must be “proportional” to the crime committed.3
The above principles
additionally address the notion that in deciding the action against the child, the latter’s
2
Thomas Hammarberg, “Children and juvenile justice: proposals for improvements”, CommDH, Issue
paper 1, Strasbourg, 19 June 2009.
3
See Rule 5 of the European Rules 2008.

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age, physical as well as mental capacity and personal circumstances must be taken
into account. In this sense, the legal bodies must undertake measures accommodating
the individual juveniles. Moreover, the Rules require that the relevant authorities must
ensure effective participation of children during proceedings and that the juveniles’
rights (i.e. privacy) must be duly respected.4
In addition to this, 2008 Rules provide
for extensive uniform guidelines on the conditions of detention of juveniles to be
observed by all Member States.5
Particular emphasis is given to “national law”, which
includes case law, primary legislation as well as any other piece of legislation passed
by a State.6
This illustrates the fact that the rules attempt to widely endorse a uniform
application of procedures and sanctions towards juveniles.
Part I of the Rules refers to basic principles, scope and definitions relating to
juvenile offenders. The Rules highlight various principles that the judiciary of a
Member State must abide to such as respect for human rights and dignity when
dealing with juveniles. This obligation is stipulated in both Rule 1 and 7, the latter
dealing with humiliating and degrading treatment.7
Under the heading, “Basic
Principles”, the provisions further emphasize the notion that the sanctions must be
implemented in a manner that would contribute to the education and rehabilitation of
a minor offender but at the same time allow a State to determine the exact laws and
procedures. More importantly, however, is the fact that Rule 4 specifies that the
minimum age of criminal liability “shall not be too low” but may be determined by
the law of the relevant jurisdiction and is thus up to the discretion of a State. This
4
See Rule 16 of the European Rules 2008.
5
See Rule 70.2, 78.4, 78.5, 79.2 etc.
6
Commentary on the European Rules for juvenile offender subject to sanctions and measures, Council
of Europe, p.1.
7
See, for instance, Price v United Kingdom, Application number 33394/96-10/07/2001.

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Rule may be viewed as problematic as it ultimately leaves the age of imposition of
sanctions and measures in the hands of States, which causes significant discrepancy
between European jurisdictions. As a result, it may be argued that such discretion
undermines the essence of the European Rules and their operation in terms of
delivering justice. For instance, in Northern Ireland the age of criminal responsibility
is shockingly low, where a child of 10 years of age can be tried in court and held
criminally responsible for their actions.8
On the other hand, in countries such as
Luxemburg and Belgium, the age is increased to 18 years.9
Moreover, Rule 6 calls for
sanctions and measure to be directly adapted to the specific circumstances and
characteristics of a juvenile, however without causing inequality of treatment with
regard to other young offenders. Another important provision of the 2008 Rules is
Rule 10, which purports that minimum intervention is a key aspect in delivering
fairness in a juvenile justice system and adds that deprivation of liberty must be a
measure of last resort, thus applying to exceptional circumstances. As pointed out in
the 2008 commentary of the Council of Europe, this rule echoes Rule 17 of the
Beijing Rules, further illustrating the utter significance given to this issue in relating
to juvenile justice by the drafters of both Rules.10
To this end, Rule 9 connotes the
notion that the judiciary should first exhaust ulterior, less intrusive sanctions. Further,
the intend behind the Rule could also be interpreted in the sense that children should
not be deprived of pursuing their education by being sanctioned to measures
depriving them from liberty. In his book “Reforming Juvenile Justice” Frieder
Dünkel parallels the present rule to Rule 16-18 of the Recommendation Rec (2003)
8
http://www.youthjusticeagencyni.gov.uk/youth_justice_system/age_of_criminal_responsibility,
retrieved
on
3
March
2013.
9
SPACE I Survey - Council of Europe Annual Penal Statistics.
10
Commentary
on
the
European
Rules,
p.5
(complete
citation
needed)

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20, which was manifested through “empirical evidence” demonstrating the tendency
of states to excessively detain juveniles during the pre-trial phase.11
Another essential
feature of the Basic Principles is that safeguards the principle that all staff working
with juveniles shall be subject to special training so as to ensure an appropriate
standard of care when dealing with juveniles.12
In this respect, this Rule (Rule 18)
compliments Rule 15, the latter emphasizing the need of cooperation between
agencies involved. Therefore, juveniles enjoy the right to be put in the care of a
skilled and suitable worker during criminal procedures.
In Part II of the Rules, the section deals with community sanctions and
measures, providing a legal framework for the purposes of regulating the relevant
authorities dealing with juveniles within the judicial context. Prior to this, Part B
outlines the scope and definitions of various terms used within the guidelines,
amongst which is the meaning behind “community sanctions and measures”.13
Such
measures reflect the means with which a judicial or administrative authority must deal
with minors, in that any restriction of liberty via the imposition of certain conditions
must be limited. With this said, Part II of the European Rules enhances a wide range
of non-custodial means of responding to juvenile offenders. It is vital to note here that
the Rules refer to situations both during the investigation and the pre-trial process,
whereby the imposition of a sentence must be avoided wherever possible. Under Rule
23.2, the members of the Council of Europe aimed to tackle the issue arising as a
result of the principle that every case should be dealt with on an individual, unique
basis, depending on the circumstances and the characteristics of each child. Due to
11
Dünkel, Frieder et. al., ed.“Reforming Juvenile Justice”, Springer: Heidelberg, 2009, p.41.
12
See Rule 18
13
See Rule 21.4

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the fact that in most jurisdictions, the responsible authorities enjoy a variety of
community sanctions, the question as to the selection of the appropriate criteria comes
into play. The above Rules purports that upon choosing a sanction or measure, one
should give priority to educational criteria, exemplifying the importance of notion of
rehabilitation versus punishment. By giving emphasis on rehabilitation, the aim would
be to make a juvenile understand and have a clear perception of their wrongful act(s),
thus correcting their behavior in a therapeutic manner whilst simultaneously
attributing to their future mental development. For instance, one could argue that an
effective community sanction would be require a young individual to make reparation
of his offence, by say, repairing a piece of property they has been destroyed or
damaged in cases of vandalism. In addition to this, Rule 25 states that after a sanction
or measure has been imposed, the relevant authority has the duty to clearly explain to
the child, parent or guardian the legal implications of the juvenile’s offence and the
reasons, since it is common knowledge that children are unable to make adequate
assessments of the repercussions of their actions. As a result, Rule 25 goes a step
further, requiring each jurisdiction to implement national legislating enabling the
authorities to meet special needs of juveniles.
Under Part D, labeled, “Conditions of implementation and consequences of
non-compliance”, the European Rules stress that the sanctions and measure must be
implemented in a manner contributing to a juvenile’s development and enhancement
of social skills, coherently reinstating the principles laid down in Rule. 23.2 and 25.
Interestingly enough, in cases where a juvenile is a foreign national, the Rules give
the possibility of deportation to the country of origin. However, this provisions
appears to refer to exceptional circumstances, where grave crimes have been

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committed. However, the social welfare authorities must have direct and cooperative
contact with the relevant authorities in the country of origin so as to promote the best
interest of the child. Moreover, under the section D.2 Consequences of non-
compliance, Rule 47. 4 articulates that failing to comply with a measure or sanction
imposed on an individual will lead into an issuance of a detailed report, outlining the
manner in which the non-compliance occurred, the circumstances under which it took
place as well as the personal situation of the juvenile. Under Rule 48.1, the authority
responsible for deciding the implications of non-compliance shall only give a ruling
on the modification of a sanction after making a detailed and thorough examination of
the facts reported to it. Further to this, Rule 48.2 provides that where necessary,
psychological or psychiatric assessments or observations may be made by skilled
experts. The above measures illustrate that even where non-compliance has occurred,
a juvenile should not be too quickly and irrationally punished, as there could be other
underlying issues and circumstances leading to non-adherence to sanctions.
Therefore, at this point, the Rules clearly attempt to vigorously protect and promote
children’s rights within the ambit of criminal procedures.
After a sanction or measure has been imposed on a juvenile, in certain cases
where restriction of freedom is deemed necessary in the best interest of the child by a
juvenile court, placement into an appropriate juvenile protection institution is of dire
importance. Part E of the Rules incorporates various guidelines aimed at safeguarding
a juvenile’s rights whilst their freedom is limited. In particular, Rules 54 till 59
stipulate that placement of different categories of juveniles shall be determined by the
type of care is suited to their specific needs, accentuating the protection of their
physical and mental integrity and overall well-being. Furthermore, Rule 55 adds that

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juveniles must be placed in institutions easily accessible from their homes so as to
permit their family and friends to visit the child whenever possible. This Rule seems
to be an extension of the notion that the purpose of juvenile justice is in essence
rehabilitation, where easy accessibility to the rest of society furthers a child’s
development. Finally, the section further stresses that juveniles shall not be kept in
institutions for adults and must therefore possess the least restrictive levels of security
as possible.14
This implies that the purpose of juvenile detention is far different from
that of adults, whereby the objective of the former is to protect and rehabilitate rather
than penalize and oppress.
To this end, the last parts of the European Rules outline the type
accommodation must be provided for juveniles, as well as quality of nutrition, sorts of
activity and regimen such as schooling and contact with the outside world. Part E 13.3
and 13.5 expressly prohibit any use of force, physical restraint and weapons to be
used against children, except in grave circumstances, in which any of the above
methods of reproach must be used with the bare minimum power. Moreover, section
E 13.5 states that disciplinary procedures such as punishments should be mechanisms
of last resort where educational interaction should be given priority. However, Rule
94.3 disturbingly allows for national law to determine the acts or omissions
constituting disciplinary offences as well as the procedures to be followed and
punishments imposed. One could argue that this may cause inequalities amongst
jurisdictions as “disciplinary offences” will ultimately vary from one jurisdiction to
another, along with the respective punishments. Last but not least, however, Part G
allows for complaints procedures to be instigated by parents or guardians of a
14
See Rule 56 and 59.1 respectively

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juvenile, providing “ample opportunity to make complaints” to the authority that has
imposed a sanction or measure. Therefore, if a parent feels that justice had not been
served, under Rule 122.1, the procedures for making complaints shall be simple and
effective, making decisions on such requests taken promptly and expeditiously.
Further Rule 122.3 adds that where a parent or legal guardian is unsatisfied with the
result of the complaint, an appeal may be made to amend the decision.
As the European Rules on juvenile justice are merely guidelines, not directly
binding on the 47 members states of the Council of Europe, case law referring to the
Rules is fairly scarce, if not inexistent. However, for the purposes of the present
analysis, the prominent cases of the European Court of Human Rights, T. v the United
Kingdom 199915
as well as Güveç v. Turkey 2009 will be discussed. In the case of T. v
the UK, the aim of the present examination will be to retrospectively apply specific
sections of the 2008 European Rules on juvenile justice, so as to critically determine
an alternative conclusion of the already adjudicated case of the ECHR. Lastly, with
regard to the Güveç case, this paper will illustrate how, in the absence of direct
application of the European Rules by the Court, the ECHR effectively utilized a
number of its provisions in deciding the case. In doing so, this report will underscore
the importance of the 2008 Rules and demonstrate the need for a uniform set of laws
and rules within Europe so as to provide an ever-needed improvement of the current
juvenile justice systems.
One of the most prominent cases decided upon by the European Court of
Human Rights was that regarding two minors, “T” and “V”, aged ten at the time of
15
T. v. the United Kingdom [GC], no. 24724/94.

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the commission of the criminal offence.16
The two boys abducted a minor, aged two,
and subsequently assaulted him in a brutal manner, leaving the boy on a train track to
which end the child was hit and killed by a passing train. The English Court sentenced
the juvenile offenders to a total of eight years of detention as an act of deterrence and
retribution. However, due to public outcry, the sentence had been extended to a
whopping fifteen years, as the relevant domestic legislation on minors, in particular
the Children and Young Persons Act 1933, allowed children to serve a sentence “at
Her Majesty’s pleasure”, so long as the sentence excluded life imprisonment and the
death penalty.
Eventually, proceedings were instigated against the UK government in the
European Court of Human rights, where the Court held that the UK, due to, inter alia,
its treatment of the minors during trial and the extension of the sentence, was in
breach of various provisions of the 1950 European Convention on Human rights.
Particular emphasis was given to breach of Article 6, the right to fair trial, with
respect to the tariff endowed on the juveniles and the trial proceedings. Additionally,
the UK was found in breach of Article 5, with respect to the right to liberty and
security. However, the ECHR found no violation of Article 3 of the Convention with
regard to inhuman and degrading treatment of a person, due to evidential issues of
establishing the breach. One may argue here that in fact the juveniles were subject to
what could be considered inhuman and degrading treatment during trial, albeit not in
the tradition sense. The two defendants had been indeed mistreated due to the
exceedingly lengthy duration of the trial as well as the overall style of the
proceedings, intimidating the children. Further, perhaps one of the most crucial
inadequacies of the proceedings was the fact that the relevant authorities failed to
effectively protect the identity and privacy of the juveniles, allowing the two to
receive death threats and indirect assaults by the public. The media additionally added
to the distress, trauma and discomfort of the two boys, as the reporters constantly
flocked the Court and ferociously insulted the accused by producing cruel media
publications.
16
T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999; V. v. the United Kingdom [GC],
no. 24888/94, ECHR 1999.

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Contrary to the above, in his judgment, Judge Baka concluded that the UK
authorities did everything in their power to ensure the security and humane treatment
of the juvenile offenders and added that the court procedures were in fact tailored to
the age and needs of the children. With this respect, he added the judiciary took
special measures such as familiarizing the boys with the courtroom and clearly
explaining the procedure as well as familiarizing the boys with the courtroom and
took short breaks corresponding to normal school schedule. 17
Nevertheless, the
judiciary committed grave acts of injustice through the cumulative effect of the age of
criminal responsibility (i.e. in the UK this age is as low as ten years old18
) where even
the applicants attempted to argue the inadequacies behind the British law relating to
such responsibility. Furthermore, the accusatorial nature of the trial, the adult-like
proceedings that took place in a public court, the length of the trial, the presence of
the jury comprising twelve adult strangers, the attacks by the public on the prison van
which brought the children to court all produced a melting pot of trauma and ill
treatment of the minors and thus built up to inhuman and degrading treatment.
Therefore, the UK could have been additionally liable under Article 3 of the
ECHR had perhaps the Court had at its disposal the 2008 European Rules on juvenile
justice. For instance, under Part I, Basic Principles, Rule 3 purports that the minimum
age of criminal responsibility should not be too low, whereby one could argue that the
age stipulated under UK law (i.e. 10 years of age) is dramatically low to hold a child
criminally liable. However, due to the nature of the Rules, we are left to believe that
the determination of the age is left up to the discretion of every state. Additionally to
this, Rule 5 of the European Rules states that a court, when taking into account the
types of sanctions and measures to impose on a child, the sentence must be adapted to
the particular circumstances of the child, without leading to inequality of treatment
and thus in the best interest of the child. In the case of “T” and “V”, however, the
children were subject to discrimination because the then Secretary of State eventually
extended the tariff based on the public outcry, which also added to their distress.
Similarly Rule 6 promotes the notion of individualization of every case. Rule 7,
moreover, stresses the notion that the treatment of juveniles should not be
17
T. v. the United Kingdom [GC], no. 24724/94, see Partly Dissenting Judgment of Judge Baka.
18
Ask Kyriacos about source

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“inhumane”. Article 3 of the ECHR provides legal requirements that would determine
whether a certain treatment is humane or degrading: length and fear. Within the
circumstances of the treatment of the two minors, it could be argued that the treatment
was in fact degrading since it indeed arouse in its victims” feelings of fear, anguish
and inferiority, capable of humiliating and debasing them. After the trial, the juveniles
alleged to have suffered a great deal during trial due to public humiliation,
intimidation by the judge and jury. The children were further diagnosed with post
dramatic stress disorder due to the trauma suffered as a result of the trial. Lastly, with
regard to length, the legal requirement for inhuman treatment could be satisfied on
this ground as the inhuman treatment (i.e. conditions of the proceedings) was applied
for hours on end, attributing to the juveniles’ mental suffering. With the above in
mind, by applying the 2008 Rules as well as the facts and circumstantial evidences,
the UK could have been additionally found in breach of Article 3 of the ECHR with
regard to inhumane treatment.
In the Güveç v. Turkey19
case, it could be argued that the ECHR successfully
applied the European Rules 2008 on juvenile justices, even though the Court had not
directly utilized the said legal instrument. In this case, the applicant had been fifteen
years old at the time of his arrest by the Turkish police and was alleged to have been
part of an illegal organization (i.e. the PKK (The Kurdish Worker’s Party)). The
youngster was wrongfully tried at an adult court and additionally suffered inhumane
treatment, along with other gross violations, during detention. The aspect of detention
is the key issue with respect to the case, and specifically, Rule 8 of the European
Rules explicitly states that the “deprivation of liberty of a juvenile shall be a measure
of last resort and imposed for the shortest period possible. Special efforts must be
taken to avoid pre-trial detention”. To this end, Rules 78.5 and 99.2 safeguard the
rights of a juvenile whilst in detention, such as human treatment and rehabilitation.
It would therefore appear that the ECHR rightfully and coherently followed
the principles on detention when deciding on the Güveç case. The Court held that the
Turkish authorities ought to have dealt with the offenders without undue delay, per-
trial detention should have been used as a last resort whereby alternative measures to
19
Güveç v. Turkey (no. 70337/01) 20.1.2009.

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detention should have been used, considering the circumstances of the case. Further,
detention was additional evidence for “inhumane treatment”, as per Article 3 of the
ECHR, where the Court articulated that, “Having regard to the applicant’s age, the
length of his detention in prison together with adults […] the Court entertains no
doubts that the applicant was subjected to inhumane and degrading treatment.”20
In
at least three judgments against Turkey, the Court has continuously expressed its
misgivings about the practice of detaining children in pre-trial detention and in the
present case21
, the Turkish authorities went too far by leaving the applicant in
detention for a shocking period of four years.
A point of interest arising out of the principles behind detention of juveniles is
the general problem in Europe where states are too quick and hasty to detain
juveniles. Rule 10 of the European rules aims to combat this practice, echoing Rules
16 and 20 of the 2003 Recommendations, stating that, “when, as a last resort, juvenile
suspects are remanded in custody, this should not be for longer than six months
before the commencement of the trial”. The bottom line here is that custodial remand
should never be used as a punishment or form of intimidation or a substitute for child
protection for that matter. The European Rules thus incorporate these restrictions on
pre-trial detention by requiring, for instance, that “special efforts must be undertaken
to avoid pre-trial detention”.22
In conclusion, the present report has managed to portray an overall outlook on
the 2008 European Rules for juvenile offenders subject to sanctions and measures.
This has been achieved by firstly producing a brief analysis of the situation in Europe
with regard to juvenile justice. The present analysis further embarked on a detailed
examination of vital provisions of the European Rules, such as those pertaining to the
notion of rehabilitation and humane treatment of juveniles. Lastly, due to the fact that
the 2008 Rules have no legally binding effect and have not been a particular legal
instrument of choice by European courts, and in particular the ECHR, the Rules were
applied retrospectively to the cases of T. vs. United Kingdom and V. vs. United
Kingdom so as to illustrate how the case would have been differently decided if
20
Güveç v. Turkey (no. 70337/01) 20.1.2009, para. 98.
21
See, for instance, Selçuk v. Turkey, Application no. 21768/02, 10/04/2006; Koşti and Others v.
Turkey, Application no. 74321/01, 3/05/2007; and Nart v. Turkey, Application no.20817/04, 6/05/2008.
22
See Rule 8 of the European Rules 2008.

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perhaps certain provisions of the 2008 Rules been applied. Further, the case of Güveç
v. Turkey was used to demonstrate how even in the absence of the 2008 Rules, the
Court managed to apply some of its provisions, in particular with regard to detention.
One is left to dwell on the notion that, European courts should not overlook the
importance of the European Rules when deciding upon a case, as the latter Rules
successfully tackle particular issues and inadequacies of the juvenile justice system in
numerous members of the Council of Europe.
END