human rights based framework of analysis of …

Programme "Prevention of and Fight against Crime"

European Commission – Directorate General Justice Freedom and Security

HUMAN RIGHTS BASED FRAMEWORK OF ANALYSIS OF PRACTICES IDENTIFIED

METHODOLOGICAL NOTE The “child rights based transnational framework of analysis” presented in this document is intended to be a tool to analyse practices implemented in the field of prevention of recidivism and promotion of re-integration of young offenders. In particular, the Methodological Framework will be used by the partners of the EU funded project JUST in the analysis of the practices identified in the project. It will be useful also to measure the compliance of main internal rules and dispositions adopted in each partner country.

In accordance with to the General Comment No. 10 , “Children’s rights in juvenile justice”(2007) of the Committee on the Rights of the Child, the present transnational framework will also provide States with more detailed guidance and recommendations to support their efforts to establish a system of juvenile justice administration in compliance with the CRC and further relevant international documents as well as a comprehensive juvenile justice policy. The framework has been developed in 5 steps described below:

- 1. Selection of the main international and European documents as well as the most relevant case-law elaborated in the field of juvenile justice (see annexed sources).

- 2. Analysis of the mentioned sources collected

- 3. selection of “core elements” elements that a comprehensive policy for juvenile justice should have, according to international documents,

- 4. identification of main standards and principles for each core element, including sources,

- 5. identification of main indicators, developed on the basis of the same international, European and national documents as well as case-law as identified and analysed during steps 1 and 2, in order to provide a practical tool of analysis aiming at measuring the implementation of main standard and principles in practices and legislation1.

In particular, concerning the indicators, they are not exhaustive and are not designed to provide comprehensive information on all possible aspects of the treatment and . the protection of children in conflict with the law in a particular context or country. Rather, they represent a basic list dataset aof tools of analysis of the practices, policies and legislation implemented in the project countries, with a focus on prevention of recidivism and re-integration of children in conflict with the law, and in particular nationals juveniles (Romania) and foreigners (Italy and Greece)atpointing out weaknesses and strengths . They also offer a starting point for the assessment and evaluation of how children in conflict with the law are treated, if they are protected and if their rights are respected. Basically, they reveal whether standards are being met. Consequently they will be able to identify and recommend areas for improvement and reform as well as desirable transnational methods of intervention useful to promote reintegration and prevent recidivism of juvenile CHILDREN’S PARTECIPATION Children’s participation is paramount in our methodology and has been essential in the development of the present transnational framework. To this purpose a group of children and adolescents were consulted, in Italy, on the main principles drawn from international, European and case-law, as well as on the indicators included in the framework. For the purpose of JUST project, considering that main project target group is represented by foreign children, and due also to available resources, were children were firstly selected on the basis of nationality. Furthermore, the following criteria have been taken into consideration too: presence in Rome, experience of contacts with the juvenile justice system (arrest, recidivist, etc..), , age, sex. . At the end of the selection, the children involved in the consultation were 3 children from Romania (2 Roma ethnic minority) between 15-17 years. Given the limited number of child participants, the result of the consultation can not represent children’s position on the matters broadly. Rather we aimed to test the framework and collect children’s views on it, which have informed the final version of the framework. Following a child-friendly explanation of the standards, with the support of an expert in child consultation, children were asked to give their opinion on the indicators and, according to their experience and sensibility, express their point of view in respect of the indicators’ priority, critical aspects and possible further indicators. The indicators especially selected from children have been highlighted in yellow.

1 A Panel that provided the indicators was created by ECOSOC resolution 1997/30, to improve coordination and action among both UN Agencies and international

NGOs active in this area. Panel members are OHCHR, UNICEF, UNODOC, UNDP DPKO, Defence for Children International, Save the Children UK, Terres des Hommes,

World Organization Against Torture and Penal Reform International.

CHILD-RIGHTS BASED FRAMEWORK OF ANALYSIS OF THE PRACTICES IDENTIFIED COLLECTED

QUANTITATIVE INDICATORS International sources

European sources

Case –

law

Indicators of application

Children in conflict with the law Children in detention Children in pre-sentence detention

Juvenile justice indicators UNICEF/UNODC

Number of children arrested, in detention and in pre-sentence detention in the period of observation (2007-2009) specifying data between gender and nationality

JUVENILE JUSTICE SYSTEM: CORE ELEMENTS

1. PREVENTION of JUVENILE

DELINQUENCY

International sources

European sources

Case – law


ST

AN

DA

RD

S

Prevention plans should be a key-part of any children's justice programmes. The prevention of juvenile delinquency is an essential part of crime prevention in society. By engaging in lawfully, socially useful activities and adopting a humanistic orientation towards society and outlook life, young person can develop non criminogenic attitudes (PJD, Art. 1). Member States shall endeavour to develop

conditions that will ensure for the

juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible [Beijing Rules, Article 1(2)] Full mobilisation of all possible resources to reduce the intervention under the law and to deal effectively with children in conflict with the law (Beijing Rules, Art. 1.2; PJD, Artt. 45 ss; )

Beijing Rules; PJD, 1990;

Recc. COE (2003)20; CM/Rec. (2008)11

Existence of preventive policies including: a) assistance is provided to family in terms of care and

protection, when ensuring the physical well-being of children (PJD, Art. 12);

b) special attention is given to families affected by economic, social and cultural problems (PJD, Art. 13);

c) specific measures of assistance are ensured to children at social risk; (PJD, Art. 33);

d) access to qualitative public education is ensured (PJD Art. 20);

e) awareness raising activities are conducted through media work (PJD, Art. 40 ss.);

f) research activity and analysis are implemented to guarantee the capacity to evaluate the risk of recidivism.

g) existence of a national plan for the prevention of child involvement in crime

ST

AN

DA

RD

S

2. CRIMINAL RESPONSABILITY International sources

European sources

Case – Law


The minimum age of criminal

responsibility (MACR) must correspond to the emotional, mental and intellectual maturity of the child. (Beijing rules, art. 4) A minimum age below 12 years is not considered to be an internationally acceptable level. An age between 14 and 16 shall be considered as fully respecting the child’s human rights and legal safeguards.

If there is no proof of age and it cannot be

established that the child is at or above the

MACR, the child shall not be held

criminally responsible;

If there is no proof of age the child is entitled to a reliable medical or social investigation that may

establish his/her age and, in the case of

conflict or inconclusive evidence, the

child shall have the right to the rule of

the benefit of the doubt

General Comment n. 10 CRC/C/CG/10(2007) Beijing Rules Art. 4 CDCP (2008) 17,§3.2 Strasbourg 18 August 2008 CM/Rec (2008) 11 COE

ECHR V. v. UK, appl. 24888/94 judgment 16.12.99 and T. v. UK, appl. 24724/94 judgment 16.12.99 Criterios de la Corte Interamericana de derechos humanos – un cuarto de siglo – 1979-2004 pg.936-937

a) the MACR is between 14 and 16 years old; b) the existence of a close relationship between MACR and emotional, mental and intellectual maturity is ensured; c) the child is not criminally responsible in case of doubt that the child’s age is equal/above the MACR; d) age assessment procedures is the result of a combination of methods balancing physical, developmental, psychological, environmental and cultural factors; e) in case of conflict or inconclusive evidence concerning the MACR the principle of the benefit of the doubt is applied

3. JUDICIAL PROCESS International sources

European sources

Case – law

Indicators of application S

TA

ND

AR

D

The right to a fair trial Beijing Rules art. 7 § 1 UN/GA/61/299 of 29 August 2006 , rights of the child, II, C, 31

CDCP (2008) 17, 18 August 2008 Rec (2003) 20 COE CM/Rec (2008) 11 COE European Convention for Human Rights – art.. 6

ECHR Hussain v. UK, appl. 21928/93, of 21.02.96 ECHR V. v. UK, appl. 24888/94, of 16.12.99 and T. v. UK, appl. 24724/94, of 16.12.99 ECHR Nortier v. the Netherlands appl. 13924/88 of 24.08.93 ECHR B. and P. v. UK appl. 36337/97 and 35974/97, of 24.04.2001 ECHR Golder v. UK, of 21.02.1975

Indicator of application:

a) existence of a specialised juvenile justice legal system;

b) existence of a specialised juvenile justice court;

In every criminal proceedings the following international

standards are guaranteed:

a) the presumption of innocence;

b) the charges are notified to the children;

c) legal assistance and involvement of the child and his/her

parents in the judicial process;

d) children are heard and informed about the charges, the

process and the possible measures;

e) decisions are taken without delay; f) admission or confession is not admissible as evidence; g) equality of arms (accusatorial/inquisitorial trials) is ensured; h) assistance of an interpreter is free; i) free legal assistance is ensured if the child cannot afford it; l) presence of parents and/or guardians if it will be considered in the best interest of the child is assured; m) children’s dignity and privacy is respected; n) special provisions are guaranteed for adolescent with physical, mental and social problems and special attention is given to the needs of the most at risk children (children with disabilities, displaced children, children living and/or working on the street, refugee and asylum-seeking children, children belonging to ethnic, religious, linguistic or other minorities) (UN/GA/61/299 of 29 August 2006 , rights of the child, II, C, 31)

4.DEPRIVATION OF : INCLUDING PRE-TRIAL DETENTION AND POST-TRIAL INCARCERATION


European sources

Case – law

Indicators of application S

TA

ND

AR

DS

4.1 No child shall be deprived of his or

her liberty unlawfully or

arbitrarily. The arrest, detention or imprisonment of a

child shall be used only as a

measure of last resort and

for the shortest appropriate

period of time.

CRC/C/GC/10, 9 February 2007 CRC, Art. 37(b); PJD, Art. 1; Beijing Rules, Art. 19(1); JDL, Art. 2. Beijing Rules, Art. 13 and 20(1). RNCM, Art. 6(1).

CM/Rec (2008) 11 COE Rec (2003) 20 COE CM/Rec (2008) 11 COE European Convention for Human Rights art. 5

ECHR Bouamar v. Belgium, appl. 9106/80, judgment 29.02.1988 ECHR S.C. v. UK appl. 60958/00 judgment 15.06.2004

The following general conditions are ensured: a) the duration of detention is limited by law and subject to regular review; b) every child arrested is brought before a competent authority to examine the legality of (or the continuation of) the deprivation of liberty within 24 hours; c) the legality of pre-trial detention is reviewed regularly, preferably every two weeks; d) the child formally charged is brought before a court or other independent and impartial authority or judicial body no later than 30 days after his pre-trial detention started; e) a final decision on the charges is taken no later than 6 months, this time period is extended just in exceptional cases.

4.2

Promoting the use of non-custodial measures and minimum safeguards for persons subject to alternatives to imprisonment (Tokyo Rules, art. 1.1) The criminal justice system should provide a wide range of non custodial measures, from pre-trial to post-sentencing dispositions (The Tokyo Rules, art. 2.3)

The following measures are provided: a) alternative measures to replace detention; b) new non-custodial measures are being developed (The Tokyo Rules, Art. 2) c) specific selection criteria to apply a non custodial measure; d) community sanctions or measures

The application of non custodial measures should be used in accordance with the principle of proportionality and according to the legal safeguards prescribed by the international documents.

A wide range of

community sanctions or

measures , adjusted to the different stages of development, shall be provided at all stages of the process. Priority shall be given to sanctions and measures having an educational impact as well as constituting a restorative responces.. (Recc. (2008)11, Art, 23.1 ss)

4.3

All children have the right

to understand and should

be fully informed about the regulation governing the internal

organisation, the goals and

methodology of care provided (The Havana Rules, Art. 24),

...their rights and safeguards in a manner that is in line with their age and maturity (Recc. (2003) 20 COE, Art. 19) Children and adolescents deprived of their liberty shall be guaranteed

a variety of meaningful

activities and interventions according to an individual comprehensive plan that aims at

The Havana Rules

Recc. (2003) 20 COE

The following documents are given on admission: a) a copy of the rules governing the detention facility; b) a fully comprehensible written description of childrens’ rights and obligations; c) the address of the authorities competent to receive complaints; d) the address of public or private agencies and organizations which provide legal assistance.; The interventions and rights provided during the treatment are: e) children are interviewed as soon as possible and a written psychological and social report is given to them; f) children are separated from adults and girls from boys, (although they are allowed to participate jointly in organised activities); g) health, hygiene and learning assistance; h) regular access to parents, family and lawyers; i) practice of their religion is guaranteed; j) a special assistance for young people who are drug or alcohol

progression through less restrictive

regimes and preparation for

release and reintegration

into society. These activities and interventions

shall foster the child’s

physical and mental

health, self-respect and sense of

responsibility and develop

attitudes and skills that

will prevent them from re-

offending.

addicted, mentally ill or suffering from the trauma of arrest; k) access to education (schooling, vocational training, work and occupational therapy, citizenship training, social skills and competence training, individual and group therapy, physical education and sport, tertiary or further education); l) preparation for release and aftercare.

4.4

No child shall be subjected to

torture or other cruel,

inhuman or degrading

treatment or punishment.

Instruments of restraint and

force can only be used in exceptional cases.

Neither capital punishment

nor life imprisonment without possibility of release shall be imposed.

CRC, Art. 37(a). JDL, Art. 49, 64 and 56. CRC, Art. 37(c). Beijing Rules, Art. 26(2).

CM/Rec (2008) 11 COE European Convention for Human Rights art. 3 and 5

ECHR Hussain v. UK, appl. 21928/93, judgment 21.02.1996 ECHR Singh v. UK, appl. 23389/94, judgment 21.02.1996 ECHR Bouamar v. Belgium, appl. 9106/80, judgment 29.02.1988 ECHR V. v. UK, appl. 24888/94 judgment

a) Instruments of restraint and force are never used except under the following conditions:

if explicitly authorized and strictly regulated by law;

do not cause humiliation or degradation. b) The following disciplinary measures are prohibited:

corporal punishment

placement in a dark cell

closed or solitary confinement

reduction of diet

restriction or denial of contact with family members

requirement to work; c) effective monitoring system is in place and operational.

16.12.1999 and T. v. UK, appl. 24724/94 judgment 16.12.1999 ECHR S.C. v. UK application 60958/00 judgment 15.06.2004

4.5

The right of the child who is separated from one or both parents or primary caregiver to maintain personal relations and direct

contact with both parents

on a regular basis, except if

it is contrary to the child

best interests

CRC, Art. 9(3), 37(c). Beijing Rules, Art. 26(5). JDL, Art. 30, 59 and 60.

CM/Rec (2008) 11

a) The following measures are ensured:

regular and frequent visit in principle once a week and not less than once a month;

leaving detention facilities for a visit to their home and family;

communicating with letters, without restriction;

communicating as often as possible by telephone with their parents, primary caregiver, guardian, family members or other persons and representatives.

4.6

The placement shall be guided by the provisions of the type of care best suited to the particular needs of the children

CM/Rec (2008) 11 COE

a) Existence of placement easily accessible from the home or place of social reintegration; b) The following criteria concerning transfer are guaranteed:

children’s opinions are meaningfully sought and taken into due account;

decision ordered by a judicial or administrative authority;

the promotion of the effective reintegration into society;

presence of a serious reason of security;

it is never applied as disciplinary measure;

the information concerning the minors is transmitted in order to ensure the continuity of care.

4.7

Regular independent

inspections

JDL, Art. 72 and 74.


a) The presence of qualified and independent inspectors is ensured; b) the inspector gives particular attention to the use of force, restraints, disciplinary punishments and others forms of treatment; c) A reporting mechanism is in plays to ensure that findings are made publicly available

4.8

Right to effective and efficient

complaint mechanisms

JDL, Article 75, 76 and 77.

ECHR Hussain v. UK, appl. 21928/93, of 21.02.1996

The tools available are: a) requests or complaints to be submitted without

censorship to the director of the detention facility or to the central administration;

b) an independent office (ombudsman) is established to receive and investigate complaints made by juveniles deprived of their liberty.

4.9

Personnel should be qualified

and include a sufficient

number of specialists, such as educators, vocational instructors, counsellors, social workers, psychiatrists and

psychologists. These and other

specialist should normally

be employed on a

permanent basis. [Havana Rules, Art.81]

Havana Rules, Bejing Rules, Tokyo Rules, § 16


Existence of: a) regular careful selection and recruitment in order to assure every grade and type of personnel (Havana Rules, Art. 82; Beijing Rules, Art. 1.6) b) adequate remuneration to attract and retain suitable women and men (Havana Rules, Art. 83) c) special training in child psychology, welfare and internationalstandards before entering duty and special in-service training organised at suitable intervals (Havana Rules, Art. 85)

5. AFTERCARE International sources

European sources

Case – law


All minors should benefit from

arrangements designed to assist them

in returning to society, family life,

education or employment after release. Procedures, including early release, and special courses should be devised to this end..

JDL, Art 79 and 80. Beijing Rules, Art. 29(1).


The after-care services provide: a) guidance in finding housing and a meaningful occupation (whether studying or working); b) individual counselling, family counselling, educational courses and social skills courses, or therapeutic programmes to treat drug and alcohol addiction; c) presence of after-care and rehabilitation services provided both by public and NGOs in partnership, with funding from government and others resources .

6. EDUCATION AND OTHER NECESSARY ASSISTANCE


European sources

Case – law


Efforts shall be made to provide juveniles,

at all stages of the proceedings, with

the necessary assistance such as lodging, access to education or vocational training, employment or any other form of assistance,

helpful and practical, in order to facilitate

rehabilitative process (The Beijung rules, art. 24)

Education is vital to the rehabilitation

and reintegration of young offenders

and to their healthy development; it also enables the prevention process.

Beijing Rules, Rec.n. R(87) 20 COE CM/Rec (2008)11 COE Rec. (88)6

ECHR D.G. v. Ireland, appl. 39474/98, of 16.05.2002 ECHR Bouamar v. Belgium, appl. 9106/80, of 29.02.1988 ECHR Koniarska v. UK appl. 33670/96 of 12.10.2000

a) diplomas awarded do not refer to the place where the minors studied (not indicate in any way that the juvenile has been institutionalized); b) detention facilities have an adequate and appropriate library (books and periodical); c) access vocational training in various occupations are endured; d) access to remunerated labour if possible within the local community is provided; e) the educational programmes of the country are applied with no discrimination; f) recreation time for daily free exercise is guaranteed and includes: arts and crafts, skill development and independent life skill development, programmes of physical education, the practice of religion

7. CONTACT WITH POLICE International sources

European sources

Case – law


Police should be specially instructed

and trained. [Beijing Rules, Art. 12]

Police should adopt a non-discriminatory

attitude during the contacts with children

[Recc. n. R.(88) 6, Art. 7)

Beijing Rules; Recommendation n. R (88) 6, COE

Existence of: a) special training and instruction for police officers frequently or exclusively dealing with young offenders (Beijing Rules, Art. 12) b) special police units for the same purpose in large cities (Beijing Rules, Art. 12; c) special training for police officers focused on the cultural values and standards behaviours of the various ethnic groups and considering the benefit of diversity (Recc. n. R.(88) 6, Art. 8)

8. USE OF ALTERNATIVES International sources

European sources

Case – law


Promoting the use of diversion

whenever appropriate and

desiderable (CRC, Art. 40 (3); Beijing Rules, art. 11)

CRC, Beijing Rules,

CDCP (2008) 17, Strasbourg 18 August 2008 Recommendation (2003) 20 art. 12 CM/Rec (2008) 11 COE

a) diversion measures involving removal from criminal proceedings and referral to alternative social services (CRC, Art. 40(3); Beijing Rules, Art. 11.1 ss); b) diversion measures in the context of judicial proceedings; (such as mediation, probation, etc...); c) diversion measures, at least -but not limited-, to children who committed minor offences; d) community programmes, such as:

care, guidance and supervision orders

probation services

community service orders

financial penalties, compensations and restitution

e) criminal mediation or other restorative justice (Recc. (2008) 11 COE, Art. 12)

9. MIGRANT CHILDREN International sources

European sources

Case – law


Governments should take measures in legislation

and practices in order to avoid any

discrimination treatment of young

people coming from migrant families

in the juvenile justice system and within the policy of social integration of youth and to help those who have displayed delinquent conduct

to derive the maximum benefit from the

measures available under that system

.(Recc. No. R (88) 6 COE, Preamble)

The following measures are ensured: a) equal access (in respect of young nationals) to innovations in the juvenile justice and care system (diversion, mediation, other new forms of intervention, etc..) (Recc. (88) 6, Art. 10); b) non-custodial measures and alternatives to placement and imprisonment are accessible and effectively applied; c) the food practices and the religious convictions are respected;

d) the recruitment of foster families representative of the various communities existing in the national territory; e) avoid the expulsion of second-generation migrants during the adolescence or later for offences committed during their adolescence; f) support measures for the regularisation of foreign children; g) presence of a special staff prepared to adopt a

non-discriminatory attitude during the contact with the children; h) co-operation with diplomatic or consular officials representing when it is in the child’s best interest;

10. INTER-AGENCY CO-OPERATION AND CO-ORDINATION


European sources

Case – law


Children's justice programmes involve a wide range of people from various institutions, government departments and the society, including:

police

judiciary

prison officials

civil society groups and the community, including parents, school and the peers of children in conflict with the law

social welfare personnel

The planning of these programmes

therefore requires a multi-disciplinary

approach.

CDCP (2008) 17, 18 August 2008 CM/Rec (2008) 11 COE

Existence of: a) networking between services responsible for non-custodial measures, other branches of the criminal justice system, social development and welfare agencies, both NGOs and governmental; b) multi-disciplinary and an intra-disciplinary interaction and co-ordination between economic, social, education and health services, the justice system, methods of intervention and good practices, ecc.. c) personnel trained according to Recc. (2008)11 (COE) § 129.3.

Training is vital to bring effective

changes to criminal justice systems. The setting up of a child-friendly justice system requires that personnel working within the justice system be knowledgeable about international standards and guidelines and about how these international standards are to be applied locally. Training before entering duty and after entering duty. Staff shall maintain and improve their knowledge and professional capacity by attending in-service training and refresher courses.

11. EVALUATION AND RESEARCH


European sources

Case – law


Sanctions and measures designed for

children and adolescents are to be

developed on the basis of regular

research, impact monitoring

evaluation. Such evaluation shall pay

special attention to recidivism rates

and their causes.

Rec R (88) 6 CM/Rec (2008) 11 COE

The research activity aims to promote the following subjects: a) comparative data on childrens’ personal and social circumstances; b) comparative data to evaluate the efficacy of the measures used with children and the risk of recidivism; c) the demographic changes on the labour-market, the position of migrants and, the development of criminality; d) the perception of the juvenile justice system from the point of view of young migrants and young people belonging to ethnic or cultural minorities

human rights based framework of analysis of …

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