Child Participation in Juvenile Justice

Children’s rights are, and will be in the coming years, as pressing and crucial as ever.

Globalization, wars, internal conflicts, displacement, violence, economic crises, poverty, occupation, abuse, exploitation, et alia, increase the vulnerability of children, threaten their most basic rights and pose constant challenges for child rights advocates and defenders.In order to achieve real change, child rights organizations must narrow the scope of their work, focusing on particular areas to make a real impact and achieve positive change.

Defence for Children International has since 2005 focused on the issue of juvenile justice, acknowledging the fact that the area of juvenile justice has not been properly addressed in the international agenda.

In light of this commitment, DCI became a member and host of the Interagency Panel on Juvenile Justice (IPJJ), established by United Nations Economic and Social Council (ECOSOC) Resolution 1997/30, to act as a "coordination panel on technical advice and assistance in juvenile justice". The Panel aims to facilitate and enhance country and global level coordination in juvenile justice in accordance with the Convention on the Rights of the Child and other relevant international norms and standards.

The Committee on the Rights of the Child has issued two General Comments that are particularly relevant to children in conflict with the law: the pivotal General Comment No. 10, which developed the topic of children’s rights in juvenile justice, and the new General Comment No. 12, which tackles the right of the child to be heard in different situations, including during trial. In view of the significance of this Comment and its implications for children undergoing judicial or administrative proceedings, DCI has decided to dedicate this anniversary celebration to the issue of child participation in juvenile justice.

Certainly, critical action is needed to respond to the estimated 1.1 million children deprived of their freedom worldwide (UNICEF, 2008).

Media and community appeals for stricter laws and harsher punishments for minors in many countries ignore the basic facts that underlie juvenile delinquency. Lack of parental care and supervision, sexual abuse, violence, child exploitation, drug abuse, poverty, breakdown of family ties and the phenomenon of urbanization are all factors that contribute to the criminalization of minors. Poverty forces youngsters to drop out of school in search of a better livelihood, often becoming victims of the temptation to make easy money through criminal activities. Thus, in tackling the issue of children in conflict with the law, and incorporating the principle of child participation in judicial proceedings, other issues that put the wellbeing of children at risk are also directly and indirectly addressed.

While the rights of children have been developed in some important respects since the signing of the CRC 21 years ago, the area of juvenile justice has remained a marginal subject on the international agenda. Undeniably, dealing with children in conflict with the law entails the collaboration of several governmental bodies and quite a complex system for the protection of juvenile delinquents.

A well trained police in juvenile justice standards does not suffice to protect the rights of children in conflict with the law. A strong judicial system is also needed in order to yield satisfactory results. In the same sense, adequate rehabilitation processes require operative reintegration mechanisms to be fully effective.

In the meantime, and until these difficulties are overcome, child prisoners are largely forgotten and described by many as “the unwanted children” - unwanted by their parents, by governments, by the community.

There is a lack of information and statistical data to help determine the magnitude of the phenomenon and the measures to be taken in response. The Convention on the Rights of the Child (CRC) established the basic rights of children alleged as, accused of, or recognized as having infringed the penal law. Articles 37 and 40 of the CRC acknowledged the right of every child in conflict with the law to be treated “in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.” According to the Convention, every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. Article 12 explicitly established that “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

Nevertheless, the mandate of the CRC is rarely put into practice.

In some countries, the age of criminal responsibility is unsuitably low (7 years old in Myanmar, India, Nigeria, Pakistan, Singapore, South Africa, Sudan, Tanzania, Thailand, and in some states of the United States). In the United States alone, 2000 juveniles are serving a life sentence. Unfortunately, the United States has not yet ratified the CRC. But even in some countries that have, children are receiving death sentences and are being executed, while others have to face the judicial system without the minimum of fair trial guarantees. In addition, according to the mandate of the CRC, arrest, detention or imprisonment of a child should be used only as a measure of last resort and for the shortest appropriate period of time. In practice, however, the imprisonment of children has become a measure of first resort and for long periods of time. Pre-trial detention may last for months or even years. Furthermore, many of these children ultimately are not convicted of any offence. The majority of children in conflict with the law enter the system for minor offences. Their arrest is frequently combined with verbal and physical abuse and oftentimes they are interrogated in the absence of a lawyer. Large numbers of detained children are simply awaiting trial and, in many cases, these children are subjected to abuse at the hands of other detained children, prison guards and interrogators during the long process of trial. For many of these youngsters, arrest and detention is the starting point of a criminalization process.

Our challenge is therefore to change this reality, advocating for the full implementation of the rights of children in conflict with the law. If this is done, the opposite effect might be accomplished: the judicial process of a minor could become a starting point for rehabilitation. The realization of the children’s right to be heard is a fundamental element of this process, for listening to them and taking into account their personal situation during the process and when dictating a sentence can constitute an opportunity to make the child realize his or her worth and value. We must insist on the use of alternatives to detention, or, in other words, alternative sentences that meet minors’ best interests and developmental needs.

It is crucial that State Parties’ invest in the creation of opportunities for the implementation of article 12 of the CRC. As General Comment No. 12 states, this will “necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children’s opportunity to be heard and their access to participation in all matters affecting them.”

Our job is hence to continue building the culture of respect for children and their views, and encouraging States to undertake this challenging process. This includes the adoption and implementation of the various international instruments (i.e. the CRC, Beijing Rules, Riyadh Guidelines, and Havana Rules ) that stipulate the principles that should inform the way of dealing with children in conflict with the law. If we push for juvenile justice international standards to be adopted in national legislations and for a full implementation of General Comment No. 10 and General Comment No. 12, we will ensure an improvement in the lives of children in conflict with the law, their humanization and the prevention of future crimes.