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Children’s rights: Kinderrechten en jeugdstrafrecht week 3T. Liefaard, ‘Juvenile justice from an international children’s rights perspective’ in: W.
Vandenhole et al (eds.), Routledge International Handbook of Children Rights Studies,
London/New York: Routledge 2015, p. 234-256.
Introduction
Juvenile justice: a children’s rights issue
The 194 countries that have endorsed the CRC are under the obligation to safeguard the rights
of ‘every child alleged as, accused of, or recognized as having infringed the penal law’ (art.
40 (1) CRC), which boils down to 1) fair treatment, with respect for children’s inherent
dignity and the right to a fair trial, and 2) treatment in a manner that takes into account
children’s age (child specific treatment).
Yet, despite the increased attention for juvenile justice and almost universal endorsement of
the CRC, the rights and freedoms of children in conflict with the law are often not adhered to,
with devastating impact on their lives, development and future perspectives. There is, in other
words, a significant gap between international and national human rights standards applicable
to children in conflict with the law and the administration of juvenile justice in practice.
Complexity of junivile justice and children’s rights implementation
The challenges concerning the implementation of children’s rights in the context of juvenile
justice are related to the complexity of this particular area and its inherent tensions,
ambiguities and controversies.
A first important challenge relates to the objectives of juvenile justice, which are plural and
serve different and potentially conflicting interests. In general, interventions towards juvenile
delinquency are primarily designed to serve the interests of society, that is: to protect society
against violent and dangerous offenders, through incapacitation, deterrence and prevention, to
restore legal order and/or to realize some level of retribution (accountability), restoration or
reparation for victims and communities.
At the same time, many juvenile justice systems are based on the assumption that juvenile
offenders are different than adults and require special, pedagogically oriented interventions,
which focus on the child offender’s (short and long term) interests and aim to prevent
recidivism through education and reintegration.
Juvenile justice is an area that finds itself in the very heart of public interest and debate and it
is significantly influenced by perceptions (true or false), (public) opinions and stigmas. As a
consequence it is an easy prey for ‘tough on crime’ or ‘zero tolerance’ approaches, often at
the cost of a nuanced, evidence and rights based imagery of juvenile offenders and offending.
In addition, there are persistent misconceptions regarding the incidence and prevalence of
juvenile delinquency, its impact on public safety and effective strategies to prevent or respond
to juvenile offending.
The challenges concerning children’s rights implementation in the area of juvenile justice are
furthermore related to the wide variety of juvenile justice practices throughout the world and
within countries. Comparative and systematic analyses of juvenile justice systems reveal the
,absence of a universal notion of what a juvenile justice system should look like and what this
means for critical juvenile justice issues, including, among others, accountability,
proportionality, participation, prevention and sentencing.
differences that can be explained by the historical background of systems, perceptions with
regard to childhood, children’s capacity, punishment, protection etc., the context of juvenile
delinquency, including social factors such as poverty, social exclusion and stigmatization,
existing institutional structures and the availability of financial and human resources.
Finally, it is important to highlight that juvenile justice systems as such are rather complex
systems, with different stages and related interests (from the initial arrest, police
interrogations and pre-trial investigations to the trial in court and the enforcement of
sentences), with different actors with different roles, and with different implications for the
way children are and should be treated. When assessing the implementation of children’s
rights, one cannot disregard the complexity of the juvenile justice system and its variety of
stages and institutions.
Focus of chapter
This non-exhaustive list of challenges underscoring the complexity of the area of juvenile
justice and the implementation of children’s rights in this particular area raises the question to
what extent international children’s rights provide authoritative guidance on how to approach
the (legal) position of children in conflict with the law at the domestic level.
Developments at the domestic level have also shaped the development of international
standards. At the same time, international children’s rights are designed to set an international
benchmark concerning the treatment of children in conflict with the law and the protection of
their rights and freedoms.
It focuses on the key issues of juvenile justice from an international children’s rights
perspective, which can be divided into three categories. The first category revolves around the
requirement to set up a specific justice system for children in conflict with the law and relates
to the need for specificity and specialization, the objectives of the juvenile justice system and
age limits (see section 3). The second category of key issues is about fair proceedings and the
safeguarding of the right to a fair trial for children, including the right to effective
participation and the broader and more recent notion of child friendly justice (see section 4).
The third category concerns dispositions in juvenile justice cases and includes diversion,
noncustodial sentences (often referred to as alternative sentences), extreme sentences and
deprivation of liberty (see section 5).
Legal framework of international and regional juvenile justice standards
Child specific standards at the international UN level
As highlighted in the introduction, the number of international and regional standards with
regard to the administrative of justice is relatively high. The first relevant set of international
juvenile justice standards was the UN Standard Minimum Rules for the Administration of
Juvenile Justice, also known as the Beijing Rules.
Article 40 of the CRC has codified the Beijing Rules, obviously in a less detailed manner, and
it generated a number of two additional UN resolutions: the UN Rules for the Protection of
, Juveniles Deprived of their Liberty (unofficially known as the Havana Rules) and the UN
Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines).
The CRC and the UN resolutions provide a comprehensive legal framework concerning the
rights of children subject to criminal justice proceedings and dispositions, including rules
regarding the objectives of juvenile justice and strategies for prevention and diversion.
Another significant document that has been developed at the international level is the 10th
General Comment of the UN Committee on the Rights of the Child (hereafter: CRC
Committee) on ‘Children’s rights in juvenile justice’, adopted in 2007 (CRC Committee
2007). This document provides States parties detailed guidance on how to administer a
juvenile justice system that is in conformity with international children’s rights.
Child specific standards at the regional level
There are many relevant instruments at the regional levels, although they more or less set
similar standards. At the European level, for example, the Council of Europe has issued a
number of recommendations and guidelines that are relevant for the juvenile justice systems
of its 47 member states. The most important ones are the 2003 Recommendation concerning
new ways of dealing with juvenile delinquency and the role of juvenile justice. and the 2008
European Rules for juvenile offenders subject to sanctions or measures.
A more recent development concerns the development of ‘Guidelines on child friendly
justice’ by the Council of Europe. These guidelines ‘aim to ensure that, in any [justice]
proceedings all rights of children, among which the right to information, to representation, to
participation and to protection, are fully respected with due consideration to the child’s level
of maturity and understanding and to the circumstances of the case’ and without jeopardizing
the rights of other parties involved.
Justice for children in a broad sense, including juvenile justice should be ‘accessible, age
appropriate, speedy, diligent, adapted to and focuses on the needs and rights of the child,
respecting the rights of the child including the rights to due process, to participate in and to
understand the proceedings, to respect for private and family life and to integrity and dignity’
(Guidelines, para. II.c).
Non-legal developments shaping the international juvenile justice agenda
The plethora of international and regional instruments regulating the administration of
juvenile justice is complemented by numerous reports of bodies or representatives from
international organisations such as the UN (Human Rights Council, Office of the High
Commissioner for Human Rights (OHCHR), UN Office on Drugs and Crime (UNODC),
Special Representative on Violence against Children, UNICEF.
Specific justice system for children
The first category of key issues of juvenile justice from an international children’s rights
perspective revolves around the requirement to set up a specific justice system for children in
conflict with the law. It enshrines the call upon states parties to safeguard specificity and
specialization, the objectives of the juvenile justice system and the issue of age limits.
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