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Samenvatting Children's Rights and Juvenile Justice 2015/2016
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Summary of the required items specified in week 1 to 7. Children's Rights and Juvenile Justice
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Samenvatting Children’s Rights and Juvenile Justice:Ainsley Hoogeboom
Week 1 Hoorcolleges:
J.E. Doek ‘The CRC 20 years: An overview of some of the major
achievements and remaining challenges’:
On 20 November 1989 the Convention on the Rights of the Child (CRC) was
unanimously adopted by all member-States of the United Nations. It was opened
for signature, ratification or accession on January 1990. It entered into force on 2
September 1990 after the first 20 States had ratified it (art. 49 CRC). CRC is thus
far the most comprehensive treaty containing not only social, economic and
cultural rights, but also civil and political rights. In addition, various specific
provisions deal with the rights of the child to protection from all dorms of
violence, abuse, and exploitation. Finally, the CRC contains specific references to
the plight of indigenous children elaborated by the CRC Committee in its General
Comment no. 11.
Shortly after it became operational the CRC Committee decided to organize a Day
of General Discussion every year. The first Day was devoted to ‘Children in armed
conflict’. The choice of this topic was linked to the disappointment of quite a
number of states about the low standards set in art. 38 CRC: the prohibition of
recruitment and involvement in hostilities is limited to children below the age of
15. An adoption of the Optional Protocol to the CRC on the Involvement of
Children was made which allows States Parties to the CRC to raise the standards
for the recruitment and involvement of children in armed conflict from 15 years of
age (art. 38 CRC) to 18 years.
Ar. 34 CRC requires States Parties to protect the child from all forms of sexual
exploitation and sexual abuse by taking a variety of national, bilateral and
multilateral measures to prevent, inter alia, the exploitative use of children in
prostitution and in pornographic performances and materials. The Optional
Protocol an Sexual Exploitation of Children requires States Parties to criminalize
acts and activities specified in art. 3. Furthermore States Parties have to establish
extra territorial jurisdiction (art. 4) and arrange for effective extradition
procedures (art. 5). Special provisions (art. 8 and 9) deal with the protection and
assistance of child victims in legal proceedings and for their full physical and
psychological recovery.
Art. 19 CRC is clearly a reflection of not only the concern, but also of growing
knowledge of key factors for the prevention and protection of child abuse and
neglect in the family or in other care settings. Other articles such as 32 – 38 CRC
deal with all other forms of violence against children. The fundamental change
the CRC brought to this field was that violence against children is not only morally
and socially unacceptable, but a violation of her/his fundamental right to respect
for and protection of her/his inherent human dignity and physical and mental
integrity and to equal protection under the law. The CRC Committee adopted
General Comment no. 8 on the right of the child to protection from corporal
punishment and other cruel and degrading forms of punishment.
The CRC does not explicitly require the establishment of an independent body for
the promotion and monitoring of its implementation. However, the World
Conference on Human Rights (Vienna, 1993) called for the establishment of
National Human Rights Institutions (NHRI) for the promotion and protection of
,human rights. Children’s Ombudsperson, commissioners or special units are an
importing driving force at the national level and a watchdog identifying and
investigating children’s rights violations.
Over the past 20 years States Parties to the CRC have developed and
implemented national programmes or plans of action. Very few States developed
a comprehensive national plan of action for the implementation of all provisions
of the CRC. This is most likely due to the fact that the CRC is a complex treaty
and a plan that covers the implementation of all its provisions may either be
rather general of detailed and very long.
R. Smits ‘The Third Optional Protocol to the UN Convention on the
Rights of the Child? – Challenges Arising Transforming the
Rhetoric into Reality’:
The Third Optional Protocol to the UN Convention on the Rights of the Child seeks
to fill a lacuna in the current raft of core UN international human rights
instruments establishing an individual complaints mechanism for aggrieved
children. Complaints can be raised by children against any ratifying State.
The text of the Third Optional Protocol to the CRC was adopted by the Human
Rights Council in June 2011, then the General Assembly in December 2011, and
opened for signature in 2012. This optional protocol seeks to provide the
Committee with competency to receive and consider individual and inter-State
complaints concerning the application of the convention. Conforming to normal
procedures respecting the sovereignty of States, all complainants must have
exhausted available and accessible domestic remedies prior to the matter being
brought to the Committee. Individual communications under the third optional
protocol may be submitted by or on behalf of a single child or a group of
complainants claiming to be victims of a violation of the Convention. As with all
existing UN treaty body individual complaint mechanisms, any Committee
opinion will be binding inter se but will have no further legal effect and the
emphasis is on securing a friendly settlement.
But if children are unaware of their rights, they will not be able to take any steps
to exercise those rights. Two main issues arise from this: the availability and
accessibility of information on the Convention and indeed other human rights
treaties; and the age and/or capacity of the child. In terms of the Convention
itself, art. 42 makes it clear that ‘States Parties, undertake to make the principles
and provisions of the Convention widely known, by appropriate and active means,
to adults and children alike’. Human rights education is inevitably linked to
human rights in education. The ‘4A’ approach to the right to education is highly
relevant. Human rights education, to be effective, must be accessible to all
children, available in a language and style they understand, acceptable in terms
of content and culture and adaptable to best fit the needs of the child.
If children are unaware of their rights generally, and of the existence of the CRC
particularly, then they are unlikely to know of and thus be able to access the new
individual complaint mechanism. Age and capacity also are key limiting factors
on enforcing rights. The children are dependent on adults with full capacity to act
on their behalf. As with all other individual complaint mechanisms, children are
required first to exhaust domestic remedies. But children, to an extent, lack legal
capacity in all jurisdictions thus initiating complaints (particularly against the
state) is problematic, or even impossible. Children require some form of adult
representation, but problems may be encountered should parents/guardians not
,support the child’s complaints in those jurisdictions requiring parental consent to
initiate a complaint. The third optional protocol preamble encourages States to
continue to develop appropriate national measures to allow children to seek
redress at the national level.
Children are rights holders under the Convention and, in terms of the third
protocol can exercise those rights at the international level, yet children are
subject to parental control as indeed may be their rights.
Week 1 Werkgroepen:
Michael Freeman ‘Why It Remains Important to Take Children’s
Rights Seriously’:
Rights are invisible and inter-dependent. Human rights – for that is what
children’s rights are – include the whole range of civil, political, social, economic
and cultural rights. Denying certain rights undermines other rights. Rights are
important because those who have them can exercise agency. Agents are
decision-makers. They are people who can negotiate with others, who are
capable of altering relationships or decisions, who can shift social assumptions
and constraints. As agents, rights-bearers can participate. They can make their
own lives, rather than having their lives made for them. And participation is a
fundamental human right. It enables us to demand rights. We are better able to
do so where there is freedom of speech, freedom of association and freedom of
information. It is common to deny children all three of these freedoms.
The task of the children’s rights advocate is manifest, though no one can pretend
it is easy. We must show that the case we are making is morally right, so right in
fact that people will come to wonder how they can ever have thought otherwise.
Rights then are also a resource: they offer reasoned argument. They support a
strong moral case. Rights then offer for a for action. Without rights the excluded
can make requests, but they cannot demand, for there is no entitlement.
Everyone concedes children must have some rights. But most of the thinkers only
identify the most limited range of rights so far as children are concerned. For
example, three rights for children: to autonomous parents, to be represented by
parents and to parents who care. Many thinkers are defending parents’ rights
instead of children’s rights. It is easy to show that this line of thinking is wrong.
Indeed, it is only one stage on from conceptualising children as the property of
their parents.
Another critique of the importance of children’s rights and of rights-language
generally suggests that we should be looking rather to other morally significant
values, love, friendship, compassion, altruism. These raise relationships to a
higher plain than one based on the observance of duty.
A further argument assumes that adults already relate to children in terms of
love, care and altruism, so that the case for children’s rights ceases to be
important; indeed, becomes otiose. This idealizes adult-child relations: it
emphasises that adults consider only the best interests of children.
A further argument equally rests on a myth. It sees childhood as a golden age, as
the best years of our life. Childhood is seen as synonymous with innocence. It is
the time when, spared the rigours of adult life, we enjoy freedom, adventure, play
and joy. And the argument runs: just as we avoid the responsibilities and
,adversities of adult life in childhood, so there should be no necessity to think in
terms of rights, a concept we have to assume is reserved for adults.
Some of those who argue against children’s rights make a more fundamental
objection. They argue that children are just nog qualified to have rights; they lack
the capacity to do so. There are seven different levels of incompetence:
1. The inability to evidence a preference or a choice;
2. The inability to understand one’s situation or relevantly similar situations;
3. The inability to understand disclosed information;
4. The inability to give a reason;
5. The inability to give a rational reason;
6. The inability to give reasons where risk and benefit have been weighed;
7. The inability to reach a reasonable decision, as judged, for example, by a
reasonable person standard.
A competent child is one who ‘achieves a sufficient understanding and
intelligence to enable him of her to understand fully what is proposed and has
sufficient discretion to enable him or her to make a wise choice in his or her own
interest’.
A further argument sometimes adduced against children’s rights is that their
exercise may not be either in their best interests or in the interests of others.
The promotion of children’s rights may undermine the interests of others. This is
common criticism. There are good reasons why the interests of children should
rule. Children are especially vulnerable. They have fewer resources-material,
psychological, relational-upon which to call in situations of adversity. They are
usually blameless, and certainly did not ask to come into the world. For too long
they have been regarded as objects of concern, rather than as persons, and even
today they remain voiceless, even invisible, and it matters not that the dispute is
about them. It is important though, to understand that emphasising children does
not necessarily mean that the interests of adults must be neglected.
J. Doek ‘The UN Convention on the Rights of the Child’ in
Reforming Juvenile Justice:
The UN Convention on the Rights of the Child (CRC) is a human rights treaty that
covers many different areas such as civil rights and freedoms, family
environment, health and welfare, education and child protection. The core
provisions of the CRC directly relevant for children in conflict with the (penal) law
are art. 37 and 40 CRC. In addition to the Havana Rules, other international
standards are also relevant for children deprived of their liberty such as the
Standard Minimum rules for the Treatment of Prisoners. The UN Committee has
issued General Comment no. 10 on Children’s Rights in Juvenile Justice. The
overall objective of this document is to provide the 193 states that ratified the
CRC, with guidance and recommendations for their efforts to establish an
administration of juvenile justice in compliance with the CRC.
In State Parties to the CRC policy makers and politicians who call for a tougher,
more punitive approach of juvenile delinquency are no exceptions. It is necessary
to remind the 193 governments of these states (repeatedly) that they have
committed themselves to a treatment of children in conflict with the law (also
known as juvenile delinquents) in accordance with art. 40(1) CRC. This means a
treatment that is consistent with the child’s sense of dignity and worth and a
treatment that reinforces the child’s respect for human rights and freedom of
others. Also, although not explicitly mentioned in art. 40 CRC, but in line with art.
, 37(a) CRC, respect for the dignity of the child means that all forms of violence in
the treatment of the child are prohibited and must be prevented.
Another important provision of the CRC is art. 2 containing the right to non-
discrimination. All necessary measures must be taken to ensure that all children
in conflict with the law are treated equally.
Art. 40(3) CRC requires that States Parties shall establish a minimum age for
criminal responsibility. The reports States Parties to the CRC submit to the
Committee show that the minimum age of criminal responsibility (MACR) range
from a very low level of age 7 or 8 to a commendable high level of age 14 or 16.
The Committee is of the opinion that the minimum age for criminal responsibility
should be set at least at age 12 as an absolute minimum while it will encourage
states to set it at a higher level. It means that children at or above this MACR at
the time of the commission of an offence can be formally charged and subject to
penal law procedures. Concerning the upper age limit: The Committee is of the
opinion that the special rules of juvenile justice should apply to all children at or
above the MACR but not yet 18 years old at the time of the commission of the
offence. The Committee therefore recommends all States Parties to the CRC to
abolish all legal provisions which allow treating children under the age of 18 as
adults in order to achieve a non-discriminatory full implementation of the special
rules of juvenile justice. In many countries in particularly in the developing part of
the world the determination of the age of a child is a serious problem because of
the lack of proper birth registration. If there is no proof of age the child is entitled
to a reliable medical or social investigation that may establish her or his age.
Despite all the wonderful guarantees and good intentions, the child in conflict
with the law has hardly a clue (if any) of what may happen to her or him and
what her or his rights are. If we really want the child to be an active participant in
the process of juvenile justice as required under art. 12 CRC, we should provide
the child in conflict with the law with all the relevant information.
In the first place children have the right to express their views and opinions freely
and that applies to the whole process that they are involved in. This right
includes your right to actively participate in the decisions the authorities may
make. You have the right to be informed promptly and directly of the charges
held against you. You have the right not to answer the questions asked by the
police. If there is an alternative measure you have the right to receive
information about the nature, the content and the duration of this alternative
measure and about the consequences if you do not want to cooperate or if you
fail to carry out and complete the measure. Before you take your decision you
have the right to talk to a lawyer or another qualified person about the pros and
cons of carrying out the proposed alternative measure and ask her or him for
further information if needed. If you do consent and after you have completed
the diversion measure, the case is closed. Also, it is possible that the police do
keep you in custody in the police station or in another place for pretrial detention.
If this happens you have the right to be immediately provided with legal and
other appropriate assistance. Within 24 hours after the police decided to keep
you in custody your case will be brought beore a judge or another competent and
independent authority. If you are not released, your pretrial detention will be
reviewed every 2 weeks, which is another opportunity to plea for release from
custody. If the trial goes to court, you have the right to a fair trial and there are
various rules to guarantee this. The law contains the sanctions or measures that
can be imposed on a person like you that is a person less than 18 years old at the
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