< Viewpoints < 2007

"It is wrong to punish the child victims"

[08/01/07] These days there are two very different approaches to juvenile crimes. One is to lock up more children at younger ages for more crimes. The other trend – in the spirit of the UN Convention on the Rights of the Child – is to avoid criminalisation and to seek family-based or other social alternatives to imprisonment. I am arguing for the second approach.

Although the message of the Convention on the Rights of the Child is that criminalisation of children should be avoided, this does not mean that young offenders should be treated as if they have no responsibility. On the contrary, it is important that young offenders are held responsible for their actions and, for instance, take part in repairing the damage that they have caused.

It is in the sanction process that we find the difference to an ordinary criminal procedure. In juvenile justice there should be no retribution. The intention is to establish responsibility and, at the same time, to promote re-integration. This requires innovative and effective community sanctions.

In principle, the offender’s parents or other legal guardian should be involved, unless this is deemed counter-productive for the rehabilitation of the child. Whatever the process, there should be a possibility for the child to challenge the accusations and even appeal.

An interesting procedure for “settlements” has been introduced in Slovenia. There, a case of an accused juvenile can be referred to a mediator if this is agreed by the prosecutor, the victim and the accused. The mediator then seeks to reach a settlement which would be satisfactory to both the victim and the accused and a trial can thereby be avoided.

One aspect should be further stressed: the importance of a prompt response to the wrongdoing. Delayed procedures – which is a problem in several European countries today – are particularly unfortunate when it comes to young offenders whose bad actions should be seen as a cry for immediate help.

The UN convention asks for separate procedures for juveniles who are brought to court. These should be child-friendly and, again, the purpose is rehabilitation and re-integration rather than to punish for the sake of retribution. For this to work, there is a need for everyone involved, including judges and prosecutors, to be educated not only about the law but also about the special needs of children.

A child in that situation is sometimes more a victim than an offender. The social background is often tragic. This points to the immense importance of early detection and preventive measures. The judicial body is the last link in the chain; we should try to do everything we can to prevent cases coming that far.

Support to families at risk, decisive reaction on signs of domestic violence, social workers with outreach capacity, neighbourhood networks and a school which not only teaches but also cares for every individual child – these are key components of a preventive strategy. The young persons themselves should of course be involved in these efforts and not be considered as mere objects of socialisation and control.

Arrest, detention and imprisonment are in principle possible for minors above the minimum age of criminal responsibility, but should be used “only as a measure of last resort and for the shortest appropriate period of time”, as the UN convention says. This is in the spirit of child rights, but we also know that depriving children of their liberty tends to increase the rate of re-offending. The only reason for locking up children is that there is no other alternative to handle a serious and immediate risk to others.

Such detentions should take place in specific and children-friendly establishments and be separated from adult prisoners and, in particular, from hard-core criminals. Contact with the family should be encouraged and facilitated, if that is in the best interests of the child. In general, the conditions should be humane and take account of the special needs of an individual of that age.

Full-time education is essential. For each young offender there should be an individual programme of rehabilitation, a plan that should continue after the detention period with the support of guardians, teachers and social workers. If relations with the parents are impossible, foster parenting might be an alternative. In all this, the child him- or herself should have a say – this is not only a right, but is also more effective.

These are the principles developed within different parts of the Council of Europe, in co-operation with experts from different countries. The European Committee on Social Rights has argued for a higher age of criminal responsibility and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – which pays visits to places of detention – has expressed its concern about the imprisonment of children and their conditions.

The European and international standards are indeed clear, but they are not widely known. This is unfortunate because they are highly relevant to the discussions in member states where the cry for “tougher methods” is now heard.

The Europe we want to build for and with children should include those children who have had a bad start in life.

Thomas Hammarberg