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