Strasbourg, 18 August 2008 CDPC (2008) 17
cdpc/docs 2008/cdpc (2008) 17 add iv rev – e Addendum IV rev
EUROPEAN COMMITTEE ON CRIME PROBLEMS
Elements for European Guidelines on Child-friendly Justice with Particular Focus on Children’s Access and Place in Criminal Justice System
Document prepared by
Ms Ksenija Turkovic1
Professor of Criminal Law
University of Zagreb
There is increased awareness and public scrutiny of the status of children in the criminal justice system. The international community is paying attention to the development of concrete criminal justice principles, standards and strategies that address children’s roles and status within the criminal justice system, both as victims and/or witnesses and as perpetrators. In these measures are included to achieve fair and equal access of children to justice as well as equality and measures to address the specific problems children face as victims, witnesses or perpetrators within the criminal justice system (including all its components, from law enforcement, courts, corrections to victim support and assistance agencies). In addition, attention is being paid to new developments in the area of restorative justice and the potential that it has for young victims.
This report follows up on the recent “Conference on International Justice for Children” which took place in Strasbourg and concluded that children still enjoy very limited access to international justice, which in many cases is a direct consequence of the limited access at the national level. This followed on from the 28th Conference of European Ministers of Justice in October 2007 on the theme: “Emerging issues of access to justice for vulnerable groups, in particular: migrants and asylum seekers, and children, including children perpetrators of crime”, where it was emphasised that the Council of Europe could greatly contribute in guaranteeing children real access to justice by preparing European Guidelines for a Child Friendly Justice.
The report identifies some of the challenges and obstacles children face when encountering the criminal justice system at the national level as victims of crimes, witnesses or perpetrators. Taking into account the number of international instruments related to protection of children as victims and witnesses2 and to juvenile delinquency3 as well as the examples of child friendly criminal procedures implemented in member states, the report suggests elements for European guidelines on child friendly justice with particular focus on child victims’ access to and place in the criminal justice system. Some references are made to issues of child friendly restorative justice and the report also briefly looks at some aspects of child friendly procedures in juvenile justice.
2. Challenges and obstacles children face when encountering the criminal justice system at a national level as victims of crime, witnesses or perpetrators
In the past two decades, substantial improvements have been made towards how society deals with children in the criminal justice system either as victims, witnesses or perpetrators. Better understanding of children has led to improvements in policing and investigation, laws and courts, prevention, treatment and services. However, the rights of those children are not always adequately recognised and they do not receive equivalent protection in all countries. There is a discrepancy between the rights secured to children on paper and the reality.4 Too many cases are still not dealt with adequately.
Children still face a number of obstacles when encountering the criminal justice system at a national level as victims of crime, witnesses or perpetrators.
Access to justice for children and young people is not easy for economic, social, cultural and legal reasons. This is illustrated by the small number of applications made directly to national courts or directly to the European Court of Human Rights.5 In great part, this is due to lack of information, absence of legal capacity and problems connected to the representation of children before the court.
Investigation, especially in sexual abuse and sexual exploitation cases, often generates a painful experience for the child victim. There is lack of co-ordination and co-operation between the different agencies involved (child protection services, police, prosecution, courts, the medical profession, therapists, etc.).
Children are often exposed to repeated interviews by many different interviewers in different locations (department of social services, the police station, the hospital, private practice, the court, etc.) which results in their re-victimisation and re-traumatisation and often in discrepancies in their disclosure. Such discrepancies further perpetuate the myth that children are unreliable witnesses which again often leads to their complaints or requests for help being disbelieved or ignored. In 2005, only 13 member States of the Council of Europe allowed video taped evidence.6 Even when stress-reducing techniques are used, children are rarely consulted about their wishes and needs. They are treated as objects of protection rather than as stakeholders.
A study in Canada demonstrated that, on average, it takes 9 months to resolve child witness cases7 and we are well aware of the negative effects delays have on children: they cause anxiety, children cannot “move on“ with their lives, therapy may be delayed, there is an effect on the child’s memory.
Many countries still do not have special court rooms and waiting areas for child victims and witnesses.
There is a lack of personnel with appropriate training and specialisation, especially in conducting investigative interviews. Under-trained investigators exacerbate problems of suggestibility of children as well as of re-traumatisation. Only a few countries have guidelines in work practices and interagency protocols ensuring more co-operation and information sharing between different agencies. There is the lack of an interdisciplinary approach. Many states do not have policies related to the screening of staff/volunteers working with children.
All these contribute to the intimidation of children to take the case to trial.
In certain circumstances victimised children may be treated as perpetrators of crime. The danger is enhanced when children have been instrumentally used in criminal activities (e.g. children who have been trafficked for prostitution are often treated like criminals in the countries of destination and are subjected to arrest, detention and deportation). There still exists a tendency to make a distinction between victims of child sexual abuse, such as incest or rape, and juvenile delinquents, such as prostitutes or the sexually promiscuous. These distinctions are laden with value judgment about good and bad children, which may predetermine which children should be rehabilitated and which should be punished.8
Victims are subjected to additional stress and difficulties when receiving assistance because often they are sent from one agency to another and there is poor collaboration between authorities.
The best interests of child victims are by definition not a primary consideration in the criminal justice process. Although measures are taken to meet some specific needs of child victims through testimony reforms, compensation schemes and victim support programmes, when a direct conflict arises between the interest of the victim and the offender or the prosecution, the victim’s interests are not paramount. Furthermore, in a typical criminal process the long-term and development interests of children are rarely considered. The criminal justice process does not provide opportunities to mourn, receive validation, and experience acknowledgment and support.9
Children in conflict with the law too often have their rights to legal protection denied. This includes the right to have access to justice, to obtain redress, and to have legal assistance in the preparation of their defense. The reasons for these gaps in protection include the following: a shortage of funds for legal aid lawyers, a lack of lawyers specialising in children’s issues, low interest in handling such cases, and, in some circumstances, judges not appointing lawyers as required by law.10
3. Child-friendly criminal procedures involving children
Every aspect of the justice system either comes in contact with or makes decisions affecting the lives of victims. Some general principles always apply. Children are a particularly vulnerable group of victims and thus special precautions must be taken to protect and assist them.
Any discussion of victimised children in the criminal justice system must address the international standards that have been established concerning juvenile justice and the rights of the child because children who run afoul of the law are, in reality, invariably victims.11 Therefore, while the primary focus of this paper is on child victims and/or witnesses within the criminal justice system, a separate chapter will briefly look at some aspects of child-friendly issues in juvenile justice.
The 1989 United Nations Convention on the Rights of the Child adopts a rights-based approach setting out four general principles which have a guiding status and should be reflected in implementation of child friendly justice: equality, including gender sensitivity, upholding the best interest of the child; the inherent right to life, survival and development and the respect for the views of the child.
3.1. Child-friendly Justice with Particular Focus on Children as Victims and Witnesses
3.1.1. Taking the best interest of the child into consideration
In all actions concerning children during criminal or alternative proceedings the best interest of the child should be the primary consideration.12 This emphasises the need to consider the specific child’s circumstances in each case and implies an obligation to give primacy to child’s best interest. The duty to give primacy to the interests of child victims during the criminal process is not without problems. It might come into conflict with the rights of the defendant to due process. The conflict might be even greater when the perpetrator is also minor and thus deserves “the best interest primacy” approach as well.
3.1.2. Treating children with dignity and compassion
Child victims, witnesses or perpetrators should be treated with care, fairness and respect throughout the justice process. Every child should be treated as an individual with his or her individual needs, wishes and feelings.13 All interactions with child victims and witnesses should be conducted in a child-sensitive manner taking into consideration the special needs of the child, his or her abilities, age, intellectual maturity and evolving capacity, in a place where the child feels comfortable and secure by specially trained professionals who ask appropriate questions, in the appropriate way and in a language that the child uses and understands. The professionals who investigate the crime should spend with a child only the amount of time that is necessary to find out what happened. 14
Thus it is important to develop, on the international and national level, guidelines for the police and judicial authorities that stipulate the proper treatment of child victims15, to simplify procedures in the administration of justice and to promote general awareness of the availability of various mechanisms for obtaining justice and redress, including those of restorative justice.16 It is important to designate particular police officers, prosecutors and judges to be responsible for child victims. It would be good if bar associations established special sections that focused on child victim issues. The introduction of a children’s ombudsperson to ensure accountability would also be important .17
The findings of a number of surveys (in particular ICVS)18 underline that better treatment of victims by the police and other divisions of the criminal justice system can make victims, including children and their families, more willing to disclose instances of victimisation and more supportive of the justice process. 19
3.1.3. Protection from discrimination
All children have the same rights. Child victims should have equal access to the justice process and victim/witness support services regardless of their race, colour, gender, language, religion, political or other opinion, national, ethnic or social origin, economic condition, disability, birth, immigration, refugee or other status or those of their parents or legal guardians. Professionals should be trained and educated about these differences and should treat all children equally and with fairness.20
Some children, because of the way they have been harmed (e.g. victims of sexual abuse or exploitation) or due to their health, abilities and capacities or gender (boys and girls might have different needs) need special help or protection. Special services should be offered to these children according to their special needs.21
Age should not be a barrier to a child’s right to participate fully in the justice process, unless the participation is not in their best interest. Every child should be treated as a capable witness, subject to examination, and his or her testimony should not be presumed invalid or untrustworthy by reason of the child’s age alone as long as his or her age and maturity allow the giving of intelligible and credible testimony, with or without communication aids and other assistance. 22 23
3.1.4. The right to be informed
A whole range of international documents establishes the right of victims and, to a lesser degree, of other witnesses to access or obtain information relevant for their case and necessary for them to protect their interests and fulfil their rights.
Information must be provided to a victim/witness from the first contact with the justice system, health services or social welfare services either orally or in writing in the language that the victim/witness uses and understands. All victims must be informed about the availability of relevant services (health, psychological, social and other) and organisations providing assistance to victims, the type and cost of such assistance and the possibility of compensation by the state or emergency financial support to help them meet their immediate needs if such a possibility exists. When the case has been reported to the justice system the victim/witness must be informed: about the relevant judicial and administrative proceedings (what will happen, where and when during various stages of judicial and/or administrative process) and the role of the victim/witness in it, the importance, timing and manner of testimony, ways in which questioning will be conducted during the investigation and trial, when and under which conditions the victim/witness may obtain protection, when and under which conditions the victim may obtain compensation for damages from the perpetrator, on availability of support mechanisms for the victim when making a complaint and participating in the investigations and court proceedings and where relevant the cost of legal advise or help. Victims/witnesses residing in another country must be informed about the existing options for the protection of their rights and interests. The state must ensure that appropriate information is provided to the victim/witness about specific places and times of hearings and other relevant events and the decisions reached, particularly in relation to those submissions pertaining to the victims/witnesses themselves. The victims/witnesses must also be informed about the results of relevant stages of the criminal proceedings and the progress of the case in question, as well as about the verdict and sanction and the existing mechanisms for review of decisions affecting victims and witnesses. The wish of a victim/witness not to receive such information should be respected.24
International documents specifically related to child victims and witnesses emphasise that the information given to child victims/witnesses should be provided in a manner adapted to their age and maturity and in a language that they can easily understand.25 When informed of their rights, child victims and witnesses should be informed of all the rights that victims and witnesses have in general as well as of the rights that child victims and witnesses enjoy pursuant to the United Nations Convention on the Rights of the Child, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 26 and other international instruments aimed at protecting children and their rights. Children must be informed of the existing support mechanisms for the child when making a complaint and participating in investigations and court proceedings.27 It should be ensured that, at least in cases where child victims of sexual abuse and exploitation and their families might be in danger, that they be informed, if necessary, when the person prosecuted or convicted is released temporarily or definitively.28 States should encourage and support the setting-up of information services, such as children’s telephone or Internet help lines, to provide advice to callers, confidentially or with due regard to their anonymity.29 The child should be informed of the possible consequences of compliance with his or her own views and the possible consequences of any decision s/he makes.30
One of the interesting reforms in terms of the right to information is the preparation of children for court through age-appropriate explanations of the court process, visits to the courtroom and distribution of child-friendly brochures describing the court experience. These preparations do not, and should not, involve rehearsing and coaching the child witness.31
3.1.5. The right to be heard and to express views and concerns
Child victims and witnesses, owing to the problems they may face in coping with victimisation and because of their limited access to justice, require particular attention. To insure their adequate and equal treatment special measures are necessary.
184.108.40.206. Access by child victims to criminal proceedings
The first problem facing the child who has suffered ill-treatment, abandonment, sexual abuse, sexual exploitation or any other treatment contrary to criminal law at the hands of his/her parents, family members or third persons, is access to the courts and, in particular, the possibility of filing a complaint against the perpetrator. Their limited access to justice requires special attention.
Children should have a right to file a complaint to competent authorities themselves.32
Child-friendly reporting systems should be created (social services, special police units, child rights institutions, schools, helplines).33
It is important to ensure that prosecution of offences where the victim is a child shall not be dependant upon the report or accusation made by a victim but it is instituted ex officio. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Article 32) prescribes ex officio initiation of proceedings for offences established under the Convention. This should be extended to other offences where the victim is a child (e.g. domestic violence, neglect of children, abduction, etc.).
It is acknowledged that many child victims are unable, for various reasons, to report the offences perpetrated against them before reaching the age of majority. Thus the limitation period should continue to run for a sufficient period of time to allow a child victim to reach the age of majority to file a complaint and to allow prosecutions to be effectively initiated.34 In order to meet the requirements of proportionality, this rule should apply to a limited number of serious offences.35
Uncertainty as to the actual age of the victim shall not prevent the initiation of criminal investigations, including investigations aimed at establishing the age of the victim.36
220.127.116.11. Representation of children before the court
Young children do not have the judgment and independence needed to take legal action therefore they are usually represented by their parents or legal representatives. However, there is a possible conflict of interest between on the one hand a child and on the other hand a parent or legal representative or the object of complaint is such that a parent or a legal representative is not suitable to represent the child.37 Therefore children should be provided with appropriate support services so that their rights and interests are duly presented and taken into account.38
There should be a possibility for the judicial authorities to appoint ex officio a special representative for the child victim when, by internal law, s/he may have the status of a party to criminal proceedings and where the holders of parental responsibility are precluded from representing the child as a result of a conflict of interest between them and the victim.39 This may be the case when, for example, the holders of parental responsibility are the perpetrators or joint perpetrators of the offence, or the nature of their relationship with the perpetrator is such that they cannot be expected to defend the interests of the child victim with impartiality. The judicial authority should have this right irrespective of a child’s capacity for understanding. In such cases, the child shall have the right to apply for the appointment of a special representative in person or through other persons or bodies subject to the right of the state to appoint a representative ex officio. States may restrict this right to children they consider to have sufficient understanding.40
The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (art. 31.3.) provides for access, free of charge, to legal aid for child victims of sexual exploitation and sexual abuse. This provision does not afford victims an automatic right to free legal aid. The conditions under which such aid is granted must be determined by each Party to the Convention when the victim is entitled to be a party to the criminal proceedings.41 The right to free legal aid is particularly important in cases involving children, who, by definition, do not have the financial means to exercise their rights and who could be in conflict with their parents and guardians. The European Court of Human Rights (ECtHR) took the view that effective access to a court might necessitate the free assistance of a lawyer. For instance, the ECtHR considered that it was necessary to ascertain whether it would be effective for the person in question to appear in court without the assistance of counsel, i.e. whether s/he could argue his or her case adequately and satisfactorily. If not s/he should be able to obtain free assistance from an officially assigned defence counsel.42 Taking all these into consideration, child victims of serious crimes unable to afford a lawyer's fees and in conflict of interest with their parents or guardians should be automatically entitled to free legal aid.43
Children should have the right to appoint their own representative, in appropriate cases a lawyer, to protect their legal interests. Even where a child has the right to choose a representative, the judicial authority should not be bound to accept an unsuitable person as the representative of the child..44
To make it easier for children to testify or give evidence, to improve communication and understanding at the pre-trial and trial stages, children should have the right to be accompanied and/or assisted by a support person of their choice, including a child victim and witness specialist and appropriate family members, in order to help them express their views, or just to feel more confident and at ease during the proceedings.45
There should also be the possibility for groups, foundations, associations or governmental or non-governmental organisations, to assist and/or support child victims, with their consent or the consent of their parents or legal representatives, during criminal proceedings.46
18.104.22.168. Expressing views and concerns
Professionals should make every effort to enable child victims and witnesses to express their views and concerns related to their involvement in the justice process, regarding their safety in relation to the accused, the manner in which they prefer to provide testimony and their feelings about the conclusions of the process, directly or through an intermediary.47 Professionals should give due regard and weight to the child’s views and concerns and, if they are unable to accommodate them, explain the reasons to the child.48
Children should have the right to supply evidence. The mere fact that evidence by children is not given under oath should not, in itself, be a reason for its exclusion.49 It should be examined to what extent child victims could be included as a third party in criminal proceedings and how they could be most effectively enabled to practice their evolving capacity.50 Professionals should develop and implement measures to make it easier for children to testify or give evidence to improve communication and understanding at the pre-trial and trial stages.51
3.1.6. Effective assistance to children
Countries should provide or promote dedicated services for support of victims/witnesses and encourage the work of non-governmental organisations in assisting victims.52 These services must be easily accessible, must offer free social, emotional and material support, prior to, during and after the investigation and legal proceedings, they must be competent to deal with the problems faced by the victims they serve, they must provide information to victims on their rights and available services in a language understood by the victim, they must refer victims to other services when necessary, and they must respect confidentiality when providing services.53 States should take measures to ensure that the work of different services offering assistance is co-ordinated, that a comprehensive range of services offering help to victims is available, that standards of good practice are prepared and maintained, that appropriate training for personnel in these services is provided54 and that the services are accessible to the government for consultations on proposed policies and legislation.55
Services, both private and public, should be encouraged to make proposals to strengthen the law relating to the exercise of children's rights, to give opinions concerning draft legislation relating to the exercise of children's rights, to provide general information concerning the exercise of children's rights to the media, the public and persons and bodies dealing with questions relating to children, to seek the views of children and provide them with relevant information.56
States should ensure that child victims benefit from special measures best suited to their situation.57 States are encouraged to support the setting-up or the maintenance of specialised centres for child victims.58 Child victims, witnesses and, where appropriate, family members should have access to assistance provided by professionals who have received special training for work with child victims.59 All such assistance should address the child’s needs and enable him or her to participate effectively at all stages of the justice process. In assisting child victims and witnesses, professionals should make every effort to co-ordinate support so that the child is not subjected to excessive interventions. Child victims and witnesses should receive assistance from support persons, such as child victim/witness specialists, commencing at the initial report and continuing until such services are no longer required. Professionals should develop and implement measures to make it easier for children to testify or give evidence to improve communication and understanding at the pre-trial and trial stages.60
The question of the automatic passing of victims’ details to support services has to be raised and there, the “negative consent” of the victim (also referred to as “opt-out”) should be the principle to follow : referral to services should be made unless the victim expressly refuses, in which case personal data will be kept confidential.61
The assistance and support system should be available to victims even though they are unwilling to instigate criminal proceedings. They have to be able to speak about their problems without fearing any judicial consequences (the case of children abused by their parents and who fear that their parents will be arrested, for instance).62
A coherent strategy of victim support is required, involving either a single organisation as the unique contact point for victims (help-centres), which will guide and direct the victim through the maze of institutions, or relying instead on an existing network of several organisations to perform such duties.63
A multi-agency approach to the victim should be encouraged.64
Staff/volunteers working with children should be screened so that volunteers and candidates to professions whose exercise implies regular contact with children have not been convicted of acts of sexual exploitation or sexual abuse of children.65
There are a number of specialised services available for child victims in various countries. Roughly we could differentiate three types of services. Child witness services, which support and assist children giving testimony (e.g. Witness Service in England,66 Child Witness Service in Victoria, Australia,67 Child Witness Project in Ontario, Canada68), child-friendly places in which all investigations of crimes against children (usually crimes of sexual abuse and exploitation) are carried out and assistance is provided to children (Child Advocacy Clinics in the United States,69 Children’s House in Iceland,70 and similar houses (centres) in Sweden and Norway) and help lines.71
3.1.7. Protection of children’s privacy
Protection of information relating to a child’s involvement in the justice process can be achieved through maintaining confidentiality and restricting disclosure of information that may lead to identification of a child who is a victim or witness in the justice process.73 Protection of children from undue exposure to the public could be achieved by, for example, granting anonymity to witness, providing a pseudonym to victim/witness, using screens, disguising face or distorting his or her voice, revealing the identity of witnesses at the latest possible stage of the proceedings and/or releasing only selected details; the deletion of names and facts from the public documents of the court which could lead to the disclosure of the victim's identity, unavailability to the public of documentation identifying the victim, prohibiting photography, audio or video recording, prohibiting the parties to disclose the identity of a protected victim/witness in the proceedings, an order to the parties to have a list of all persons whom the confidential data has been disclosed to and dates of disclosure, prevention of photocopying documents containing confidential information and the obligation to return them. 74
It should be examined whether excluding the media and/or the public from all (where the child is victim) or part of the trial (where the child is a witness) should be mandatory or should be left to the discretion of judges.75
3.1.8. Protection from hardship during the justice process
Professionals should take measures to prevent hardship during the detection, investigation and prosecution process in order to ensure that the best interests and dignity of child victims and witnesses are respected.
A child should be provided with support, including to be accompanied throughout his or her involvement in the justice process, when it is in his or her best interests. The child may be accompanied by his or her legal representative or, where appropriate, an adult of his or her choice, unless a reasoned decision has been made to the contrary in respect of that person.83
Every effort should be made to ensure continuity in the relationships between children and the professionals in contact with them throughout the process.
The investigations and legal processes involving child victims and witnesses should be expedited.
In interviewing children, child-sensitive procedures should be used: interview rooms designed for children, interdisciplinary services for child victims integrated in the same location, modified court environments that take child witnesses into consideration, recesses during a child’s testimony, hearings scheduled at times of day appropriate to the age and maturity of the child, an appropriate notification system to ensure the child goes to court only when necessary and other appropriate measures to facilitate the child’s testimony; the number of interviews should be limited so far as strictly necessary for criminal proceedings, child victims and witnesses should be interviewed, and examined in court, out of sight of the alleged perpetrator, and separate courthouse waiting rooms and private interview areas should be provided84. Child victims and witnesses should be questioned in a child-sensitive manner under supervision of judges and with the assistance of psychological experts. The use of communication specialists helping witnesses understand questions put to them by lawyers and police officers, and to communicate their answers, should be encouraged.85
Guidelines and codes of conduct on interviewing children should be developed and persons conducting interviews should be specially trained.86
3.1.9. The right to safety
The right to safety of victims and witnesses prior to, during and after criminal proceedings is emphasised in many international documents87. Special protection may be necessary for victims in the role of witnesses88 in the proceedings, and those victims at risk of intimidation, revenge or renewed victimisation,89 such as children.
Children must be provided with special help by having their best interest in mind.90 Where child victims and witnesses may be the subject of intimidation, threats or harm, appropriate conditions should be put in place to ensure the safety of the child.91 Such safeguards could include (a) avoiding direct contact between child victims and witnesses and the alleged perpetrators throughout the justice process;92 (b) using court-ordered restraining orders supported by a registry system;93 (c) penalising all breaches of orders and measures imposed on perpetrators by the authorities; (d) ordering pre-trial detention of the accused and setting special “no contact” bail conditions; (e) placing the accused under house arrest; (f) wherever possible and appropriate, giving child victims and witnesses protection by the police or other relevant agencies and safeguarding their whereabouts from disclosure94; (g) granting anonymity to a child witness to prevent his or her identification by the defence. 95
The physical and psychological integrity of each child victim, even if s/he does not participate in the criminal proceedings either as a witness or as a party, needs to be protected.
When imposing court-ordered restraining orders to parents or persons who have the care of the child and who are involved in his or her sexual exploitation or sexual abuse or when the victim is removed from his or her family environment, the conditions and duration of such orders (i.e. removal) shall be determined in accordance with the best interests of the child. In applying these measures authorities shall take due account of the child’s views, needs and concerns.96
In cases where there might be a danger to the victim, when the person prosecuted or sentenced for an offence is released, it should be possible to take a decision to notify the victim if necessary.97 The victim has the right to choose not to receive this information unless communication thereof is compulsory under the terms of the relevant criminal proceedings.98
Professionals who come into contact with children should be required to notify appropriate authorities (e.g. social services or police) if they suspect that a child victim or witness has been harmed, is being harmed or is likely to be harmed.99 The confidentiality rules imposed by internal laws on certain professionals called upon to work in contact with children must not constitute an obstacle to reporting suspicion of sexual exploitation or sexual abuse.100
Professionals should be trained in recognising and preventing intimidation, threats and harm to child victims and witnesses.101
In addition to the protection of victims and witnesses, some documents also require the protection of persons who have reported the criminal act or have in other ways co-operated with the investigation authorities or the public prosecutor's office, and a victim's family members.102
The European Convention against Trafficking in Human Beings (Article 28,4) also stipulates the protection of non-governmental organisations and other organisations involved in the detection and prevention of human trafficking.
3.1.10. Providing reparation, recovery and social integration services
Child victims should, wherever possible, receive expeditious reparation in order to achieve full redress, reintegration and recovery. Reparations should be proportionate to the gravity of the violations and the resulting damage and may take any one or more of the following forms which are not exhaustive: restitution from the offender; compensation ordered to be paid in the criminal court or in civil proceedings; 103aid from victim compensation programmes administered by the State;104 rehabilitation,105 satisfaction and guarantees of non repetition.106
Procedures for obtaining and enforcing reparation should be readily accessible and child-sensitive. Combining reparation proceedings with criminal proceedings or with informal and community justice proceedings, such as restorative justice, should be encouraged.
Decisions relating to reparations for child victims should be implemented in a diligent and prompt manner. Procedures should be instituted to ensure enforcement of reparation orders and payment of reparation before fines. Where possible, costs of social and educational reintegration, medical treatment, mental health care and legal services should be covered by the state with the possibility of subrogation from the perpetrator. 107
3.1.11. Simplification of procedures and use of informal and community justice procedures
The simplification of procedures should be encouraged.
The establishment of innovative “specialised courts” dealing with both civil and criminal aspects of a case,108 or dealing with cases where the child is either a victim or a perpetrator should be encouraged. Such a system aims at providing a global protection to children, introducing measures such as dedicated police and prosecutors, and separate entrances and waiting areas to avoid contact with perpetrators. Those courts, their functioning and their impact on children, both victims and perpetrators, should be further assessed.
The restorative practices (e.g. mediation,109 conferencing110 and circle sentencing) have generally positive results from a child-victim’s perspective and thus they are an attractive alternative to the criminal justice process. However, restorative justice can also harm children and thus it would be wrong to include children in the “routine” practice of restorative justice. It would be appropriate to create specific programmes for child victims and even special programmes for specific crimes against children (e.g. sexual abuse, domestic violence) which would regard children as active and equally respected partners and would consider children’s interests as the primary, if not the only, criteria for decision making.111
Restorative justice would be appropriate only in particular circumstances: if there is no risk of victim blaming and manipulation during the process, if the victim is prepared to have a direct encounter with the perpetrator, if the victim has adequate support, if there is not a high risk of secondary victimisation by the process. A child-inclusive restorative justice needs to find ways of enhancing children’s ability to have meaningful participation in the process in accordance with their specific age, needs, capabilities and wishes. To enhance the child’s participation, the child should be prepared and given appropriate information and helped to think in advance about his or her views. The child should know who will be present and, if there is anyone whose attendance might scare the child, the process should be reconsidered. Measures should be taken so that the procedure meets the needs of the child and that no distressing surprises will emerge. Adults should avoid adult language and be aware of the impact their language will have on children. During the process someone should be in charge of securing the interest of the child. It is important to ensure that the child fully understands the agreement. There should be a follow-up with the child to make sure that s/he understands what happened and to ensure his or her wellbeing.112 In addition minors should have the right to parental assistance.113
3.1.12. Special preventive measures
This need of special, targeted measures appears in Article 3.4 of the Appendix to Recommendation Rec(2006) 8 on assistance to crime victims, which states that “victims who are particularly vulnerable [should] benefit from special measures best suited to their situation”.
In addition to preventive measures that should be in place for all children, special strategies are required for child victims and witnesses who are particularly vulnerable to recurring victimisation or offending, including victimisation related to abuse in the home, sexual exploitation, abuse in institutional settings and trafficking.114 Special strategies are also required for mentally disabled children as well as for children living in residential institutions.115
3.2. Child-friendly Justice for Juveniles
It should be carefully considered in which way and to what extent the rights and protections granted to child victims and witnesses could and should apply to children in conflict with law. The differences in their needs and responses to their needs should be explored.
In discussing child-friendly justice related to children in conflict with law a number of additional points, besides those addressed under the previous chapter, should be considered. I will briefly list some of them.
The fundamental issues are: keeping children in conflict with law out of the justice system, introduction of a special juvenile justice system and establishment of a comprehensive child centred restorative juvenile justice system.
Interventions of whatever kind should not blame, shame or stigmatise children, their families and communities.116
The juvenile justice system should ensure that any reaction to juvenile offenders is in proportion to the gravity of the offence and personal circumstances of the offender.117
The age of criminal responsibility for juveniles should not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. There should be a close relationship between the notion of criminal responsibility and other social rights and responsibilities such as marital status, civil majority, etc.118
Children in conflict with law (juveniles) should be guaranteed the same basic procedural rights and guarantees as adults (presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to participate in the proceedings and to express themselves freely, the right to confront and to cross-examine witnesses, the right to appeal to a higher authority, etc.). They should be granted additional rights taking into consideration their vulnerability (records of juvenile offenders should be kept strictly confidential and closed to third parties; juveniles’ views, needs and concerns should be effectively taken into account during criminal proceedings; mandatory representation by a legal adviser, if possible free of charge, etc.).
Parents, the guardian or the person enjoying the juvenile’s trust should be entitled to attend and participate in the court proceedings (unless this is counter-productive or contrary to the interest of the juvenile). They may be required by the competent authority to attend proceedings in the interest of the juvenile. Where possible they should be offered help, support and guidance. Upon the apprehension of a juvenile, his/her parents or guardian should be immediately, or in the shortest possible time thereafter, notified of such apprehension.
To improve legal representation a special child protection unit could be established within Bar Association. Social workers might also be involved in interviewing the child, visiting incarcerated children and introducing psycho-social information to the Court.
Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote his/her well-being and avoid harm to him/her, with due regard to the circumstances of the case.
It is important to permit exercise of discretionary power at all levels of juvenile justice administration to accommodate for the specific individual needs of each child in conflict with law.
Upon the apprehension of a juvenile, a judge or other competent official or body should, without delay, consider the issue of release. Alternatives to detention pending trial and custody should be developed for children perpetrators of crime (diversionary systems, restorative justice, and other alternatives). Where deprivation of liberty is absolutely necessary as a measure of last resort, the condition and regime of detention should take into consideration the specific needs of children. Children should be detained separately from adults, unless this is considered to be against the best interest of child.119
The overwhelming majority of children in conflict with the law should be dealt with and supported through a range of diversion systems120 and extra judicial measures that recognise the causes of their behavior and identify strategies at the community level to effectively prevent re-offending.121 It is important to secure the consent of the young offender (or the parent or guardian) to the recommended diversionary measure(s). Juveniles should not feel pressured (for example in order to avoid court appearance) or be pressured into consenting to diversion programmes.
A large variety of disposition measures should be made available to the competent authority, allowing for flexibility so as to avoid institutionalisation to the greatest extent possible (care, guidance and supervision orders; probation; community service orders; financial penalties, compensation and restitution; intermediate treatment and other treatment orders; orders to participate in group counseling and similar activities; orders concerning foster care, living communities or other educational settings; other relevant orders).
The effectiveness of the criminal proceedings should be improved. This should be balanced with the requirements of due process.122
Measures must be taken to ensure that crime prevention and criminal justice practices and its alternatives do not themselves contribute on the one hand to the revictimisation of children who were victims or witnesses of crime, and on the other hand to the stigmatisation, labeling and victimisation of children who perpetrated crimes. The Council of Europe should provide guidance to countries reforming their criminal justice systems to respond to the needs of children, whether they are victims, witnesses or perpetrators of crime.
In the search for solutions, the obstacles and challenges children face when encountering the criminal justice system, as well as their needs, should be better understood. Thus special studies on child victims, witnesses and children in conflict with law should be carried out, including surveys monitoring the experience and satisfaction of children in their contacts with the judicial system and evaluations of existing programmes and mechanisms to assist and protect child victims, witnesses or children in conflict with law.
We need to understand to what extent the obstacles, challenges and needs of child victims and witnesses are different from those of children in conflict with law. Guidelines should take into consideration and reflect these differences.
The Council of Europe should draft guidelines taking into consideration the results of the research as well as the existing international instruments and good actions, policies, procedures and laws related to child-friendly justice currently in place in various countries.
It would be important in these guidelines to consider the application of child friendly procedures in other branches of law, not only criminal justice (family law, citizenship, immigration and refugee protection law, various aspects of tort law and civil law (property, contract, liability, bankruptcy).