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Strasbourg, 18 August 2008 CDPC (2008) 17
cdpc/docs 2008/cdpc (2008) 17 add iv rev – e Addendum IV rev


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

1. Introduction

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. 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 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 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 children’s privacy is of primary importance. Interference in the child’s private life should be limited to the minimum needed at the same time as high standards of evidence collection are maintained in order to ensure fair and equitable outcomes of the justice process. Numerous international documents insist on the protection of privacy and identity of victims/witnesses.72

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

States should take appropriate steps to avoid, as far as possible, impinging on the private and family life of victims as well as to protect the personal data of victims, in particular during the investigation and prosecution of a crime, except in special circumstances such as in cases of human trafficking in order to find family members or ensure the protection of a child's interests.76

The personal information of victims, including children, must be archived and used in accordance with conditions stipulated by the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108).77

All services and organisations, governmental and non-governmental, in contact with victims must adopt clear rules regulating the provision of information about the victim to a third person by respecting the principle of proportionality. This information may be disclosed to a third person only if the victim explicitly consents to this, if a legal motion or authorisation for disclosing information exists (for instance the police can disclose information about the victim for the purpose of conducting an investigation) or in case of an important ethical reason (when the life or safety of a person is in question). The procedure of lodging objections in case of non-compliance with these rules must be established. 78

Photographic images of victims and their families or persons in a similar position should be protected as well.79 Television recordings in the courtroom should be prohibited.80

States should encourage the media to adopt and respect self regulation measures in order to protect victims’ privacy and personal data in accordance with Article 10 of the European Convention on Human Rights and the judicial practice of the European Court of Human Rights pertaining to this article.81

The publication of details about a child victim allowing his or her identification should be possible only when this is in the interest of the investigation or the trial, and even then only upon consent of the relevant authority (investigating judge, prosecutor or trial judge).82

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

4. Conclusion

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).

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1 The opinions expressed in this work are the responsibility of the author and do not necessarily reflect the official policy of the Council of Europe.

2 United Nations:
Convention on the Rights of the Child (CRC)
Optional Protocol to the CRC on the sale of children, child prostitution and child pornography
ILO Convention 182 concerning the prohibition and immediate action for the elimination of the worst forms of child labor
Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, Resolution 2005/20, UN – The Economic and Social Council
Council of Europe:
European Convention on Human Rights and Fundamental Freedoms
European Social Charter – Revised
European Convention on the Exercise of Children’s Rights
Convention on Cybercrime
Council of Europe Convention on Action against Trafficking in Human Beings
Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
Recommendation Rec (2001)16 on the protection of children against sexual exploitation
Recommendation Rec (85) 11 on the position of the victim in the framework of criminal law and procedure
Recommendation Rec (87) 21 on assistance to victims and the prevention of victimization
Recommendation Rec (2006) 8 on assistance to crime victims
Recommendation Rec (99) 19 concerning mediation in penal matters
Guidelines for a better implementation of the existing Recommendation concerning mediation in penal matters (CEPEJ (2007) 13)
European Union:
Council of the European Union Framework Decision on combating sexual exploitation of children and child pornography (2004/68/JHA)
Council of the European Union Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA)

3 United Nations:
UN Standard Minimum Rules for the Administration of Juvenile Justice, adopted by General assembly resolution 40/33 of 29 November 1985 („The Beijing Rules“);
Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), adopted and proclaimed by General assembly resolution 45/112 of 14 December 1990;
Council of Europe:
Resolution (66) 25 on short-term treatment of young offenders of less than 21 years
Resolution (78) 62 on juvenile delinquency and social change;
Recommendation No. R (87) 20 on social reactions to juvenile delinquency
Recommendation No. R (88) 6 on social reactions to juvenile delinquency among young people coming from migrant families
Recommendation Rec(2000)20 on the role of early psychosocial intervention in the prevention of criminality
Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice
Recommendation Rec(2005)5 on the rights of children living in residential institutions
Recommendation Rec R (2006)2 on the European Prison Rules
Recommendation Rec R (2006) 13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse
Draft Recommendation containing European Rules for juvenile offenders subject to community sanctions or measures or deprived of their liberty

4 Explanatory memorandum to Child victims: stamping out all forms of violence, exploitation and abuse, Rapporteur: Jean-Charles Gardetto.

5 “Access of children to justice – specific focus on the access of children to the European Court of Human Rights as well as its case-law related to children's access to national jurisdictions“, report prepared by the Registry of the European Court of Human Rights, MJU-28 (2007) INF 01 E, para. 5, 13, 14.

6 Analysing REACT: Gaps, Challenges and Next Steps, cdpc/pc-s-es/docs2005/pc-s-es (2005) 5 e.

7 According to Nicholas Bala, Child Witnesses in the Canadian Courts, Canadian Child Welfare League Teleconference Series (2006).

8 Eilen Skinnider, Violence against Children: International Criminal Justice Norms and Strategies,

9 See, Tali Gal, Victims to Partners: Child Victims and Restorative Justice, Australian Digital Theses Program, 171-197 (2006).

10 See, Protecting the rights of children in conflict with law, - programme and advocacy experiences from member organizations of the inter-agency coordination panel on juvenile justice (

11 They are usually victims of exploitation, seduction or threats, whether or not they are legally considered offenders or victims. Thus all children should be regarded as persons in need of recovery and reintegration, in need of protection rather than detention and punishment. Skinnider, supra note 7.

12 Art. 3.1., Convention on the Rights of the Child, General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990 (CRC).

13 Id., art. 39 (referring to child victims) and 40 (referring to child perpetrators). Children’s’ dignity is a theme of the CRC and should be read into each of its articles.

14 Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, Resolution 2005/20, UN – The Economic and Social Council (UN Guidelines), para. 10-14.

15 International Bureau for Children's Rights has developed a set of guidelines based in part on the UN Convention on the Rights of the Child and the UN Declaration on Victims Rights to protect children as victims and witnesses in the criminal process.

16 For the applicability of restorative justice to child victims see, Tali Gal, Victims to Partners: Child Victims and Restorative Justice (Australian Digital Theses Program, 2006), http//

17 Recommendation 1460 (2000) recommends setting up a European ombudsman for children. Some states (e.g. Sweden, Ireland, Croatia, Norway) have accordingly created the post of children’s ombudsman and are clearly making progress with regard to protection of minors (victims as well as offenders) the special role of the child in the legal system has been given attention by the Swedish Children’s Ombudsman. The Ombudsman has produced the publication "Förklara vad som händer – En pedagogisk brottmålsrättegång för unga" (Explain what happens - A pedagogical criminal court trial for young people) which addresses judges, jurors, prosecutors and lawyers. The Ombudsman stresses the importance of having specialist judges to try cases where children are involved, since, in these cases, knowledge of children and how to converse with children is necessary.

18 International Crime Victim Survey, see

19 UN Guide for Policy Makers – On the Implementation of the UN Declaration of basic Principles of Justice for Victims of Crime and Abuse of Power, 16 (UNODCCP – Center for International Crime Prevention, 1999).

20 Art. 2. CRC, UN Guidelines , par. 15-16

21 Id., par. 17.

22 Id. par. 18.

23 In the United States a child is presumed to be competent. A competency examination regarding a child witness may be conducted by the court only upon written motion and offer of proof of incompetence by a party and if the court determines, on the record, that compelling reasons exist. A child’s age alone is not a compelling reason. The only persons who may be permitted to be present at a competency examination are the judge; the attorney for the Government; the attorney for the defendant; a court reporter; and persons whose presence, in the opinion of the court, is necessary to the welfare and well-being of the child, including the child’s attorney, guardian ad litem, or adult attendant (an adult who accompanies a child throughout the judicial process for the purpose of providing emotional support). A competency examination regarding a child witness shall be conducted out of the sight and hearing of a jury. Examination of a child related to competency shall normally be conducted by the court on the basis of questions submitted by the attorney for the Government and the attorney for the defendant including a party acting as an attorney pro se. The court may permit an attorney but not a party acting as an attorney pro se to examine a child directly on competency if the court is satisfied that the child will not suffer emotional trauma as a result of the examination. The questions asked at the competency examination of a child shall be appropriate to the age and developmental level of the child, shall not be related to the issues at trial, and shall focus on determining the child’s ability to understand and answer simple questions. Psychological and psychiatric examinations to assess the competency of a child witness shall not be ordered without a showing of compelling need. US Code Collection, Title 18, Part II, Chapter 223, par. 3509 (c), Child Victims' and Witnesses' Rights.

24 Art. 6.(a) of the UN Declaration on Victim Rights; UN Guidelines, par. 19-20; Art. 31.1.a., Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); Art. 6 Rec (2006) 8; Art X Rec. (2002) 5 on the protection of women against violence; Art. 4, 8, 13 of the Recommendation R No. (87) 21 on assistance to victims and the prevention of victimisation; Art. 2, 3, 6, 9 of the Recommendation R No. (85) 11 on the position of the victim in the framework of criminal law and procedure.

25 Art. 31 (6), Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007).

26 UN Guidelines, par. 19 (g).

27 In Washington DC not all legal proceedings but only legal proceedings and/or police investigations in which the child may be involved are explained to child. Children are provided information or appropriate referrals to social service agencies to assist the child and/or the child's family with the emotional impact of the crime, the subsequent investigation, and judicial proceedings in which the child is involved. Law enforcement agencies are allowed the opportunity to enlist the assistance of other professional personnel such as child protection services, victim advocates or prosecution staff trained in the interviewing of the child victim.

28 Art. 31 (1) (b), Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); UN Guidelines, par. 20 (a).

29 Art. 13, Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007). Child Helpline International reported that, as of July 2007, 98 child help lines had been established in 87 countries and, in another 23 countries, such help lines were in the process of being established.

30 Council of Europe Convention on the Exercise of Children Rights (2000), art. A.3.c.

31 For more details see supra note 62-64.

32 In X and Y v. the Netherlands, judgment of 26 March 1985, the European Court of Human Rights (ECHR), Series A, Vol. 91, para. 28-30, stressed the need to provide children a possibility of filling a complaint, even against acts committed by their parent or legal representative.

33 Croatia is modernising “centres for social works” to be able to receive complaints. Monaco has put in place a police unit specialized in receiving complaints from children. The Child Rights Commissioner in Belgium allows for complaints to be submitted by telephone or through the website. In Belgium the Agence des services d'enseignement allow children to report acts of violence. According to Report of the independent expert for the United Nations study on violence against children, A/62/209, (2007), para. 33-34.

34 ECHR supports this approach and has clear preference for criminal prosecution in such cases. See judgment Stubbings and others, Reports 1996-IV, para. 52.

35 This provision is considered to be an essential feature of added value in the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (art. 33). The Convention restricts the application of this principle to the offences provided in Articles 18, 19, paragraph 1 a and b, and 21, paragraph 1 a and b.

36 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, supra note, art. 8.2.

37 See Giusto, Bornacin and V. v. Italy, judgment of 15 May 2007, No.38972/06, ECHR.

38 Art. 31.1.d. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007).

39 Art. 31.4., id. Similar art. 9. European Convention on the Exercise of Children's Rights, European Treaty Series - No. 160 (1996).

40 Art. 4. European Convention on the Exercise of Children's Rights. In Finland if the interest of the child and the parents differ the child is appointed a representative of his or her own at the pre-trial examination and the trial. Legal assistance is also available to the child. In Sweden a special representative for the child shall be appointed in cases where there is suspicion of a crime committed against someone under the age of 18 years, when a custodian is suspected of committing a crime or when a custodian is unable to look after the rights of the child due to the custodian’s relationship with the suspect.

41 The Convention limits the right to legal aid only to situations when it is possible for the child to have the status of a party to the criminal proceedings. This is to narrow. See art. 4.5. Recommendation Rec (2006) 8 granting such a right wherever it is appropriate.

42 Golder v. United Kingdom judgment, 21 February 1975.

43 In support of this see „Non-Criminal Remedies for Crime Victims“, Final report of the group of specialists on remedies for crime victims, CJ-S-VICT (2007), para. 40-41, 58-64. In Austria victims who are strongly emotionally affected have the right to psychosocial and legal assistance free of charge (section 49 a of the Criminal Code of Procedure).

44 Council of Europe Convention on the Exercise of Children’s Rights, art. 5.

45 Id. Art. 35.1.f. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); UNGuidelines , para. IX. 25.

46 Art. 31.5. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007).

47 Art. 31.1.c., Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007); UN Guidelines, para 21; Council of Europe Convention on the Exercise of Children Rights, art. 6.

48 Para 21.c, UN Guidelines; Council of Europe Convention on the Exercise of Children Rights, art. 6.

49 Art. 29, Recommendation No. R (97) 13.

50 There are recently attempts to include victim as a third party into a criminal proceedings. In front of the International Criminal Court victims have right to be heard at all important stages of the criminal procedure. According to Rules of Procedure and Evidence, adopted by the Assembly of State Parties (2002), ICC-ASP/1/3 (RPE), victims have right to address chamber (Rule 89 (1) RPE); file submissions related to jurisdiction and admissibility, put forward views concerning imposition of or changes in conditions restricting the liberty of the accused (Rule 119 (3) RPE), submit observations regarding the alteration of charges which have already been confirmed (Rule 93, 136 RPE), submit observations regarding the separation of trials (Rule 93, 136 RPE), present his views in the event of the admission of guilt by the accused (93, 139 RPE). In Norway amendments to the Criminal Procedure Act have now entered into force. Norway has recently implemented a reform strengthening the procedural rights of victims, giving some victims particular procedural rights equal to those of the defendant, such as the right to examine witnesses in court and to comment on evidence presented in court.

51 These measures may include: (a) child victim and witness specialists to address the child’s special needs;
(b) Support persons, including specialists and appropriate family members to accompany the child during testimony; (c) where appropriate, to appoint guardians to protect the child’s legal interests.

52 2001 EU Framework Decision on the Standing of Victims in Criminal Proceedings of 15 March 2001 (2001/220/JHA) OJ, L 82, 22 March 2001 calls on countries to promote services for the provision of support to victims (Art. 13) as well as art. 5.1. of the Recommendation, Rec (2006) 8. Research has shown that in this context non-governmental organisations for assisting victims are exceptionally successful. See, Brienen, M.E.I., Hoegen, E.H., Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the position of the Victim in the Framework of Criminal Law and Procedure, Niemegen, Netherlands: WLP(2000).

53 Art. 5.2. Recommendation Rec (2006) 8.

54 States should ensure that all persons in contact with victims of criminal acts within their work are familiar with victims' rights, the need to treat victims with respect and dignity, and are informed about the negative effects of crimes. Art. 4.1., id.

55 Art. 5.1., id.

56 Art. 12, Council of Europe Convention on the Recommendation Rec (2006) 8.Exercise of Children Rights.

57 Art. 3.4, Recommendation Rec (2006) 8.

58 Art. 5.3. id. For examples of such centres, see ad

59 This training should include: (a) relevant human rights norms, standards and principles, including the rights of the child; (b) principles and ethical duties of their office; (c) signs and symptoms that indicate crimes against children; (d) crisis assessment skills and techniques, especially for making referrals, with an emphasis placed on the need for confidentiality; (e) impact, consequences, including negative physical and psychological effects, and trauma of crimes against children; (f) special measures and techniques to assist child victims and witnesses in the justice process; (g) cross-cultural and age-related linguistic, religious, social and gender issues; (h) appropriate adult-child communication skills; (i) interviewing and assessment techniques that minimize any trauma to the child while maximizing the quality of information received from the child; (j) skills to deal with child victims and witnesses in a sensitive, understanding, constructive and reassuring manner; (k) methods to protect and present evidence and to question child witnesses; (l) roles of, and methods used by, professionals working with child victims and witnesses. See para. 40-42, UN Guidelines; art 12, Recommendation Rec (2006) 8 on assistance to crime victims.

60 These measures may include: (a) child victim and witness specialists to address the child’s special needs;
(b) support persons, including specialists and appropriate family members to accompany the child during testimony; (c) where appropriate, to appoint guardians to protect the child’s legal interests. Para. 20-22, id.

61 In support of this see „Non-Criminal Remedies for Crime Victims“, Final report of the group of specialists on remedies for crime victims, CJ-S-VICT (2007), para. 55.

62 Id. para. 81.

63 Id. para. 73.

64 A number of examples illustrate this multi-agency approach including those found in Austria (intervention centres and the cooperation they have established with the police, based on the Protection Against Domestic Violence Act), Bulgaria, Estonia (victim support centres), Ireland, the “Former Yugoslav Republic of Macedonia”, Norway (14 support centres throughout the country), Portugal (support centres for the victims of domestic violence) and the United Kingdom. Id. para. 74.

65 Art. 5.3, Convention on the Protection of Children against sexual Exploitation and Sexual Abuse, art. 5.3. In Finland, since 2002, there is a new law that regulates checking up the criminal background of those who apply to work with children (teaching, nursing or other kind of personal contact with a minor). A similar law exists in Denmark.

66 In England, Witness Service helps witnesses, children as well as adults, who are called to give evidence. Witness Service staff and volunteers provide: someone to talk to in confidence, a chance to see the court beforehand and learn about court procedures, a quiet place to wait, someone to go with victims and witnesses into the court room when giving evidence, practical help (for example with expense forms), easier access to people who can answer specific questions about the case (the Witness Service cannot discuss evidence or offer legal advice), a chance to talk over the case when it has ended and to get more help or information.

67 Child Witness Service (CWS) offers specialized support and practical preparation to assist children and young people who are required to give evidence in court. The CWS does not provide counseling service, but they can make referrals to appropriate agencies if additional support required.

68 The Child Witness Project helps children and adolescents who must testify in criminal court, usually in cases of physical or sexual abuse. Referrals are accepted for witness preparation, capacity assessments, expert testimony, Crown consultation, clinical victim impact statements, and criminal injuries reports. The protocol includes education, stress reduction, coping strategies, emotional support and advocacy. Among other things they do advocacy on behalf of youth with special challenges to testifying, they provide training for justice officials to ensure that young and vulnerable witnesses are not traumatized by the legal process and they do research that helps them understand better the needs of child victims and witnesses. (Centre for Children and Families).

69 In the US the “multidisciplinary child abuse teams” have been introduced to assist child victims of a crime of physical abuse, sexual abuse, or exploitation and child witnesses to a crime committed against another person. These are professional units composed of representatives from health, social service, law enforcement, and legal service agencies to coordinate the assistance needed to handle cases of child abuse. The court and the attorney for the Government consult with the multidisciplinary child abuse team as appropriate. The role of the multidisciplinary child abuse team is to provide for a child services that the members of the team in their professional roles are capable of providing: medical diagnoses and evaluation services (e.g. provision or interpretation of x-rays, laboratory tests, and related services, as needed, and documentation of findings); telephone consultation services in emergencies and in other situations; medical evaluations related to abuse or neglect; psychological and psychiatric diagnoses and evaluation services for the child, parent or parents, guardian or guardians, or other caregivers, or any other individual involved in a child victim or child witness case; expert medical, psychological, and related professional testimony; case service coordination and assistance, including the location of services available from public and private agencies in the community; and training services for judges, litigators, court officers and others that are involved in child victim and child witness cases, in handling child victims and child witnesses. These times are often organized within Child Advocacy Clinics that work with children who have been victims of violence. More than 350 child advocacy clinics exist today in the USA where police, child protection workers, prosecutors and victim advocates interview child victims in one ¨child friendly¨ environment. They facilitate both treatments by the various child welfare agencies and intervention which is sensitive to victims from criminal justice personnel. Often they have one way mirrors so that other authorized personnel can follow an interview with a lead professional. They may videotape interviews so that authorized personnel can review what happened in the interview. Some have facilities for medical examinations. (National Children's Alliance, Web).

70 In Iceland Children’s House is a child-friendly place in which all investigation of crimes against children is carried out (medical exams and evaluations, joint investigative interviews, family counseling, victim therapy, education, training and research, networking - local and national) by specially trained persons. The purpose is to adapt the investigation to the child’s needs and to avoid that the child is taken to different places and subjected to repetitive interviews with many different persons. The other purpose is to raise quality in these investigations. Since the beginning of 2005 more than ten Children’s Houses have been established in Sweden, all of which are currently in operation, and the responsible authorities are in the process of establishing additional Children’s Houses in other locations throughout Sweden. Norway has also introduced such houses (centres for child victims).

71 In Sweden for example there is BRIS (Children’s Rights in Society), an NGO, with no political or religious affiliations, that supports children in distress and serves as a link between children, adults and the community. All BRIS-personnel (employed personnel as well as volunteer workers) have experience of working with children and young people. The core of the support services is the Children’s Helpline and the BRIS-mail, which children and young people from around the country can use up to age 18 to safely, anonymously and free of charge.

72 Art. 6 (d) of the UN Declaration on the Rights of Victims; art. 11 of the Council of Europe Convention against Trafficking in Human Beings; art. 31.1.e., Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; art. 10.8. i 10.9., Recommendation Rec (2006) 8; art. 15 of the Recommendation no. R (85) 11; Art. 8.1. of the Framework Decision on the Standing of Victims in Criminal Proceedings.

73 Para. 27, UN Guidelines.

74 Art. III. 9-13. id. Art.8.4. EU Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings; ICC Rules (Art. 87 (3)), Rule 75 (B) of the ICTY Rules, case law of the ICTY

75 In Italy public is always excluded if the victim is a child. In a number of legal systems the court may order the exclusion of public from a part or the entire main hearing. Only a small number of countries explicitly stipulates by law the possibility of excluding the public from the main hearing for the purpose of protecting privacy of a victim/witness (Belgium, Cyprus, the Netherlands), Portugal stipulates the protection of a victim's dignity, Spain the protection of a witness and her/his family, Switzerland the protection of the victim's interests. However, even in systems which explicitly do not indicate the victim and her/his privacy protection as a reason of excluding the public from the main hearing, frequently judges exclude the public from the main hearing precisely for those reasons in practice. Some systems leave it to the discretion of the court to decide whether or not to exclude the public from the main hearing in a particular case (England and Wales, the Netherlands, Scotland, Greece etc.), in others the public must always be excluded in certain proceedings like in cases of rape or incest (Ireland), cases of serious sex-related criminal acts (Island) and in some if this is requested by the victim (in Denmark the public is excluded upon request of the victim in case of incest, rape, a serious sex-related criminal act). According to Brienen, M.E.I., Hoegen, E.H., Victims of Crime in 22 European Criminal Justice Sytems: The Implementation of Recommendation (85) 11 of the Council of Europe on the position of the Victim in the Framework of Criminal Law and Procedure (Niemegen, Netherlands: WLP, 2000).

76 Art. 11, para. 2 of the Council of Europe Convention on Action against Trafficking in Human Beings

77 Art. 11, para 1 of the Council of Europe Convention on Action against Trafficking in Human Beings

78 Art. 9 of the Recommendation no. R (87) 21; Art. 11 of the Annex to Recommendation (2006) 8; the Statement on Social Rights for Victims, available at contains additional useful information about the topic.

79 Art. 8, Para. 2 of the Framework Decision on the Standing of Victims in Criminal Proceedings. Photography and recording of sound is prohibited in Austria, England and Wales, Cyprus, Denmark, France, Portugal and Scotland. The drawback of all these provisions is that it allows for the possibility of recording outside the courtroom. An exception is France where it is prohibited to record a victim at home or around the home.

80 Television recording in the courtroom is prohibited in Austria, Cyprus and France. In most of other systems it has been left to the discretion of the judge whether to permit recording in a particular case. In the Netherlands recording is possible only if identification of the victim and the perpetrator is impossible, and in Portugal recording the face and speech of a victim is prohibited. According to Brienen & Hoegen, supra note 69.

81 Art. 10.9., Rec (2006) 8; Art. 11, para. 3 of the European Convention on Action against Trafficking in Human Beings. Legal systems regulate the victim's privacy protection in different ways in relation to media coverage. Some leave it to self-regulation by the media industry. The media itself adopt their own codes of conduct where they prohibit the publication of victims' names without their consent or prohibit photographing at the main hearing (Island, Norway, Sweden). In some systems the court has the authority to determine the extent of media publication in a particular case (Belgium, Cyprus, Denmark, Malta, the Netherlands, Portugal). Court authority in these systems differs significantly. A number of systems offer special protection to certain categories of victims. In some systems unauthorised publication of a rape victim's name constitutes a criminal act (Belgium, Denmark, England and Wales, Island, Ireland, Scotland) and is fined, and in Turkey it is punished by a jail sentence. Ireland went as far as to stipulate the publication of rape victims' facts as a criminal act even when they have consented to this, unless this is accompanied by special court permission.

82 Similar provision we find in Belgian law in relation to victims of sex-related crimes, and in art. 11.2, Convention against Trafficking in Human Beings.

83 Para 29-31, UN Guidelines; Art. 35.f., Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse..

84 Art. 31.1.g., Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

85 In Austria minors under the age of 14 who may be victims of sexual abuse always have to be interrogated without the presence of the prosecutor and the defendant (and his/her counsel). The hearing is in practice arranged in a way that the victim/witness is interrogated in a separate room from which the interrogation is transmitted by video into the room, where the parties can follow the testimony in full length and ask questions to the witness through the judge or an interrogating expert (162a para. 3 and 4 Code of Criminal Procedure - CCP), often a psychologist (see sec 162a para 2 last sentence CCP). If the person refuses to testify during the trial the video recording can be presented instead. The same way of questioning is possible at the main hearing (Sec 250 para. 3 CCP). The trial-proceedings can be video recorded also, if the presiding judge so decides (Sec 271a CCP) or if the minor under 14 so requests (Sec. 162 para. 3 CCP). In this case it is not necessary – but nevertheless admissible – to keep the minutes of the proceedings. The parties have the right to require the recording of the tape, the transmission on an electronic data medium and the transcription of the recordings (sec 271a para 2 CCP). The investigating judge and the trial judge have access to the recordings, which are part of the file. The prosecutor and the defendant (and his/her lawyer) have the right to inspect the files and to view the recordings. Many other European countries have similar possibilities of questioning children through video-link.
In Denmark for example minors under the age of 13 are interviewed in a specially designed room in presence of interviewer, usually psychologists, and social worker or some other person to whom child trust. The interview is videotaped. The goal is to interview child just once, thus legal counsel is appointed to defendant even if s/he is not known, who follows the interview from the other room and may pose questions through interviewer, and to do the interview within a week after the report.
A prevailing principle within the Swedish system is that children should not have to appear in court to give testimony. When a child’s testimony is deemed necessary it is, as a main rule, brought before the court by watching and/or listening to a previously recorded interview. If, in exceptional cases, it is considered necessary to have a child appear before the court, the interview should be conducted in such a way that the child feels safe. The interview may for example be made via video-link.
In France, psychologist or medical specialists for children or ad hoc appointed administrator or another person appointed by a judge for children must be present during audiovisual recording (Art. 706-53 Code de Procedure Penale).
In England The Youth Justice and Criminal Evidence Act 1999 introduced a menu of special measures designed to enable vulnerable and intimidated victims and witnesses achieve their best evidence in criminal cases.  The special measures are: screens in the courtroom – preventing the witness from seeing the defendant (section 23); evidence by live link – where a witness gives evidence from outside the courtroom (section 24), evidence given in private – where the courtroom is cleared (section 25), removal of wigs and gowns (section 26); video recorded evidence-in-chief – where the police interview is visually recorded and played at trial as the witness’ main evidence (section 27); video recorded cross-examination – where any further evidence is recorded in advance of the trial and played on the day (section 28) (NB: not yet implemented); intermediaries – a person who acts as a ‘go-between’ to improve the communication and understanding of the witness (section 29), aids to communication – a device used by the witness to assist them to understand questions and communicate their answers (section 30). Intermediaries can assist witnesses under the age of 17. They are communication specialists appointed to help the witness understand questions put to them by lawyers and police officers, and to communicate their answers.

86 In Finland the police have special guidelines for questioning children and special directions how to deal with child victims and in family violence cases. Some prosecutors are specially trained to deal with such cases.

87 Art. 2 of the Recommendation Rec (2005) 9; Art. 28, of the European Convention on action against Trafficking in Human Beings; Art. II. 2 of the Annex to the Recommendation no. R (97) 13; Art. 6. EU Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings

88 Art. 10.1 of the Recommendation Rec (2006) 8. A good guide in this sense ins Recommendation R (1997) 13 referring to threatening witnesses and the right to defence, and Recommendation R (2005) 9 on the protection of witnesses and collaborators with the judicial system.

89 Art. 10.2 of the Recommendation Rec (2006) 8; Art. 44 of the Annex to the Recommendation Rec (2002) 5. States must develop policies of preventing revictimisation – this must become an integral part of the strategy to provide help to victims and crime prevention. Victims must be informed about the dangers of revictimisation and ways to reduce its risk, and must be assisted in this goal. Art. 10.5-10.7 of the Recommendation Rec (2006) 8. Once a criminal act has been committed the likelihood of revictimisation increases. For instance, a house broken into previously has a four times higher likelihood of being broken into again within 6 weeks after the first burglary, according to Graham Farrell, Multiple victimisation: Its Extent and Significance, International Review of Victimology (1992).

90 Art. 28. 3. of the European Convention of Actions Against Trafficking in Human Beings

91 Intimidation of witnesses and persons close to them must be sanctioned either as a separate criminal act or encompassed by the general criminal act of threatening. See, Art. 3 of the Recommendation Rec (2005) 9, Art. II. 3 of the Annex to the Recommendation R (97) 13.

92 While respecting the rights of the defence, witnesses should be provided with alternative methods of giving evidence which protect them from intimidation resulting from face to face confrontation with the accused (e.g. to give evidence in a separate room, recording by audio-visual means of statements made by witnesses during pre-trial examination; using pre-trial statements given before a judicial authority as evidence in court). See, Art. II. 6 and III. 9. of the Annex to the Recommendation no. R (97) 13.

93 In Austria in cases of violence within the family, the Act on Security Police provides the police with the possibility to send away the violent person and to install a ban zone (section 38a Security Police Act). According to section 58 c Security Police Act data of such persons are processed in the central violent protection data base (“Zentrale Gewaltschutzdatei”). In Finland the police can protect the child victim by giving a temporary restraining order. In France in 2006 eviction order was introduced for protection of minors against domestic violence. In Ireland the following orders are available: a safety order, a barring order, a protection order and an interim barring order. Macedonia has proscribed number of temporary measures for cases of family violence (prohibition of threats that she/he will commit family violence, prohibition of maltreatment, upsetting, making telephone calls, making contacts or any other way communicating with member of the family, either directly or indirectly, prohibition of approaching the residence, the school, employment premises or certain place which is regularly visited by another member of the family, to distance the residence no matter who is the property owner, until final court decision is made, prohibition of ownership of lethal or other weapon or to seize it, compulsory alimony payment, counseling, compulsory treatment, in case she/he abuses alcohol or other psychotropic substances or has any illness, reimbursement of the medical and other expenses that have occurred as a result of the family violence, and the court may issue any other measure which is considered necessary to provide for safety and wellbeing of other members of the family. In Bulgaria court could put the child, victim of domestic violence, into foster care, or could order custody by preliminary ruling. Similar possibility exists in Finland.

94 Victim/witness protection programmes should offer various methods of protection; this may include giving victim/witnesses and their relatives and other persons close to them an identity change, relocation, providing them with body-guards and other physical protection. Art. III 14 and 15 of the Recommendation R (97) 13. Art. 28, Para. 2 of the European Convention of Actions Against Trafficking in Human Beings. Procedures and facts on establishing, applying, modifying and revoking protection measures and programmes must be confidential, and their disclosure must be incriminated. Art. 2 of the Recommendation Rec (2005) 9; Art. 28, Para. 1 of the European Convention Against Trafficking in Human Beings; Art. II. 2 of the Annex to the Recommendation no. R (97) 13; Art. 6. EU Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings.

95 Para. 34, UN Guidelines;

96 Art. 14, Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

97 Art. 10.3 of the Recommendation Rec (2006) 8, Art. 31. 1. b. Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

98 Id. Art. 10.4

99 Para. 33 UN Guidelines. The Social Welfare and Health Service in Finland have a guide with recommendations for the personnel how to act when a child has been battered or sexually exploited. It is advised when to make a police report.

100 Art. 12, Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

101 Para. 34, UN Guidelines, Art. 7 of the Recommendation Rec (2005) 9; Art. 58 a, b and f of the Recommendation Rec (2002) 5.

102 See, Art. 2 of the Recommendation Rec (2005) 9; Art. 28, Para. 1 of the European Convention Against Trafficking in Human Beings; Art. II. 2 of the Annex to the Recommendation no. R (97) 13; Art. 6. EU Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings.

103 Compensation shall be provided for physical or mental harm, including pain, suffering and emotional distress; lost opportunities including education; material damages and loss of earnings, including loss of earning potential; harm to reputation or dignity; costs required for legal or expert assistance.

104 In Sweden the state compensation scheme is also applicable when a child has witnessed a crime which is likely to damage its safety, confidence or trust in its relation to a close person. The purpose of that is mainly to compensate children who are not themselves victims of a crime stricto sensu but have seen one parent abuse the other parent. In Bulgaria where the victim has passed away as a result of the crime, the right of support and financial compensation shall pass to his/her children.

105 Including medical and psychological care as well as legal and social services, reintegration into education system.

106 Apology and acceptance of responsibility, judicial and administrative sanctions against perpetrator, inclusion of perpetrator in psychosocial treatment, preventing the recurrence of violations by various restraining orders, etc.

107 Para XIII. 35-37, UN Guidelines.

108 As it is for instance the case in Spain or in England and Wales for domestic violence victims.

109 In mediation, the offender and the victim meet, with the support of a mediator and discuss the crime and its aftermath.

110 In New Zeeland all juvenile justice cases and child protection cases are dealt with through Family Group Conferences. Australia followed New Zeeland from the early 1990.

111 More on restorative programs for children see in Tali Gal, Victims to Partners: Child Victims and Restorative Justice, Australian Digital Theses Program (2006).

112 Marshall, K, Children’s Rights in the Balance: The Participation – Protection Debate, 106 (1997).

113 Para. 12.a, Basic Principles on the Use of Restorative Justice Programs in Criminal Matters (UN), 2000.

It must be ensured that professionals normally bound by rules of professional secrecy, (such as, for example, doctors and psychiatrists) have the possibility to report to child protection services any situation where they have reasonable grounds to believe that a child is the victim of sexual exploitation or abuse. Person who knows about or suspects, in good faith, sexual exploitation or sexual abuse of children is encouraged to report these facts to the competent services. The aim of this is to ensure the protection of children rather than the initiation of a criminal investigation. Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse, art. 12. In Finland, new legislation that came into force at the beginning of this year lowered threshold for making child protection reports. The duty to file such reports is also more widespread, and there is no impediment to them. Operation models have been created for kindergartens to recognize and prevent family violence and to help children. A form has been developed for health care personal (doctors) to help them to identify violence.

114 Convention on Action against Trafficking in Human beings (art. 12.) sets out some special assistance measures which Parties must provide for trafficking child victims. If the competent authorities reasonably believe that a child has been a victim of trafficking in human beings s/he cannot be removed from the country before s/he can be identified as victim. Program of repatriation, with regard to children, should include enjoyment of the right to education and measures to secure adequate care or receipt by the family or appropriate care structures. Child victims shall not be returned to a State, if there is indication, following a risk and security assessment that such return would not be in the best interests of the child.

115 See Recommendation Rec (2005) 5 on the rights of children living in residential institutions.

116 Recommendation Rec (2000) 20 on the role of early psychosocial intervention in the prevention of criminality

117 Art. 5.1. UN Standard Minimum Rules for the Administration of Juvenile Justice, adopted by General assembly resolution 40/33 of 29 November 1985 („The Beijing Rules“).

118 Art. 4., The Beijing Rules.

119 Resolution No. 2. on child-friendly justice, 28th Conference of the European ministers of Justice, Lanzarotte, 2007) para 13 & 14, art. 15, Recommendation Rec (2003) 20.

120 Diversion should be practiced where the offence is of a non-serious nature and where the family, the school or other informal social control institutions have already reacted, or are likely to react, in an appropriate and constructive manner or where the merits of individual cases would make diversion appropriate, even when more serious offences have been committed (for example first offence, the act having been committed under peer pressure, etc.).

121 Protecting the rights of children in conflict with law, Save the Children (2007),

122 Art. 14, Recommendation Rec (2003) 20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice.