Reasoned responses

Prodded by the Convention, many countries are beginning the process of making their laws responsive to the needs of juvenile offenders. In Latin America, a remarkable reform of juvenile justice has been under way since 1990, paralleling the region's dramatic democratization process. Brazil led the way with its Statute for Children and Adolescents, adopted following a fervent outcry provoked by widely publicized violence against children who were living on the streets. 

The Statute sets out strict guidelines to ensure the rights and freedoms of juveniles in conflict with the law, including a specification that detention be used as a last resort and only for the shortest appropriate period of time. Bolivia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala and Peru have also enacted such measures, and reform is under consideration in Chile, Colombia, Nicaragua and Paraguay. 

Young people must be held accountable for their offences in a manner appropriate to their level of maturity. 

In a first step towards more progressive laws, Chile passed a measure in 1994 that prohibits incarceration of juveniles in adult prisons. By 1996, the number of juveniles held in adult institutions had fallen by more than half, to less than 2,000. In Costa Rica, about 140 juveniles were deprived of their liberty before passage of reform legislation in 1996. After its passage, the number dropped to 40. This is the result of rationalizing the system so that those accused of minor offences receive the help they need for successful reintegration into society, leaving only serious offenders in detention. 

One example of a reasoned approach to juvenile justice is New Zealand's The Children, Young Persons and Their Families Act of 1989. The legislation aims to separate welfare issues from justice issues and to mete out justice through consensus, rather than heavy-handed government intervention. The measure recognizes the special needs of young people by involving family members in the justice process and bringing in outside agencies that can offer real rehabilitation alternatives. The majority of youth are diverted from criminal courts and confinement institutions. 

In addition, New Zealand's process underscores the value of partnerships. By involving non-governmental organizations (NGOs), outside legal counsel and young people and their families, the juvenile justice system remains open. This openness reinforces something that young people need to know: The door into that system swings both ways—it does not lock forever behind them. 

©1995 Steve Cagan
©1995 Steve Cagan
When young people come into conflict with the law, they need to know that the door into the justice system swings both way—it does not lock forever behind them. In Cleveland (US), a teenager is held in a juvenile detention centre. 

A unique opportunity for reform arose in South Africa with the swift ratification of the Convention on the Rights of the Child in 1995 and President Nelson Mandela's enthusiastic endorsement of the Convention. The process combined the framework of international instruments with traditional African methods of conflict resolution. Based on the spirit of ubuntu, or community approach, these strategies encourage the participation of the child, family and community. 

Likewise in Namibia, independence and the ratification of the Convention provided an opportunity to further juvenile justice reform. Efforts began after a 1993 study found that 90 per cent of children had been sentenced without legal representation, and those sentenced to serve time were being sent to adult prisons. Now, a screening process has been established to divert juveniles in the capital, Windhoek, away from the justice system where possible. The condition is that they complete a life-skills course, which teaches responsible decision-making. Young people are increasingly being held separately from adults in Namibia, and a police training manual has been prepared to assist in developing the skills of law enforcement officials in dealing with juveniles. 

With the adoption of a Child Protection Code in 1996, Tunisia embarked on an effort to create a culture of child rights throughout the country. The Code requires that children in conflict with the law be consulted and that their cases be heard in juvenile courts presided over by specially trained judges. 

In Scotland, offenders under age 16 appear before a ‘children's hearing’, which is not considered a court of law and has no punitive options. In the West Bank, lawyers from Defense for Children International (DCI-Israel and DCI-Palestine) have worked together to represent minors in Israeli and Palestinian courts. Although there is not yet a juvenile justice system in Gaza, a cooperative training project of DCI-Israel and Palestinian Lawyers for Human Rights has provided training to build such a system. 

For the most part, I am proud of the attention my country, Sweden, has given to juvenile justice. The system emphasizes care by social service agencies for anyone under 21. Children under 15 may not be sentenced under the penal code, and only in rare cases is imprisonment allowed for a child under 18. A prison sentence is allowed for young people between 18 and 21 only if the crime is especially serious, and life imprisonment is not permitted for a crime committed by anyone younger than 21. However, in recent years we have seen a number of heinous crimes committed by young people in Sweden. In these cases the courts have seen no alternative to a prison sentence. A recent government report has proposed new alternatives for these offenders, such as special youth homes. 

Some countries have so far faltered in their attempts to reform their juvenile justice systems. India's Juvenile Justice Act of 1986, designed to promote uniform treatment on the basis of minimum UN standards, has faced spotty implementation. The Act supports separate systems for handling destitute children and delinquent children, promotes humane and non-institutional services and emphasizes NGO participation. But in action it has not proved to be very child-friendly. Officials who deal with children have not been adequately trained, and while the State is empowered to take charge, it is not obligated to care and protect. 

In at least 15 countries, 7-year old children can be held responsible for criminal actions. 

The Lao People's Democratic Republic has not developed a system of juvenile justice. Eritrea incarcerates children from age 12 together with adults. Fiji's Juvenile Act of 1974 establishes separate courts and detention centres for children. But the reform undermined some of the compassionate aspects of the traditional courts, and efforts are under way to re-establish them. 

The Committee on the Rights of the Child, to which countries report on their efforts to implement the Convention, has ex-pressed concern about juvenile justice procedures in a number of countries. Based on a review of reports from 51 countries, the Committee explicitly suggested legal reform in 37 countries. Obviously there is much to be done, but I am encouraged by the fact that juvenile justice is finally on the world's agenda. 

The path to adulthood is uncharted. As young people travel it, they must negotiate around more obstacles than ever before. Sometimes they stumble. When they come into conflict with the law, they have the right to fair treatment by a justice system designed for rehabilitation, not retribution. The creation of that system is a responsibility that we all must carry on our shoulders. If we do not, who will?

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