Detention is not the only option and not the best option

How an innovative approach to juvenile justice helped restoring Anvar’s life

UNICEF Uzbekistan
Женщины беседуют с подростком и его мамой.
UNICEF Uzbekistan/2020
11 September 2020
(Names changed to protect identities)

"I was completely shocked. The first thought in my head was: 'They are going to take my son away and I won't be able to see him again'. I got scared imagining my son behind the dock and myself in a courtroom," says Anora, her voice sounding somewhat shaky. She then takes a quick glance at her sixteen-year-old son Anvar sitting on the next chair, as if reminding herself that he is still here, with her.

The accident Anora is talking about took place about four months ago in her native neighbourhood in Tashkent, Uzbekistan's capital. Trying to impress his friends, Anvar took his father's car out of the garage and went for a ride despite never having driven before. Predictably, he lost control of the vehicle pretty soon and run over one of his onlooking friends. The resulting injuries meant the boy had to spend several months in hospital receiving treatment.

What Anvar did falls under the Uzbek Criminal Code and can lead to up to three years of community service. And it was this prospect of going through the criminal justice system and getting a criminal record that scared Anvar and parents most. "I thought I had let my parents down. I think someone with a criminal record cannot be successful. It ruins your future," he says looking down.

But, luckily for Anvar, his case did not follow the usual judicial procedures. Instead he was offered to go through a diversion process - a programme which attempts to divert or channel out juvenile offenders from the justice system while still holding them accountable for their actions.

A different path to justice

Diversion allows minors like Anvar to avoid negative effects of formal judicial proceedings, such as the stress and detention, as well as a criminal record.

Diversion is defined as the conditional channelling of children in conflict with the law away from judicial proceedings by developing and implementing procedures, structures and programmes that enable many - possibly most - to be dealt with by non-judicial bodies. Those bodies are civil society organisations, NGOs, community groups and administrative structures.

Diversionary measures aim to discover the reasons for children's offending behaviour and provide effective rehabilitation, reintegration activities and activities to restore harms caused by an offence. Diversion is not only more cost-efficient than the expensive trial process, but is also more effective in preventing children from offending again.

Studies show that children, who have benefitted from diversion programmes, show significantly lower rates of reoffending compared to their peers who go through conventional forms of criminal justice.

Minors with a criminal record often face stigma and can be labelled as criminals. Diversion can be an essential tool for preventing such negative impacts, helping to protect children's rights, while holding the child accountable for her/his behaviour as well as the consequences of her/his offence.

That is why when Anora received a phone call, a week after the incident, from a social worker of the pilot project on diversion and restorative justice approach who explained what the diversion process  means and how her son could participate . She and Anvar gave their consent. "I was so happy when I heard about this project. I thought it could be a silver lining," she says.

Piloting diversion and restorative justice approach in Uzbekistan

Thus Anvar became a part of the innovative diversion project being piloted in Chilanzar, one of the districts in capital Tashkent.

The project is led by the Prosecutor General's Office and the Prosecutor’s General Office Academy, with support from the local authorities and UNICEF. At the core of this initiative is a team of 10 professionals representing various organisations, including the secretary of the Inter-Agency Commission on Minors (ICoM), a coordinator, social workers, diversion experts, facilitators as well as representatives of the Youth Union and the neighbourhood committee.

As part of the project, children aged 14-18 years, who have committed less serious crimes and serious crimes (theft, hooliganisms, infliction of bodily harms, robbery) as well as children aged 16–18 years who have committed administrative offenses (infliction of light bodily harm, simple hooliganism, minor theft, etc), are sent to the Diversion Unit under the ICoM. Then members of the team identify the needs of children and their families and also develop, carry out and monitor individually tailored activities to change children's offending behavior and to restore the harms caused and relationships harmed.

Diversion can be carried out with or without the restorative justice approach, and both options are being employed during the pilot in Tashkent. Restorative justice is a process where the parties involved come together and discuss how the child can restore the harms caused by her/his offence. It is planned to cover other disctricts of Tashkent City to scale up the project. This pilot would help to understand lessons learned for a wide-scale introduction of the diversionary program as well as building cooperation between law enforcement and social welfare bodies in applying diversion. Further steps also include introducing diversionary measures into national legislation.

Diversion with restorative justice is a way of responding to offences which emphasises repairing the harms caused by the crime and restoring harmony/harmed relationships, as much as possible, between the offender, victim and society. The offender and victim and their respective communities of care participate actively in this process to resolve the matters arising from the crime, generally with the help of a trained facilitator.

Madina Gobozova, a social worker who helped Anvar throughout the project, believes this is a key point that sets apart diversion from the juvenile justice system. "Children are treated in a totally different way. Yes, they have to accept their mistake, because one of the main conditions for being part of this project is for the child to accept his mistake and agree to correct it. And then we start helping him. Not by punishing. This help involves working out a plan jointly with the child himself. His family and community of care supports him during this process. He can bring with himself the whole family," she explains.

In Anvar's case, the plan included various tasks updated on a weekly basis, such as looking after elderly people, visiting the disabled and helping with the cleaning works in mosques and other places. Based on a mutual agreement, he also paid visits to the victim to help him with his lessons.

Challenges

But achieving such an agreement between the child offender and the person who was harmed is quite a challenge. "Victims often insist that the offender should be punished. They want the offending minors to go to jail so that they understand what they had done. But we always try to find a compromise. Our facilitators explain to the victims that allowing children to compensate for their offence is better than putting them behind bars," says Umida Turgunova, head of the Oila research center which is also closely involved in the project.

Madina Gobozova says that, to be able to pay compensation to the victims, minors often need to find a job, which is not easy, especially during the ongoing pandemic. "Solving this problem as a social worker is difficult as we do not have any authority. I want law enforcement and government bodies to help the project in this respect," she says.

Madina says that she has so far been involved in six diversion cases, five of which have been successful. The last one is getting protracted because the minor involved lost his job three months ago and is unable to pay the compensation, she says.

Restoring lives

But when things work out as intended, diversion can be a life-changing experience for the offending children and their families.

Anvar's is one of those instances. He says that the three months he spent in the project not only saved him from getting a criminal record, but also helped him to honestly accept his mistake and prove to others and himself that he can bounce back. "I learned that I am able to set a goal for myself and then go and complete it," he says

For Anora, the main outcome has been getting her son back the way he was before the accident. "I was worried that he would not be the same again if the police took him away. I do not think he is old enough to deal with that kind of environment," she says, adding that Anvar is "truly back now".

Anora supported her son throughout the project, being with him all the time and helping him to do the tasks. She feels this has made the bond between them stronger than before. She remembers their final meeting with social workers on the day when Anvar successfully completed the project: "When we both came out of that last meeting he gave me a hug and said he was sorry for all the troubles he caused. I will never forget that moment".