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Convention on the rights of the child

What is the Convention on the Rights of the Child?

The Convention on the Rights of the Child is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. The Convention establishes in international law that States Parties must ensure that all children—without discrimination in any form—benefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner.

How does the Convention on the Rights of the Child protect children's rights?

It constitutes a common reference against which progress in meeting human rights standards for children can be assessed and results compared. Having agreed to meet the standards in the Convention, governments are obliged to bring their legislation, policy and practice into accordance with the standards in the Convention; to transform the standards into reality for all children; and to abstain from any action that may preclude the enjoyment of those rights or violate them. Governments are required to report periodically to a committee of independent experts on their progress to achieve all the rights.

How does the international community monitor and support progress on the implementation of the Convention?

Governments that have ratified the Convention have to submit regular reports on the status of children's rights in their countries to the Committee on the Rights of the Child. The countries that have signed the Convention have to present their first report within two years after ratifying the Convention. Afterwards they have to present a report every five years. The Committee sits in Geneva and is composed of 10 member states with different judicial systems that have a “great moral integrity” and a recognized competence concerning the rights of the child. The members of the Committee are elected by the governments that have ratified the Convention, but act on personal behalf and do not represent their countries. The Committee encourages States to take special measures and to develop special institutions for the promotion and protection of children's rights. The Committee does not supervise the personal behaviour of individuals, nor does it receive complaints from civilians. Where necessary, the Committee calls for international assistance from other governments and technical assistance from organizations like UNICEF.

How are the rights of the child being defended when a minor breaks the law?

According to article 40 of the Convention, States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed. (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law. (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence. (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians. (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality. (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used; (vii) To have his or her privacy fully respected at all stages of the proceedings. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

United Nations guidelines for the prevention of juvenile delinquency (The Riyadh Guidelines)

What are the United Nations Guidelines for the prevention of juvenile delinquency?

After the preliminary activities, the eighth congress advised the General Assembly to adopt the United Nations Guidelines for the prevention of juvenile delinquency. The guidelines were adopted and proclaimed in its resolution 45/112 on the 14th of December 1990. In the beginning, the Guidelines were elaborated during a meeting in the Arabic Centre for the Security Studies and Training in Riyadh, hence the name Riyadh Guidelines. The Guidelines establish the rules for the prevention of juveniles delinquency as well as the protection measures for young people who have been abandoned, neglected, abused or those who are living marginalized – in other words, at “social risk”. The Guidelines include the pre-conflict phase: before young people are in conflict with the law. They concentrate on the child and are based on the premises that it is necessary to counteract those conditions that affect negatively on the healthy development of the child. Therefore, exhaustive and multidisciplinary measures were proposed to ensure young people to have a life without crimes, victimization and conflicts with the law. The Guidelines are focused on a preventive and protective intervention and they aim to promote a general effort of various social organizations, including the family, the educational system, the media and the community as well as the young people themselves.

What are the fundamental principles of these Guidelines?

The prevention of juvenile delinquency is an essential part of crime prevention in society. By engaging in lawful, socially useful activities and adopting a humanistic orientation towards society and outlook on life, young persons can develop non-criminogenic attitudes. The successful prevention of juvenile delinquency requires efforts on the part of the entire society to ensure the harmonious development of adolescents, with respect for and promotion of their personality from early childhood. For the purposes of the interpretation of the present Guidelines, a child-centred orientation should be pursued. Young persons should have an active role and partnership within society and should not be considered as mere objects of socialization or control. In the implementation of the present Guidelines, in accordance with national legal systems, the well-being of young persons from their early childhood should be the focus of any preventive programme. Therefore, the provision of opportunities, in particular educational opportunities, to meet the varying needs of young persons and to serve as a supportive framework for safeguarding the personal development of all young persons, particularly those who are demonstrably endangered or at social risk and are in need of special care and protection.

Which measures or prevention resources are foreseen in the Guidelines?

The Guidelines include almost all the social fields: the three main environments in the socialization process (family, school, community); the media; the social policy; legislation and the administration for juvenile justice. The general prevention (art 9) must consist in “general prevention plans on all governmental levels” and must include mechanisms for the appropriate co-ordination of prevention efforts between governmental and non-governmental agencies; continuous supervision and evaluation; participation of the community through a wide range of services and programmes; interdisciplinary cooperation; Youth participation in delinquency prevention policies and processes. On different occasions, the emphasis has been put on the fact that prevention policies would have to be policies for young people: “educational or other means that can be used as a base for the personal development of young people…”. In Chapter 10 you can find the “socialization process”: “Emphasis should be placed on preventive policies facilitating the successful socialization and integration of all children and young persons, in particular through the family, the community, peer groups, schools, vocational training and the world of work, as well as through voluntary organizations. Due respect should be given to the proper personal development of children and young persons, and they should be accepted as full and equal partners in socialization and integration processes.” The Riyadh Guidelines have a great importance thanks to their relation with the United Nations Convention on the Rights of the Child (1989). The aim of both instruments is to improve the situation of children in general. Besides, the Guidelines insist on the importance of the measures stated in the convention for the prevention of delinquency.

What has been the effect of the Guidelines?

The Guidelines, like the two other United Nations instruments about juvenile justice, are “soft law – rules”, this means that they are not directly binding for local, national and international organisms. The importance of these texts however is not only their moral nature. In fact, article 7 says that: “The Guidelines should be interpreted and implemented within the broad framework of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child and the Convention on the Rights of the Child, and in the context of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), as well as other instruments and norms relating to the rights, interests and well-being of all children and young persons. They should also be implemented in the context of the economic, social and cultural conditions prevailing in each Member State.” All the most binding agreements made by the United Nations can contribute to the implementation of the Riyadh Guidelines. It is also important to study the existing bond with the Convention on the Rights of the Child, because it could contribute to avoid a big obstacle: “the economic, social and cultural conditions in each and every one of the Member States.” (art.8), a clause which often serves as an excuse to do nothing… That is why article 4 of the Convention establishes a framework for the international cooperation. For the Member States, the Convention is more binding. As a lot of guidelines correspond to the contents and inspiration of the Convention resolutions, the implementation of the guidelines is becoming each time more binding. Obviously it is not that important that the Convention does not state clearly the bond with the prevention of juvenile delinquency.

United Nations standard minimum rules for the administration of juvenile justice (The Beijing Rules)

What are the United Nations Standard Minimum Rules for the Administration of Juvenile Justice?

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) were adopted by the General Assembly in its resolution 40/33 on the 29th of November 1985. The sixth congress in its resolution 4, advised the United Nations Committee on Crime Prevention and Control to contribute to the development of these Rules in cooperation with the regional and interregional United Nations Institute. These Rules were elaborated more thoroughly by the preparatory interregional assembly for the seventh congress about “Youth, Crime and Justice” in Beijing, China, in 1984. The Rules will respect the different national frameworks and legal structures. They will reflect the objectives and the spirit of juvenile justice and expose suitable principles and practices for the management of juvenile justice. These Rules represent the minimum conditions which have been accepted on international scale for the treatment of young people who are in conflict with the law. In the Beijing Rules, the aims of juvenile justice include the promotion of the youngster’s welfare and the assurance that each response towards juvenile delinquents will always be in proportion to circumstances of the youngster as well as the crime. The Rules include specific measures that cover the different phases of juvenile justice. They emphasize that imprisonment should only be used as a last resort and for the shortest possible period of time.

How are the following notions defined in the Beijing Rules: juvenile, offence and juvenile offender?

A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems; A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence.

How do to determine the age of criminal responsibility? Which facts should be taken into account?

In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial be ha vi our. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable internationally.

United Nations standard minimum rules for non-custodial measures (The Tokyo Rules)

What are the United Nations Standard Minimum Rules for Non-custodial Measures?

When someone has been imprisoned, even partially, he could be the subject of violations of the human rights. To establish some requirements for the management of non-custodial measures, international instruments have been elaborated. The most important international instrument are the United Nations Standard Minimum Rules for Non-Custodial Measures, adopted by the General Assembly in its resolution 45/110 in December 1990 and also known as the Tokyo Rules. The Rules stipulate legal protections to ensure the impartial application of non-custodial measures within a transparent legal system, ensuring the protection of the offender’s rights and the resort to a formal complaint system if ever they feel that their rights have been violated.

What are the basic aims of these Rules?

The present Standard Minimum Rules provide a set of basic principles to promote the use of non-custodial measures. They are intended to promote greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society. The Rules shall be implemented taking into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system. Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention. The objective of the implementation of these Rules is to reduce the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.

How are these Rules being applied?

The present Rules shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. The Rules shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status. The development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated.

What kind of non-custodial measures exist? How are they being applied and supervised?

The judicial authority, having at its disposal a range of noncustodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate. Sentencing authorities may dispose of cases in the following ways: (a) Verbal sanctions, such as admonition, reprimand and warning. (b) Conditional discharge. (c) Status penalties. (d) Economic sanctions and monetary penalties, such as fines and day-fines. (e) Confiscation or an expropriation order. (f) Restitution to the victim or a compensation order. (g) Suspended or deferred sentence. (h) Probation and judicial supervision. (i) A community service order. (j) Referral to an attendance centre. (k) House arrest. (l) Any other mode of non-institutional treatment. (m) Some combination of the measures listed above.

How can the community participate?

Public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community. It should complement the efforts of the criminal justice administration. Government agencies, the private sector and the general public should be encouraged to support voluntary organizations that promote noncustodial measures. Conferences, seminars, symposia and other activities should be regularly organized to stimulate awareness of the need for public participation in the application of non-custodial measures. All forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of non-custodial treatment and the social integration of offenders. Every effort should be made to inform the public of the importance of its role in the implementation of non-custodial measures.

How will the Rules be adapted to the evolutions of society, juveniles, etc.?

As an essential aspect of the planning process, efforts should be made to involve both public and private bodies in the organization and promotion of research on the non-custodial treatment of offenders. Research on the problems that confront clients, practitioners, the community and policy-makers should be carried out on a regular basis. Research and information mechanisms should be built into the criminal justice system for the collection and analysis of data and statistics on the implementation of non-custodial treatment for offenders. Programmes for non-custodial measures should be systematically planned and implemented as an integral part of the criminal justice system within the national development process. Regular evaluations should be carried out with a view to implementing non-custodial measures more effectively. Periodic reviews should be concluded to assess the objectives, functioning and effectiveness of non-custodial measures.

  • International Juvenile Justice Observatory (IJJO). Belgian Public Utility Foundation

    All rights reserved

  • Head Office: Rue Armand Campenhout, nº 72 bte 10. 1050. Brussels. Belgium

    Phone: 00 32 262 988 90. Fax: 00 32 262 988 99. oijj@oijj.org

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