ANNUAL REPORT FOR 2016AND

RESOURCE MATERIALSERIES NO. 102
JUVENILE JUSTICE AND THE UNITED NATIONSSTANDARDS AND NORMS

UNAFEI
Fuchu, Tokyo, Japan

September 2017

Keisuke Senta
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Oﬀenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan
http://www.unafei.or.jp
unafei@i.moj.go.jp

CONTENTS
INTRODUCTORY NOTE ㌀
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v

PART ONEANNUAL REPORT FOR 2016
Main Activities of UNAFEI ㌀
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㌀3
UNAFEI Work Programme for 2017 ㌀
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㌀15
Appendix ㌀
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㌀20

PART TWOWORK PRODUCT OF THE 165TH
INTERNATIONAL SENIOR SEMINAR“JUVENILE JUSTICE AND THE UNITED NATIONS STANDARDS AND NORMS”
Visiting Expertsʼ Papers


UN Standards and Norms on Juvenile Justice: From Soft Law to Hard Law
by Dr. Matti Joutsen (Finland) ㌀
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㌀37



The United Nations Standard Minimum Rules on Juvenile Justice (The Beijing Rules)
by Dr. Eduardo Vetere (Italy) ㌀
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㌀48



Making Juvenile Justice Instruments “Real” through the Courts: Three South African
Case Studies
by Dr. Anne Skelton (South Africa) ㌀
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㌀88



Juvenile Justice in Thailand: An Overview
by Dr. Kittipong Kittayarak (Thailand) ㌀
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㌀ 102



Civil Citation Program: 13th Judicial Circuit
by Dr. Richard Dembo (United States) ㌀
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㌀ 112



Juvenile Assessment Centers
by Dr. Richard Dembo (United States) ㌀
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㌀ 125



Comprehensive Health Services for Youth Entering the Justice System: An Innovative
Health Coach Approach
by Dr. Richard Dembo (United States) ㌀
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㌀ 146



Panel on Juvenile Justice and the United Nations Standards and Norms: How the US
Tries to Comply
by Mr. Gary Hill (United States) ㌀
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㌀ 175

Participantsʼ Papers
The Challenges of Diversion in the Brazilian Juvenile Justice System
by Ms. Alessandra Charbel Janiques Rebouças (Brazil) ㌀
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㌀ 180



Community-Based Treatment of Juvenile Offenders in Kenya: A Case Study of Kikuyu
Sub-County in Kiambu County
by Mr. Zacharia Kuria Mwangi (Kenya) ㌀
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㌀ 195

iii



A Maldivian Perspective on Juvenile Justiceby Ms. Zaeema Nasheed Aboobakuru (Maldives) ㌀
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㌀ 201

Reports of the Seminar

A Few Measures to Reduce and Prevent Recidivism
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㌀ 217



Reducing Juvenile Crime and Recidivism: Discussions and Suggestions
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㌀ 229



A Holistic Approach to the Juvenile Justice System
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㌀ 237

PART THREE
SUPPLEMENTAL MATERIALThe Basic Principle and Revision of the Juvenile Act
by Prof. Toshihiro Kawaide (Japan) ㌀
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㌀ 249



Anti-Corruption Measures: A Short History in Japanby Mr. Tsuyoshi Yukawa (Japan) ㌀
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㌀ 259

APPENDIX㌀
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iv

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crime and theTreatment of Offenders (UNAFEI) offers to the international community the Resource Material Series No.
102. This volume contains the Annual Report for 2016 and the work produced in the 165th International
Senior Seminar, conducted from 12 January to 10 February 2017. The main theme of the 165th Seminar was
Juvenile Justice and the United Nations Standards and Norms.
The United Nations standards and norms for juvenile justice̶which include the Beijing Rules, theRiyadh Guidelines and the “United Nations Rules for the Protection of Juveniles Deprived of their Liberty”
̶establish minimum standards for the treatment of juveniles in conflict with the law. These standards
include, among others, ensuring due process in juvenile justice systems, promoting diversion from the formal
juvenile justice process and encouraging the use of alternatives to institutionalization. Many if not all of theseprinciples have become binding international law on more than 190 countries that have ratified “theConvention on the Rights of the Child”. Although most countries have implemented specific measures for thetreatment of juveniles, many countries continue to face challenges including long-term detention, lack of social
inquiry, and lack of use of diversion, and there is room for further improvement in terms of alternative
measures to incarceration, treatment programmes, and cooperation with related organizations andindividuals.
UNAFEI, as one of the institutes of the United Nations Crime Prevention and Criminal Justice
Programme Network, held this Seminar to explore various issues that relate to juvenile justice. This issue of
the Resource Material Series, in regard to the 165th International Senior Seminar, contains papers contributedby visiting experts, selected individual-presentation papers from among the participants, and the Reports of
the Seminar. I regret that not all the papers submitted by the participants of the Seminar could be published.
This volume of the Resource Material Series is noteworthy in that it contains a new section entitled“Supplemental Material”. This section is dedicated to important material which may, or may not, be directly
connected to the theme of the training programmes covered in the publication. In either case, material
published in this section will be related to UNAFEIʼs activities and will broaden the perspectives shared, infurtherance of UNAFEIʼs ongoing mission to widely disseminate practical and professional information
impacting the field of crime prevention and criminal justice.
I would like to pay tribute to the contributions of the Government of Japan, particularly the Ministry ofJustice, the Japan International Cooperation Agency, and the Asia Crime Prevention Foundation, forproviding indispensable and unwavering support to UNAFEIʼs international training programmes.
Finally, I would like to express my heartfelt gratitude to all who so unselfishly assisted in the publicationof this series.
September 2017

Keisuke SENTA
Director of UNAFEIv

PART ONEANNUAL REPORTFOR 2016

UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 January 2016 ‒ 31 December 2016)

I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI)
was established in Tokyo, Japan in 1962 pursuant to an agreement between the United Nations and theGovernment of Japan. Its goal is to contribute to sound social development in the Asia and the Pacific region
by promoting regional cooperation in the field of crime prevention and criminal justice, through training andresearch.
UNAFEI has paid utmost attention to the priority themes identified by the Commission on Crime
Prevention and Criminal Justice. Moreover, UNAFEI has been taking up urgent, contemporary problems in
the administration of criminal justice in the region, especially problems generated by rapid socio-economicchange (e.g., transnational organized crime, corruption, economic and computer crime and the reintegrationof prisoners into society) as the main themes and topics for its training courses, seminars and research
projects.

II. TRAINING
Training is the principal area and priority of the Instituteʼs work programmes. In the international
training courses and seminars, participants from different areas of the criminal justice field discuss and studypressing problems of criminal justice administration from various perspectives. They deepen theirunderstanding, with the help of lectures and advice from the UNAFEI faculty, visiting experts and ad hoc
lecturers. This so-called “problem-solving through an integrated approach” is one of the chief characteristics
of UNAFEI programmes.
Each year, UNAFEI conducts two international training courses (six weeksʼ duration) and one
international seminar (five weeksʼ duration). Approximately one hundred government officials from various
overseas countries receive fellowships from the Japan International Cooperation Agency (JICA is anindependent administrative institution for ODA programmes) each year to participate in all UNAFEI
training programmes.
Training courses and seminars are attended by both overseas and Japanese participants. Overseas
participants come not only from the Asia-Pacific region but also from the Middle and Near East, Latin
America and Africa. These participants are experienced practitioners and administrators holding relatively
senior positions in the criminal justice field.
By the end of 2016, UNAFEI had conducted a total of 164 international training courses and seminars.
Over 5,000 criminal justice personnel representing 136 different countries and administrative regions haveparticipated in these seminars. UNAFEI also conducts a number of other specialized courses, both country
and subject focused, in which hundreds of other participants from many countries have been involved. In
their respective countries, UNAFEI alumni have been playing leading roles and hold important posts in thefields of crime prevention and the treatment of offenders, and in related organizations.
A. The 162nd International Senior Seminar
1. Introduction
The 162nd International Senior Seminar was held from 13 January to 12 February 2016. The main theme
was “Multi-agency Cooperation in Community-Based Treatment of Offenders”. Fifteen overseas participants
and six Japanese participants attended the Seminar.
3

ANNUAL REPORT FOR 2016

2.

Methodology
Firstly, the Seminar participants respectively introduced the roles and functions of criminal justiceagencies in their countries in regard to the main theme. After receiving lectures from UNAFEI Professors
and visiting experts, the participants were then divided into three group workshops as follows:
Group 1: Effective Multi-agency Cooperation in Terms of Implementation of Non-custodial Measures at Each
Stage of the Criminal Justice Process
Group 2: Effective Models for Multi-agency Cooperation in Community-Based Treatment of Offenders
Group 3: Information Sharing in Multi-agency Cooperation
Each Group elected a chairperson, co-chairperson (s), a rapporteur and co-rapporteur (s) in order tofacilitate the discussions. During group discussion, the group members studied the designated topics andexchanged views based on information obtained through personal experiences, the Individual Presentations,lectures and so forth. The Groups presented their reports during the Report-Back Session, where they wereendorsed as the Reports of the Seminar. The full texts of these Reports were published in UNAFEI Resource
Material Series No. 99.
3.

Outcome Summary(i) Effective Multi-agency Cooperation in Terms of Implementation of Non-custodial Measures at Each
Stage of the Criminal Justice Process
Group 1 stressed that multi-agency cooperation is necessary to reduce recidivism, facilitate reintegration,
promote non-custodial measures, and establish a safer community. Additionally, the group concluded thatmulti-agency cooperation is necessary at all stages of the criminal justice process, including the pre-trial, trial,and post-trial stages.
During the discussion, multi-agency cooperation was considered from several perspectives: (a) the typesof offenders who should be targeted, (b) the ideal structure of multi-agency cooperation, (c) information
sharing and analysis, (d) problems of legislation, and (e) evaluation.
Regarding the types of offenders that should be targeted, the group emphasized focusing on low-risk andfirst-time offenders, as well as offenders with special needs, such as the chronically ill, the disabled, the elderly
and juveniles. The group also felt that multi-agency cooperation would be facilitated by expanding sentencing
options available to judges other than incarceration.
The ideal structure for multi-agency cooperation should take a holistic approach to offender rehabilitation
by involving all relevant government agencies, the private sector and the general public (i.e., community
involvement). Examples of key organizations include NGOs, hospitals, welfare facilities and community
resources. Private entities should be encouraged to participate in offender rehabilitation through theavailability of government subsidies to, for example, businesses that employ ex-offenders.
Multi-agency cooperation cannot succeed without effective information sharing and analysis. Relevant
agencies need information about the offenders in order to match their treatment needs with available
services. However, information sharing raises the issue of confidentiality, as well as the willingness of theoffender to cooperate. To the extent possible, the group concluded that information sharing should be basedon the offenderʼs consent.
Regarding problems of legislation, the group explained that gaps exist between various forms of criminal
justice legislation, such as penal laws, criminal procedure codes, probation acts, and prison acts. These gaps
limit the ability of relevant agencies to collaborate with each other, and the gaps must be bridged by special
legislation, MOUs or other agreements between agencies.
Once these gaps are bridged and collaborative procedures are established, these procedures must be
evaluated by each agency involved and by independent bodies to assess effectiveness. Indicators of successinclude lowered recidivism rates, reduction in prison overcrowding, expanded sentencing options thatencourage diversion and non-custodial measures, and positive feedback from the private sector and the4MAIN ACTIVITIES OF UNAFEI

community.
(ii) Effective Models for Multi-agency Cooperation in Community-Based Treatment of Offenders
Group 2 was tasked with developing ideal models for multi-agency cooperation and considered suchmodels from the perspective of types of offenders to be targeted, the ideal structure for cooperation, andnecessary legislation. The group members agreed that although there is no single programme that can beconsidered the most effective, an effective model should be designed to reduce recidivism, using evidencebased practices.
Criminal justice systems should be prepared to provide assistance to both low-risk and serious offenders.
Typically, multi-agency cooperation is believed to benefit offenders who do not pose a risk to society.
Offenders should be assessed individually, based on each offenderʼs specific crimes and rehabilitation needs,
by applying the analytical framework of the Risk-Needs-Responsivity Model. However, there is an emerging
trend in which reformed serious offenders, drug offenders and sexual offenders are being given second
chances to re-enter the community, and the group agreed that the individualization of sentences andtreatment is the preferred model.
The group reported that multi-agency cooperation exists where there is complementary and overlapping
provision of services to the offender by both government and NGOs. Agencies that provide services tooffenders include cooperative employers, labour organizations, hospitals, special schools, self-help groups, e.g.,“AA”, community settlement support centres, community justice centres and local government. The group
identified numerous challenges to multi-agency cooperation and proposed solutions in its group workshop
report.
After reviewing the participating countriesʼ legislation to facilitate multi-agency cooperation, the groupproposed that the following topics should be addressed in ideal legislation: (1) monitoring and controls
instituted by the government on how resources are spent on offenders, (2) information sharing between
agencies, (3) financial auditing and reports, and (4) each ministry directly related to the services being
provided by an NGO should take direct control.
The importance of programme evaluation was discussed by the group, which acknowledged that the
reduction of the recidivism rate is one important measure of effectiveness. However, satisfying the offendersʼcriminogenic needs, such as employment, housing and medical care is fundamentally important for the
rehabilitation process. Accordingly, other measures of effectiveness include the number of offenders who
receive support upon re-entry and the number of offenders who start and continue to work successfully.
The group concluded that successful models for multi-agency cooperation will include: (1) the
development of mutual understanding between agencies and individuals, (2) active information sharing,
employing the “through care” model, (3) the enactment of legislation that encourages community-based
treatment, and (4) securing sufficient budgetary resources, political will, and the support of the public.
(iii) Information Sharing in Multi-agency Cooperation
Group 3 reported on issues surrounding information sharing in the context of multi-agency cooperation incommunity-based treatment of offenders by considering the types of offenders and offences that should betargeted, information sharing and analysis, and problems in legislation.
Collaborative multi-agency partnerships are necessary to ensure successful implementation of offender
treatment programmes. Although practices and opinions differ from country to country, the group concluded
that the treatment needs of all offenders should be addressed through multi-agency cooperation and thatrecidivists should be prioritized due to their great need for support. Information sharing between relevant
agencies plays a crucial role in achieving the desired treatment goals.
Recognizing the need to protect personal information and that laws vary among the participating
countries, the group agreed that it is necessary to share the following categories of information among
relevant agencies: (1) the offenderʼs biographical data, (2) the nature of the offence, (3) the offenderʼs history ofprevious offences, (4) the offenderʼs general health and mental conditions, (5) behaviour and conduct while in acorrectional facility, (6) behaviour and conduct while in a residential community, (7) education and skills
5

ANNUAL REPORT FOR 2016

training/level, (8) employment history, (9) the offenderʼs compliance with previous court orders andsentences, and (10) the circumstances and environment of the victim, and any compensation or civil
commitment condition to which the offender is subjected by the court.
Due to the sensitivity of such information, the group identified numerous problems associated with multiagency information sharing. However, the group also recommended solutions, such as establishing standard
operating procedures to ensure that personal information is properly protected, obtaining the offenderʼsconsent when necessary, establishing secure IT systems, and conducting periodic review of informationsharing practices.
The group stressed the importance of formal written procedures for requesting information between
agencies. However, proper information sharing can be ensured by establishing shared databases that can beaccessed by agencies that need the information. While the offenderʼs personal information should be shared
among relevant agencies, information shared with private agencies should be limited to that which isnecessary to complete the offenderʼs treatment, and private agencies must use discretion when handlingpersonal or sensitive information.
On the topic of legislation, the group agreed that distinct legislation is necessary to establish a legal basis
for multi-agency cooperation and information sharing. However, legislation cannot address all issues that will
be encountered, making the execution of multi-agency MOUs, regular meetings between agencies, and theestablishment of better professional rapport between agencies important factors for successful multi-agency
cooperation.
B. The 163rd International Training Course
1. Introduction
The 163rd International Training Course was held from 11 May to 22 June 2016. The main theme was“Children as Victims and Witnesses”. Twenty-three overseas participants and seven Japanese participants
attended the Course.
2.

Methodology
The objectives of the Course were primarily realized through the Individual Presentations, lectures byvisiting experts and Group Workshop sessions. In the former, each participant presented the actual situation,
problems and future prospects of his or her country with respect to the main theme of the Course. The Group
Workshops further examined the subtopics of the main theme. To facilitate discussion, the participants weredivided into three groups to discuss the following topics under the guidance of faculty advisers:
Group 1: Special Measures in Dealing with Child Victims and Witnesses in the Criminal Justice Process
Group 2: Ideal Measures to Protect Children as Witnesses in the Investigation and Trial PhasesGroup 3: Improving Skills and Practices in Interviewing Child Victims and Witnesses during Inquiry andTestimony
The three groups each elected a chairperson, co-chairperson (s), a rapporteur and co-rapporteur (s) toorganize the discussions. The group members studied the designated subtopics and exchanged their views
based on information obtained through personal experience, the Individual Presentations, lectures and soforth. The Groups presented their reports during the Report-Back Session, where they were endorsed as thereports of the Course. The full texts of the reports were published in full in Resource Material Series No. 100.
3.

Outcome Summary(i) Special Measures in Dealing with Child Victims and Witnesses in the Criminal Justice Process
Group 1 reviewed the status of special measures for the protection of child victims and witnesses in eachof the participating countries and proposed detailed recommendations for such special measures that should
be considered for adoption. The recommendations are intended to ensure that the criminal justice system issensitized to child victims and witnesses.
The group identified weaknesses in investigation and adjudication of cases involving violence against

6

MAIN ACTIVITIES OF UNAFEI

children (VAC) that are common among many countries. VAC is under-reported and under-detected. Many
counties lack training and special procedures for investigating VAC cases, as well as special provisions toprotect child victims and witnesses. Likewise, the adjudicatory process lacks training and special provisions
that elicit credible testimony from children, such as child-friendly hearing rooms, video-link testimony, etc.
To improve detection and reporting, the group recommended a number of measures. Increasing publicawareness is important for effective reporting, and countries are encouraged to identify target groups, focus
on issues of VAC that are relevant to the country and use social media and other marketing strategies toreach the public. Also, countries should identify the risk factors and indicators of VAC using an evidencebased approach. Reporting should be confidential and easily accessible by establishing a 24/7 toll-free helpline,
and mandatory reporting of VAC should be legally required.
During investigation and trial, special measures should be implemented to protect child victims andwitnesses from re-victimization and to ensure the credibility of their statements. Skilled and trained
investigators are needed to conduct child-sensitive forensic interviews. At trial, children should be permitted
to testify from special rooms by video link so that the child cannot see the accused, and questions directed tothe child should be asked by a qualified expert.
Throughout the criminal justice process, special protective measures should be used to safeguard the bestinterests of the child. To do so, the group also pointed out that the rights of the suspect/defendant must not
be taken for granted. Only when necessary and as a last resort, the child should be placed in temporary
protective custody with a relative, foster family, shelter for victims of abuse, etc. All relevant criminal justiceand social welfare agencies should be involved in this process, and guidelines should be developed to monitor
the status of the child. Additionally, the childʼs identity should be protected by the issuance of a nondisclosure order by the court, and court proceedings related to children should be conducted as closed
hearings.
(ii) Ideal Measures to Protect Children as Witnesses in the Investigation and Trial PhasesGroup 2 considered measures to protect child witnesses during the investigation and trial phases. The
group agreed to focus on child witnesses because such laws, measures and practices are particularly lacking
in many jurisdictions, whereas legislation on violence against children is more prevalent. Throughout theworkshop, the group drew on a number of international resources, particularly the Convention on the Rightsof the Child and the United Nationʼs Model Law on Justice in Matters involving Child Victims and Witnessesof Crime and Related Commentary, as well as the best practices of the participating countries.
The purpose of the investigation phase is to obtain the best evidence possible to secure a conviction and tosecure justice for the child. This can only be accomplished if child witnesses receive the necessary support.
For child witnesses, the prevention of re-victimization, e.g., reliving a traumatic experience that was enduredor observed by the child in multiple interviews, takes high priority. The group found that victim support
agencies and specially trained support persons are necessary to provide care, comfort and counselling to childwitnesses throughout the criminal justice process. Likewise, specially trained investigators are needed to
conduct child-sensitive forensic interviews to elicit a complete and credible account of the offence and toprotect the childʼs psychological well-being. Other measures to be employed during the investigation stage
include the use of child-friendly interview rooms, the use of technical communication aids, e.g., dolls, to help
the child explain what happened, and the limitation of the number and duration of interviews, based on theage and mental state of the child.
Child witnesses also require support during the trial phase. It is important to protect a childʼs privacy byprohibiting the disclosure of his or her identity through the criminal justice process. Further, the childʼsphysical safety and mental state should be protected by avoiding direct contact with the offender, which canbe achieved though measures such as witness shielding and the admission of video-recorded testimony into
evidence. Additionally, child-friendly waiting areas are important to ease the childʼs state of mind so that heor she can testify comfortably.
The group offered the following recommendations for the protection of child witnesses: (1) enacting
special laws that provide for measures such as limiting the number of interviews, requiring that questioningof children be conducted according to the childʼs age and mental capacity, requiring in camera sessions,7

ANNUAL REPORT FOR 2016

removal of the accused from the courtroom during the childʼs testimony, etc., (2) establishing special agencies
to support child witnesses during and after the judicial process, (3) initiating training for personnel dealing
with child witnesses, (4) providing experts to assist in interviewing child witnesses and (5) providing separate
child-friendly investigation and waiting rooms.
(iii) Improving Skills and Practices in Interviewing Child Victims and Witnesses during Inquiry andTestimonyGroup 3 focused on improving skills and practices for interviewing child victims and witnesses. The group
noted that for many years, child victims and witnesses were treated in the same manner as adults. As many
adults find the criminal justice processes to be intimidating and difficult to comprehend, this is particularly
true for children. In response, many countries have adopted special procedures to ease the burdens onchildren who take part in the criminal justice system, but further measures are needed to address theirunique needs as witnesses.
The group reviewed the current status of interviewing child victims and witnesses, finding that current
practices often jeopardize the collection of credible evidence. Children are routinely interviewed multiple
times, which causes re-victimization of the child and can result in inconsistent statements due to the fact thatchildren face the obstacles of language, mental development and maturity. Moreover, children are
particularly susceptible to the power of suggestion. Often due to a lack of training, many investigators lacksufficient interviewing skills, and many cases are dismissed when the investigator fails to elicit credible
evidence from the child. Additionally, many countries lack child-friendly interviewing rooms, which arenecessary to provide children with an environment in which the child feels comfortable explaining how he or
she was victimized. In situations where the child is forced to confront the perpetrator before the interview orgiving testimony, the child is likely to be overcome by fear, and the child may refuse give the statement.
Meanwhile, delays in the criminal justice procedure can cause memories to fade, making it impossible tocollect credible evidence. Lacking in many jurisdictions, support services for child victims and witnesses are
crucial to adequate fact-finding because these services provide children with the sense of security they needto tell their stories and the counselling they need to heal.
To overcome these challenges, the group identified 12 recommendations to improve interviewing of childvictims and witnesses: (1) the drafting of standard operating procedure manuals, (2) reducing the time gap
between the first interview and the giving of testimony, (3) establishing multi-disciplinary investigation
teams, (4) use of separate interview rooms for children, (5) providing interviewers with relevant training, (6)introduction of child-friendly practices, (7) asking questions designed to measure the childʼs memory, (8)asking open-ended questions during interviews, (9) audio or video recording of interviews, (10) use of video
link technology during trial testimony, (11) enhancing legal aid for children, and (12) conducting regulardebriefing for officers to reduce burnout. Finally, because children are less likely than adults to report abuseby filing a formal complaint, law enforcement agencies require legislative support to investigate abuse basedon suspicion.
C. The 164th International Training Course
1. Introduction
The 164th International Training Course was held from 14 August to 23 September 2016. The main theme
was “Effective Measures for Treatment, Rehabilitation and Social Reintegration of Juvenile Offenders”.
Twenty-four overseas participants (including two observers) and seven Japanese participants attended.
2.

Methodology
The participants of the 164th Course endeavoured to explore the topic primarily through a comparative
analysis of the current situation and the problems encountered. The participantsʼ in-depth discussions
enabled them to put forth effective and practical solutions.
The objectives were primarily realized through the Individual Presentations, lectures by visiting experts
and the Group Workshop sessions. In the former, each participant presented the actual situation, problems
and future prospects of his or her country with respect to the main theme of the Course. To facilitate
discussions, the participants were divided into three groups.
Each Group elected a chairperson, co-chairperson (s), rapporteur and co-rapporteur (s) to organize the8MAIN ACTIVITIES OF UNAFEI

discussions. The group members studied the situation in each of their countries and exchanged their views
based on information obtained through personal experience, the Individual Presentations, lectures and soforth. Both groups examined the course theme. The Groups presented their reports in the Report-Back
Sessions, where they were endorsed as the reports of the Course. The reports were published in full in
UNAFEI Resource Material Series No. 101.
3.

Outcome Summary(i) Dealing with Children: Diversion, Court Action, Cooperation
Group 1 focused on the role of diversion in the rehabilitation of juveniles in conflict with the law within thecontext of the participating countriesʼ juvenile justice systems and the international standards set forth in the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”).
Due to factors such as environment, lack of experience and stage of mental development, juveniles inconflict with the law are particularly responsive to rehabilitative and social reintegration approaches.
Measures that divert these juveniles from the traditional criminal justice system are more effective than a
traditional retributive approach. Thus, diversion redirects juveniles to the community support services theyneed to get their lives back on track.
The Beijing Rules establish standards for the administration of juvenile justice, and one of the fundamental
concepts is the establishment of a competent judicial authority, such as family or juvenile courts, thatspecializes in handling cases involving juveniles. Other key principles of a fair and effective juvenile justicesystem include: involvement of parents, guardians and legal counsel; the use of social inquiry reports; avariety of disposition measures so as to avoid institutionalization to the greatest extent possible; avoidance of
unnecessary delay in the disposition of cases; ensuring the confidentiality of case records involving juveniles;
and the need for professionalism and training for juvenile justice practitioners.
The group stressed the importance of inter-organizational cooperation with related governmental
agencies and other criminal justice practitioners, such as the police, prosecutors, the courts, probation, andjuvenile correctional facilities. Such cooperation is necessary for the smooth functioning of the juvenile justicesystem, and all countries reported some level of interaction between these agencies. Furthermore, all groupmembers agreed that public-private partnerships can support rehabilitation through the establishment ofprivate halfway houses, finding employment for juveniles and teaching them vocational skills, organizing
volunteers to support rehabilitation, and so on.
The treatment, rehabilitation and social reintegration of juveniles into society requires a holistic approachon the part of all stakeholders of the criminal justice system, as well as the active participation of thecommunity and the private sector. To ensure that these goals are met, the group recommended, among
others, (1) the use of enlightening and educational diversion programmes tailored to juveniles, (2) promoting
volunteerism to encourage citizens to work with juveniles, (3) information sharing by and between
governmental agencies and the private sector to enhance services provided to juveniles, and (4) the collectionof data on recidivism to assess current diversion methods.
(ii) The Ideal Juvenile Justice Model, Key Innovations and Practices
The group members considered the ideal model for juvenile justice by focusing on four main themes: (1)procedures for appropriate treatment; (2) risk/needs assessment and treatment programmes; (3) reintegration; and (4) inter-agency cooperation and governmental support.
Appropriate treatment of juveniles in conflict with the law requires specialized juvenile justice personnel,
such as police, prosecutors, family/juvenile courts, rehabilitation centres, and professional and volunteer
probation officers. The group identified the challenges of the lack of appropriate legislation, budget and skilledhuman resources. Additionally, more efforts should be taken to consider the rights of victims throughout thejuvenile justice process.
Risk/needs assessment was identified as a key component of an ideal juvenile justice system. Low risk
juveniles can be treated in the community while high risk juveniles can be treated in an institution to ensure
the best outcomes. While some countries have advanced standardized assessment tools to guide thetreatment of juveniles in conflict with the law, some countries have no tools at all. The group suggested that
9

ANNUAL REPORT FOR 2016

countries without advanced tools perform a S. W. O. T. analysis to assess the strengths, weaknesses,
opportunities, and threats with respect to juveniles in need to treatment. Once an assessment is conducted,
treatment programmes such as life skills training with a focus on criminogenic needs, emotional developmenttraining and vocational training can be implemented as appropriate. Other novel approaches discussed by thegroup include initiatives to improve juvenilesʼ self-reliance and decision-making abilities and the practice ofincluding various members from the juvenilesʼ communities, such as village elders, police officers and social
welfare officials, in the process of diversion and treatment.
The group members agreed that the purpose of criminal sanctions should be the successful reintegrationof the offender upon release, noting that juveniles in conflict with the law face numerous challenges during
the process of reintegration into society. These challenges include the lack of resources, employment andsocial support, psychological problems, and difficulty dealing with the transition period, including dealing withsocial stigma. Noting that an ideal system would allow the individual to return to society with a “reinvented”
identity, practices such as pre-release and re-entry programmes and family support measures weresuggested as measures to facilitate reintegration.
Inter-agency cooperation and governmental support are also important to facilitate reintegration. Key
practices identified by the group include the sharing of information between agencies through shared
databases, the establishment of funds aimed at assisting ex-offenders upon their release, the implementationof risk management models, and human-resources exchanges between relevant agencies. Private sector
support was also encouraged through the establishment of partnerships with businesses, non-profit
organizations and faith-based organizations.
(iii) Social Reintegration
Group 3 addressed the challenges of social reintegration of juveniles in conflict with the law. The groupmembers agreed that detention is not always the appropriate way to deal with juvenile offenders, and, thus,
they proposed solutions in reference to the following points: diversion and alternative sentencing; crime
prevention; and inter-agency cooperation with the community and the private sector.
Diversion, as described in the Beijing Rules, is a process through which the police, prosecutors and otheragencies are empowered to dispose of cases involving juveniles without proceeding to a formal hearing.
Diversion measures include cautioning, reparations, restorative justice measures, etc. Alternative sentencing
is applied to juveniles who have been formally processed through the juvenile justice system, and thesemeasures avoid typical custodial sentences. Alternative sentencing measures include probation, community
service, conditional or unconditional discharge, training and rehabilitation treatment.
The group identified challenges facing social reintegration of juveniles, particularly stigmatization, lack of
employment opportunities, lack of professionals with specialized skills and knowledge, the lack of availabilityof community resources, etc. To address these challenges, Group 3 proposed the promotion of diversion andalternative measures through professional training and use of the media, relying on volunteers to supplement
the work of trained professionals, and adopting legislation that formalizes the use of diversion and alternative
sentencing.
Some countries reported that they lack specific laws and strategies relating to crime prevention at thenational level. It was also recognized that where such laws exist, it is often the case that crime prevention
programmes lack sufficient resources and are not coordinated or sustained by various agencies involved. The
group stressed the importance public awareness and education to promote crime prevention and social
reintegration. These measures should be directed both at juveniles in conflict with the law and the generalpublic through various methods including community supervision, annual crime prevention campaigns, anduse of the electronic and print media.
Finally, the group agreed that inter-agency cooperation with non-governmental agencies, as well as
governmental agencies, is important to foster the social reintegration of juveniles. Nevertheless, many
countries lack policy guidelines and legislation, lack of awareness, and lack of sufficient resources. Countries
should develop strategies, legislation and procedures for inter-agency cooperation, increase resources andincentives for such cooperation, and involve the community in seeking solutions.

10

MAIN ACTIVITIES OF UNAFEI

III. SPECIAL TRAINING COURSES AND TECHNICAL ASSISTANCE
A. The Third UNAFEI Criminal Justice Training Programme for French-Speaking African Countries
The third criminal justice training programme for French-speaking African countries was hosted by
UNAFEI in Abidjan, Cote dʼIvoire from 15-26 February. 31 practitioners from 8 French-speaking Africancountries discussed capacity-building for investigation, prosecution and adjudication, and measures against
terrorism and organized crime.
B. The Seminar on Developing Standards on Community-based Treatment in ASEAN
From 2 to 4 March 2016 in Bangkok, Thailand, the Department of Probation of the Ministry of Justice ofThailand (DOP), the Thailand Institute of Justice (TIJ), and UNAFEI hosted the Seminar on DevelopingStandards on Community-based Treatment in ASEAN: Focusing on Treatment for Drug Use / Dependence
Offenders. 26 senior officials from 10 ASEAN member States and Japan shared information on needs andchallenges in community-based treatment.
C. The Comparative Study on Criminal Justice Systems of Japan and Nepal
The Comparative Study on Criminal Justice Systems of Japan and Nepal was held from 7 to 18 March, and
10 officials from Nepal studied effective measures of criminal procedure, including investigation, prosecution
and trial.
D. Training Seminar for Prison Officials in Myanmar
The UNODC and Asia and Far East Institute training seminar for prison officials in Myanmar was held
during two sessions from 6 June-15 July and 15 November-2 December. 231 participants studied prison
management in line with international standards and norms.
E. The Joint Study on the Legal Systems of Japan and Viet Nam 2016 RTI - SPP Exchange Programme(Japan Session)
During the third training course on legal technical assistance for Viet Nam (4-15 July) and the joint study
on the legal systems of Japan and Viet Nam (11-15 July), 12 officials from Viet Nam discussed problems
related to the enforcement of the amended code of criminal procedure in Viet Nam
F. The Tenth Regional Seminar on Good Governance for Southeast Asian Countries
From 26 to 28 July 2016, UNAFEI held the Tenth Regional Seminar on Good Governance in Yogyakarta,
Indonesia. The main theme of the Seminar was “Contemporary Measures for Effective International
Cooperation”. 21 practitioners from 10 ASEAN member States discussed contemporary measures for
effective international cooperation in the field of anti-corruption.
G. The Study Tour for Prison Officers in Myanmar
During the training course for prison officials from Myanmar in Japan (7-13 September), five prison
officials from Myanmar studied prison management and training for prison officials in Japan.
H. The 19th UNAFEI UNCAC Training Programme
UNAFEIʼs annual general anti-corruption programme, the UNAFEI UNCAC Training Programme, took
place from 12 October to 17 November 2016. The main theme of the Programme is “Effective AntiCorruption Enforcement (Investigation and Prosecution) in the Area of Procurement”. 30 practitioners from26 countries discussed effective anti-corruption enforcement (investigation and prosecution) in the area of
public procurement.

IV. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends, crime prevention
strategies and the treatment of offenders from Asia, the Pacific, Africa, Europe and the Americas, and makes
use of this information in its training courses and seminars. The Information and Library Service of theInstitute has been providing, upon request, materials and information to United Nations agencies,
governmental organizations, research institutes and researchers, both domestic and foreign.

11

ANNUAL REPORT FOR 2016

V. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute. Since 1971, theInstitute has issued the Resource Material Series, which contains contributions by the faculty members,
visiting experts and participants of UNAFEI courses and seminars. In 2016, the 98th, 99th and 100th editionsof the Resource Material Series were published. Additionally, issues 149 to 151 (from the 162nd Senior
Seminar to the 164th International Training Course, respectively) of the UNAFEI Newsletter were published,which include a brief report on each course and seminar and other timely information. These publications arealso available on UNAFEIʼs website at http://www.unafei.or.jp/english.

VI. OTHER ACTIVITIES
A. Public Lecture Programme
On 29 January 2016, the Public Lecture Programme was conducted in the Grand Conference Hall of the
Ministry of Justice. In attendance were many distinguished guests, UNAFEI alumni and the participants of
the 162nd International Senior Seminar. This Programme was jointly sponsored by the Asia Crime
Prevention Foundation (ACPF), the Japan Criminal Policy Society (JCPS) and UNAFEI.
Public Lecture Programmes increase the publicʼs awareness of criminal justice issues throughcomparative international study by inviting distinguished speakers from abroad. In 2016, Professor Robert
Canton of De Montfort University in Leicester, United Kingdom, and Ms. Diane Williams, President Emeritus
of Safer Foundation in Chicago, Illinois, United States, were invited as speakers. They presented papers
entitled “The Future of Community Penalties” and “Improving Efficiency and Outcomes ThroughCollaborations: an NGO Perspective”, respectively.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or are about to commence,research activities in their respective criminal justice fields. It is, therefore, one of the important tasks of
UNAFEI to support these contributions to improve the crime situation internationally.
C. Overseas Missions
Deputy Director MORINAGA Taro visited Beijing, China from 27 to 28 January 2016 to serve as alecturer at a workshop on the structure and function of courts and prosecution offices held by JICA in
collaboration with the Office of State Law, the Legislative Affairs Commission, and the Standing Committee
at the National Peopleʼs Congress (NPC) of China.
Deputy Director MORINAGA Taro and Professor YOSHIMURA Koji visited Bangkok, Thailand andYangon, Myanmar to research the criminal justice systems in Myanmar and to discuss the “Myanmar
Country Programme” with related organizations.
Professor YUKAWA Tsuyoshi visited Hanoi, Viet Nam and Yogyakarta and Jakarta, Indonesia to discuss
the “Tenth Regional Seminar on Good Governance for Southeast Asian Countries” with related organizations.
Professor YOSHIMURA Koji visited Seoul, Korea from 13 to 19 March 2016 to attend the 5th Asian
Conference of Correctional Facilities Architects and Planners (ACCFA).
Professor YUKAWA Tsuyoshi visited Bangkok, Thailand from 11 to 13 May 2016 to attend the Expert
Meeting on the Nexus between Organized Crime and Terrorism as a threat to Security and Development
hosted by the United Nations Interregional Crime and Justice Research Institute (UNICRI) and the Thailand
Institute of Justice (TIJ).
Director SENTA Keisuke and Deputy Director MORINAGA Taro visited Vienna, Austria from 23 to 27
May 2016 to attend the 25th Session of the Commission on Crime Prevention and Criminal Justice.
Deputy Director MORINAGA Taro and Professor YAMAMOTO Mana visited Helsinki, Finland from 12
to 18 June to attend the expertsʼ meeting of the International Penal and Penitentiary Foundation (IPPF).

12

MAIN ACTIVITIES OF UNAFEI

Professor MINOURA Satoshi and AKASHI Fumiko visited Beijing, China from 17 to 19 June to attend theAsia Criminology Society 8th Annual Conference.
Professor YAMAMOTO Mana visited Manila, Philippines from 27 to 30 July to attend the workshop on
developing effective intake, risk assessment, and monitoring tools and strategies for incarcerated terrorist
offenders held by the Global Counter Terrorism Forum (GCTF).
Professor MINOURA Satoshi visited Bangkok, Thailand from 15 to 19 August to attend the seminar on
treatment of offenders in the ASEAN region.
Professor YOSHIMURA Koji visited Yangon, Myanmar and Bangkok, Thailand from 28 August to 3
September to discuss plans for the UNODC-UNAFEI Seminar for Myanmar Prison Officials in FY2017.
Professor YUKAWA Tsuyoshi visited Abidjan, Cote dʼlvoire from 17 to 24 September 2016 to discussplans for the fourth UNAFEI Criminal Justice Training Programme for French-Speaking African Countries.
Professor WATANABE Hiroyuki and Professor AKASHI Fumiko visited Toronto, Canada from 1 to 9
October 2016 to attend the International Community Corrections Association (ICCA) 24th Annual
International Research Conference.
Deputy Director MORINAGA Taro visited Phnom Penh, Cambodia from 4 to 8 October 2016 to attend
UNODC workshops as a visiting expert.
Professor YOSHIMURA Koji visited Tianjin, China from 15 to 22 October 2016 to attend the 36th Asianand Pacific Conference of Correctional Administrators (APPCA) Conference.
Professor YAMAMOTO Mana and Professor MINOURA Satoshi visited Bucharest, Romania from 21 to30 October 2016 to attend the International Corrections and Prison Association (ICPA) 18th Annual
Conference.
Professor YOSHIMURA Koji visited Nay Pyi Taw, Yangon and Insein, Myanmar from 7 November to 3
December 2016 to conduct the UNODC-UNAFEI Seminar for Myanmar Prison Officials.
Director SENTA Keisuke, Deputy Director MORINAGA Taro and Professor YAMAMOTO Mana visited
Bangkok, Thailand to attend the PNI Meeting (9 to 11 November 2016) held by the Thailand Institute ofJustice (TIJ). Director SENTA then visited Hanoi and Ho Chi Minh, Viet Nam from 13 to 18 November toattend the Joint Study on the Legal Systems of Japan and Viet Nam. Deputy Director MORINAGA visited
Yangon, Myanmar from 10 to 16 November 2016 to join the UNODC-UNAFEI Seminar for Myanmar Prison
Officials with Professor YOSHIMURA.
Professor YAMAMOTO Mana visited Batam, Indonesia from 30 November to 3 December 2016 to attend
the Global Counterterrorism Forum (GCTF)ʼs Detention and Reintegration Working Group.
Deputy Director MORINAGA Taro, Professor WATANABE Hiroyuki and Professor AKASHI Fumiko
visited Phnom Penh, Cambodia and Vientiane, Lao PDR from 7 to 14 December 2016 to conduct a survey on
the status of community-based treatment of offenders. Professor WATANABE and Professor AKASHI thenvisited Bangkok, Thailand from 14 to 17 December 2016 to discuss plans for the Third-Country Group
Training Programme for Development of Effective Community-based Treatment of Offenders in Cambodia,
Lao PDR, Myanmar and Viet Nam.
Professor YUKAWA Tsuyoshi and Professor HIRANO Nozomu visited Kathmandu, Nepal from 13 to 22
December 2016 to discuss plans for the Comparative Study on the Criminal Justice Systems of Japan and
Nepal.
Professor MINOURA Satoshi visited New Delhi, India from 14 to 20 December to attend the 18th World
Congress of Criminology.

13

ANNUAL REPORT FOR 2016

D. Assisting ACPF Activities
UNAFEI cooperates and collaborates with the ACPF to improve crime prevention and criminal justiceadministration in the region. Since UNAFEI and the ACPF have many similar goals, and a large part of the
ACPFʼs membership consists of UNAFEI alumni, the relationship between the two is very strong.

VII. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative responsibility for running theInstitute. The Director, Deputy Director and approximately nine professors are selected from among publicprosecutors, the judiciary, corrections, probation and the police. UNAFEI also has approximately 15
administrative staff members, who are appointed from among officials of the Government of Japan, and alinguistic adviser. Moreover, the Ministry of Justice invites visiting experts from abroad to each training
course and seminar. The Institute has also received valuable assistance from various experts, volunteers andrelated agencies in conducting its training programmes.
B. Faculty and Staff Changes
Mr. YAMASHITA Terutoshi, formerly Director of UNAFEI, was transferred to the Supreme Public
Prosecutors Office on 11 April 2016.
Mr. SENTA Keisuke, formerly the Chief Prosecutor of the Saga District Public Prosecutors Office, wasappointed as Director of UNAFEI on 11 April 2016. He was Deputy Director of UNAFEI from 2005 to 2007.
Mr. MORIYA Kazuhiko, formerly a professor of UNAFEI, was transferred to the Kurume Branch of the
Fukuoka District Public Prosecutors Office on 1 April 2016.
Mr. YAMADA Masahiro, formerly manager of the Itami Branch of the Kobe District Public Prosecutors
Office, was appointed as a professor of UNAFEI on 1 April 2016.
Mr. HIROSE Yusuke, formerly a professor of UNAFEI, was transferred to the Tachikawa Branch of theTokyo District Court on 1 April 2016.
Mr. HIRANO Nozomu, formerly a judge in the Nagoya District Court, was appointed as a professor of
UNAFEI on 1 April 2016.
Mr. NAGAI Toru, formerly a professor of UNAFEI, was transferred to Chiba Prison.
Ms. YAMAMOTO Mana, formerly a psychologist in the classification division at Fuchu Prison, wasappointed as a professor of UNAFEI on 1 April 2016. She is an alumna of the 151st International Training
Course.

VIII. FINANCESThe Ministry of Justice primarily provides the Instituteʼs budget. UNAFEIʼs total budget for its
programmes is approximately ￥70 million per year. Additionally, JICA and the ACPF provide assistance for
the Instituteʼs international training courses and seminars.

14

WORK PROGRAMME FOR 2017

I. TRAINING
A. Training Courses & Seminars (Multinational)
1. The 165th International Senior Seminar
The 165th International Senior Seminar was held from 12 January to 10 February 2017. The main themeof the Seminar was “Juvenile Justice and the United Nations Standards and Norms”. Twenty-six overseas
participants and five Japanese participants attended.
2. The 166th International Training Course
The 166th International Training Course was held from 10 May to 15 June 2017. The main theme of the
Course was “Criminal Justice Procedures and Practices to Disrupt Criminal Organizations”. Twenty-two
overseas participants and eight Japanese participants attended.
3. The 167th International Training Course
The 167th International Training Course was held from 23 August to 22 September 2017. The main themeof the Course is “Rehabilitation and Social Reintegration of Organized Crime Members and Terrorists”.
Government officials from across Southeast Asia and other parts of the world, including Japan, and visiting
experts and lecturers will attend.
4. The 20th UNAFEI UNCAC Training Programme
UNAFEIʼs annual general anti-corruption programme, the UNAFEI UNCAC Training Programme, willtake place from 1 November to 7 December 2017. The main theme of the Programme is “Effective Measures
to Investigate the Proceeds of Corruption Crimes”. Twenty-five overseas participants and several Japaneseparticipants will attend.
6. The Eleventh Regional Seminar on Good Governance for Southeast Asian Countries
From 17 to 19 October 2017, UNAFEI will hold the Eleventh Regional Seminar on Good Governance in
Hanoi, Viet Nam. The main theme of the Seminar is “Best Practices in Anti-Corruption: A decade of
Institutional and Practical Development in Southeast Asia”. Among other participants, 20 anti-corruption
practitioners from the 10 ASEAN countries are expected to attend as official delegates.
B. Training Course (Country Specific)
1. The Comparative Study on Criminal Justice Systems of Japan and Nepal
The Comparative Study on Criminal Justice Systems of Japan and Nepal (February): Ten Nepaleseparticipants attended to study and compare effective measures to expedite criminal procedure (including
investigation, prosecution and trial).
2. UNODC Regional Workshop on Terrorism
The UNODC and UNAFEI co-hosted a regional workshop on “Preventing and countering radicalizationand violent extremism leading to terrorism though the rule of law based criminal justice approach, andengaging private sector and civil society actors in the national framework”. The workshop was held in Tokyo,
Japan at UNAFEI and was attended by 50 participants from Middle Eastern and North African countries.
3. Third Country Training Programme for Development of Effective Community-based Treatment of
Offenders in the CLMV Countries
From 14 to 26 February 2017, the Thai Department of Probation, the Thailand International Cooperation
Agency, the Japan International Cooperation Agency, and UNAFEI co-hosted the Third Country Training
15

ANNUAL REPORT FOR 2016

Programme for Development of Effective Community-based Treatment of Offenders in the CLMV Countries(Cambodia, Laos, Myanmar, and Viet Nam). The seminar was held in Bangkok, Thailand, and twenty
participants from the CLMV countries and five Thai participants attended the programme.
4. The Fourth UNAFEI Criminal Justice Training Programme for French-Speaking African Countries
During February 2017, UNAFEI co-hosted the Fourth Criminal Justice Training Programme for FrenchSpeaking African Countries in Abidjan, Cote dʼIvoire. The themes of the Programme were enhancing thecapacity of investigation, prosecution, advocacy, and adjudication and the criminal justice response toorganized crime and terrorism.
5. Follow-up Seminar of the Third Country Training Programme for Development of Effective Communitybased Treatment of Offenders in the CLMV Countries
From July 24 to 28 2017, UNAFEI hosted the Follow-up Seminar for the Third Country Training
Programme for Development of Effective Community-based Treatment of Offenders in the CLMV Countries(Cambodia, Laos, Myanmar, and Viet Nam).
6. Training Seminar for Prison Officials in Myanmar in Nay Pyi Taw
In fall 2017, the Training Seminar for Prison Officials in Myanmar will take place in Nay Pyi Taw,
Myanmar.
7. The Joint Study on the Legal Systems of Japan and Vietnam 2017 RTI - SPP Exchange Programme (VietNam Session)
In fall 2017, UNAFEI will host The Joint Study on the Legal Systems of Japan and Viet Nam 2017 RTI SPP Exchange Programme in Viet Nam. The Programme will explore the recent amendments to theVietnamese Code of Criminal Procedure.

16

WORK PROGRAMME FOR 2017

Distribution of Participants by Professional Backgrounds and Countries
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17

ANNUAL REPORT FOR 2016

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APPENDIX

MAIN STAFF OF UNAFEI
Directorate
Mr. SENTA Keisuke
Mr. MORINAGA Taro
Faculty

Director
Deputy Director

Mr. YUKAWA Tsuyoshi
Ms. WATANABE Ayuko
Mr. YOSHIMURA Koji
Mr. MINOURA Satoshi
Ms. AKASHI Fumiko
Mr. YAMADA Masahiro
Mr. HIRANO Nozumu
Mr. WATANABE Hiroyuki
Ms. YAMAMOTO Mana
Mr. TSUJI Takanori
Mr. Thomas L. SCHMID

Secretariat
Mr. JIMBO Katsuhiko
Mr. SHOJIMA Naoki
Mr. ITO Jin

Professor, Chief of Training Division
Professor
Professor
Professor
Professor
Professor
Professor
Professor, Chief of Information and Public
Relations
Professor, Chief of Research Division
Professor
Linguistic Adviser

Chief of Secretariat
Chief of General and Financial Affairs Section
Chief of Training and Hostel Management
Affairs Section

AS OF 31 DECEMBER 201619

ANNUAL REPORT FOR 20162016 VISITING EXPERTS
THE 162ND INTERNATIONAL SENIOR SEMINAR
Prof. Robert Canton

Professor in Community and Criminal
Justice
De Montfort University
United Kingdom

Ms. Beverly Diane Williams

President Emeritus of Safer Foundation
U.S.A

THIRD UNAFEI CRIMINAL JUSTICE TRAINING PROGRAMME FORFRENCH-SPEAKING AFRICAN COUNTRIES
Ms. Marie Compère

Vice-Président Chargé de lʼInstruction
Tribunal de Grande Instance de Créteil
FranceMr. David De Pas

Vice-Président Chargé de lʼInstruction
Pôle Anti-Terroriste
Tribunal de Grande Instance de Paris
FranceMs. Christiana Fomenky

Crime Prevention and Criminal Justice
Officer
United Nations Office on Drugs andCrime (UNODC- ROSEN)
Dakar, Senegal

THE 163RD INTERNATIONAL TRAINING COURSE
Dr. Sita SUMRIT

Chief of Women and Children
Empowerment Programme
Thailand Institute of Justice (TIJ)
Thailand

Ms. Tracy LIU

Child Protection Advisor
NCA CEOP Command / Child Protection
Team
United Kingdom

THE 164TH INTERNATIONAL TRAINING COURSE
Dr. Kerry BAKER

Senior Lecturer
London South Bank University
United Kingdom

Mr. Clement OKECH

Assistant Director
Probation Service
Kenya

20

APPENDIX

Mr. David PRESCOTT

Director of Professional Development andQuality Improvement
Becket Family of Services
United States of America

THE 19TH UNAFEI UNCAC TRAINING PROGRAMME
Mr. Dimitri Vlassis

Chief of the Corruption and Economic
Crime Branch
United Nations Office on Drugs and Crime
Vienna, Austria

Mr. Tony Kwok

Former Deputy Commissioner and Head ofOperations
Independent Commission Against
Corruption
Hong Kong

21

ANNUAL REPORT FOR 20162016 UNAFEI PARTICIPANTS
THE 162ND INTERNATIONAL SENIOR SEMINAR
Overseas Participants
Ms. Hosne Ara AKTER

Special Officer (District Judge)
Office of the Registrar General
Supreme Court of Bangladesh
Bangladesh

Mr. Tashi PHUNTSHOTrainerRoyal Bhutan Police Training InstituteRoyal Bhutan Police
BhutanMr. Thiago Ferreira OLIVEIRA

Federal Prosecutor
Federal Prosecutorʼs Office of Maranhão
Federal Public Prosecution Services
BrazilMr. Nilton Joaquim
OLIVEIRA JUNIORInternal Affairs Inspector/Police Chief
Internal Affairs/Generalʼs Office
Civil Police of the Federal District
BrazilMr. Seraphin Ramazani NYEMBO

Research Head Office
Head Quarter Office of Schools andTrainings
Congolese National Police
Democratic Republic of the Congo

Ms. Grace Achieng OJUNGA

Principal Probation Officer
Probation and Aftercare Service/Institutions
Ministry of Interior and Coordination of
National Government
Kenya

Mr. Joseph Kala MUASYA

Chief Probation Officer, Field Service
Division
Probation and Aftercare Service
Ministry of Interior and Coordination of
National Government
Kenya

Mr. George Odhiambo DIANGA

Deputy Officer in Charge
Kamiti Main Prison
Kenya Prisons Service
Kenya

Mr. Min Kyaw Thu

Head of Branch (Law Enforcement)
Division against Transnational Crime
Myanmar Police Force
Myanmar22

APPENDIX

Mr. Allah Dad ROSHAN

District and Sessions Judge/Special Judge
District JudiciaryHigh Court of Balochistan
Pakistan

Mr. Zachary SITBAN

Executive Director
Crime Prevention and Restorative JusticeDepartment of Justice and Attorney General
Papua New Guinea

Mr. Jeffrey Mala MESA

Principal Legal Officer-Indictment
CrimesPublic Solicitors Office
Papua New Guinea

Mr. Thachvud PUTTISOMBATJudge
The Central Labour Court
The Court of Justice
Thailand

Ms. Sumalee MADAM

Senior Probation Officer
Lampang Probation Office
Department of Probation, Ministry of Justice
Thailand

Mr. Benjamin C. CUTAY, Jr.
(Course Counsellor)

Assistant Regional Director
Parole and Probation Administration
Region XI
Department of Justice
Philippines

Japanese Participants
Mr. JIMI Takeshi

Deputy Director
Trial Department
Osaka District Public Prosecutors Office

Mr. MIZUKAMI Taihei

Deputy Director
Haruna Juvenile Training School for Girls

Mr. NAKAMURA Hideo

Director
Planning and Coordination DivisionTokyo Probation Office

Mr. NISHIMOTO Masao

Director
General Affairs Division
Tohoku Regional Parole Board

Ms. SHIMADA Tamaki

JudgeTokyo District Court

Mr. WAKIMOTO Yuichiro

Principal Supervisor
Foreign Affairs Division
Osaka Prison

23

ANNUAL REPORT FOR 2016

THIRD CRIMINAL JUSTICE TRAINING PROGRAMMEFOR FRENCH-SPEAKING AFRICAN COUNTRIESOverseas Participants
M. BADO Idrissa NibilmaJuge dʼInstruction
Tribunal de Grande Instance deOuagadougou
Burkina Faso

Mme. KANZIE Antoinette

Substitut Général
Parquet Général, Cour dʼAppel deOuagadougou
Burkina Faso

M. TAPSOBA Maxime

Enseignant Permanent
Ecole Nationale de Police, Direction
Générale de la Police Nationale
Burkina Faso

M. ZONO Oumarou Neant

Juge du Siège, Président de Chambre
Correctionnelle
Tribunal de Grande Instance deOuagadougou
Burkina Faso

M. BLE Roger

Juge du Siège
Tribunal de Yopougon
Cote dʼIvoire

M. GBOSSOUNA Mianhoro Thomas

Formateur
Direction de la Police des Stupéfiants et desDrogues
Cote dʼIvoire

Mme. GUIRO Kourouma Sabore

Sous-Directeur des Affaires Pénales et desGrâcesDirection des Affaires Civiles et Pénales
Ministère de la Justice, des Droits delʼHomme et des Libertés Publiques
Cote dʼIvoire

Mme. KAMAGATE Nina Claude
AmoattaJuge dʼInstruction
Tribunal du Plateau
Cote dʼIvoire

M. DIASSANA Karaba Michel

Juge dʼInstruction
Pôle Judiciaire specialisé, Tribunal deGrande Instance de la Commune VI de
BamakoMali

M. DIAWARA Mahamadou
Bandjougou

Avocat Général pres la Cour dʼAppel de
Mopti
Mali

24

APPENDIX

M. DOLO Assama

Procureur de la RépubliqueTribunal de Grande Instance de Kayes
Mali

M. FOFANA Brahima

Commissaire Divisionnaire
Direction de la Police Judiciaire, Police
Nationale du Mali
Mali

M. BABANA Mohamedahmed Khayna

Procureur de la RépubliqueTribunal de la Wilaya Nouakchott Nord
Mali

M. ELEYATT Nehah

Chef Service de la Police Judiciaire et desMineurs
Direction de la Police Judiciaire e de laSécurité Publique, Direction Generae e laSurete Nationale
Mauritanie

M. OULD NAHY Mohamed Bouya

Directeur des Etudes, de la Législation et dela Coopération
Ministère de la Justice
Mauritanie

M. SAID El-Moustapha

Procureur de la République du Gogol
Parquet Général
Mauritanie

M. AKINE Ali

Doyen des Juges dʼInstruction
Tribunal de Grande Instance hors Classe deNiameyNiger

M. GOUBE Abdoulaye

Premier Substitut du Procureur de laRépublique
Parquet, Tribunal de Grande Instance Hors
Classe de Niamey
Niger

M. IDE Oumarou Zazi

Chef de Division
Direction des Affaires Pénales, Ministère dela Justice
Niger

M. YACOUBA Tahirou

Adjoint au Directeur de la Police Judiciaire
Direction de la Police Judiciaire, Direction
Generale de la Police Nationale
Niger

M. MUAMBA Kankolongo SylvainCounseiller
Cour dʼAppel de Kinshasa-Matete
République Démocratique du Congo

25

ANNUAL REPORT FOR 2016

M. MUSEME Ngaruka Christophe

Premier Substitut du Procureur de laRépublique
Parquet de Grande InstanceRépublique Démocratique du Congo

Mme. NZEBA Kapangu Marie Josée

Présidente
Tribunal pour EnfantsRépublique Démocratique du Congo

M. DEME Ibrahima Hamidou

Substitut du Procureur Général
Parquet Général, Cour dʼAppel de Dakar
SénégalM. DIOUF Augustin

Juge dʼInstruction
Tribunal de Grande Instance hors Classe de
Dakar
SénégalM. DIOUF Mamadou

Président
Tribunal de Grande Instance de Thiès
SénégalM. DIOUF Moustapha

Chef de Division de la Formation etDirecteur des Etudes
Direction de lʼEcole Nationale de Police etde la Formation Permanente
Direction Générale de la Police Nationale
SénégalM. ALGHASSIM Khami

Procureur de la RépubliqueTribunal de Grande Instance de NʼDjamena
Tchad

M. BENGUELA Guidjinga

Sous-Directeur des Affaires Criminelles
Direction de la Police Judiciaire, Direction
Générale de la Police Nationale
Tchad

M. KAGONBE Moïse

Juge dʼinstruction
2ème cabinet, Tribunal de Grande instancede NʼDjamena
Tchad

M. NDOUTAMIAN Robert

Président
Tribunal de Grande InstanceTchad

THE 163RD INTERNATIONAL TRAINING COURSE
Overseas Participants
Ms. LIZA Mahfuza

26

Assistant Superintendent of Police
Police Headquarters
Bangladesh Police
Bangladesh

APPENDIX

Mr. DORJI Urung

Officer Commanding
Royal Bhutan Police
BhutanMr. SUIAMA Sergio Gardenghi

Federal Prosecutor
Rio de Janeiro Prosecution Service Office
Federal Prosecution Service
BrazilMs. NʼGORAN Marie Estelle Bomo

Deputy State Prosecutor at the Court of Adzope
Office of the Prosecutor at the Court of Abidjan
Ministry of JusticeCote dʼIvoire

Mr. MORSY Abdelalim Farouk

Senior Public Prosecutor
Supreme State Security Prosecution
Public Prosecution
Egypt

Mr. DANSOKO Dondon

Deputy Central Police Superintendent
Central Police Station of the Commune of Dixinn
Ministry of Security and Civil Protection
GuineaMr. ALMAJALI Refʼat Nayel

Head of Planning and International Cooperation
Division
Public Security Secretariat
Public Security Directorate
JordanMs. GICHANA Zipporah Wawira

Resident MagistrateChildrenʼs Court - Family Division
Kenya

Ms. MWANGI Maryanne Njeri

Principal Prosecution Counsel
County Affairs and Regulatory Prosecution
Office of the Director of Public Prosecution
Kenya

Mr. CHANTHAPANYA Vanhnakone

Director of Legal Opinion Division
Legal Affairs Department
Ministry of Justice
Lao PDR

Ms. YUSOF Zamrosni

Senior Investigation Officer
Crime Investigation Department
Royal Malaysia Police
Malaysia

Ms. YUSOP Yusnany

Investigation Officer
Crime Investigation Department
Royal Malaysia Police
Malaysia

27

ANNUAL REPORT FOR 2016

Ms. THOIFA Mariyam

Unit Head
Prosecution Department, Family and Child Unit
Prosecutor Generalʼs Office
Maldives

Mr. FOFANA Bandiougou

Republic Attorney
Tribunal of Mopti
Ministry of JusticeMali

Ms. NYAMSUREN Munkhtuya

Specialist
Legal Reform Department
Ministry of Justice
Mongolia

Mr. Soe Myint Lay

Assistant Director
Law Department
Bureau of Special Investigation
MyanmarMr. SHARMA Yadunath

District Attorney
District Government Attorney, Palpa
Office of the Attorney General
Nepal

Mr. MAJEED RashidDistrict and Sessions Judge, BaghHigh Court (Government of AJK)
Pakistan

Mr. KUMARARATNAM Prabaharan

Deputy Solicitor General
Criminal
Attorney Generalʼs Department
Sri Lanka

Ms. SANGVIROON Soracha

Judge
Nakhonratchasima Provincial Court
Court of Justice
ThailandMr. VIPOLCHAI Nisit

Public Prosecutor
The Office of Provincial Wiengsra
The Office of the Attorney General
Thailand

Mr. KHUSANOV Anvar

Chairman Judge
Yashnabad District Court on Criminal Matters
Uzbekistan

Mr. NGUYEN Hoanh Dat

Vice Head of Division of Mutual Legal Assistance
Department for International Cooperation and
Mutual Legal AssistanceSupreme Peopleʼs Procuracy of Vietnam
Viet Nam

28

APPENDIX

Japanese Participants
Mr. AKISHINO Kuniharu

Specialist for New Psychoactive Substances
Narcotic Control Department
Kanto-Shinetsu Regional Bureau ofHealth and Welfare

Mr. HOSONO Takahiro

Judge
Osaka High Court

Ms. KOBAYASHI Reiko

Judge
Tokyo District Court

Mr. NAKAMIZO Tsukushi

Coast Guard Officer
11th Regional Coast Guard Headquarters

Ms. NODA Ayaka

Chief Inspector
National Police Agency

Ms. SAKURAI Tomoko

Public Prosecutor
Osaka District Public Prosecutors Office

Mr. TAKAI Kentaro

Public Prosecutor
Yamagata District Public Prosecutors Office

THE 164TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Hossen Talukder Md SHAFAYET

Principal (Deputy Director)
Department of Social Services
Ministry of Social Welfare
Bangladesh

Mr. Ugyen KELZANG

Superintendent of Police
Division IX, Trashigang,
Royal Bhutan Police
BhutanMs. Ahiram Bruno De ALMEIDA

Procedural Analyst
Office of Federal Prosecution in State of Sergipe
Federal Prosecution Service
BrazilMr. Jean Cler BRUGNEROTTO

Federal Prison AgentFederal Prison of Campo GrandeFederal Prison Department
BrazilMr. Celestin BEUGRE

Magistrate
Ministry of JusticeCote dʼlvoire

Mr. Konan Seraphin KOUAME

Judge in Correctional and Civil Matters
Higher Level Court of Abengourou
Ministry of JusticeCote dʼlvoire

29

ANNUAL REPORT FOR 2016

Mr. Fisi Tausia NASARIODivisional Prosecuting Officer / Southern
Prosecution
Fiji Police ForceFiji

Mr. Viliame VOSAMURIDivisional Rehabilitation Officer
Rehabilitation Unit
Fiji Corrections Service Organization
Fiji

Mr. Ahmad Ali ALQUDAH

Training Section Chief
Training Section,
Juvenile Police Department
JordanMr. Iyad Mohammad ALZOUBI

Prison Director
Aqaba Prison, Prison Service
JordanMs. Joy Naitore Nkirote RIUNGU

Senior Probation Officer
Field Services Division
Probation and Aftercare Service
Kenya

Mr. Muhammad Razmee ABD RAZAK

Principal, Tunas Bakti Approved School
Department of Social Welfare Malaysia
Malaysia

Ms. Fathimath Roona

Director
Juvenile Crime Prevention
Advocacy and Research
Juvenile Justice Unit, Ministry of Home
Affairs
Maldives

Ms. Narantuya CHOIJANTSAN

Senior Officer
Department of the Treaty, Law andCooperation, Ministry of Justice and Internal
Affairs
Mongolia

Mr. Aung Myo Cohn

Assistant Director
Prisons Department, Ministry of Home
Affairs
MyanmarMs. Mariana MARTIN

Head, Community Supervision
Rehabilitation and Reintegration
Namibian Correctional Service
Namibia

Ms. Meunajo TJIROZE

HeadMental Health and Special Needs Offenders
Rehabilitation and Reintegration
Namibian Correctional Service
Namibia30

APPENDIX

Mr. Ishfaq AHMED

Deputy Inspector General
Baltistan Division
Police Department(Government of Gilgit Baltistan)
Pakistan

Ms. Linda Sagi Masina DENTANA

Probation Officer
Community Based Corrections
Department of Justice and Attorney General
Papua New Guinea

Ms. Veronica Liliana AGUILAR
BACA

Head of the Family Police Station
Direction of Protection of Family and
Vulnerable People
National Police of Peru
Peru

Ms. Jeza Mae Sarah Calauag
SANCHEZ

Administrative and Legal Officer
Office of the Chief
Bureau of Jail Management and Penology
Philippines

Ms. Fara Lorena DE AVILA
MACHADO

National Technical Assistant Branch
Technical National Subaddress
National Rehabilitation Institute (INR)
Ministry of Interior
Uruguay

Mr. CHAN Kai Pong Albert(Observer)

Principal Officer
Hong Kong Correctional Services
Department
Hong Kong

Mr. YongJu SOHN
(Observer)

Director, Welfare Section
Ulsan Detention Centre
Korea

Japanese Participants
Mr. DAINAKA Hiroyuki

Probation Officer
Shizuoka Probation Office

Mr. FUJIO Tomonori

Public Prosecutor
Matsue District Public Prosecutors Office

Mr. FURUHASHI Takuya

Director of 1st Division of Juvenile
Correction Service
Takamatsu Regional Correction
Headquarters

Mr. FURUKAWA Mitsuhiro

Public Prosecutorʼs Assistant Officer
Osaka District Public Prosecutors Office

Mr. KAMIYA Eisuke

Probation Officer
Tokyo Probation Office31

ANNUAL REPORT FOR 2016

Mr. SATOMI Akira

Principal Specialist
Fukuoka Juvenile Classification Home
Kokura Branch

Mr. YANAI Ryouichi

Family Court Investigating Officer
Mito Family Court
Tsuchiura Branch

THE 19TH UNAFEI UNCAC TRAINING PROGRAMME
Overseas Participants
Ms. Shabera Sultana KHANAM

Deputy Director
Legal and Prosecution
Anti-Corruption Commission
Bangladesh

Mr. Sangay JAMTSHO

Administration/Procurement Officer
Police Training InstituteRoyal Bhutan Police
BhutanMr. Ivan Claudio MARX

Federal Prosecutor
Office of Federal Prosecution
Anti-Corruption Chamber
Federal Prosecution Service
BrazilMs. Sinath CHAING

JudgeSupreme Court
Cambodia

Mr. Wael KHORSHID

Chief Judge
Technical Bureau of the Court, Criminal Dept.
Egyptian Court of Cassation
Egypt

Mr. Uttam Vijay NAIDU

Assistant Superintendent
Criminal Investigation
Fiji Police ForceFiji

Mr. Edmond Emanuel COOPER

Senior Superintendent, Deputy Commander
B Division
Guyana Police Force
GuyanaMs. Claudia Maria SOLIS
HOFFMANN

Judge
Judgement Court
Supreme Court of Justice
Honduras

Mr. Amir NURDIANTO

Investigator and Prosecutor
Directorate of Prosecution
Corruption Eradication Commission
Indonesia

32

APPENDIX

Ms. Gulnaz SHAIKHINA

Senior Prosecutor
International Cooperation Administration
Law Enforcement Academy of the General
Prosecutorʼs Office
Kazakhstan

Mr. Eldar FARKHADOV

Chief Inspector
Organizational and Juridical Department
State Service for Combating Economic Crime
Kyrgyz Republic

Mr. Sibounzom BOUNLOM

Director, Prosecutor
Criminal Inspection Division
The Office of Middle People Prosecutor
Lao PDR

Ms. Lujaina MOHAMED

Investigation Officer
Investigation Division
Anti-Corruption Commission
Maldives

Mr. Alhousseiny TRAORE

Chief Superintendent of Police
Office of Strategies and Technologies
Cooperation
National Police Headquarters
Mali

Mr. Aung Myo

Director
Administration Division
Bureau of Special Investigation
MyanmarMr. Pramod Kumar SHRESTHAVAIDYA

Judge
Judiciary
Court of Appeal Patan
Nepal

Ms. Lillian VEVARA

Deputy State Solicitor-Procurement Law
Office of State Solicitor
Department of Justice and Attorney General
Papua New Guinea

Ms. Diana Mayra PAICO GUEVARA

Prosecutor Deputy Specializing in Corruption
Offenses
Corporate Supra-Provincial Public
Prosecutorʼs Office
The Office of Attorney General
Peru

Mr. Basilio Thomas WANI

Director for Administration
Jubek State Police HQs
South Sudan National Police Service
South Sudan

33

ANNUAL REPORT FOR 2016

Mr. Conganige Asitha Suraj
Geethendra ANTHONY

Assistant Director Legal
Legal Division
Commission to Investigate Allegations of
Bribery or Corruption
Sri Lanka

Mr. Ravshan Rabi RABIZODA

Investigator
Investigation Department
Agency for State Financial Control and Fight
with Corruption
Tajikistan

Mr. Sengoka Geofrey MNDAMBI

Public Prosecutor
Investigation Department
Prevention and Combating of Corruption
BureauTanzania

Ms. Alina ZHOVNYTSKA

Senior Prosecutor
Specialized Anti-Corruption Prosecutorʼs
OfficeUkraineMr. Ulugbek ABDURAKHMANOV

Deputy Prosecutor
District Public Prosecutorʼs Office of Tashkent
City
Uzbekistan

Mr. NGUYEN Quoc Huy

Prosecutorʼs AssistantLegal and Procutorial Science Management
the Supreme Peopleʼs Procuracy of Viet Nam
Viet NamJapanese Participants
Ms. AONO Hatsue

Assistant Judge
Matsuyama District Court

Mr. MISAWA Takashi

Judge
Osaka District Court

Mr. SUGAWARA Hisaoki

Securities Investigator
Securities and Exchange SurveillanceCommission

Mr. TAKEDA Motoki

Public Prosecutor
Osaka District Public Prosecutorsʼ Office
Sakai Branch

Mr. YUASA Kenta

Public Prosecutor
Yamaguchi District Public Prosecutorsʼ Office
Shimonoseki Branch

34

PART TWORESOURCE MATERIAL SERIES
No. 102

Work Product of the 165th International Senior Seminar“Juvenile Justice and the United Nations Standards and Norms”

UNAFEIVISITING EXPERTSʼ PAPERS
UN STANDARDS AND NORMS ON JUVENILE JUSTICE:
FROM SOFT LAW TO HARD LAW
Matti Joutsen＊

I. THE NEED FOR UN STANDARDS AND NORMS ON JUVENILE JUSTICE
When a society or a government defines what conduct should be criminal and how society should respond,
this decision is intimately linked to national (or local) values and traditions. Until relatively recently, societies
have seen little reason to look beyond their borders for models or guidance in the development of criminal
law or the criminal justice system.
During the second half of the 1800s, this insular attitude began to change. Discussions on criminal justicepolicy became international. Practitioners and policymakers from different countries started to exchange
their experiences in criminal justice. The first two themes to be taken up were intertwined: corrections andjuvenile justice.1 The First International Congress on Crime Prevention and the Repression of Crime,
including Penal and Reformatory Treatment (London, 1872) brought together practitioners from many
countries interested in learning from one another about how to deal with offenders. Among the topics
considered at that first international congress were juvenile reformatories, and more broadly how society
should deal with delinquent children.2
Ten years later, juvenile justice was addressed in its own right on the international level. In 1882, the first
International Congress on Child Welfare was held in Paris, followed by the International Congress for the
Welfare and Protection of Children in 1896, in Florence. The Third International Congress for the Welfare
and Protection of Children (London, 1902) considered the problem of neglected children, and the probability
that such children would turn to delinquency if due care was not taken.
When the League of Nations was established a few years later, juvenile justice became one of its mainareas of activity. Criminal justice thus became not only an international issue, but also an intergovernmental
one. In 1919 the League of Nations established the Child Welfare Committee in order to examine the rights ofchildren. It took up topics such as street children, slavery, child labour, child trafficking and the prostitution ofminors.
The United Nations continued the work of the League of Nations.3 The first draft programme outlining
what crime prevention and criminal justice issues the United Nations should address included as its very firstpoint “the problem of juvenile delinquency in all its phases, including the study of advanced legislation on thesubject”,4 and juvenile justice has very often been on the agenda for example of the quinquennial United
Nations Congresses on Crime Prevention and Criminal Justice. The debates concerned such issues as
whether the focus should be on children who commit crimes, or on children who are deemed to be “at-risk” ofdelinquency; the proper scope of treatment and punishment; the criteria for evaluating the success or failureof treatment; and what should be the age limits for criminal responsibility.
Director, European Institute for Crime Prevention and Control, affiliated with the United Nations.
See, for example, Redo, p. 108.
2
Questions 45 through 50 on the programme dealt with such questions as what to do about “children hovering on the verge ofcriminality” and “what is the best organization of reformatory institutions for juveniles, that which rests on the congregate or
the family principle”. See <https://books.google.co.th/books?id=nYsIAAAAQAAJ&printsec=frontcover&dq=First+Internatio
nal+Congress+on+Crime+Prevention+and+the+Repression+of+Crime&hl=th&sa=X&ved=0ahUKEwi12ayRyLHRAhXBs48
KHW6RDhMQ6AEIKjAB#v=onepage&q=First%20International%20Congress%20on%20Crime%20Prevention%20and%20the%20Repression%20of%20Crime&f=false>, p. 22.
3
Clark 1994 provides a good presentation of the evolution of the United Nations crime prevention and criminal justiceprogramme.
4International Review of Criminal Policy, vol. 1, p. 12.
＊
1

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RESOURCE MATERIAL SERIES No. 102

This international sharing of experiences was designed to identify “what works” in crime prevention andcriminal justice, in other words “good practice”.5 Parallel with the work of the United Nations on crime
prevention and criminal justice, increasing attention was being given to human rights. This resulted in theformulation of international instruments setting out certain minimum legal safeguards. Respect for humanrights has also been recognized as promoting effective crime prevention and control, nationally andinternationally.6 In particular the 1948 Universal Declaration of Human Rights and the 1966 Covenant on Civil
and Political Rights have direct implications for the operation of the criminal justice system, and also for thejuvenile justice system.
Good practice and human rights: these two factors have mixed in different ways, at different times and inrespect of different issues, such as the prevention of delinquency, child protection, legal representation injuvenile court, care in an institutional environment, and greater use of mediation and restorative justice.
One key way in which good practice and human rights have been brought together is in the form ofinternational standards and norms, a concept that has found a welcoming home in the United Nations crime
prevention and criminal justice programme.
A “standard and norm” is a document that contains normative elements. It defines how members of thetarget audience ‒ individuals, members of a certain profession, public officials and so on ‒ should conduct
themselves, and may even define the minimum level of the quality of justice. An “international standard andnorm” on justice, accordingly, is a document that is intended to apply to target audiences in different states,
often at different stages of development and with different legal and administrative systems.
A standard and norm can be set out in an international agreement, national law or other binding
instruments. In the United Nations and the criminal justice context, however, the term refers specifically to anumber of instruments adopted by the General Assembly and the Economic and Social Council (and in a few
exceptional cases, by other bodies) that are designed as benchmarks for the development of the criminal
justice system. As noted on the UNODC website,7 “These standards and norms provide flexible guidance forreform that accounts for differences in legal traditions, systems and structures whilst providing a collective
vision of how criminal justice systems should be structured.”
The four UN standards and norms that are generally mentioned when speaking about juvenile justice are:the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (theBeijing Rules; GA 40/33);
the 1990 United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh
Guidelines; GA 45/112);
the 1990 United Nations Rules for the Protection of Juveniles Deprived of Liberty (the Havana Rules;
GA 45/113); andthe 1997 Guidelines for Action on Children in the Criminal Justice System (the Vienna Guidelines;
ECOSOC 1997/30).8Standards and norms are commonly referred to as “soft law” instruments, in the sense that they provide
guidance but are not legally binding. In any discussion of the UN standards and norms on juvenile justice,
however, reference should also be made to a “hard law” instrument, the United Nations Convention on the
Rights of the Child (CRC).9 This has been ratified by all but one member state of the United Nations, and isthus as nearly universally binding an instrument as there can be in international law.
There is no formal mechanism for reviewing how the individual member states implement UN standards
Different formulations have been used in this respect, such as “what works”, “good practice”, “best practice” and “promising
practice”. Each has been criticized on somewhat different grounds, but usually with the argument that what works in one
context may not work in another, and the argument that formulations such as “good practice” and “best practice” imply a value
judgement (“You are doing this the wrong way. My way is better.”).
6
E/CN. 15/1997/14, para 41. It may be noted that the United Nations Charter includes an obligation to promote universal
respect and observance for human rights.
7<https://www.unodc.org/unodc/en/commissions/CCPCJ/ccpcj-standards-and-norms.html>.
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165TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTSʼ PAPERS

and norms. Article 43 of the CRC, however, provides for an implementation review mechanism: theCommittee on the Rights of the Child. State parties have to report every five years to the Committee (art. 44of the CRC).10 In the course of its work, the Committee has developed guidelines ‒ “General Comments” ‒ on
the implementation of the Convention. One General Comment, in particular, should be mentioned, General
Comment no. 10, on childrenʼs rights in juvenile justice.11
Within the United Nations crime prevention and criminal justice programme, the issue of implementation
review has proven to be quite sensitive. In the case of two hard law treaties, the United Nations Convention
against Transnational Organized Crime and the United Nations Convention on Corruption, the way in which
the respective Conferences of the States Parties can review how individual states parties implement theirtreaty obligations has caused extensive debate.12 It is thus interesting to see that in the specific area ofjuvenile justice, an implementation review mechanism appears to function relatively smoothly, with aninternational group of experts assessing implementation in over 190 states, in five year cycles, and issuing
public recommendations to individual states parties.
It is the arc from academic discussions of “promising practice” to binding international hard law on
juvenile justice that forms the framework for the present paper.

II. THE DRAFTING AND ADOPTION OF THE UN STANDARDS AND NORMS
ON JUVENILE JUSTICE
The production of a United Nations standard and norm on crime prevention and criminal justice generally
goes through the following stages:
an initiative comes from individual experts or organizations;a draft is prepared;
the draft is discussed at one or more international meetings;
the draft is discussed at the United Nations Commission on Crime Prevention and Criminal Justice(or earlier, the United Nations Committee on Crime Prevention and Control),the draft is discussed at a quinquennial UN Congress on Crime Prevention and Criminal Justice andits preparatory bodies, andthe draft is submitted to the Economic and Social Council and/or the General Assembly for adoption.
This can be illustrated by the evolution of the four main standards and norms on juvenile justice.13
The Beijing Rules. The idea for drafting the Beijing Rules arose during the Sixth United Nations Congress
discussions on “Juvenile Delinquency: Before and After the Onset of Delinquency”.14 The report of theCongress called for the development of “model rules on juvenile justice administration”. The UN Secretariat
Although they are not specifically focused on juvenile justice, some of the more general UN standards and norms apply also inthe context of the juvenile justice system: the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo
Rules), the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, the Standard
Minimum Rules for the Treatment of Prisoners, the United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders (the Bangkok Rules), and the United Nations Principles and Guidelines on Access to
Legal Aid in Criminal Justice Systems. Furthermore, a number of applicable human rights instruments, although notparticularly tailored to juvenile justice, form part of the international and/or regional legal framework: the International
Covenant on Civil and Political Rights, the Convention against Torture, the European Convention on Human Rights andFundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and Peoplesʼ Rights (theBanjul Charter), the African Charter on the Rights and Welfare of the Child, and the African Youth Charter. Reference can also
be made to the International Labour Organization Convention concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour (Convention 182) of 1999.
9
General Assembly resolution 44/25 of 20 November 1989.
10
To take the example of Japan, which ratified the CRC on 22 May 1994, three reports have been submitted, in, respectively,
1998, 2004 and 2008. The fourth periodic report was to have been submitted to the Committee by 21 May 2016 but at the time ofthis writing (January 2017) the report has not appeared on the Committeeʼs website, <http://tbinternet.ohchr.org/_
layouts/TreatyBodyExternal/Countries.aspx?CountryCode=JPN&Lang=EN>.
11
Committee on the Rights of the Child, General Comment No. 10 (2007), Childrenʼs rights in juvenile justice, 25 April 2007
(CRC/C/GC/10).
12See, for example, Joutsen and Graycar 2012.
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requested that Professor Horst Schüler-Springorum prepare a draft for such model rules, which he thenpresented to the United Nations ad hoc Meeting of Experts on Youth, Crime and Justice held on 2 ‒ 8
November 1983 in Newark, New Jersey. Following extensive rounds of consultations, including within theframework of a five-week international seminar held at UNAFEI in 1983, the draft “Standard Minimum Ruleson the Administration of Juvenile Justice” were discussed at the Interregional Preparatory Meeting held at
Beijing,15 and then at the Seventh UN Congress in Milan. On the recommendation of the Seventh UN
Congress, the Beijing Rules were adopted by the General Assembly.16
The Beijing Rules provide member states with guidelines on the elaboration of the juvenile justice system.
It sets out a number of fundamental principles:the guiding principle of juvenile justice should be to further the well-being of the juvenile and his or
her family (the importance of fair and human treatment) (e.g. rules 1, 5.1, 10.3, 13.5, 14.2, 17.1, 26.2),
non-discrimination in the application of the Beijing Rules (rules 2.1 and 26.4),
ensuring that the age of criminal responsibility is not fixed at too low an age level (rule 4).
the proportionality principle (rules 5.1 and 17.1),
the use of discretion (rule 6),
the protection of basic procedural safeguards (rules 7.1 and 15.1),
the protection of privacy and confidentiality (rules 8 and 21),the possibility of release should be considered as soon as possible (rule 10.2),
the use of diversion (rule 11),taking the minorʼs opinion into consideration (rule 11.3),
detention should be used only as a last resort, and for the shortest possible period (rule 13.1),
deprivation of liberty should be used only for extremely serious cases (rule 17.1),
no capital or corporal punishment should be used (rules 17.2 and 17.3),
the use of a large variety of disposition measures (rule 18.1),
institutionalisation should be used only as a last resort (rule 19),
avoidance of unnecessary delay (rule 20),the need for professionalism and training (rule 22), andthe objective of measures should be rehabilitation (rules 24 and 26.1).
The Riyadh Guidelines. Although some of the experts involved in the drafting of the Beijing Rules argued
that prevention is an essential part of juvenile justice, others regarded this as too broad an issue, and wanted
to focus on the structure and operation of the juvenile justice system.17 As a result, the Beijing Rules do notinclude provisions on prevention. Nonetheless, the drafters recognized the importance of the issue. On thesame day as the General Assembly adopted resolution 40/33 approving the Beijing Rules, the General
Assembly adopted resolution 40/35, which drew attention to the need for standards and norms on theprevention of juvenile delinquency. “Specific measures therefore had to be provided for the large number ofthe young who were not in conflict with the law but who were abandoned, neglected, abused and, in general,
were endangered or at social risk”.18
The first draft for what became the Riyadh Guidelines was prepared by Professor Allison Morris. The
draft was circulated among experts in juvenile justice, and then discussed at an International Meeting ofExperts on the development of United Nations Draft Standards for the Prevention of Juvenile Delinquency,
held at the Arab Security Studies and Training Centre19 in Riyadh on 28 February ‒ 1 March 1988. From
Reference can also be made to the Guidelines on Justice for Child Victims and Witnesses of Crime (ECOSOC 2005), and themodel law on juvenile justice published by the UNODC (Justice in Matters Involving Children in Conflict with the Law. Model
Law on Juvenile Justice and Related Commentary, UNODC 2013). The development of the CRC took somewhat longer than was
the case with the four standards and norms on juvenile justice referred to here, but went through somewhat similar stages.
Essentially, the process began with the 1959 Declaration on the Rights of the Child, and ended with the adoption of theConvention by the General Assembly in 1989. The Convention entered into force on 2 September 1990. More generally on
United Nations standards and norms on crime prevention and criminal justice, see Clark 1994, and Joutsen 1999 and 2016.
14
A/CONF.87/14/Rev.1.
15
A/CONF.121/IPM/1, paras 55 and 56.
16
General Assembly resolution 40/33 of 29 November 1985.
17
Schüler-Springorum, p. 4.
18
A/CONF.144/IPM.3, para 4.
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there, the draft went to the regional preparatory meetings and the respective interregional preparatory
meeting for the Ninth Congress, and then on to the General Assembly for adoption.20
The Riyadh Guidelines seek to cover the role of different sectors in the prevention of juvenile delinquency.
The key points and sectors are the following:
furthering the well-being of the juvenile and his or her family (fair and human treatment) (e. g.
guidelines 4 and 46),
the need for comprehensive prevention plans (guideline 9),
the importance of the family and support to the family (guidelines 11 ‒ 19),
the importance of education (guidelines 20 ‒ 31),
the importance of community measures (guidelines 32 ‒ 39),
the role of mass media (guidelines 40 ‒ 44),
institutionalization of young persons should be a measure of last resort and for the minimum
necessary period (guideline 46), anddevelopment of the appropriate legislation and juvenile justice administration (guidelines 52 ‒ 59).
The Havana Rules. The International Covenant on Civil and Political Rights, the Standard Minimum Rules
for the Treatment of Prisoners, and the Beijing Rules, are designed in part to considerably reduce theincarceration of children and youth. However, already when these instruments were adopted, it was clearthat incarceration of children and youth would remain a widespread practice. The Havana Rules, instead of
calling for better and more prisons for juveniles, were designed to encourage the use of alternatives toimprisonment, and to ensure that juveniles in custody have their basic rights protected.21 These Guidelines
were developed by an Open-Ended Working Group of Non-Governmental Organizations established by
Defence for Children International in cooperation with the UNODC. The text was circulated for comment,
following which the draft was developed by the Max-Planck Institute for Foreign and International Criminal
Law.22 As with the Riyadh Guidelines, the draft went to the regional preparatory meetings and the respective
interregional preparatory meeting for the Ninth Congress for discussion, and then on to the General
Assembly for adoption.23
The Havana Rules define juveniles as persons under the age of 18 years, and defines deprivation of liberty
as any form of detention or imprisonment or the placement of a person in a public or private custodial setting,from which this person is not permitted to leave at will, by order of any judicial, administrative or other publicauthority (Rule 11). The Havana Rules are intended to counteract the detrimental effects of deprivation ofliberty by ensuring respect for childrenʼs rights. They set out a number of fundamental principles that closely
track those of the Standard Minimum Rules for the Treatment of Prisoners (for example in respect of pretrial detention, admission to juvenile facilities, classification, the physical environment and accommodation,
education, vocational training and work, recreation, religion, medical care, limitations on physical restraint
and the use of force, disciplinary procedures, inspections and complaints, personnel), but take into
consideration the special situation of juveniles:
deprivation of liberty should be a disposition of last resort and for the minimum period (rules 1, 2 and17),
non-discrimination in the application of the Havana Rules (rule 4),
furthering the well-being of the juvenile (rehabilitation) (e.g. rules 12 and 32),
guarantee of basic procedural safeguards (e.g. rules 18(a) and 70),
protection of confidentiality (rule 19),
separation of juveniles from adults (rule 29),
encouragement of the establishment of small open facilities (rule 30),
juveniles deprived of their liberty should be prepared for release (rules 38, 79 and 80),contacts with families and the wider community must be maintained (e.g. rule 59),
Now known as the Naif Arab University for Security Sciences.
General Assembly resolution 45/112 of 14 December 1990. See A/CONF.144/16, para 26.
21
A/CONF.144/IPM.3, para 10.
22
A/CONF.144/IPM.3, paras 3 and 65-67.
23
General Assembly resolution 45/113 of 14 December 1990. See A/CONF.144/16, para 26.
19
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no corporal punishment or solitary confinement (rules 67 and 87),
the need for professionalism and training (rules 81, 85 and 86), andthe professionalism and training of personnel (rules 81, 85 and 86).
The Vienna Guidelines. The entry into force of the Convention on the Rights of the Child in 1990 imposed
obligations on states parties. It also provided a basis for cooperation among not only the states parties, butalso different UN agencies (such as the UNODC, the Centre for Human Rights, the United Nations Childrenʼs
Fund and the Committee on the Rights of the Child), as well as a broad range of nongovernmentalorganizations, professional groups, the media, academic institutions and other stakeholders. In order toprovide guidelines for this cooperation, ECOSOC resolution 1996/13 called for a plan of action. This wasdrafted at an expert group meeting held in Vienna on 23 - 25 February 1997. The draft was submitted to theCommission on Crime Prevention and Criminal Justice two months later, and during the autumn of that same
year, the Vienna Guidelines were adopted by ECOSOC.24
The Vienna Guidelines are intended to assist member states in implementing the CRC, and in using andapplying the standards and norms in juvenile justice (para 5). They are divided intomeasures of general application (paras 10 ‒ 11),
specific targets (paras 12 ‒ 25),
measures to be taken at the international level (para 26 ‒ 29),
mechanisms for the implementation of technical advice and assistance projects (paras 30 ‒ 40),
further considerations in the implementation of country projects (paras 41 ‒ 42), andchild victims and witnesses (43 ‒ 53).

III. ARE THE STANDARDS AND NORMS LEGALLY BINDING?
Are the United Nations standards and norms on juvenile justice legally binding? Do the member states of
the United Nations have to incorporate their provisions into their laws and practices, and are individual
practitioners in the criminal justice system ‒ police officers, juvenile court judges, social workers, the staff ofinstitutions and others ‒ required to follow them?25
The dominant view is that the UN standards and norms are part of “soft law” and are thus not legallybinding. They only embody an earnest request to their addressees (member states, members of a criminal
justice profession, other stakeholders) to apply the contents, and not a legal obligation to undertake a certain
course of action.26 One practical implication of this is that if a public official (or an entire state) acts contrary to
a UN standard and norm (but not contrary to “hard law”), then the child or juvenile subjected to such action
has no legal recourse on this basis alone. He or she does not have legal standing to complain to a superior, or
to turn to a court in order to have the decision overturned.
This does not mean that standards and norms, as “soft law”, are meaningless, and have no practical effect.
The significance of soft law, including standards and norms, does not lie in any assumed legally binding effect.
The significance lies elsewhere, on both the national and the international level.
On the national level, UN standards and norms may have an instrumental value in guiding national
development.27 They may be used as clinching arguments by decision-makers in individual jurisdictions whenthese decision-makers seek to justify certain courses of action that they would have preferred even if thestandard or norm did not exist. When selecting from among various alternative approaches to achieving acertain end, the decision-makers may thus defend their choice by referring to specific provisions in, for
ECOSOC resolution 1997/30 of 21 July 1997.
A fuller discussion of whether or not standards and norms are legally binding is provided in Joutsen 2016.
26
Castaneda 1969, pp. 7-8 and 193-195. It may be noted that some authorities in international law deny the entire existence of“soft law”. See in particular Klabbers 1996. Essentially, he argues that either something is law, or it is not; there is no intervening
category of “soft law”, nor is there a need for such a concept.
27
The most noted example of a United Nations standard and norm guiding national development is the Standard Minimum
Rules for the Treatment of Prisoners. It has clearly guided national practice in corrections and, in several cases, helped bringabout legal reform.
24
25

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example, the Beijing Rules, the Riyadh Guidelines, or the Havana Rules.
Similarly, UN standards and norms can also be used by citizens, non-governmental organizations andother stakeholders in trying to influence their government to change laws and policy in a certain direction.
It is difficult to analyse the actual impact of UN standards and norms on the domestic level, due to anumber of factors: the absence of an obligation to report, the heterogeneity of the criminal justice systems ofdifferent States, the possibility of different interpretations of the same text, and the difficulty in determining if
a specific change in national law, policy or practice was due to the influence of a United Nations standard andnorm, or to other factors.
Nonetheless, many reports from States to the United Nations cite examples of the impact, and theliterature shows several further examples of impact. In many States, the UN standards and norms are
becoming part of the national discourse on crime prevention and criminal justice.
On the international level, in turn, “soft law” may be seen as an intermediate stage in the formulation ofideas and concepts that may in time emerge as “hard law”, in the form of international agreements.
When ideas are embodied in standards and norms, the recognition and declaration of certain principles
and even detailed rules may be intended to have a direct influence on the practice of states. If this happens,
they contribute to the creation of customary international law, which is widely recognized as binding onstates.28 Standards and norms, even if they are not in themselves binding, may thus become a source ofinternational law, in particular if they are drafted in the form of an obligation (e.g. “States shall” do something,as opposed to the wording “States may consider” doing something, or “States are invited” to do something).

IV. FROM SOFT LAW TO HARD LAW: THE IMPACT OF THE CONVENTION
ON THE RIGHTS OF THE CHILD
The development of customary international law is often a long process, requiring decades. There is also afast-track possibility: soft law elements may find their way into hard-law international treaties. A clear
example in juvenile justice is provided by certain provisions of soft law UN standards and norms on juvenile
justice which have found their way in the space of just a few years into the hard law Convention on the Rightsof the Child, and into the practice of the Committee on the Rights of the Child.
The provisions of the Convention on the Rights of the Child (CRC) that are relevant to juvenile justice canbe divided roughly into three categories.29 Some provisions lay out the basic rights and principles to befollowed in practice: non-discrimination (article 2), the best interests of the child (article 3), the right to life,
survival and development (article 6), and the right to be heard (article 12).
A second category of provisions deal directly with the juvenile justice context: article 37, which deals ingeneral with deprivation of liberty, and article 40, on the treatment of a child in conflict with the law.
The third category of provisions applies to all children, and these provisions are considered particularly
relevant if a child has been placed in an institution and is thus in a heightened state of vulnerability: the rightof children in conflict with the law to maintain their relationship with their families (article 9), the right toexpress their views and to be heard (articles 12 and 13), the right to exercise their religion (article 14), theright to be protected from physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse (article 19), and the right to live in a healthy
environment and receive appropriate treatment in case of illness (article 24).
As mentioned already above, in addition to reviewing implementation of the CRC in individual states
parties and providing them with extensive recommendations,30 the Committee provides guidelines ‒ “General
Comments” ‒ for implementation in specific areas. The General Comments are recommendations, and are not
Castaneda 1969, pp. 19 and 168-169.
This distinction is made in General Comment no. 10, para. 4.
30
In the case of Japan, the most recent publicly available recommendations are given in CRC/C/JPN/CP/3 (2010).
28
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binding. However, they have proven influential. General Comment no. 7 of the Committee deals with theimplementation of the rights under the CRC during early childhood, and General Comment no. 12 deals withthe right of the child to be heard. Special reference, however, should be made to General Comment No. 10(2007), which deals with the rights of children in respect of juvenile justice.
Two examples can be provided of the integration of soft law UN standards and norms into the hard law
Convention on the Rights of the Child, and into the practice of the Committee on the Rights of the Child.31 The
first deals with setting the age of criminal responsibility, and the second with the right of the child or juvenile
to be heard.
There is considerable disparity around the world in respect of the age of criminal responsibility. Many
countries have set an absolute minimum age of criminal responsibility, often 14 or 16 years, below which noone may be tried or punished for criminal conduct. Other countries use two age limits, with a higher age limit
at which all persons will be presumed to have full criminal responsibility, and a lower age limit above which aperson can be treated either as a juvenile or an adult, depending on the circumstances and the seriousness ofthe conduct. Finally, there are countries where quite young children, for example aged six or seven, can beheld to be criminally liable.32
Beijing rule 4 calls upon states to ensure that the age of criminal responsibility is not fixed “at too low an
age level”. The Convention on the Rights of the Child has integrated this into art. 40(3), which requires thatstates parties establish “a minimum age below which children shall be presumed not to have the capacity to
infringe the penal law”. Neither of these provisions can be seen to provide clear guidance as to what, exactly,that age of criminal responsibility should be.
However, in its General Comment 10, the Committee on the Rights of the Child does seek to provide
guidance on the legislative technique to be used in establishing age limits for criminal responsibility. It evenspecifies what it considers to be the internationally accepted minimum age of criminal responsibility:33“Rule 4 of the Beijing Rules recommends that the beginning of MACR [minimum age of criminal
responsibility] shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental andintellectual maturity. In line with this rule the Committee has recommended States parties not to set a
MACR at a too low level and to increase the existing low MACR to an internationally acceptable level.
From these recommendations, it can be concluded that a minimum age of criminal responsibility below
the age of 12 years is considered by the Committee not to be internationally acceptable. States parties areencouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and tocontinue to increase it to a higher age level.”34
The right to be heard, in turn, is particularly important given the diversity of procedures and structures
for dealing with children in conflict with the law: child welfare boards, administrative hearings, juvenile
courts and so on.
Beijing rule 14.2 guarantees juveniles the right to be heard: “The proceedings shall be conducive to thebest interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow thejuvenile to participate therein and to express herself or himself freely.”
Article 12 of the CRC has transformed this right to be heard into hard law:

Many more examples could be cited. Examples include the definition of “competent, independent and impartial authority”, theinterpretation of the childʼs right to legal assistance, the right of the parents to be present during legal proceedings, the childʼsright to be protected against self-incrimination, the childʼs right to privacy, the definition of the phrase “shortest possible period
of detention”, the need to prioritize diversion and non-custodial sanctions, the right of appeal, and the prohibition of cruel,inhuman or degrading treatment.
32
General Comment 10 (2007), para. 30.
33
General Comment 10 (2007), para. 32.
34
General Comment 10 (2007) goes on to call upon countries that do set the minimum age of criminal responsibility at 12 years toraise this age even higher.
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1.

States Parties shall assure to the child who is capable of forming his or her own views the right toexpress those views freely in all matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child.

2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial
and administrative proceedings affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national law.

In its conclusions on the reports of states parties, the Committee on the Rights of the Child has often
returned to the childʼs right to be heard, and recommended that laws be changed, policy be developed, moreresources be given, and in general closer attention be given to this right in practice, and not just in law. In its
General Comment 10, furthermore, the Committee has clarified its position on the childʼs right to be heard inany proceedings regarding him or her:35“The child should be given the opportunity to express his/her views concerning the (alternative)
measures that may be imposed, and the specific wishes or preferences he/she may have in this regard
should be given due weight. Alleging that the child is criminally responsible implies that he/she should becompetent and able to effectively participate in the decisions regarding the most appropriate response toallegations of his/her infringement of the penal law ... It goes without saying that the judges involved are
responsible for taking the decisions. But to treat the child as a passive object does not recognize his/herrights nor does it contribute to an effective response to his/her behaviour. This also applies to theimplementation of the measure(s) imposed. Research shows that an active engagement of the child in this
implementation will, in most cases, contribute to a positive result.”
This clarification of the Committeeʼs position shows how the Committee combines logical reasoning(“alleging that a child is criminally responsible implies that he or she is competent to act, and therefore he or
she should have a right to be heard”; “treating a child as a passive object does not recognize his or her rights
or contribute to an effective response”) and research results (“research shows that in most cases a positive
result will be achieved if the child is actively engaged in the process”).

V. CLOSING COMMENTS
One hundred years ago, at the time the League of Nations was founded, the concern was with “children
hovering at the verge of criminality”. The basic approach was quite paternalistic: the child was indeed
regarded as a “passive object” who should be guided on the way to his or her full role as a well-adjusted
citizen. It was also assumed that each state was free to develop its own juvenile justice system, although
there was a growing interest in seeing how other states were dealing with child and juvenile offenders.
The United Nations standards and norms on juvenile justice mark a change in approach. They are a
distillation of “what works” in different legal and administrative systems, and at different stages ofdevelopment. They have been formulated as a benchmark by which the stakeholders involved in juvenile
justice systems around the world ‒ including the juveniles themselves ‒ can assess how well these systems
are responding to juveniles who are alleged to have committed crimes, or who otherwise are seen as being“on the verge of delinquency”.
The UN standards and norms have also contributed to hard law, most noticeably in the form of theConvention on the Rights of the Child, and the work of the Committee on the Rights of the Child. The
Committee, in particular, has taken an active but carefully considered role in building on the UN standards
and norms as well as the text of the Convention in order to provide guidance to states parties on how toguarantee of procedural and substantive rights, the importance of limiting the scope of definition ofdelinquency, how to increase the use of diversion and lessen the use of imprisonment or other severe andpunitive sanctions for juveniles, and in general how to promote the well-being of juveniles and their families.
Individual states continue to hold their sovereign right to develop their own juvenile justice system. But

35

General Comment 10 (2007), para. 45.

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we have learned considerably from one anotherʼs successes (and failures) over the course of 150 years. One
result is that international experience is guiding individual states in finding the right and the most effective
response ‒ through the exchange of experience, through soft law, and ultimately through hard law.
References
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A/CONF. 144/4, Prevention of Delinquency, Juvenile Justice and the Protection of the Young: Policy
Approaches and Directions, Implementation of the United Nations Standard Minimum Rules on the
Administration of Juvenile Justice, Report of the Secretary-General
A/CONF. 144/16, Prevention of Delinquency, Juvenile Justice and the Protection of the Young: Policy
Approaches and Directions. Working paper prepared by the Secretariat
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Castaneda, Jorge (1969), Legal Effects of United Nations Resolutions, New York and London
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CRC/C/JPN/CP/3 (2010), Committee on the Rights of the Child. Fifty/fourth session. 25 May ‒ 11 June
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Prevention and Criminal Justice, Expert Meeting Report, 10 ‒ 12 February 2003, UNODC, pp. 19-44
Joutsen, Matti (2016), International Standards and Norms as Guidance in the Criminal Justice System,
UNAFEI Resource Material Series no. 98, United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders, Fuchu, Tokyo, 2016, pp. 54-67
Joutsen, Matti and Adam Graycar (2012), When Experts and Diplomats Agree: Negotiating Peer Reviewof the UN Convention against Corruption, in Journal of Global Governance, 18(4), pp. 425-439
Klabbers, Jan (1996), The Redundancy of Soft Law, Nordic Journal of International Law 65(2)46165TH INTERNATIONAL SENIOR SEMINAR
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Redo, Slawomir (2012), Blue Criminology. The power of United Nations ideas to counter crime globally. A
monographic study, HEUNI publication no. 72, Helsinki
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MAKING JUVENILE JUSTICE INSTRUMENTS “REAL”
THROUGH THE COURTS: THREE SOUTH AFRICAN CASE STUDIESAnn Skelton＊

I. INTRODUCTION
A. The Relevant International Norms and Standards for Juvenile Justice
1. UN Convention on the Rights of the Child
In international law there are established principles that guide juvenile justice. The UN Convention on the
Rights of the Child (CRC) contains two important articles relating to child offenders. Article 40 describes a
system that treats a child in a manner consistent with the promotion of the childʼs dignity and worth, which
reinforces the childʼs respect for others, and promotes the desirability of children being reintegrated andassuming a constructive role in society. Article 40 (2) sets out a childʼs fair trial rights, and Article 40 (2)requires states parties to establish special laws, procedures, authorities and institutions for children who
commit crimes. The need to set a minimum age at not too low a level, to use alternative measures rather than
judicial proceedings, and to have an array of dispositions are all important features of such systems.
Article 37 of the CRC is of particular importance to juvenile justice ‒ it requires states parties to ensurethat no child shall be subjected to torture or other cruel, inhuman or degrading treatment. Neither capital
punishment nor life imprisonment without the possibility of release shall be imposed for offences committed
by persons under the age of 18 years. The principle of detention as a measure of last resort and for the
shortest appropriate period of time is enshrined in Art 37(b). Humanity, respect and dignity are required forchildren deprived of their liberty and every child so deprived shall have the right to prompt access to legal
and other assistance and to challenge the detention.
The UN Committee on the Rights of the Child has also added detail and provided further, up to dateguidance on the relevant provisions of the CRC in their General Comment no 10, on “Childrenʼs rights inJuvenile Justice”, which was issued in 2007. This is a comprehensive document which identifies the key
principles of juvenile justice as non-discrimination, the right to life, survival and development, the right to beheard and the right to dignity. It describes the following as the core elements of comprehensive juvenile
justice:Prevention of juvenile delinquency
Interventions/diversion
Age and children in conflict with the law
The guarantees for a fair trial
Measures
Deprivation of liberty (pre-trial and post-trial).
The Convention is supported and strengthened by three sets of rules or guidelines, namely the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1985); theUnited Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”, 1990); andthe United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”, 1990).1
2. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985): “The Beijing
Rules”
The first international instrument to provide dedicated attention to the issue was the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (1985), referred to generally andProfessor (BA LLB LLD), Director of the Centre for Child Law, University of Pretoria, South Africa.

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hereafter as the Beijing Rules.2 These Rules provide a framework of essential elements of a good system todeal with child offenders. The rules encompass the following:
Countries need to set a minimum age of criminal capacity, at an age that is not too low, considering
emotional and mental capacity of children
The aim of juvenile justice is to emphasize the well-being of the child and ensure that any reaction
will be proportionate to the offender and the offence.
Encourages a high degree of discretion being granted to officials at all stages to allow for alternative
measures, but discretion to be used in an accountable and judicious manner
Diversion is encouraged.
Specialization in the police is encouragedChildren who are not diverted must be dealt with by a competent authority, in an atmosphere ofunderstanding.
Sentencing must be proportionate and must ensure that detention is a measure of last resort,
corporal punishment as a sentence is prohibited.
3. United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) “The Havana Rules”
Whilst other instruments stress avoidance or limitation of detention, this instrument focuses on conditionsof detention. It covers pre-trial detention, detention during trial and detention as a sentence. It is sufficiently
broad to cover not only prisons and police detention, but all facilities which children cannot leave at will. The
JDLs begin from the departure point that detention should be avoided, but where it occurs each child must betreated as an individual, having his or her needs met as far as possible. There is an emphasis on preparingthat child for return to society from the moment of entry into the facility. The Rules deal with management offacilities including their administration, the physical environment and services they offer, appropriate
disciplinary procedures, effective compliance monitoring through regular and unannounced inspections, andan independent complaints procedure.
4. United Nations Guidelines for the Prevention of Juvenile Delinquency (1990): “The Riyadh Guidelines”
These guidelines are preventive in nature, and focus on the child, the family and the involvement of thecommunity. The document deals with “socialization processes”, education, participation of youth withincommunity structures, the role of the media, socio-economic circumstances. The idea of prevention is locatedsquarely within a broader development context.
A. Introduction to the Focus on South African Law
1. Overview of the Relevant South African Cases
This paper will consider how these instruments have been used in practical ways in cases heard by theSouth African Constitutional Court. There will be a focus on three case studies, although these are not the
only cases in which the Court has utilized international instruments pertaining to childrenʼs rights.3 Othercases concerning criminal matters in which the South African Constitutional Court has used international andregional instruments include a matter concerning the rights of children whose caregivers are facing
imprisonment,4 the rights of child victims of crime,5 and a very recent case in which the Court found that
There are other important guidelines and resolutions that are relevant to juvenile justice, a full discussion of which is beyond
the scope of this paper: United Nations Standard Minimum Rules for Non-custodial Measures (1990)United Nations Guidelines
on Justice in matters involving Child Victims and Witnesses (2005); United Nations Guidelines for the Appropriate Use andConditions of Alternative Care for Children (2009); United Nations principles and guidelines on Access to Legal Aid in Criminal
Justice Systems (2012). See further the United Nations Guidelines for Action on Children in the Criminal Justice System (1997);
the Economic and Social Council resolution on supporting national efforts for child justice reform (2007), The Guidance note of
the United Nations Secretary-General: United Nations Approach to Justice for Children (2008); the United Nations Resolution on
Human Rights in the Administration of Justice, in Particular Juvenile Justice (2011). Furthermore there are tools produced by
UNODC and UNICEF such as the Manual for Measurement of Juvenile Justice Indicators (2007), the UNODC and OSCE
Criminal Justice Assessment Toolkit (2006) and the UNODC and Inter-Agency Panel on Juvenile Justice Criteria for the Design
and Evaluation of Juvenile Justice Reform Programmes (2010).
2
General Assembly resolution 40/33 adopted on 29 November 1985.
3
For a full discussion of the use of the CRC and other instruments see Ann Skelton ʻSouth Africaʼ in T Liefaard and J Doek
Litigating the rights of the child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence(2015).
4
S v M (Centre for Child Law as Amicus Curiae) (CCT 53/06) [2007] ZACC 18.
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when deciding whether to arrest a child, a police official must apply the best interests principle.6 In thispresentation, the first case to be discussed concerns a law which applied minimum sentences (including life
imprisonment) to child offenders.7 The second concerned a law which criminalized consensual sex between
adolescents aged 12 to 16 years.8 The third concerned a law which required the automatic inclusion of childoffenders on the sex offender register.9 In all three cases, the laws were found to be unconstitutional insofar
as they were applied to children. Before discussing the cases, it is important to understand the constitutional
and legal system in South Africa.
2. Introduction to the South African Constitutional and Legal System
South Africa is a constitutional democracy. The Constitution contains a progressive Bill of Rights
comprising civil, political and socio-economic rights. These rights are justiciable̶any law or conductinconsistent with them may be declared invalid by the superior courts. The legal system is a hybrid one,based on British common law and Roman-Dutch civil law. Procedurally, the law takes a largely common law
approach, incorporating the rule of stare decisis, meaning the law is developed through precedents set by caselaw. The Constitution is the supreme law, which means that if the Constitutional Court finds any law or
conduct to be unconstitutional, then it can declare that law to be invalid.10 It can read words into a statute, or
strike words out. It can also declare the law invalid, but suspend that declaration so that it does not come into
effect immediately, and allow the legislature time to change the law to bring it in line with the Constitution.
3. Childrenʼs Rights in the South African Bill of Rights
South Africaʼs Bill of Rights has been hailed internationally as a good example of a Constitution providing
for protection and advancement of childrenʼs rights.11 A range of obligations are placed on the state for thepromotion, protection and realization of childrenʼs rights. With the exception of the right to vote or stand for
public office, children are entitled to all rights contained in the Bill of Rights. So fair trial rights, for example,
apply to both adults and children.
The Constitution also has a specific childrenʼs rights section̶Section 28̶which includes a range of rightsthat pertain specifically to children.12 A child is defined as a person below the age of 18 years. For the purposeof this paper, I will focus on the subsections that are particularly relevant to child offenders.
Section 28(1)(g) states that every child has the right not to be detained except as a measure of last resort
and then only for the shortest appropriate period of time. If detained, a child has the right to be kept
separately from persons over the age of 18 years, and treated in a manner and kept in conditions that takeaccount of the childʼs age.
The wording of section 28(1)(g) is clearly drawn from section 37(b) of the CRC̶which contains the phrase“the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only asa measure of last resort and for the shortest appropriate period of time”. The remainder of section 28(1)(g) issimilar to that in section 37(c) of the CRC. The direction to use detention as a measure of last resort is also
enunciated in the Beijing Rules at rule 13 (for detention pending trial) and rules 17(1)(c) and 19 (for detention
as a sentence). Issues relating to the conditions of detention are spelled out in detail in the Havana Rules.
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development (CCT 151/15) [2016] ZACC
24.
6
Radhuvha v Minister of Safety and Security (CCT 151/15) [2016] ZACC 24.
7
Centre for Child Law v Minister of Justice and Constitutional Development (CCT 98/08) [2009] ZACC 18.
8
Teddy Bear Clinic for Abused Children v Minister of Justice (CCT 12/13) [2013] ZACC 35.
9
J v National Director of Public Prosecutions (CCT 114/13) [2014] ZACC 13.
10
The Courts that have the power to decide on the Constitutional validity of law or conduct are the High Courts, the Supreme
Court of Appeal and the Constitutional Court see Masiya v Director of Public Prosecutions, Pretoria & Another (Centre forApplied Legal Studies & Another as Amici Curiae) 2007 (5) SA 30 (CC), 2007 (3) SACR 435 (CC). Where law or conduct isdeclared invalid, that finding must be confirmed by the Constitutional Court.
11
P Alston and J Tobin Laying the foundations for childrenʼs rights UNICEF Innocenti Research Centre, Florence (2005).
12
These include the rights to name and nationality; family care or parental care or appropriate alternative care when removed
from the family environment; basic nutrition, shelter, basic health care services and social services; to be protected frommaltreatment, neglect, abuse or degradation; to be protected from age-inappropriate or exploitative labour; to legal
representation at state expense in civil proceedings if substantial injustice would otherwise result; and not to be used in armed
conflict.
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Section 28(2) of the South African Constitution provides a further layer of protection by specifying that achildʼs best interests are of paramount importance in every matter concerning the child. Again, the wording
is reminiscent of article 3(1) of the CRC̶but note that the use of the words “the paramount consideration” insection 28(2) provides stronger protection than the CRC which uses the phrase “a primary consideration”.
4. The Influence of International Law on South African Law
In addition to the influence of international law on the Constitution and the domestic laws, the Constitution
also directs the courts to pay attention to international law. Section 39(2) of the Constitution obliges courts toconsider international law when interpreting a right in the Bill of Rights. The Constitution provides that the
court must consider international law, and may consider foreign law, when interpreting the Bill of Rights.13
South Africa is described as having a dualist legal system because section 231(4) states that an international
agreement only becomes law once it is enacted by national legislation. The CRC has not directly been enacted
into law, although the Preambles to the Childrenʼs Act 38 of 2010 and the Child Justice Act 75 of 2008 do referto the CRC. At the same time, the courts are enjoined to “consider international law”.14 According tointernational law expert, John Dugard, a treaty that has been signed and ratified is binding on South Africa,
regardless of whether it has been signed into law).15 Some authors have argued that South Africa has“crossed the line from dualism and monism” in relation to child law. This claim is demonstrated by the factthat the courts go further than referring to binding instruments̶they even refer to “soft law” in their
judgments.16
The South African Courts have paid particular attention to articles 37 and 40 of the CRC, together with
the non-binding instruments relating to juvenile justice, in particular the Beijing Rules. In addition to theConstitutional Court cases, a raft of High Court and Supreme Court cases have incorporated these into South
African jurisprudence.17

II. THE CASE STUDIES
A. The Case that Found Minimum Sentences Unconstitutional for Child Offenders
The South African Constitutional Court has paid particular attention to the principle incorporated in
section 28(1)(g) of the Constitution (modelled on article 37(b) of the CRC) that the detention of children should
be a measure of last resort, and if detained, this should be for the shortest appropriate period of time. The
Centre for Child Law v Minister of Justice18 was a challenge to the constitutionality of the minimum sentences
law, insofar as it applied to 16 and 17 year olds. The law links certain serious offences to minimum sentences(for example, a conviction for certain types of murder carries a minimum sentence of life imprisonment). The
law excluded children below the age of 16 years but included 16 and 17 year olds within its ambit, eventhough the Constitution clearly defines a child as a person below 18 years of age. The Centre for Child Law(hereafter referred to as the Applicant), acting on behalf of children who would be sentenced under the newlaw, challenged the constitutionality of the provision. They argued that subjecting children aged 16 and 17
years of age to the minimum sentencing regime was in breach of the Constitution and South Africaʼsinternational law obligations.
Although the Applicant acknowledged that long sentences of imprisonment might sometimes benecessary when 16 and 17 year olds commit very serious crimes, it submitted that such sentences should only
be determined by the court in accordance with the constitutional principles of “last resort” and “shortest
appropriate period of time”, as well as the principles of proportionality, individualization and the best interestsof the child. A court sentencing a child offender should start with a “clean slate”, and not be prescribed to by aminimum sentencing law. Even though the law empowers the court to depart from the minimum sentence if
S 39(1).
S 39(1).
15
John Dugard International Law ‒ A South African Perspective. Juta, Cape Town (2005)
16
J Sloth-Nielsen and H Kruuse “A maturing manifesto: The constitutionalisation of childrenʼs rights in South African
jurisprudence 2007-2012” 2013 International Journal of Childrenʼs Rights 646.
17
S v Z en vier ander sake 1999 (1) SACR 427 (E); S v Kwalase 2000 (2) SACR 135 (C); S v Nkosi 2002 (1) SA 494 (W); Director of
Public Prosecutions, Kwa-Zulu Natal v P 2006 (1) SACR 243 (SCA) and S v N 2008 (2) SACR 135 (SCA); S v B 2006 (1) SACR 311(SCA).
18(CCT 98/08) [2009] ZACC 18.
13
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it finds substantial and compelling reasons to do so, this nevertheless sets up long terms of imprisonment as
the first (and not the last) resort. Furthermore, the impugned provisions failed to require that imprisonment
be imposed for the shortest possible time, indeed they required the opposite. The minimum sentencing
regime was also unconstitutional with regard to child offenders because it did not allow or require thesentencing judge to consider the principles of individuality and proportionality. Finally, the law wasconstitutionally impermissible because it treated children aged 16 and 17 the same as adults, at least in
respect of sentencing.
One can see much evidence of the international law being used in these arguments. The “last resort” and“shortest appropriate period” have been discussed above. The “clean slate” argument is linked to the lastresort principle, because a law that ties the courtʼs hand also limits discretion, whereas a clean slate means
the court can start by considering a non-custodial sentence, and only proceed to an institutional measure ifthat is the only suitable option. The importance of discretion is specifically mentioned in Rule 6 of the Beijing
Rules.19 The principles of individuality and proportionality are also found in the Beijing Rules.20
The Applicantʼs argument was bolstered by the use of comparative foreign law. The only country
comparison which could be found that imposed minimum sentencing regimes on children in the same manner
it does to adults was the United States,21 which was one of only two countries in the world at the time that
had not ratified the Convention on the Rights of the Child.22 The Applicants pointed out that those countries
that have undertaken law reforms since the advent of the CRC had ensured that minimum sentences either
do not apply to child offenders or that if they do, the sentences are for shorter periods of time than those
applicable to adults.
The Minister of Justice took the position that the law was not unconstitutional because it respected the“last resort” and “shortest appropriate period” principles, but that Parliament had determined how thoseprinciples should be applied̶namely to 16 and 17 year olds, and in the scheduled crimes. Furthermore,certain features of the law̶particularly the ability of the court to depart from the minimum sentence,ameliorated the effects of the law in a way that would benefit child offenders. Their youthfulness, it wasargued, would often amount to a substantial and compelling circumstance. The Minister also argued that thelaw was not in breach of international law principles because the Convention on the Rights of the Child only
prohibits life imprisonment without the possibility of parole which does not exist in South Africa.23
The Constitutional Court held that the minimum sentencing legislation should not apply to children aged
16 and 17 years old. The majority of the Constitutional Court found that the minimum sentencing legislation
limited the discretion of sentencing officers by directing them to hand down long sentences (including life
imprisonment) as a first resort. Furthermore, the legislation discouraged the use of non-custodial options, it
prevented courts from individualizing sentences, and was likely to cause longer prison sentences. All of thesefeatures of the law amounted to an infringement of child offendersʼ rights in terms of section 28(1)(g).
In addition to relying on article 37(b) of the CRC on which the section is based, the Court found that thefollowing instruments “count in favour of the view that minimum sentences should not be applied to childoffenders”: The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing
Rule 6: In view of the varying special needs of juveniles as well as the variety of measures available, appropriate scope fordiscretion shall be allowed at all stages of proceedings and at different levels of juvenile justice administration, including
investigation, prosecution, adjudication and the follow-up of dispositions.
20
Rule 5: The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile
offenders shall always be in proportion to the circumstances of both the offenders and the offence.
21
This was prior to the judgment of Miller v Alabama, 132 S. Ct 2455 (2012). Scott et al (supra note 15 at 26) point out that in the
post-Miller era laws that subject juveniles to mandatory minimum sentences on the same basis as adult offenders areproblematic on proportionality grounds and are likely to be the focus of future reforms. The authors point to State v Lyle, 854 N.
W. 2d 378 (Iowa 2014) which found that mandatory adult sentences exclude the consideration of juvenile offendersʼ immaturity,
which is against the principle set down in Miller.
22
The United States is now the only country that has not ratified the CRC, because in 2015 Somalia became the 196th State to
ratify the CRC.
23
The Applicants countered this argument by pointing out the Committee on the Rights of the Child General Comment no 10:
Juvenile Justice (2007) called upon states parties ʻto abolish all forms of life imprisonment for offences committed by persons
under the age of 18 years.
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Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), andthe United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines). The court
specifically emphasized Rule 17(1)(a) of the Beijing Rules which provides in relation to sentencing that “[t]hereaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also
to the circumstances and needs of the juvenile as well as the needs of society”.24 The court also quoted article
40(1) of the CRC in full in a footnote.
From all these instruments the Court distilled the following principles: proportionality; imprisonment as ameasure of last resort and for the shortest period of time; children must be treated differently from adults;
and that the well-being of the child is the central consideration.25 The Court found that the international
principles are “amply” embodied in the Bill of Rights which led directly to the conclusion by the court that thelaw was unconstitutional. The Court found that children should be treated differently from adults not for
sentimental reasons, but because of their greater physical and psychological vulnerability and the fact thatthey were more open to influence and pressure from others. The Court found it to be vitally important thatchild offenders are generally more capable of rehabilitation than adults. These are the premises, the Court
said, on which the Constitution requires the courts and Parliament to differentiate child offenders from adults.
The court went on to explain:
We distinguish them because we recognise that childrenʼs crimes may stem from immature judgment,from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence. We
recognise that exacting full moral accountability for a misdeed might be too harsh because they are
not yet adults. Hence we afford children some leeway of hope and possibility.26
The Courtʼs interpretation of the last resort principle is interesting. The judgment pointed out that theConstitution does not prohibit Parliament from dealing effectively with child offenders̶the fact that
detention must be used only as a last resort in itself implies that imprisonment is sometimes necessary.
However, the Bill of Rights mitigates the circumstances in which such imprisonment can happen. It must be alast (not first or intermediate) resort, and it must be for the shortest appropriate period. “If there is anappropriate option other than imprisonment, the Bill of Rights requires that it be chosen. In this sense,
incarceration must be the sole appropriate option. But if incarceration is unavoidable, its form and durationmust also be tempered, so as to ensure detention for the shortest possible period of time”.27
B. The Case about Decriminalization of Consensual Sex between AdolescentsSouth Africaʼs parliament passed new Sexual Offences legislation in 2007.28 The new law had goodintentions of protecting children from sexual abuse. However the case of Teddy Bear Clinic v Minister ofJustice shows that it went too far by criminalizing all consensual sexual activity from kissing through tointercourse between adolescents aged twelve to sixteen years. The law contained a requirement that whenchildren who are both between the ages of twelve and sixteen years indulge in any form of consensual sexual
violation (penetrative or non-penetrative) and a decision is taken to prosecute them, then both must beprosecuted.29 The protection of children from sexual advances by adults is clearly beneficial and had long
been part of South African law (i.e., a person above sixteen years may not have sexual relations with a person
below sixteen years, regardless of consent). However, the idea that if children who were both between twelve
and sixteen years engage in consensual sexual activity they are both committing a crime due to their inability
to consent was a new idea and a concerning one.
This “crime” was linked to a mandatory reporting provision, so parents, teachers and counsellors who
knew about such activities were required to inform the police. The law exposed adolescents to the risk ofprosecution, and if convicted, their names would be placed on the sex offenders register. Two childrenʼsThis is one of the guiding principles in adjudication and disposition under the Beijing Rules.
Centre for Child Law v Minister of Justice at para 61.
26
Centre for Child Law v Minister of Justice Para 28.
27
Centre for Child Law v Minister of Justice Para 31.
28
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (hereafter Sexual Offences Act).
29
The minutes of the Parliamentary portfolio committee indicate that the members of the legislature were particularly proud of
the gender neutral nature of this amendment ‒ they said it would obviate what they called the ʻangry father syndromeʼ which,they considered, operated unfairly against males in the old system.
24
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rights organisations, Teddy Bear Clinic for Abused Children and Resources aimed at Child Abuse andNeglect (RAPCAN), legally represented by the Centre for Child Law, challenged this law on the basis that it
unjustifiably infringed the rights of children to dignity, privacy, sexual autonomy and to have their bestinterests considered paramount. The Constitutional Court handed down a judgment in October 2013,
declaring the law unconstitutional and therefore effectively decriminalizing consensual sex between
adolescents.
In papers before the court, the Applicants made the point that adolescents (twelve to sixteen years of age)are in a special position. Physiologically, they are rapidly developing and maturing, but psychologically they
are not yet fully developed and are still vulnerable to the influence of adults. It is for this reason that the
Applicants accept that the legal provisions are constitutionally permissible insofar as they criminalize thesexual conduct of adults. However the Applicants contended that, to the extent that the sections criminalize
the sexual conduct of children, they are unconstitutional.
The Applicantsʼ founding affidavit placed reliance on an expert opinion which showed that the onset ofpuberty generally occurs before or around twelve years of age, most other physical indications of sexual
maturity manifesting between the ages of twelve and sixteen years. Furthermore, intimate relationships
between adolescents are “developmentally normative”, with up to 87% of a cross section of Grade 8 to Grade
11 pupils in one study indicating they were or had been in an intimate relationship.
The court papers filed by the Applicant pointed out further anomalies in South African law. Whilst section
15 of the Sexual Offences Act make it a crime for children to engage in sexual intercourse, section 134 of theChildrenʼs Act 38 of 2005 provides that no person may refuse to sell or provide condoms to a child over theage of twelve years. Other contraceptives can be provided on request by a child if the child is at least twelve
years of age and has been physically examined. These children are entitled to confidentiality under theChildrenʼs Act, but under the Sexual Offences Amendment Act a person who knows that a sexual offence isbeing committed (including statutory offences arising from consensual sexual activity) has a duty to report itto the police. Furthermore, the Termination of Pregnancy Act allows girls of any age to decide to terminate
their pregnancies without parental consent, provided they have had counselling. However, if they discuss
their pregnancy with anyone, that person is required to report a sexual offence.
The court papers pointed out that the above-mentioned provisions aimed to make reproductive healthservices available to children who need them, but are in stark contrast to the reporting requirements under
the Sexual Offences Act.
In essence the Applicantʼs case was that while it might be reasonable for the state to take an interest in
discouraging sexual activity among children between the ages of twelve and sixteen years, this could beachieved through educative approaches. There is no need for the law to criminalize sex between teenagers.
The Applicants included an interesting paragraph in their papers before the court:
Indeed, the fact that the relevant aspects of the impugned provisions criminalize only children is itself ofmajor concern. On 23 September 2011, the UN Human Rights Council adopted a resolution in which it
called upon States to enact or review legislation to ensure that any conduct not considered a criminal
offence or not penalized if committed by an adult is not considered a criminal offence and not penalized if
committed by a child, in order to prevent the child’s stigmatization, victimization and criminalization. 30
This is an example of using a UN resolution̶the status of which is not strong in international law.
However, this clause captured exactly the problem which the new Sexual Offences law had brought about.
The Respondent (Minister of Justice and Constitutional Development) focused on moral concerns as wellas concerns about teenage pregnancy and sexually transmitted diseases. The measures were necessary inorder to protect children from their own immature judgment. The Minister also claimed that although thelaw authorised prosecution, it did not require it and the children could, under the Child Justice Act, bediverted from the criminal justice system. This ameliorated the effects of the impugned provisions.

30

UN Human Rights Council Human rights in the administration of justice, in particular juvenile justiceʼ A/HRC/18/L.9, para 14.

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However, the Applicants strongly countered this last point. They pointed out that the fact that children
will often be diverted (in terms of the Child Justice Act31) once a decision to prosecute has been made does
not avoid the substantial trauma and harm that they will endure. Before being diverted children would be
exposed to the earlier process in the criminal justice system such as arrest, being required to provide detailed
statements about their sexual conduct, being questioned by police and other authorities about their sexual
conduct or even from being detained in police cells.
This is an interesting point, because diversion is encouraged by article 40(3)(b) of the CRC and also in rule
11 of the Beijing Rules. The Minister, in defending the law, said that diversion cured the problems in the law.
Although the Applicants considered diversion to be a positive process, they disagreed that the possibility ofdiversion solved the problems in the law. An unconstitutional law, they said, cannot be “saved” because its
application is discretionary.
On 3 October 2013 the Constitutional Court handed down a unanimous judgment which found the
impugned provisions infringed adolescentsʼ rights of dignity and privacy and further violated the bestinterests principle. The court relied on the expert evidence adduced by the Applicants, and concluded thatthe impugned provisions criminalized developmentally normative conduct for adolescents and negatively
affected the very children the law sought to protect. Thus the law was not rationally connected to its purpose.
Justice Khampepe, who wrote the judgment, said that it was important to stress what the case was not about.
It was not about whether children should engage in sexual conduct, nor was it about setting a lower age ofconsent. The case was about the narrow issue of whether it was constitutionally permissible to use
criminalization to deter chldrenʼs early sexual intimacy and combat the associated risks.
Justice Khampepe underlined the dignity of children, describing the law as having placed youthfultransgressors in a state of disgrace. She clearly recognised that sexual intimacy and sexual choices are part ofthe innermost sanctity of a personʼs dignity, and she included childrenʼs intimacy within that constitutionallyprotected ambit. She also clearly stated that the impugned provisions, by prohibiting consensual intimate
relationships, intruded into the core of adolescentsʼ privacy. Furthermore, in discussing childrenʼs bestinterest she found that the impugned provisions ran contrary to that best interests principle because they
harmed children.
Justice Khampepe clearly understood the concerns about criminalization and stigmatization̶asmentioned in the Human Rights Council resolution that was included in the Applicantsʼ papers. She said:
It cannot be doubted that the criminalization of consensual sexual conduct is a form of stigmatization
which is degrading and invasive. In the circumstances of this case, the human dignity of adolescentstargeted by the impugned provisions is clearly infringed. If oneʼs consensual sexual choices are notrespected by society, and are criminalized, an innate sense of self-worth will inevitably be diminished.
The references to “dignity” and “self-worth” are also terms that we find in Article 10(1), which enjoins
State Parties to treat every child who is accused of, charged with or convicted of a crime to be “treated in amanner consistent with the promotion of a childʼs sense of dignity and worth”. In this case, the court goes
further̶the statute which criminalizes the Act affects childrenʼs sense of dignity and worth isunconstitutional, and the court declared the law invalid in as far as it applied to adolescents. Although the
Teddy Bear Clinic judgment does not set out the international law in the detail that the Centre for Child Law
judgment does, it nevertheless embodies the juvenile justice standards.
C. The Case that Found Automatic Placement of Child Offenders on the Sex Offendersʼ Register
Unconstitutional
The third case study selected for discussion in this presentation is called J v National Director of Public
Prosecutions (J v NDPP).32 The Sexual Offences Act of 2007 established a National Register for Sex Offenders,which aims primarily to prevent persons who have been convicted of sexual offences against children fromworking with children.33 The register is not public, but employers are obliged to check against the register31
32

Act 75 of 2008.
2014 (2) SACR 1 (CC).

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when they are considering employing someone who will work with children̶and this even applies tovolunteers. Once a person is convicted of any sexual offence, his or her name must be placed on the register,
the presiding officer has no discretion in this regard. The length of time the name stays on the register
depends on the sentence̶and anyone sentenced to more than 18 months imprisonment (including asuspended sentence) or who has more than one conviction, goes on the register for life. It is clear, therefore,that the implications of a personʼs name going on the register are profound.
The section applied to all sex offenders, and the constitutionality of its application to child offenders wasraised by a High Court judge who was reviewing the sentence of a 14 year old boy, IJ, who had been
convicted of three counts of rape and one of serious assault in which the victims were also children. He had
been sentenced to five yearsʼ compulsory residence in a Child and Youth Care Centre, and depending on his
behavior, a further three years in prison thereafter. The reviewing judge upheld the sentence, but was very
concerned about the fact that the court ordered (as it was required to do by law) that the boyʼs name must beplaced on the sex offenders register. The judge was of the view that this approach clashed with the approachof South Africaʼs Child Justice Act 75 of 2008, which is based on international standards. The preamble to theChild Justice Act specifically mentions that the law aims to establish a criminal justice system that is “inaccordance with the values underpinning our Constitution and our international obligations” and it goes on toname the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of theChild. Section 2 of the Act lists the objects of the Act, which include several clauses, and section 3 contains 9
guiding principles, which are modelled on international law. These are attached as annexures to this paper asannexure 1.
The case of J v NDPP ended up in the Constitutional Court, and there three child rights organisations
known as Teddy Bear Clinic, Childline and National Institute for Crime Prevention and Reintegration of
Offenders (NICRO),34 made joint amici curiae (which means “friends of the court”) submissions which were
influential in the outcome of the case. The amici curiaeʼs argument emphasized the fact that the Child Justice
Act rests on principles of international and regional law, as reflected in articles 37 and 40 of the Convention on
the Rights of the Child and article 17 of the African Charter on the Rights of the Child.35
The submissions pointed out the following important principle in the Act: “All consequences arising fromthe commission of an offence by a child should be proportionate to the circumstances of the child, the natureof the offence and the interests of society”. One of the objectives of sentencing, set out in 69(1)(b) of the Child
Justice Act, is to “promote an individualized response which strikes a balance between the circumstances of
the child, the nature of the offence and the interests of society”. This was also highlighted in the court papers.
Furthermore, the amici curiae reminded the court that children must be treated differently from adults
and they placed a significant amount of documentary evidence to the court that showed that most child sex
offenders would not go on to be adult sex offenders.36
The Act is broader than this. Firstly, sex offenders who commit crimes against persons with mental disabilities are also
included in the register. Furthermore, in addition to not being able to work with children, persons on the register, it also
prevents them from adopting or fostering children.
34
Represented by the Centre for Child Law.
35
These instruments are elaborated on by soft international law instruments United Nations Guidelines for the Prevention ofJuvenile Delinquency (1990) (ʻRiyadh Guidelinesʼ); United Nations Rules for the Protection of Juveniles Deprived of their Liberty(1990); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985) (ʻBeijing Rulesʼ); and byGeneral Comment no 10 on Juvenile Justice, issued by the Committee on the Rights of the Child in 2007.
36
Footnote 62 of the judgment in J v NDPP sets out the most pertinent of these references including: Jaffé “Child and adolescentabusers ‒ For a rehabilitative approach driven by scientific evidence” in Council of Europe Protecting children from sexual
violence: A comprehensive approach (Council of Europe Publishing, Strasbourg 2010) at 225 and 231; Lussier and Blokland “Theadolescence-adulthood transition and Robinʼs continuity paradox: Criminal career patterns of juvenile and adult sex offenders in
a prospective longitudinal birth cohort study” (2013) 42 Journal of Criminal Justice 153. Available at http://dx.doi.org/10.1016/j.
jcrimjus.2013.07.004, accessed on 3 March 2014; Piquero et al “Sex offenders and sex offending in the Cambridge study indelinquent development: prevalence, frequency, specialization, recidivism, and (dis) continuity over the life-course” (2012) 35
Journal of Crime and Justice 412 at 412; Reingle “Evaluating the continuity between juvenile and adult sex offending: a review ofthe literature” (2012) 35 Journal of Crime and Justice 427; Vess et al “International sex offender registration laws: research andevaluation issues based on a review of current scientific literature” (2013) 14 Police Practice and Research: An International
Journal 205 at 209; and Zimring et al “Investigating the continuity of sex offending: Evidence from the second Philadelphia birthcohort” (2009) 26 Justice Quarterly 58.
33

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The amici curiae acknowledged that there may be some child sex offenders who pose a risk̶but that the
automatic placement of all children on the sex offenders register was unconstitutional because it did not allow
for an individualized, proportionate response, and because it treated children in the same way as adults. It did
not allow the constitutional principle of the best interests of the child to be a paramount consideration,
because there was no discretion that allowed a court to weigh their interests. Once convicted, they
automatically went on the register.
The amici curiae also argued that although the register was not a public one, children would neverthelessbe stigmatized by their names being included on it. They further stressed the importance of a rehabilitative
rather than punitive approach to child sex offending̶what was required was not shaming, which excludes
and isolates, but rather reintegrative processes, such as restorative justice.
The Constitutional Court found that the best interests of the child was the correct departure point to takein evaluating the matter. The court found that[t]he contemporary foundations of childrenʼs rights and the best interests principle encapsulate theidea that the child is a developing human being, capable of change and in need of appropriate nurturing
to enable her to determine herself to the fullest extent and develop her moral compass. This Court hasemphasized the developmental impetus of the best-interests principle in securing childrenʼs right toʻlearn as they grow how they should conduct themselves and make choices in the wide and moral
world of adulthoodʼ.37 In the context of criminal justice, the Child Justice Act confirms the moral
malleability or reformability of the child offender.38
The court then went on to list a number of key principles that arise from the “best interests” approach.
Firstly, the court found that the law should generally distinguish between adults and children39 ̶and that
therefore it was a problem that the law treated children and adults alike.
Secondly, the court found that the law should allow for an individuated approach to child offenders, statingthat the best-interests standard must always be flexible because individual factors will secure the bestinterests of a particular child. Here the court referred to the principle of proportionality too, and drewattention to the fact that that principle is embedded in the Child Justice Act.
Thirdly, the court held that children should be given an opportunity to make submissions before a decision
to place them on the register is made̶in keeping with the principle of childrenʼs participation. Here the court
goes into some detail about the international law standards. In footnote 45 of the judgment, direct reference ismade by the Court to Article 12 of the CRC (right to express views and have them given due weight), and also
the CRC committeeʼs General Comment no 12 (2009): “The right of the child to be heard” CRC/C/GC/12, atparas 1 and 15, and at para 57, which states that the right extends “throughout every stage of the process ofjuvenile justice”. In the same footnote, the judgment also makes reference to the CRC committeeʼs General
Comment no 10 (2007): “Childrenʼs rights in juvenile justice”; CRC/C/GC/10 at paras 12 and 43-5. Paragraph
12 states that “[t]he right of the child to express his/her views freely in all matters affecting the child should
be fully respected and implemented throughout every stage of the process of juvenile justice. The Committee
notes that the voices of children involved in the juvenile justice system are increasingly becoming a powerfulforce for improvements and reform, and for the fulfilment of their rights.
Paragraph 43 requires a child to “be provided with the opportunity to be heard in any judicial oradministrative proceedings affecting the child” either directly or through a representative or appropriate
body. Paragraphs 44 and 45 add more detail to this statement, emphasizing that the right applies at all stagesof proceedings and that the child “should be given an opportunity to express his/her views on any ʻmeasureʼ
to be imposed”. The child is not to be treated as “a passive object”. It is significant that the South African
Constitutional Court paid attention not only to the Convention, but also to the General Comments issued by
the Committee on the Rights of the Child, as these documents are more up to date, and provide significantly
This is a quote from S v M (Centre for Child Law as amicus curiae), a 2007 judgment of the court.
J v NDPP para 36. The court uses ʻsheʼ and ʻherʼ throughout the judgment, which while being a gender sensitive strategy also
serves to remind us that girls may also be sex offenders, although J is a boy and the majority of sex offenders are boys.
39
J v NDPP para 36.
37
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more detail.
The court was concerned that there was no discretion for a judge in the law as it stood. This meant thatchildren were not given any right to participate and also that the court could not of its own accord decide not
to place a child on the register. The law required the registration follows automatically upon conviction.
The Court went on to look at the serious implications of having oneʼs name on the register:Child offenders who have served their sentences will remain tarred with the sanction of exclusionfrom areas of life and livelihood that may be formative of their personal dignity, family life, and abilities
to pursue a living. An important factor in the realizing the reformative aims of child justice is for childoffenders to be afforded an appropriate opportunity to be reintegrated into society.
Although the Court found that the aims of the Sex Offenderʼs Register were laudable (i.e., protecting
children from being sexually abused),40 the Court found that there were less restrictive means to achieve theaims of the register, such as allowing discretion. The court declared the impugned provisions to beunconstitutional and suspended the order of invalidity, allowing Parliament a period of 15 months to bring thelegislation in line with the Constitution.
The Sexual Offences Amendment Act 5 of 2015 introduced significant amendments to the Sexual
Offences Act, in line with the cases Teddy Bear Clinic case and J v NDPP.41 The law was amended in a waythat made it clear that adolescents between 12 and 16 years old cannot be charged if they engage inconsensual sexual interactions with one another. The amendment also changed the law so that if a child isconvicted of a sexual offence his or her name does not automatically go on the register. If the prosecutor
intends to request a child sex offenderʼs name to be placed on the register, s/he must give notice of that
intention, and the defence must have an opportunity to ensure that the child is properly assessed by aprofessional, and to make arguments why the childʼs name should not go on the sex offendersʼ register.

III. CONCLUSION
This paper has demonstrated the power of the international instruments at the country level. Where
these instruments are used by advocacy groups, law makers, lawyers and courts, they can make a practicaland significant impact on juvenile justice. The principles embodied in the instruments can provide guidance inlegislation, and in the interpretation of laws by the courts. In South Africa, which is a constitutional
democracy, the instruments have provided legal support for judges who have found laws that do not conformto the international law to be unconstitutional.

The court balances the rights of child victims and offenders see Z Hansungule “Protecting child offenders rights: Testing the
National Register for Sex Offenders” 2015 (50) SA Crime Quarterly 23.
41
For a discussion of the ways in which the new amendments give effect to the judgments see P Mahery “The 2015 Sexual
Offences Amendment act: Laudable amendments in line with the Teddy Bear Clinic case” 2015 (8) 2 South African Journal of
Bioethics and the Law 4; P Stevens “Recent developments in sexual offences against children ‒ A constitutional perspective”
Potchefstroom Electronic Law Journal 2016 (19) 1.
40

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Annexure 1 Excerpt from the Child Justice Act
CHILD JUSTICE ACT 75 OF 2008
(English text signed by the President)
as amended by
Judicial Matters Amendment Act 42 of 2013
Judicial Matters Amendment Act 14 of 2014
Legal Aid South Africa Act 39 of 2014
also amended by
Prevention and Combating of Trafficking in Persons Act 7 of 2013
[with effect from a date to be proclaimed - see PENDLEX]Regulations under this Act
ACT
To establish a criminal justice system for children, who are in conflict with thelaw and are accused of committing offences, in accordance with the values
underpinning the Constitution and the international obligations of the
Republic; to provide for the minimum age of criminal capacity of children; toprovide a mechanism for dealing with children who lack criminal capacity
outside the criminal justice system; to make special provision for securing
attendance at court and the release or detention and placement of children; tomake provision for the assessment of children; to provide for the holding of apreliminary inquiry and to incorporate, as a central feature, the possibility ofdiverting matters away from the formal criminal justice system, inappropriate circumstances; to make provision for child justice courts to hear
all trials of children whose matters are not diverted; to extend the sentencing
options available in respect of children who have been convicted; to entrench
the notion of restorative justice in the criminal justice system in respect ofchildren who are in conflict with the law; and to provide for matters incidental
theretoPreamble
RECOGNISING• that before 1994, South Africa, as a country, had not given many of its children,
particularly black children, the opportunity to live and act like children, and also thatsome children, as a result of circumstances in which they find themselves, have comeinto conflict with the law;
AND MINDFUL that• the Constitution of the Republic of South Africa, 1996, as the supreme law of the
Republic, was adopted to establish a society based on democratic values, social andeconomic justice, equality and fundamental human rights and to improve the quality oflife of all its people and to free the potential of every person by all means possible;• the Constitution, while envisaging the limitation of fundamental rights in certain
circumstances, emphasises the best interests of children, and singles them out for
special protection, affording children in conflict with the law specific safeguards, among
others, the right* not to be detained, except as a measure of last resort, and if detained, only forthe shortest appropriate period of time;* to be treated in a manner and kept in conditions that take account of the childʼsage;* to be kept separately from adults, and to separate boys from girls, while in detention;* to family, parental or appropriate alternative care;* to be protected from maltreatment, neglect, abuse or degradation; and* not to be subjected to practices that could endanger the childʼs well-being,education, physical or mental health or spiritual, moral or social development; and• the current statutory law does not effectively approach the plight of children in
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conflict with the law in a comprehensive and integrated manner that takes into accounttheir vulnerability and special needs;
AND ACKNOWLEDGING THAT• there are capacity, resource and other constraints on the State which may
require a pragmatic and incremental strategy to implement the new criminal justicesystem for children;
THIS ACT THEREFORE AIMS TO• establish a criminal justice system for children, who are in conflict with the law,in accordance with the values underpinning our Constitution and our international
obligations, by, among others, creating, as a central feature of this new criminal
justice system for children, the possibility of diverting matters involving children who
have committed offences away from the criminal justice system, in appropriate
circumstances, while children whose matters are not diverted, are to be dealt with in
the criminal justice system in child justice courts;• expand and entrench the principles of restorative justice in the criminal justicesystem for children who are in conflict with the law, while ensuring their responsibility
and accountability for crimes committed;• recognise the present realities of crime in the country and the need to beproactive in crime prevention by placing increased emphasis on the effective
rehabilitation and reintegration of children in order to minimise the potential for reoffending;• balance the interests of children and those of society, with due regard to therights of victims;• create incrementally, where appropriate, special mechanisms, processes orprocedures for children in conflict with the law* that in broad terms take into account̶ the past and sometimes unduly harsh measures taken against some of thesechildren;̶ the long-term benefits of a less rigid criminal justice process that suits the needsof children in conflict with the law in appropriate cases; and̶ South Africaʼs obligations as party to international and regional instruments
relating to children, with particular reference to the United Nations Convention on the
Rights of the Child and the African Charter on the Rights and Welfare of the Child;* in specific terms, by̶ raising the minimum age of criminal capacity for children;
̶ ensuring that the individual needs and circumstances of children in conflict withthe law are assessed;
̶ providing for special processes or procedures for securing attendance at court of,
the release or detention and placement of, children;̶ creating an informal, inquisitorial, pre-trial procedure, designed to facilitate thedisposal of cases in the best interests of children by allowing for the diversion ofmatters involving children away from formal criminal proceedings in appropriate cases;̶ providing for the adjudication of matters involving children which are notdiverted in child justice courts; and̶ providing for a wide range of appropriate sentencing options specifically suited to
the needs of children.
CHAPTER 1
DEFINITIONS, OBJECTS AND GUIDING PRINCIPLES OF ACT (ss 1-3)
1 Definitions--- 2 Objects of Act
The objects of this Act are to(a) protect the rights of children as provided for in the Constitution;(b) promote the spirit of ubuntu in the child justice system through(i) fostering childrenʼs sense of dignity and worth;(ii) reinforcing childrenʼs respect for human rights and the fundamental
freedoms of others by holding children accountable for their actions
and safe-guarding the interests of victims and the community;
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VISITING EXPERTSʼ PAPERS(iii) supporting reconciliation by means of a restorative justiceresponse; and(iv) involving parents, families, victims and, where appropriate, othermembers of the community affected by the crime in procedures interms of this Act in order to encourage the reintegration ofchildren;(c) provide for the special treatment of children in a child justice systemdesigned to break the cycle of crime, which will contribute to safer
communities, and encourage these children to become law-abiding andproductive adults;(d) prevent children from being exposed to the adverse effects of the formal
criminal justice system by using, where appropriate, processes, procedures,
mechanisms, services or options more suitable to the needs of children andin accordance with the Constitution, including the use of diversion; and(e) promote co-operation between government departments, and between
government departments and the non-governmental sector and civilsociety, to ensure an integrated and holistic approach in theimplementation of this Act.
3 Guiding principles
In the application of this Act, the following guiding principles must be taken into
account:(a) All consequences arising from the commission of an offence by a childshould be proportionate to the circumstances of the child, the nature of theoffence and the interests of society.
(b) A child must not be treated more severely than an adult would have beentreated in the same circumstances.
(c) Every child should, as far as possible, be given an opportunity to participate
in any proceedings, particularly the informal and inquisitorial proceedings interms of this Act, where decisions affecting him or her might be taken.
(d) Every child should be addressed in a manner appropriate to his or her age
and intellectual development and should be spoken to and be allowed to
speak in his or her language of choice, through an interpreter, if necessary.
(e) Every child should be treated in a manner which takes into account his or
her cultural values and beliefs.
(f) All procedures in terms of this Act should be conducted and completed
without unreasonable delay.
(g) Parents, appropriate adults and guardians should be able to assist children
in proceedings in terms of this Act and, wherever possible, participate indecisions affecting them.
(h) A child lacking in family support or educational or employment opportunities
must have equal access to available services and every effort should bemade to ensure that children receive similar treatment when having
committed similar offences.
(i) The rights and obligations of children contained in international and regional
instruments, with particular reference to the United Nations Convention on
the Rights of the Child and the African Charter on the Rights and Welfare of
the Child.

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PARTICIPANTSʼ PAPERS
THE CHALLENGES OF DIVERSION IN THE
BRAZILIAN JUVENILE JUSTICE SYSTEM
Alessandra Charbel Janiques Rebouças＊

I. INTRODUCTION1
Diversion stands as one of the top best practices2 among the international guidelines for more effective
juvenile justice systems. All the international influence towards diversion did not go unnoticed in Brazilʼssettlement of a child rights framework. The Brazilian mechanism of diversion ̶ the so-called ʻremissionʼ ‒has had a privileged theoretical and procedural placement since 1990 and has been exhaustively granted byprosecutors and judges on a daily basis. However, 27 years later, the interventions made through remission
have not always been effective in achieving diversionʼs benefits and, hence, juvenile justiceʼs and societyʼsaims. What are the challenges faced? What could be of help?
Despite the existence of notorious failures from local Executive Powers in the implementation of theinterventions determined through remission, there still are deficiencies in which prosecutors and judges canintervene for the improvement of the system.
The effectiveness of remission has a special importance for the Brazilian system because it targets firsttime offenders and those without persistence in criminality, whose offence was committed without violenceor serious threat. Interventions over these juveniles are more likely to bring positive results, since “recent
research has suggested that the deeper that a young person penetrates into the youth justice system, the lesslikely he or she is to desist from further offending”.3 Considering the big number of cases under this situation,effective interventions over this targeted group, besides contributing for the well-rounded development of agreat number of juveniles, minimizes overburdened courts and overcrowded treatment institutions, shifting
the focus to more serious cases; thus, it makes the system more effective and reduces Stateʼs costs.
Drawing upon the daily experience in Brazilian juvenile courts, coupled with the study of few others
international best practices in the field, this paper intends to address three of the identified challenges that
put remissionʼs effectiveness at risk: the poor assessment of the juvenile needs; the use of limited intervention
methods and the delay in starting the interventions applied. Perhaps it is time to: 1) prioritize the creation ofmultidisciplinary team support to assist in the procedure, 2) shift the paradigm in intervening with youth and3) fight for an articulated and collaborative action among the actors of the system.
For the sake of clarity, this paper is structured in parts, where Part 2, besides illustrating the Brazilian
legal context in the 1990s, lists the consequences of international and local commitments to child rights. Part 3
briefly describes the Brazilian current social context and suggests this as the moment to reflect about what
can be changed in the juvenile justice system, especially since major legislative changes are underway. Part 4
deals with the main purpose of this paper. First, it pinpoints a few specific definitions and important elementsof the Brazilian juvenile justice and briefly delineates its procedure, in order to demonstrate remissionʼs
important placement in the system. Second, it provides separate topics for critically analysing three of theState Prosecutor (since 2003) in the area of Juvenile Justice, in the Office of the Prosecution Service of the Federal District andTerritories of Brazil.
1This paper is based on studies done by the author for her ʻResearch Projectʼ submitted to SAO/McGill University,
Montreal/Canada, in December/2013, with the title: ʻThe MPʼs contribution to transforming the youth system in Brazilʼ. This
paper, however, has a different perspective ̶ a different focus ̶, building new ideas.
2
See e.g. UNICEF Regional Office for CEE/CIS, “Good Practices and Promising Initiatives in Juvenile Justice in the CEE/CIS
Region” (2010), online: UNICEF <https://www.unicef.org/ceecis/>.
3
Nicholas Bala, Peter Carrington & Julian Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified
Success” (2009) 51 Canadian J. Criminology & Crim. Just. 131, at 135 (Hein Online).
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identified challenges that put remissionʼs effectiveness at risk. Each topic initially examines the theoreticalbackground and the limitations of the daily practices; at the end, based on the experience in juvenile courts
and on a few international best practices, it brings ideas for concrete changes in the Brazilian juvenile justicesystem, for effective fulfilment of its role.

II. BRAZIL IN THE 1990s: SETTING A CHILD RIGHTS FRAMEWORKThe human rights commitments by States, in both international and domestic spheres, were a milestone
in the second half of the twentieth century. Like other States, Brazil was not only engaged in building a social
net to guarantee its populationʼs basic needs, but also in articulating, abroad and at home, a human rights
framework, to ensure the exercise and enjoyment of all types of rights.
Brazil was among the 48 members of the United Nations General Assembly in 1948 that voted in favour ofadopting the Universal Declaration of Human Rights, “thereby endorsing a new international vision of therole of governments in fostering and promoting human rights as a collective value”.4 Over the years that
followed, the country became signatory to all major international human rights treaties, including the United
Nations Convention on the Rights of the Child5 (hereafter, CRC).6
In the domestic scenario, the international influence reflected on the inauguration of a new legal system atthe end of the 1980s, with the adoption of a progressive Federal Constitution in 1988 (hereinafter FC/88)7,
consolidating democracy after a long period of military dictatorship. Later on, many legal documents thatcomply with the international guidelines for rights in general (including child rights) were established,alongside with the creation and strengthening of institutions and specialized agencies, in order to structure
the whole system of protection.8
More specifically, the FC/88 introduced a new perception of childhood and youth, with a new approach indealing with them. In 1990, Brazil published the Child and Adolescent Statute (hereinafter CAS/90)9, thelandmark youth legislation in the country and one of the most advanced laws governing children in the world.
Furthermore, after a few legislative changes to the Statute, the most significant complement was introduced
in 2012, with the creation of the National System of Socio-educational Measures (SINASE) and the regulation
to implement socio-educational measures (Law of SINASE/12).10
The FC/88 elevated children and adolescents as holders of autonomous legally protected interests before
the family, the society and the State, which were all given the duty to ensure and protect their fundamental
rights with absolute priority and attention to the peculiar condition of persons in development.11 It
determined that “[m]inors under eighteen years of age shall not be held criminally liable and shall be subject
to the rules of special legislation”,12 as well as any measure that restrained freedom must comply with theprinciples of brevity and exceptionality.13
The CAS/90, following the constitutional provisions, embraces a wide range of aspects and interests ofminors. The CAS/90 brings three systems of protection:14 the Primary covers general public policies; theMartha Jackman, “From National Standards to Justiciable Rights: Enforcing International Social and Economic Guarantees
through Charter of Rights Review” (1999) 14 J. of L. and Social Policy, at 72 (Hein Online).
5
Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UNTS 3, online: United Nations Treaty Collection <http://www.treaties.un.org/>.
6
Decree n° 99.710 of 21 November 1990, DOU 22 November 1990, Brazil, online: Planalto <http://www.planalto.gov.br>.
7
Constitution of the Federative Republic of Brazil, 1988, DOU 05 October 1988, Brazil, online: Camara dos Deputados <http://livraria.camara.leg.br/> (see English version) [FC/88].
8
See Valerio Mazzuoli, Curso de Direito Internacional Publico, 6 ed. (São Paulo: RT 2012), at. 836.
9
Law n° 8.069 of 13 July 1990, DOU 16 July 1990, Brazil, Child and Adolescent Statute, online: CONANDA <http://www1.
direitoshumanos.gov.br/conselho/conanda/legis/link6/>(English version) [CAS/90].
10
Law 12.954 of 18 January 2012, DOU 19 January 2012, Brazil, Law of SINASE, online: planalto <http://www.planalto.gov.br>.
11
FC/88, supra note 7, Article 227.
12
Ibid. at Article 228.
13
Ibid. at Article 227, 3°, V.
14João Batista Costa Saraiva, Desconstruindo o Mito da Impunidade: um ensaio de Direito (Penal) Juvenil (Brasilia: Centro deDefesa dos Direitos da Criança e do Adolescente ‒ CEDEDICA, 2002) at 50.
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Secondary covers protective measures targeted at children/adolescents at personal or social risk; theTertiary deals with the accountability of juveniles in conflict with the law and with the so-called juvenile
justice (Police/Prosecution/Defence/Judiciary/Executing Agencies and Institutions).15 The Law of SINASE/
12, though related to the implementation stage of measures applied by the juvenile justice, is an importantsource of principles that can be used in the whole childʼs system.
As for the consequences of all these international and local legal commitments, Brazil has undertaken
obligations to ensure, respect, protect, promote and fulfil fundamental rights, as well as to positively
implement policies and programmes, with absolute priority to the ones related to children/adolescents. This
position disallows any attempt to deny or empty child rights contents, that is, to treat them as if they were
not rights, but mere guidelines; rather, they impose concrete actions and policies on the Powers of the Statefor the achievement of their purposes.

III. 27 YEARS AFTER THE CAS/90: TIME TO RETHINK
Written law often differs from the reality of its enforcement. Twenty-seven years have passed since theCAS/90 and Brazilʼs reality still does not reflect the theoretical promise. A common picture in all of its large
cities is children begging, selling objects at traffic lights and looking after parked vehicles, usually in exchange
for very small amounts of money.16 Poverty, hunger, illiteracy, lack of education and economic opportunities,
unemployment, population density, poor hygienic condition, social discrimination, politics, the easy access tofirearms and drugs, among others, are also big issues.
Alongside with the lack of family structure and childhood violence, this social and economic picturereflects, in a drastic way, on youth delinquency and, hence, on juvenile justice. Survey data from the Brazilian
Ministry of Human Rights demonstrates a huge increase on juvenile incarceration between 1996 and 2014,
raising from 4,24517 to 24,62818, also indicating a rise on the numbers of serious crimes, like drug trafficking,sexual offences, armed robbery, homicide and firearms possession.
Even with this elevated number of incarceration and despite enough evidence showing that institutional
treatment does not deter juvenile offences and that rehabilitation must be the aim,19 public opinion believes
that youth delinquency is increasing because the juvenile system is too “soft”, either by not ʻpunishingʼ or,when measures are applied, by being too mild, especially the non-custodial ones. As a result, there are twolegislative proposals in progress to increase rigour and repression, with widespread support from the public.
The first, a constitutional amendment for the reduction of the age of criminal responsibility: from 18 to 16;20
and second, a law project to increase the maximum length of institutional treatment: from 3 to 5 years.21
On the other hand, for many specialists who work in the field, the CAS/90, despite its decades of existence, has never been implemented in its essence. To quote Saraiva: “There are failures, serious failures, butthese failures are not of legislation.”22 So, what went wrong?
According to the UN Interagency Panel on Juvenile Justice, despite on-going reform efforts over the past
20 years, “globally, there has been only modest and uneven progress ..., [t]he social and institutional responses
to juvenile crime ... are not always resolutely focused on the rehabilitation and reintegration of young
offenders ... [and] have not always been very effective in preventing crime and contributing to public safety.”23
See CAS/90, supra note 9, e.g Articles 4, 101, 103-128 and 171-190; see FC/88, supra note 7, Article 227.
See e.g UNICEF, “Report on Children in an Urban World: the state of the world children 2012“ (2012), online: UNICEF <http://www.unicef.org>.
17
Brazil, National Human Rights Secretariat, Levantamento Nacional do Atendimento Socioeducativo ao Adolescente (2011), at 7,
online: SDH <www.sdh.gov.br/assuntos/criancas-e-adolescentes/pdf/SinaseLevantamento2010.pdf>.
18
Brazil, Ministry of Human Rights, Levantamento Anual SINASE 2014 (2017), at 19, online: SDH <www.sdh.gov.br/noticias/
pdf/levantamento-sinase-2014>.
19
see e.g Ariel de Castro Alves, “Reduçao da idade penal e criminalidade no Brasil” (2007), online: MPPR <http://www.crianca.
mppr.mp.br/>.
20
Brazil, Proposal for constitutional amendment n. 20/1999, online: Senado <http://www.senado.gov.br>.
21
Brazil, Law project n. 7.008/2010, online: Câmara dos Deputados <http://www.camara.gov.br>.
22“falhas há e são graves, mas não são falhas de legislação” (free translation by the author). João Batista Costa Saraiva, “Medidas
Socioeducativas e o Adolescente Infrator” (2000), Revista da Ajuris n. 78, at 129, online: MPSP <http://www.mpsp.mp.br>.
15
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Undoubtedly, Brazil has not been different.
In fact, no legislative change ̶ although very welcome in a few aspects ̶ will have the magic power tomake urgent social problems (such as juvenile delinquency) disappear in Brazil. So, finding ways to turn thesystem more effective must be a greater concern for the entire network of services/protection of children
and youth, as constitutional and legal provisions cannot be understood as merely rhetorical or intentional. It istime to carefully rethink, to reflect about what can be changed in the system, including the juvenile justice.
Even though legal, social and economic realities are very peculiar from country to country, finding ideas
for reforms based on comparative law and international guidelines is an important part of this process. In
addition, international law on criminal and juvenile justice is very rich, allowing critical analysis regarding
procedures and methodologies currently performed.
Through this process, one can see that diversion stands as one of the top best practices extracted fromthe international standards and norms in juvenile justice. So, how is diversion inserted in the Brazilian legal
framework? What are its main aspects? What are the challenges? What are the few possible solutions? These
are the questions this paper intends to answer.

IV. DIVERSION IN BRAZIL: A FEW CHALLENGES AND SOLUTIONS24
The focus of this paper on the challenges the Brazilian diversionary mechanism in juvenile justice(ʻremissionʼ) faces and on a few solutions for its effectiveness lies not only on the international recognition of
its importance for any juvenile justice system, but also because of the dimension it has within the Brazilian
procedure.
Diversion, the process of channelling children away from formal judicial proceedings and court convictionsat any stage of criminal procedures, is “an integral part of an effective child rights-based child justice system”.25
This differentiated treatment in juvenile justice is, first, based on the respect for a sound development of thechild and on the assumption that investing in alternatives to traditional proceedings will effectively help
prevent recidivism, positively contributing to the systemʼs objectives. Promisingly, children are more capableof long-term changes than adults.26
In addition, diversion, by its very nature, minimizes overburdened courts and overcrowded treatment
institutions, giving them space to focus on more serious cases; hence, it makes the system more effective andreduces Stateʼs costs. The high rate of offenders brought to court, under the classical interventions, raises the
chances of inappropriate use of custody, increasing the cost of the system without increasing public safety.27
The CRC makes diversion a binding feature for States: “...[w]henever appropriate and desirable, measuresfor dealing with such children without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.”28 As for what is referred to as the ʻUN standards and norms in juvenile
justiceʼ29, first, the ʻBeijing Rulesʼ (1985)30 explicitly state that “[c] onsideration shall be given, wherever
appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority”,31
UNODC, IPJJ ‒ Interagency Panel on Juvenile Justice, “Criteria for the Design and Evaluation of Juvenile Justice Reform
Programmes” (2010), at 4, online: IPJJ <http://www.ipjj.org/>.
24
For more information related to this theme see the authorʼs ʻResearch Projectʼ, supra note 1.
25
UNICEF, “UNICEF Toolkit on Diversion and Alternatives to Detention 2009 ̶ International human rights instruments
relevant to diversion and alternatives to detention ‒ summary of provisions and commentary” (2009), at 2, online: UNICEF<http://www.unicef.org>.
26
See Heather Hojnacki, “Graham v. Florida: How the Supreme Courtʼs Rationale Encourages Reform of the Juvenile Justice
System Through Alternative Dispute Resolution Strategies” (2012) 12 Pepp. Disp. Resol. L.J. 135 at 145.
27
Bala, Carrington & Roberts, supra note 03, at 160.
28
CRC, supra note 5, Article 40(3) (b).
29
The Beijing Rules, the Riyadh Guidelines and the JDL Rules, together, are referred to as the UN standards and norms injuvenile justice. See supra note 25, at 10.
30
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), GA Res 40/33, GAOR, 40th
Session Supp. No. 96, U.N. Doc A/RES/40/33, (1985).
31
Ibid., Article 11.1.
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given that it outlines detailed guidelines for its practice; second, the principles and provisions addressed bythe ʻRiyadh Guidelinesʼ32 (1990) and the ʻJDL Rulesʼ33 (1991) give ideas for the promotion of diversion andalternative programmes.34 Furthermore, among many others, the Vienna Guidelines35 (1997) and the United
Nations Common Approach to Justice for Children36 (2008) make specific reference to diversionʼs importance,
including for a well-functioning child justice system.
All this international influence towards diversion did not go unnoticed in the Brazilian settlement of arightʼs framework. By the end of the 1980s, “diversion ... became common ... in western jurisdictions, [as it] is
now universally seen as an integral aspect of the rehabilitative and reintegrative parts of each and every
child justice system.”37 Not differently, Brazilʼs system theoretical background favours diversion throughprinciples, explicit rules, legal tools, proceedings and actorsʼ duties.
Brazil also wants all the benefits of diversion. In fact, diversion is exhaustively granted throughprosecutors and judges on a daily basis, as it has a privileged procedural placement. However, theinterventions made through remission have not always been effective in achieving its goals and that of thejuvenile justiceʼs purposes. So, what are the present challenges? What could be of help to its effectiveness?
A. Specific Definitions and Important Elements of Brazilian Juvenile JusticeIn order to reach a uniformity of terms and a better understanding of this paper, it is important to pinpointa few specific definitions and important elements of the Brazilian juvenile justice:/Specific legislation (civil law country): FC/88, CAS/90 and the Law of SINASE/12, binding to allstates of the Brazilian Federation.

/

ʻJuvenile offenceʼ: a conduct analogous to a crime or misdemeanour ‒ listed in the Criminal Code38 or
extravagant criminal laws39 ̶ committed by juveniles, as they cannot be held criminally liable.40/

ʻJuvenileʼ: an individual from 12 to 17 years of age, which is referred to as ʻadolescentʼ; 41 a person 18
years and older is considered ʻadultʼ, subjected to criminal justice. Although a ʻchildʼ ‒ an individual
under the age of 12 ‒ may commit an act similar to a crime, he/she is not held accountable incriminal matters and, hence, is not under the Stateʼs coercive power.

/

Purposes: first, following the ʻBeijing Rulesʼ, the promotion of the well-being of the juvenile, by the
adoption of the ʻdoctrine of full protectionʼ and the ʻprinciple of the best interests of the childʼ as
dogmas for the whole system; second, in line with the CRC, the promotion of juvenileʼs rehabilitation
and reintegration, avoiding merely punitive sanctions.42 In the end, another important aim ispreventing crime, contributing to public safety.

/

Types of measures applied: protective and socio-educational measures (hereinafter, SEM). The factthat children and adolescents cannot be criminally convicted does not imply they are exempt fromUN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines),GA Res 45/112, GAOR, 45th, Supp. No. 68, U.N.
Doc A/RES/4/112, (1990).
33
UN Rules for the Protection of Juveniles Deprived of Their Liberty (JDL Rules), GA Res 45/113 GAOR, 45th Sess., Supp. No. 68,
A/RES/45/113, (1991).
34
See UNICEF, supra note 25, at 15.
35
Guidelines for Action on Children in the Criminal Justice System, UNESCOR, 36th plenary meeting, Annex, UN Res 1997/30 ‒Administration of Juvenile Justice (1997) at para 15, online: UN <http://www.un.org>.
36
UN Common Approach to Justice for children, UN Secretariat-General, Guidance Note (2008), guiding principle 8, online: UN<http://www.un.org>.
37
Violet Odala, “The Spectrum for Child Justice in the International Human Rights Framework: From Reclaiming theDelinquent Child to Restorative Justice” (2011-2012) 27 Am. U. Intʼl L. Rev. 543 at 555 and 563 (Hein Online).
38
Decreto-lei n. 2.848 of 07 December 1940, DOU 13 December 1940, Criminal Code of Brazil, online: planalto <http://www.
planalto.gov.br>.
39
Such as the Brazilian Laws n. 11.343/06 (about drug use and trafficking) and 10.826/03 (about firearms).
40
CAS/90, supra note 9, Articles 103 e 104, and FC/88, supra note 7, Article 228.
41
Ibid., Article 2.
42
Ibid., Articles 1 and 3.
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the justice system. Children (up to 11 years of age) are only subjected to protective measures,43
which can be applied with or without judicial interference. Adolescents (between 12 and 17 years ofage) may receive protective and/or SEMs,44 and depend on judicial proceedings. Protective
measures are those without any kind of punitive character and directed to the protection from ahazardous situation caused by threat of or actual violation of rights (such as drug addiction
treatment, mandatory school attendance, therapeutic care and temporary guidance, support andmonitoring).45 SEMs are accountability measures, which carry both a retributive character(disapproving the act and preventing new infraction) and, above all, a pedagogical character,“intended to interfere in their development process, aiming at better understanding of reality andeffective social integration”46 (principles of rehabilitation and reintegration). There are six types of
SEMs: admonition, damage repair, community service, assisted freedom, semi-liberty andinstitutional treatment.47 Only semi-liberty and institutional treatment bring constriction of freedom.
/‘Ministério Público’ (MP): for the purpose of this paper it will be referred here to as ʻThe Office of
the Prosecution Serviceʼ. The ‘Ministério Público’ is a permanent, independent and autonomous(functionally, administratively and financially) institution of the Brazilian State, essential for thejurisdictional function and responsible for the protection of the legal order, the democratic regime
and inalienable social and individual interests. It has a constitutional placement and a wide range ofpowers that are rarely found in counterpart institutions in comparative law. The MPʼs members areusually referred as ʻprosecutorsʼ (despite their differences) and play an essential role in theprotection of society against crimes (including the exclusive responsibility for prosecution) and in
implementing and ensuring the effectiveness of fundamental rights (even of the juveniles they
formally charge).48

B. Remission: The Brazilian Mechanism of Diversion
Similarly to the Brazilian criminal justice procedure for adults, there are three phases in the juvenile
justice until sentence/disposition delivery (before the implementation stage): police, prosecutorial (ministerial)and judicial. Nevertheless, the possibility of prosecutors and judges in granting remission ̶ the typicalBrazilian mechanism of diversion in juvenile justice ̶ is one of the major specificities that arise, among
others,49 due to the different goals of the two systems.
A brief explanation of the specific legal procedure from the moment of the juvenileʼs arrest or notice ofinfraction at the police station until the SEM is implemented is necessary to better understand remissionʼs
important placement. The following rules were extracted from the CAS/9050, slightly complemented by a
few jurisprudential developments:
As for the police phase, when an infraction is attributed to an adolescent, the specialized police office
investigates the facts, and hears the alleged offender, the victim and witnesses, among other duties. If
the adolescent is apprehended while committing an infraction (known as flagrante delicto [caught redhanded]), the police authority informs him of his rights and notifies his family, the judge and the MP[The Office of the Prosecution Service]. As a general rule, the adolescent is immediately released to his
parents/guardian, on their commitment to present him to the MP [The Office of the Prosecution
Service]. If imperatively necessary,51 the adolescent can be detained at least until the next day, “for the
Ibid., Article 105.
Ibid., Article 112.
45
Ibid., Articles 98 and 101.
46
“tendentes a interferir no seu processo de desenvolvimento, objetivando melhor compreensão da realidade e efetiva
integração social” (free translation by the author). Olympio de Sá Sotto Maior Neto, “Ato infracional, medidas sócio-educativas eo papel do sistema de justiça na disciplina escolar”, online: MPPR <http://www.mppr.mp.br>.
47
CAS/90, supra note 9, Article 112.
48
FC/88, supra note 7, Articles 127-130.
49
For example: 1) the existence of an informal hearing of the adolescent and his parents/guardian (as well as the victims andwitnesses, if needed) chaired by the prosecutor, before deciding how the case should proceed; 2) a very short term for pre-trial
detention: maximum of 45 days counted from the day the adolescent is apprehended until the day the sentence/disposition isdelivered, unlike the many months for adults; 3) the maximum limit of 3 years for de SEMs of internment or semi-liberty, while
adults can receive a penalty of many years; 4) adolescentsʼ records and proceedings are confidential, while public for adults.
50
CAS/90, supra note 9, Articles 171-197.
43
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guaranty of his personal security or the maintenance of the public order, due to the gravity of theinfraction and its social repercussion.”52 After collecting evidence, the investigation file is sent to theJuvenile Court and forwarded to the MP [The Office of the Prosecution Service] (along withinformation on the youthʼs antecedents).
The ministerial [prosecutorial] phase starts when the prosecutor receives the investigation file. In
cases of flagrante delicto [caught red-handed] when the adolescent is not released to his
parents/guardian, the police authority will present him to the MP [The Office of the Prosecution
Service] within 24 hours; the prosecutor will then “proceed immediately and informally to the hearing
and, if possible, to the testimony of his parents or guardian, victim and witnesses”;53 he will also
pronounce on the need for the adolescentʼs temporary internment (i.e. if the adolescent is to remaininterned during the judicial phase [pre-trial detention]). In the absence of ʻflagrante delictoʼ and in casesof ʻflagrante delictoʼ with immediate release by the police authority, the prosecutor may callparents/guardian to present the adolescent at the MP [The Office of the Prosecution Service], in orderto implement the ʻinformal hearingʼ.
Through informal hearing,54 the prosecutor talks to the adolescent (preferably accompanied by anattorney/public defender and by his parents/guardian) about the facts. The adolescent and his
parents/guardian also discuss his social and family realities [circumstances]. If necessary, theprosecutor can hear the victim and/or witnesses. Alongside other legal powers inherent in the MP[The Office of the Prosecution Service] (...), the prosecutor can return the investigation file to the police
authority for implementation of additional diligences, necessary to clarify the actʼs dynamics. After
analyzing the facts, the evidence collected, the seriousness of the infraction, the adolescentʼs social andfamily environments, his criminal antecedents etc., the prosecutor takes one of the following actions:promoting the permanent filing of the investigation file, granting remission or presenting the case to
the Juvenile Court to initiate judicial proceedings. Permanent filing occurs when no evidence is foundto prove an infraction has occurred or the adolescentʼs involvement, despite exhausting all
investigative actions. Extrajudicial remission removes the case from judicial proceedings and does not
imply recognition or proof of guilt, nor does it prevail for purposes of criminal history. The case ispresented to the Court when deemed inadequate for remission; in this situation it is possible, as a lastresort, to temporarily intern [pre-trial detention] the adolescent. In all three possibilities the wholeinvestigation file (with all the documents produced by the police and the MP [The Office of theProsecution Service]) will either return to the Juvenile Court for simple approval in the two firstsituations, or for decision in the last.
The judicial phase begins with the Judgeʼs decision to accept the case presented by the MP [TheOffice of the Prosecution Service]. The Judge will decide on the need for temporary internment [pretrial detention] (lasting up to 45 days) and schedule a hearing to interrogate the adolescent. In this firsthearing, the Judge may grant judicial remission, after registering the prosecutorʼs opinion, or continue
proceedings. In the latter case, another hearing is scheduled for the production of proofs (usually
through victims and witnessesʼ testimony), under the principles of contradictory and full defense; once
completed, based on all evidence collected and the interprofessional team supportʼs report, the parties(MP [The Office of the Prosecution Service] and adolescent) will make their final pronouncement and
the Judge will issue sentence [/disposition]. If the adolescent is proved to have committed theinfraction, the Judge will apply any socio-educational or protective measures listed in the CAS.
The implementation stage is the next step after the sentence/disposition applies a SEM.55 Similarly
this stage is triggered when a SEM is combined with an extrajudicial ([by the Prosecutor in the]ministerial phase) or judicial remission (which can be granted up until the moment the sentence[/disposition] is delivered). (...)
See Cristiane Dupret, Curso de Direito da Criança e do Adolescente (Belo Horizonte: ius, 2012) at 286-287.
CAS/90, supra note 9, Article 174.
53
CAS/90, supra note 9, Article 179.
54
Ibid. The informal hearing is an exclusive duty of the Prosecutor. See also MPSP, “Manual Pratico das Promotorias de Justicada Infância e Juventude” (2012), online: MPSP <http://www.mpsp.mp.br/>.
55
Aee Law of SINASE, supra note 10.
51
52

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The mandatory presentation of the adolescent apprehended in flagrante delicto but not released by
the police and the possibility of summoning the adolescent who is free before the authority that canprosecute him may sound strange to those who come from another legal system. In fact, considering
the MPʼs constitutional profile, it is the prosecutor who, in a prominent position, must ensure
adolescentsʼ rights, taking suitable firsthand precautions for adolescentsʼ full protection. Certainly the
informal hearing may provide more elements to the prosecutorʼs conviction on the adolescentʼscommitting the act and its circumstances. From another angle, the informal hearing is an opportunity(as he has the right to silence) for the adolescent to expose his version of the facts and his social andfamily environments to the one who will decide how the case should proceed, with the power tochannel him away from formal judicial proceedings, instead of prosecuting.56
In summary, remission can occur in two phases of the procedure:57 prosecutorial and judicial; i.e., before orafter the juvenile is formally prosecuted. In the prosecutorial phase, the decision of not putting the case before
the judge is a prosecutorʼs prerogative, based on legal limits; if remission is granted, the juvenile is sparedfrom court proceedings and the caseʼs formal file is dismissed. On the other hand, if the prosecutor decides to
put the case before the court and initiate court proceedings, remission can be granted in the judicial phase (upto disposition) by the judge ̶also based on legal limits ̶, after hearing the prosecutorʼs opinion; if remission
is granted (usually in a hearing), the juvenile is spared from continuing on court proceedings and fromeventual proof of guilt; in this situation, remission will imply suspension or extinction of the caseʼs formal file.
In many cases, non-intervention through simple remission ̶ i. e., without its combination with any
protective or SEM ̶will be the ʻoptimal responseʼ, as highlighted in the Beijing Rules.58 But often it isappropriate to combine remission with other interventions, especially with protective measures and/or with
the SEMs of admonition, damage repair, community service or assisted freedom,59 as these may provide
services that suit the juvenileʼs needs; in this case, remission takes the form of an ʻagreementʼ between theprosecutor or judge, the juvenile, his parents/guardian and the defence attorney, depending only on court
homologation.60
So, as stated elsewhere: “in addition to 1) avoiding a criminal record, 2) preventing stigmatization orcontamination through contact with criminal proceedings, 3) minimizing deprivation of liberty and contact
with more hardened offenders, remission provides the adolescent with the possibility of learning valuablelessons from programmes and acquiring social responsibility through community service or amendments tothe victim.”61 In other words, remissionʼs theoretical grounds and legal rules place it alongside otherdiversionary practices in line with the international instruments and norms/standards.
C. The Practice: The Challenges Faced by Remission and a Few Solutions
Put into practice, there have been countless remissions delivered on a daily basis, formally in line with
rapid proceedings. However, a great number of these remissions have not been effective in achieving its
goals, often due to the lack/deficiency of the interventionsʼ implementation or to the way they are established.
Indeed, remissionʼs effectiveness faces many challenges. Considering that every juvenile justice system“requires a commitment to the realization of the jurisdictionʼs results, not satisfied, by definition, by thefulfilment of formal procedures”,62 ideas must arise to minimize these challenges.
It is not even necessary to resort to numbers to conclude that juvenile delinquency in Brazil is rising. The
yearly increase of the sense of insecurity already gives the answer. This is even more visible for those whowork in the field, due to the number of juveniles who return to the system, sometimes in less then one monthThis citation was extracted from the authorʼs research project, supra note 1, at 27-30.
CAS/90, supra note 9, Article 126.
58
Beijing Rules, supra note 30, commentary to Article 11.
59
Semi-liberty and Interment can only be applied through formal court proceedings (through judicial sentence), due to therestriction of freedom both carry. CAS/90, supra note 9, Article 127.
60
CAS/90, supra note 9, Article 127. See Leoberto Brancher, “Justiça, Responsabilidade e Coesão Social” (2006), at 20-21, online:
TJRS <http://www.tjrs.jus.br>.
61
This citation was extracted from the authorʼs research project, McGill University, supra note 1, at 21.
62“[E] xige-se compromisso com a materialização dos resultados da jurisdição, não se satisfazendo, por definição, com ocumprimento de protocolos formais” (free translation by the author). Brancher, supra note 60, at 19.
56
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RESOURCE MATERIAL SERIES No. 102of the last release done through remission.
Although recidivism is influenced by numerous factors, this situation draws attention to an urgent
problem within the Brazilian juvenile justice and calls for immediate solution. Considering that first-timeoffenders and those without persistence in criminality (target group for remission) are the ones which arehaving poor response to the offence committed (usually limited to a one day contact with police officers
and/or prosecutors/judges), the system, instead of preventing re-offending, ends up encouraging it by thesensation ʻthat nothing happensʼ. In fact, these juveniles are perhaps the ones who most need prompt andeffective interventions. The “earlier the investment in an individual, ... the more cost effective theinvestment.”63
Evidently, the effectiveness of remission is closely linked to the implementation of the interventions
determined (mostly SEMs). Although the implementation stage of any SEM (including the ones applied
through remission) has prosecutorial supervision and judicial decision (for changes, extinctions, among
others), the administration of the institutions and bodies responsible for implementing the measures, as wellas the forms and methodologies used in their work for reintegration/rehabilitation, are from the Executive
Power of each state of the federation. That is, it stays out of both the Office of the Prosecution Service and the
Judicial Power control.
However, despite the existence of notorious failures from the local Executive Powers ̶ cited by thepractitioners in the field as one of the major causes of the systemʼs ineffectiveness ̶, there are still
deficiencies in the ministerial and judicial phases of the procedure that also need improvement. So, a few
deficiencies have been identified and will be analysed below as challenges, considering they are issues inwhich prosecutors/judges can intervene for the improvement of remissionʼs effectiveness.
1.

First Challenge: The Poor Assessment of the Juvenileʼs Needs64(a) Theoretical background and daily practices’ limitations
In the opportunities to adjust remission, through informal (prosecutorial) or judicial hearings, prosecutors
and judges briefly collect information and impressions about the juvenileʼs personality, social and family
environments, reasons for his/her actions etc., which often allow an overview of his/her needs and theidentification of the adequate interventions. Nevertheless, due to limitations of time, technical approaches andfamiliarity with all programmes/services, in countless cases, prosecutors/judges are not able to appropriately
assess the various aspects of the juvenileʼs life. Hence, the interventions determined may not be the mostsuitable, minimizing their effectiveness.
In the decision-making process, according to the law,65 prosecutors/judges shall analyse the “circumstances and consequences of the fact, to the social context and personality of the adolescent and to his greateror lesser participation in the offence”.66 Frequently, problems involving school evasion, family violence,
parental abandonment, emotional or sexual abuse, illness and drug use ‒ commonly associated with thephenomenon of delinquency ̶ are detected.67
Regardless of the course given to the case, protective measures can be applied immediately, whereas thelist is merely illustrative.68 Often it is suitable to combine remission with the juvenileʼs commitment to fulfil a
non-custodial SEM (i.e. admonition, damage repair, community service or assisted freedom), as it may provide
United Nations, “United Nations Fact Sheets on Youth”, online: UN <http://www.un.org>.
For more information see the authorʼs research project, supra note 1.
65
CAS/90, supra note 9, Articles 126 and 186.
66
So, among other functions, the prosecutor/judge must: 1) take the adolescentʼs version of the facts, 2) analyse the facts andevidence gathered, 3) talk about the juvenileʼs social and family environments, 4) evaluate the need for protective and/or SEM,
5) take relevant extrajudicial provisions, if necessary, 6) check if any right was violated during police investigations, 7) decide on
the caseʼs course, 8) evaluate the need for pre-trial detention when the case is presented to the Court, 9) prepare
petitions/decisions. When granting remission, the prosecutor/judge shall also explain its legal and social implications to theadolescent and his parents/guardian. See Maria Cristina Sanson, “Considerações teórico-práticas sobre a audiência deapresentação de adolescente autor de ato infracional perante o Ministério Público: finalidade e condução” (2009), online: MPPR
<http://www.mppr.mp.br>.
67
See Sanson, supra note 66.
68
CAS/90, supra note 9, Articles 98 and 101.
63
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the appropriate response/services, as stated before.
Moreover, the Brazilian playing field for juvenile justice is not limited to legal rules ̶ even though it
remains its primary source. Although the list is exhaustive in the case of SEM, the legal framework
encourages diversity of methodologies/interventions within each SEM, as well as extrajudicial provisions by
the Office of the Prosecution Service and the Judiciary, all in the ʻbest interest of the childʼ and for theachievement of their roles.69 For example, often juveniles need referrals for school change, engagement insports activities/arts/charity, internship etc., in order to remove or reduce risky behaviours.
However, informal (prosecutorial) or judicial hearings can perhaps take as little as 15 minutes,70 dependingon the jurisdictionʼs number of cases and administrative structure. Besides the limitation of time, the lack of
specialized technical approaches from non-legal backgrounds also often prevents an adequate assessment. In
addition, prosecutors/judges will rarely be aware of or familiar with all community, private sector and Stateʼs
programmes/services available for referral, especially for extrajudicial provisions.
For example, if remission is to be combined with a protective or SEM, the choice of the measure, as well
as of the possible referrals and other extrajudicial provisions, might not always be the most appropriate; if
simple remission (without any measure) is found to be the best response, the opportunity to make suitableinterventions in the juvenileʼs last contact with the system regarding the offence committed may be wasted.
Thus, the response delivered may not best suit the juvenileʼs interests and, consequently, these situations put
diversionʼs effectiveness at risk.
(b) An idea for change: insertion of multidisciplinary team support
The approximate 30 minutes71 of informal (prosecutorial) or judicial hearings (including the ones that
adjust remission) are more often insufficient for both the interrogatory about the facts related to the offence
and the comprehensive assessment of juvenileʼs various needs. In addition, the prosecutor/judgesʼ technicalapproaches used in the these hearings depend on the their personality and skills. In many cases, the limitationof time and techniques to address more complex issues will prevent an accurate and reliable diagnose of thejuvenileʼs situation, with a chance of leading to inadequate, ineffective or unenforceable interventions.
Therefore, the need for professionals from other fields, such as psychologists and social workers, in theprosecutorial and judicial phases of the procedure is intuitive, as they have technical skills and familiarity
with the wide range of community and State programmes/services; in addition, they can devote more time to
specific cases, all of which optimize interventions.
The relevance of this backup structure has not gone unnoticed in the Brazilian legislation: since 1990 theCAS/90 predicts not only the establishment of specialized and exclusive Child and Youth Courts in thejurisdictions, but also determines that the Judiciary must keep a multidisciplinary team within its structure.72
The reality on the ground, instead, is quite different. In 2014, only 159 of the 1,303 Brazilian Child andYouth Courts around the country handled, exclusively, with cases involving children and adolescents73 andmost of them had no or insufficient multidisciplinary staff.74 Considering the compatibility with its
constitutional role, the Office of the Prosecution Service of a few jurisdictions has created these teams toassist the work of prosecutors in children and youth matters, in both civil and criminal fields.75

See e.g. CAS/90, supra note 9, Article 201, paragraph 2.
This finding is based on the experience of the author in the field.
71
Ibid.
72
CAS, supra note 9, Articles 145 and 150; See also Law of SINASE, supra note 10, Article 53.
73
The law does not require all 2,643 judicial districts of Brazil to have Child/Youth Courts, as it depends on the amount of their
population. However, 159 of specialized Child and Youth Courts is still a very small number. G1, “Só 12% das Varas da Infância
no país são exclusivas, segundo CNJ” (24/05/2014), online: Globo <http://g1.globo.com/>.
74
Brazil, Institute of the Rights of Child and Adolescent, “O Sistema de Justiça da Infância e da Juventude nos 18 anos do
Estatuto da Criança e do Adolescente” (2008), at 15 and 41, online: ABMP <http: //www. abmp. org. br/UserFiles/File/levantamento_sistema_justica_ij. pdf>. See also Dourados Agora, “MS tem número insuficiente de varas da Infância eJuventude” (2008), online: Dourados Agora <http: //www. douradosagora. com. br>. See Brazil, National Council of Justice,
Provimento n. 36 of 05 May 2014, online: CNJ <http://www.cnj.jus.br>. See Brazil, National Council of the Rights of Child andAdolescent, Resolução n. 113 of 19 April 2006, Article 7, I, online: Ministerio dos Direitos Humanos <http://dh.sdh.gov.br>.
69
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As a matter of fact, due to the adoption of the ʻdoctrine of full protectionʼ and the ʻprinciple of the bestinterests of the child/adolescentʼ as dogmas, all issues related to child and adolescent in Brazil must be
handled with a holistic and comprehensive approach76 ̶ another international good practice in juvenile
justice closely linked to diversion. According to international guidelines, “an effective juvenile justice system
requires that the varying needs of children be assessed, that children in conflict with the law are referred toappropriate services, and that they are offered care and assistance with reintegration into the community.”77
So, different juveniles may receive different responses to similar offences.
Thus, the implementation of this type of team support ̶ given the relevance of its potential functions78 to
the effectiveness of the interventions determined ̶ should not be an isolated initiative from the Judiciaryand the Office of the Prosecution Service in only a few jurisdictions. Considering the primacy conferred toyouth by the FC/88, it should be priority for both institutions in all jurisdictions, above all other important
areas that also need it.
2.

Second Challenge: The Use of Limited Intervention Methods(a) Theoretical background and daily practices’ limitations
Whether by principles or explicit rules, the Brazilian system provides openings for the introduction ofvarious methods of interventions with juvenile offenders. The adoption of the ʻdoctrine of full protectionʼ andthe ʻprinciple of the best interests of the child/adolescentʼ allied to the malleability given to remission is
sufficient enough to reach this conclusion. Yet, in practice, the use of the traditional methods is still frequent,even though they can bring ʻgaps of contentʼ79 in addressing problems that are daily handled in the juvenile
justice.
In fact, despite the flexibility and discretion conferred to prosecutors/judges through remission, Brazil is a
civil law country, with more inflexible criminal law than common law countries, due to the principles oflegality and unavailability of prosecution. Naturally, prosecutors/judges have the tendency to rely on theusual legal forms of interventions even within the juvenile justice. Moreover, Brazilians still nourish aretributive culture, despite the rich legal framework towards the dogmas of protection. As example, thelegislative changes in progress indicate the Legislative Power and societyʼs predisposition to treat juvenile
delinquency with increasing rigour and repression.

Besides that, the Brazilian justice system is still attached to consider the State as the biggest victim of theoffence, though a few legal changes have emerged in this aspect.80 In practice, victims usually still remain
secondary in the judicial procedures and their participation is basically restricted to testifying as witnesses incourt. That is, the victim is “used” in the gathering of evidence to alleviate or to harden the judicial
consequences for the offender, rather than in a healing process of his/her suffering or loss.

For example, the Federal District and Pará. See the Office of the Prosecution Service of the Federal District and Territories,
Regimento Interno Estrutura Administrativa, Anexo da Portaria Normativa n. 476 (20 December 2016) at Article 217, online:
MPDFT <http://www.mpdft.mp.br>. See Alexandre Theo de Almeida Cruz, “O adolescente autor de ato infracional: um
cidadao”, online: MPPA <https://www.mppa.mp.br>. See also Brazil, National Council of the Prosecution Service,
Recomendação n. 33, 05 April 2016, Diário Eletrônico CNMP, Caderno Processual, 04 May 2016, at 1/3, online: CNMP < http://www.cnmp.mp.br>.
76
For more information see the authorʼs research project, supra note 1.
77
United Nations Office on Drugs and Crime, “Manual for the measurement of juvenile justice indicators” (2006), at 1, online:
UNODC <http://www.unodc.org>.
78“This team may subsidize the prosecutorʼs informal hearing by, for example: 1) interviewing the adolescent and those
responsible for him ̶ perhaps using different approaches and clinical tools ̶ to suggest the most appropriate measures basedon personal skills and the assessment of psychosocial and family environments; 2) diagnosing cases of psychological/mental
problems and drug abuse, to determine if the adolescent requires specialized treatment; 3) contacting the victim about theharm
caused, the possibility of mediation, expectations etc.; 4) guiding adolescentsʼ family members, to make them aware of their
responsibility in education and resocialization; 5) identifying the need for extrajudicial provisions, to send adolescents and theirfamilies to public or private programmes related to arts, education, sports, charities etc.. This team may also: 1) keep track ofand intimate connection with social networking services regarding all programmes for referral; 2) develop, implement,
coordinate and evaluate internal and external projects of interest to the MP; 3) analyze plans, projects, programmes, andoperate public and private entities for the referral of adolescents etc.” This citation was extracted from the authorʼs ʻResearch
Projectʼ, supra note 1, at 43.
79
See Brancher, supra note 60, at 4.
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As a consequence, in the daily practice of juvenile justice, whenever remission is agreed with SEM, theoption is often limited to community service or assisted freedom, under their traditional approaches. Damage
repair ̶ the measure that could come closest to these legal changes ̶ is rarely used. Indeed, even thoughalmost 50% of the infractions are property offences,81 the SEM of damage repair is rarely applied. In addition,
extrajudicial provisions and referrals, such as to State and community programmes, to educational andartistic projects, sports activities, charity etc. are often not of big focus. So, this Brazilian practice moves awayfrom the ʻbest interest of the childʼ, minimizing, again, diversionʼs potentials.
(b) An idea for change: shift of the paradigm in intervening with youth
Alongside with the lack of State resources, other objective factors, such as the number of cases within thejurisdiction, technical training, conditions stipulated for referrals, procedural flow between the Office of theProsecution Service and the Judiciary, organizational structure and management, influence the types andquantities of methodologies/interventions chosen in the prosecutorial and judicial phases. Nevertheless,subjective factors are also important obstacles, within prosecutors/judges, for the adoption of new methods ofinterventions with youth through remission, for better rehabilitation and reintegration.
Indeed, a big challenge for diversity in this field is the cultural change, minimizing the retributive culture,
to allowing new openings in the interventions determined. There is space for creativity, especially if amultidisciplinary team is involved.
In order to make a real shift in paradigm, first, there is a growing need for increased awareness of theimportance in improving existing practices and of how even small changes can positively contribute totransforming the system. Fortunately, a few initiatives, such as seminars, workshops and group discussions
through social networks, as well as the social pressure for legislative changes in youth legislation, are a few
ways of expanding this awareness.
Second, there is a growing need to involve professionals with non-legal background in the decisionmaking process, such as specialized internal or external teams/bodies, victim, offender, community, social
assistants, psychologists etc.. For example, it will not do any good to have a multidisciplinary unit and not
make use of it. Encouragingly, there is growing recognition that juvenile justice depends more and more onother areas of knowledge for effective decisions.
Third, there is a need for undergoing training and educational programmes etc. More importantly, theexchange of information with other States and empirical experiences in a comparative law perspective, as
well as a deep analysis of the current international framework in juvenile justice, may shed light on what canbe created or modified. Luckily, since most prosecutors and judges studied and experienced the Brazilian
juvenile justice law from the new legal orderʼs perspective (over 27 years old), many of them are alreadyreceptive to accept and promote ways to insert new tools for action.
Fourth, there is a need for expanding the types of interventions applied, as the Brazilian practice oflimiting interventions only to protective measures and SEMs, under their traditional compliance approaches,
goes against the effectiveness of the system. For example, sometimes a new intervention can simply be theprosecutor/judgeʼs effort of working the offence from a different perspective, allowing time to sensitize thejuvenile to the consequences of the conduct, to recognition of his/her responsibility and to the importance ofrepairing the harm.82 In others, it can be the referral to social projects, meetings and programmes created by
the Judiciary or the Office of the Prosecution Service itself, or other extrajudicial provisions.
In fact, this practice also moves away from the tendency of using restorative justice interventions ̶another international best practice in juvenile justice, cited by the United Nations Committee on the Rights of
the Child as “an integral part of effective, child rights-based child justice system”,83 in the same vein as
See amendments to the Brazilian Code of Criminal Procedure by the Laws 11.719/08 and 11.690/08, online: Planalto <www.
planalto.gov.br>. See Law of SINASE, supra note 10, Article 1, paragraph 2, I.
81
Brazilian Ministry of Human Rights, supra note 18, at 28.
82
See Lélio Ferraz de Siqueira Neto, “Oitiva Informal ‒ uma perspectiva garantista e restaurativa” at 8, online: MPDFT <http://www.mpdft.mp.br>.
83
UNICEF, supra note 25, at 2.
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diversion. According to the United Nations, restorative justice is an approach “in which the victim and theoffender, where appropriate, any other individuals or community members affected by a crime, participate
together actively in the resolution of matters arising from the crime, generally with the help of a facilitator.”84
So, unlike ʻretributive justiceʼ, which concentrates on the crime and punishing the offender via a two-way
relationship (offender and State), restorative justice focuses on problem-solving in a three-way relationship(between the offender, victim and society), addressing needs, harm, accountability, personal development,
community involvement and obligations, to ʻrestoreʼ harmony as much as possible.85
Juveniles are expected to understand choicesʼ implications and be accountable for actions, to repair harm,learn to respect others, tackle guilt feeling and to develop personally in order to meet the communityʼs needs
related to the offence.86 These expectations are advantageous and highly compatible with juvenile justiceʼsaims, as they tend to contribute to the process of reintegration and to make the young offender takeresponsibility for actions, in order to change behaviours and to transform him/her into an active contributorof society, and, hence, increase public safety.87 No wonder restorative justice initiatives, despite its challenges,88
have grown significantly worldwide, including in juvenile justice.89
In Brazil, although the Law of SINASE/12 expressly mentions restorative practices as one of its
principles,90 its use is still limited to very few jurisdictions.91 Only in 2005 the development of three pilot
projects with distinct proposals within the Judiciary officially began.92 Two of these projects (Sao Caetano do
Sul/SP and Porto Alegre/RS) have focused on juvenile justice.93 From these experiments, other initiatives
emerged in the country, usually in the form of restorative circles (inspired by the Canadian model94). Yet,considering Brazil as a whole, restorative justice in juvenile justice is still in an embryonic stage.
Diversion does not always imply the use of restorative justice approaches, as it is a complementary
method, not suitable in all cases.95 Nevertheless, restorative justice can definitely enrich remission, by adding
consistency, content and reliability.96 For example, as stated elsewhere: “depending on services rendered by
the actors involved in the juvenile system in each Brazilian state, the prosecutor[/judge] can refer the juvenile
and other interested parties (victim, relatives and community) to restorative programmes of the community,
the State or the MP, so the set of commitments between them is taken into consideration when granting
remission97”98 And continues: “[i]f this referral is not possible or is inappropriate, remission can always be
granted combined with a protective or SEM, putting the restorative elements in generic terms, so thecommitments to be covered in compliance with the measure will be further specified in the implementation
stage.”99
3.

Third Challenge: The Delay in Starting the Interventions Applied(a) Theoretical background and daily practices’ limitations
The Brazilian judicial procedure ensures celerity in establishing measures for the young offender, since

Basic principles on the use of restorative justice programmes in criminal matters, UNESCOR, 37th plenary meeting, 24 July
2002, Annex, Res 2002/12 at para I.2.
85
Ibid.
86
UNICEF, Toolkit on Diversion and Alternatives to Detention ‒ Definitions ‒ Restorative Justice, at 5, online: UNICEF <http://www.unicef.org>.
87
See CRC, supra note 5, Article 40.1.
88
Such as well-trained facilitators, proper case selection, immediate funding (despite its potential to reduce long-term costs),
elements to ensure offendersʼ rights and meet victimsʼ needs (e.g., security, respect, information, testimony, restitution), as wellas to prevent secondary victimization and pressure on participants etc. See Canadian Resource Centre for Victims of Crime, ”
Restorative Justice in Canada: what victims should know” (2011) online: rjlillooet <http://www.rjlillooet.ca>.
89
Nessa Lynch, “Restorative Justice through a Childrenʼs Rights Lens” (2010) 18 Intʼl J. Child. Rts. 161 at 162 (Hein Online).
90
See Law of SINASE, supra note 10, Article 35, III.
91
For example, Heliopolis and Guarulhos: see Ednir Madza org, “Justiça e educação em Heliópolis e Guarulhos: parceria para a
cidadania” (2007), Sao Paulo, online: MPSP <http://www.mpsp.mp.br>. For Belo Horizonte and Sao Jose de Ribamar/MA see
Caio Augusto Souza Lara, “Dez anos de práticas restaurativas no Brasil: a afirmação da justiça como política pública deresolução de conflitos e acesso à justiça” online: Publica Direito <http://www.publicadireito.com.br>.
92
Brazil, Justice Ministry and PNUD, Catherine Slakmon, Renato De Vitto & Renato Gomes Pinto, org., Justiça Restaurativa(2005) at 221, online: UFPE <https://www.ufpe.br>
93
For Porto Alegre/RS, see Brancher, supra note 60. For Sao Caetano do Sul/SP, see Brazil, Human Rights Special Secretariat,
Eduardo Rezende Melo, Mazda Ednir e Vania Curi Yazbek, Justiça Restaurativa e Comunitária em São Caetano do Sul –Aprendendo com os conflitos a respeitar direitos e promover cidadania (2008), online: TJSP <http://www.tjsp.jus.br>.
84

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most cases are related to adolescents caught in flagrante delicto and pre-trial detention can only last up to 45
days until sentence/disposition.100 However, after the SEM or protective measure is applied throughremission or by sentence, the implementation of interventions without restriction of liberty (usually SEMs ofcommunity service, assisted freedom or damage repair) commonly takes months or even years to begin(ultimately, perhaps hindered by time-barring) in most ̶ if not all ̶ of the Brazilian states. Obviously, if thejuvenileʼs convocation to initiate the measure applied takes too long, he/she will not take full advantage of thevaluable educational aspects of the measure he/she has the right to comply and will feel a ʻsensation of
impunityʼ. This sensation affects, in a very negative way, rehabilitation and reintegration, encouraging, in theend, recidivism.
These consequences can be even worse in cases of measures applied through remission. Considering that,in practice, this benefit is granted to first time offenders or to those without persistence in criminality, whose
offence was committed without violence or serious threat,101 in the absence of a rapid response, the offender,in addition to not taking advantage of the educational aspects of the measure, will not have felt the weight ofcourt proceedings and conviction (from which he/she was channelled away). So, the ʻsensation of impunityʼ
tends to be bigger, even because the hope in rehabilitation/reintegration of the juvenile will basically lie on
his family (if present), which does not always achieve good results on its own, as the Stateʼs opportunities tohelp were squandered. In other words, the possibility of re-offending increases, putting, once again, diversionʼs
scope at risk.
(b) An idea for change: articulated/collaborative action among the system’s actors
For years, the answer to the delay in starting the implementation of the interventions determined by thejuvenile justice ̶ which, as stated before, is a local state power responsibility ̶ has always been the same:the insufficient number of available spots in the programmes/services. Some say the reason for that is scarce
resources; others understand it as the lack of political will. Regardless, the disarticulation and physicaldistance between the bodies involved in determining the interventions (prosecutors/judges) and in
implementing them (administrative bodies of the local states) are other important factors that contribute tothis time gap.
The integration of entities from public security (military/civilian polices), the Justice system (Prosecution,
Public Defence and Judiciary) and social assistance (bodies from the local state) has been predicted in the
CAS/90 27 years ago.102 However, very few jurisdictions have Operational Integration Centres for the wholeof the procedures.103 A few others only provide this structure for juveniles apprehended in flagrante delicto
and not released to their families by the police authority.104
According to the Beijing Rules, “[a] s time passes, the juvenile will find it increasingly difficult, if not
impossible, to relate the procedure and disposition to the offence, both intellectually and psychologically”.105
So, celerity is an extremely important ʻbest practiceʼ in all youth interventions for the healthy development of
the juvenile and, hence, for the systemʼs effectiveness.106 Indeed, “by promptly addressing the causes andconsequences of their behavior, and providing services or support where necessary to prevent recidivism andencouraging positive reintegration into the community, has been found to cut repeat offenses in half andincarceration rates by two-thirds as compared to a control group.”107
In Canada, the first recognized case of restorative justice (victim-offender mediation) was documented in Kitchener/ON, in
1974. See Department of Justice of Canada, ʻRestorative Justice in Canadaʼ (2000), online: Justice <http://www.justice.gc.ca>.
95
See UNICEF, supra note 86, at 10.
96
Brazil, National Human Rights Secretariat and CEAG/UnB, Modulo IX - Curso SINASE, JR no ECA e mecanismos
diversórios, at 3, online: TJMG <http://www.tjmg.jus.br>.
97
See Brancher, supra note 60, at 15.
98
This citation was extracted from the authorʼs research project, supra note 1, at 33.
99
Ibid.
100
CAS/90, supra note 9, Article 108.
101
Ibid, Article 178.
102
Ibid, Article 88, V.
103
For example, Belo Horizonte/MG.
104
For example, the Federal District and Recife/PE.
105
Beijing Rules, supra note 30, Commentary to rule 20.1.
106
See Sanson, supra note 66.
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Since the dilemma between scare resources and political will tends to never end, as a start, it seems that
the Office of the Prosecution Service and the Judiciary, besides pressing for governmentʼs investments in the
filed, must direct strong efforts in bringing the local state agencies responsible for the implementation stage
to the surroundings of the prosecutorial and judicial phases, as active daily partners. In this way, wheneverinterventions are established (e.g., a remission agreed with a SEM), the juvenile is immediately directed to thestateʼs agency, to decide the starting date of the services/programmes and other important details andorientations.
This physical articulation between the institutions and agencies that work in the system as a wholebrings, at least, the following advantages: 1) the disruption of the compartmentalization of the actors, allowing
approximation;108 2) the creation of collaborative relations between these actors; 3) the exchange ofknowledge and experiences concerning different variables of the system; 4) the de-bureaucratization ofprocedures; 5) the opening for new methodologies of intervening with youth; 6) cost division. As for thejuvenile, this coordination reduces the ʻsensation of impunityʼ (whereas at least there was a kick-off on theimplementation of the interventions determined) and increases the chances of being notified to start tocomply with the measure, as all actors will be working together in that direction. At the very end, perhaps allthese actors together might be able to better pressure the local state power to positively implement policies
and programmes.

V. CONCLUSION
The 254th meeting of the Committee on the Rights of the Child noted: “what was in the best interests ofthe child was in the best interests of society, hence a juvenile justice system that did not function well failed
not only the children, but society as a whole, for, far from protecting society, it merely generated criminals toprey upon it.”109 Indeed, juvenile justice needs to focus on concrete results, as it is a strategic field for action inpreventing the spread of violence and crime for current and future generations.
Considering the large number of cases with first-time offenders and those without persistence incriminality (whose offence was committed without violence or serious threat), effective interventions overthis target group through remission not only contributes for the well-rounded development of a great numberof juveniles, but also minimizes overburdened courts and overcrowded treatment institutions, shifting the
focus to more serious cases. Thus, it makes the system more effective and also reduces Stateʼs costs.
Attacking criminalityʼs root causes seems to be a better tactic than responding only to its symptoms.
However, Brazil has been mostly attacking the symptoms, as this type of offender more often doesnʼt receive
any response, while it focuses on increasing rigour and repression, especially through institutional treatment.
The poor assessment of the juvenile needs, the use of limited intervention methods and the delay instarting the interventions applied are constantly putting remissionʼs benefits at risk. Drawing upon a few
other international best practices, juvenile justice must use a holistic and comprehensive approach to the
aspects of the offender life, must be open to different types and methods of approaches, including restorative
justice, and must be fast and prompt in the response. Yes, indeed juvenile justice shall assist juveniles withservices in other sectors of society, such as education, health care, social assistance etc., if those are needed
for their sound development.
Lastly, “the biggest challenge is not on the law but on the need to overcome cultural barriers that deplete
their interpretation and application.”110 Only after overcoming this barrier, it will be possible to see theimportance of a multidisciplinary team support, to shift the paradigm in intervening with youth and to fightfor an articulated/collaborative action among the actors of the system, towards its effectiveness.

Hojnacki, supra note 26, at 155.
See Vera Lucia Deboni, “Centro Integrado de Atendimento à Criança e Adolescente“ (2010), ʻPrêmio Innovare ‒ Edição VIIʼ,
online : Premio Innovare <http://www.premioinnovare.com.br>.
109
Odala, supra note 37, at 573.
110
ʻO maior desafio nao esta na lei, mas na necessidade de superar barreiras culturais que empobrecem a sua interpretacao eaplicacao.ʼ (free translation by the author). Brazil, National Human Rights Secretariat and CEAG/UnB, supra note 96.
107
108

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COMMUNITY-BASED TREATMENT OF JUVENILE OFFENDERS IN
KENYA: A CASE STUDY OF KIKUYU SUB-COUNTYIN KIAMBU COUNTY
Zacharia Kuria Mwangi＊

I. INTRODUCTION
A. Summary of Community-Based Treatment of Juvenile Offenders in Kenya
The probation office plays a major role in management of juvenile delinquents. The two categories ofoffenders handled include those put on probation by the Childrenʼs Court and persons released from ajuvenile institution on or before completion of their term.1 The Childrenʼs Act provides that a child is any
person less than 18 years of age and safeguards the best interests of the child. Agencies involved in thejuvenile justice system include the Police, Medical services, Registration of Persons, Social Workers and NonGovernmental Organizations.2 This method of treatment, also known as the “closer-to-home principle”, hasbeen championed by experts as being cost effective whose results are tenable.3 It has been practised in the
country since the onset of modern criminal justice system though on a lower scale compared to institutionalbased interventions, namely incarceration, that led to congestion in the available facilities.4

II. LEGAL FRAMEWORK SUPPORTING COMMUNITY-BASED TREATMENT
OF JUVENILE OFFENDERS
A. International Legal Instruments
Kenya has adopted the international legally binding tools, among them the United Nations Convention on
the Rights of the Child, the Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), theRules for the Protection of Juveniles Deprived of their Liberty and the Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules). The government has facilitated the adoption of thesemechanisms in the local laws.
B. Local Laws
1. The Constitution
The Constitution of Kenya 2010 has enshrined a Bill of Rights in Chapter four that is rated as being among
the most comprehensive in the world. These principles are cognizant of the international legal instruments
safeguarding human rights including child rights.
2.

Local Acts
Subsequently parliament has enacted relevant laws to give effect to the principles enshrined in theconstitution. Other laws have been amended to address changing of the society including: the Criminal
Procedure Code, Penal Code, Borstal Institutions Act, Probation of Offenders Act, Community Service
Orders Act, Childrenʼs Act, Sexual Offences Act, National Police Service Act, Prohibition of Female Genital
Mutilation Act and Basic Education Act.

III. CURRENT SITUATIONThe rate of crimes involving juveniles indicates an increase in the number of reported cases in the recent
past, meaning that the number of offenders subjected to the justice system is increasing. Common crimes
include assault, stealing, theft, property damage, drug and substance abuse, violence, sexual offences andSuperintendent, Administration Police Service, National Police Service, Kenya.
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
2
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 05/11/2016.
3
Robert, Hoge, et al. (ed.) Treating the Juvenile Offender (New York: Guilford Press, 2008), p. 108.
4
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
＊
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organized crime.5 The age of committing first crime is also decreasing.
A suspected juvenile is handled separately from adult offenders and has his/her rights upheld. MilimaniChildrenʼs Court is one of the institutions that handles childrenʼs matters.6 After release they return to thecommunity hardened, a situation that negates the aspirations of institutional-based correctional services
namely, reforming offenders with consideration of the best interests of the child, and most reoffend whileothers abscond.7 Juveniles whose prison terms go beyond their 18th birthday are removed from Borstal
institutions and taken back to their parents/guardians only if the environment is conducive and they continue
with treatment. Those who fail to comply with requirements have a warrant of arrest issued against them.8

IV. EFFECTIVE TREATMENT AND EVALUATION
Juveniles are taken through courses of their choice geared towards whole personal development tobecome responsible adults, thus enhancing their welfare. They are offered formal and informal education toenhance literacy and acquire trade skills, respectively. Thereafter they sit for examinations, are graded andare awarded certificates that do not reflect they were offenders.9 This is to avoid discrimination against thechild that may lead to stigmatization. Diversion is applied where offenders are subjected to Community
Service Orders to perform duties aimed at promoting well-being of the society.10 The Probation Officefacilitates sessions for reconciliation with aggrieved parties. Offenders are free to apologize or compensate
victims who may voluntarily forgive them. They are also verbally sanctioned by reprimand or warning.11
Kamiti Youth Training Centre provides vocational training in plumbing and carpentry to males. Kamae
Girlsʼ Correctional Centre (the only girlsʼ facility in the country) offers dressmaking, hairdressing, beauty
therapy and food and beverage production examinable courses that are graded accordingly. Good nutrition,
medical and counselling services are offered.12
Minors are referred to the institution by probation offices through the court. There is also temporary
accommodation in probation hostels for low-risk offenders and needy cases in transit to the community.
Parents/guardians visit them through the remote parenting programme that was initiated to establish andmaintain bonds between parents and their offspring.13

V. THE SOCIAL ENVIRONMENT
Social Disorganization theorists argue that factors in the neighbourhood, such as insecurity, single
parenthood and poverty among others, influences behaviour of children through their ability to promote or
impede social institutions such as family and other social groups which serve to preserve social order.14 Peer
influence contributes to the well-being of children and young adults.
Negative peer pressure aggravates behaviour of deviant juveniles.15 Minors have great respect for peergroups; hence they are easily influenced by negative conduct.16 This has the profound effect of abnormal
Oral Interview with Julius Kaimenyi, a Police Officer based at Gender and Child Protection Office, Kikuyu Police Station on
04/11/2016.
6
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
7
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 05/11/2016.
8
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
9Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
10
Examples: Building and construction, cleaning and environmental conservation.
11
Oral Interview with Obonyo, a civil servant based at the probation office, Kikuyu Sub County on 06/01/2017.
12
Oral interview with FairBay, Superintendent in Charge, Kamae Girls Training Centre (Formerly In-Charge Youth Training
Centre) at Kamiti Maximum Security Prison on 05/05/2016.
13
Oral interview with FairBay, Superintendent in Charge, Kamae Girls Training Centre (Formerly In-Charge Youth Training
Centre) at Kamiti Maximum Security Prison on 05/05/2016.
14
Tama, Leventhal and Jeanne, Brooks-Gunn, “The Neighborhoods They Live in: The Effects of Neighborhood Residence onChild and Adolescent Outcomes”, Psychological Bulletin, Vol. 126, No. 2, 2000, pp. 309-310. Accessed: http: //www. gxe2010.
org/Speakers/pubs/Brooks-Gunn_2000a.pdf on 06/11/2016.
15
Kenneth, Dodge (et. al), Deviant Peer Influences in Programs for Youth: Problems and Solutions (New York: Guildford Press,
2006), p. 3.
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adulthood. The school environment has intense influence over child growth and development. Schoolcommunity, programmes, rules and regulations interact with the child and shape personality development.17
Both desirable and undesirable attributes are acquired, and the child may engage in delinquency as a learned
response to negative stimuli such as bullying.18

VI. COOPERATION BETWEEN INSTITUTIONAL AND COMMUNITY-BASEDTREATMENT
Researchers attest that though treatment done to juvenile offenders while incarcerated was successful,cases of recidivism were reported after being released. Therefore, treatment programmes must be continued
after they go back to the community. Hence there must be cooperation between institutional and communitybased treatment to enhance sustainability.19 Among cases handled in the probation office, a majority ofjuveniles are reformed and resume law abiding lives, but there were cases of those who exhibited recidivism.
They were re-arrested and subjected again to the juvenile justice system. If there was a suspended sentence
it is enjoined later in the proceedings. The community-based approach is employed to enhance treatment of
those serving sentences while still integrated in the community and also the ones released from prison.20
Therefore, a two-pronged approach is applied to maximize achievement of objectives.
The broader community is brought on board directly through regular public forums commonly known asbarazas, such as chiefsʼ forums, Community-Based Policing or indirectly through their leaders. During theseinteractive sessions, they are sensitized on the need to collectively enhance public safety and security byidentifying suspected offenders and reporting to the authorities. They are also informed how thecriminal/juvenile justice system functions to eradicate ignorance. This breeds community ownership ofprogrammes and other initiatives.
A. Challenges of Community-Based Treatment
1. Resource Constraints
Inadequate resources, among them, insufficient financial allocation hampers expenditure during service
delivery. There is lack of enough qualified personnel to adequately handle the workload; hence, available staff
are overstretched. Professional staffing is insufficient to deal with specialist cases such as guidance andcounselling, a situation aggravated by the high attrition21 rate of qualified staff. This leaves available staff
overburdened by job demands.22
2.

Weak Family Units
These are occasioned by poor parenting. Most cases were attributed to parents who absconded from their
responsibilities leaving out roles to be performed by house help, teachers and other external parties.
Consequently, children become strangers to their parents, leading to poor mentorship and criminality.23 Child
offenders who have been disturbed psychologically, mentally and physically are predisposed to suffer frommental illness.24 This negatively affects the treatment process in the wake of insufficient specialist staff.
3.

Safety and Security
A section of staff members and witnesses receive death threats when they handle sensitive cases. This
demoralizes them and affects the quality of service delivery, leaving them hopeless and unable to discharge
their mandate effectively. Witnesses are also threatened with dire consequences if they support prosecution
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 05/11/2016.
Arthur, Reynolds, et al, “Long-term Effects of an Early Childhood Intervention on Educational Achievement and Juvenile
Arrest”, American Medical Association, Vol. 285, No. 18, pp. 2339-2341. Accessed: http: //www. precaution. org/lib/effects_of_early_intervention.010509.pdf on 04/11/2016.
18
Gayre, Christie, et al, “Reducing and Preventing Violence in Schools” Seminar Paper, 1999, pp. 1-6. Accessed: https://www.
peacebuilders.com/media/pdfs/research/QueenslandUniversity.pdf on 05/11/2016.
19
David, Tate, et al, “Violent Juvenile Delinquents: Treatment Effectiveness and Implications for Future Action”, American
Psychological Association, Vol. 50, No. 9, 1995, pp. 779-780. Accessed: www.researchgate.net on 06/11/2016.
20
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
21
These includes resignation, dismissal and retirement, among others.
22
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 05/11/2016.
23
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 05/11/2016.
24
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
16
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of powerful and influential accused persons.25
4.

Drug and Substance Abuse
There is rampant abuse of drugs among children and young offenders due to availability of thecontraband namely cannabis sativa (bhang), cocaine and hashish. They also abuse drugs meant to treat mental
illness. When high, childrenʼs thought processes are compromised and they easily commit crime.26 The effects
of drug use inhibit their moral reasoning, and they engage in crime and violence without feeling guilt.
5.

Lack of Information
Lack of information about the juvenile justice system impairs proper understanding of its operations andprocedures. This knowledge gap in the community breeds prejudice based on ignorance which erodes publictrust and confidence. When a juvenile suspect was out on bond pending hearing and determination of the casein court, the public perceived that corruption took place and the offender secured freedom. Ex-convicts are
stigmatized by society which makes reintegration difficult and predisposes them to recidivism.27
6.

Weak Legal Framework
The laws governing administration of juvenile justice were found to have gaps that weaken the process.
There is no separate provision for juveniles; hence they are subjected to the same laws as adult offenders
though these contain provisions for subjecting juveniles to the justice system.28 In this scenario, the bestinterests of the child are not adequately catered for.
B. The Way Forward
There is need to allocate more resources to key agencies involved in the administration of juvenile justice.
This will enable efficient implementation of relevant policies, programmes and laws. Family is key for shaping
an individual to become a socially fit adult. Hence there is need to empower parents to enable them to mentor
children from early life.
Mental health is key to being a productive human being in the society, and is closely related to drug andsubstance abuse. Therefore, there is need to revamp the mental healthcare system for the sake of juveniles
and young offenders in an effort to assist them to reform and lead productive lives. Safety and security of
personnel working in the administration of juvenile justice, be they members of staff, victims or witnesses,
need to be enhanced.
There is need to enhance the dissemination of information to ensure citizens are empowered withknowledge, and hence bridge gaps that cause ignorance, prejudice and misinformation. Trainings, workshops,
seminars and related programmes should be reinvigorated. The existing legal framework that includes but is
not limited to the Childrenʼs Act and Probation Act among others should be reviewed to address emerging
issues in the administration of juvenile justice.
Research and development is key to enrich the existing wealth of knowledge. Towards this endeavour,
experts in relevant fields should be brought on board and be given an opportunity to improve the juvenile
justice system. There is also need for exchange programmes and benchmarking visits to and among
countries with best practices. Lessons learned and experiences acquired should then be adopted anddomesticated to improve local standards.
Moreover, continuous monitoring and evaluation of policies, programmes and other initiatives is vital toensure maximum positive impact is generated and sustained in the juvenile justice system. This will ensure
emerging gaps occasioned by dynamic needs of the society are addressed and enhance sustainability of theresults achieved.

Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
27
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
28
Oral interview with Leah, Probation officer, Kikuyu Sub County on 04/11/2016.
25
26

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VII. CONCLUSION
Community-based treatment is considered better than institution-based therapy because those confined
to institutions are “programmed” in their daily lives; hence, they become mechanical.29 Thus, the former
needs to be revitalized to accommodate more juvenile offenders, and incarceration should be a last option.
Treatment programmes, monitoring and evaluation enhance achievement of desired results and are closely
connected with factors in the social environment which impact on personality development. When players in
the administration of the criminal justice system cooperate, they create synergy; thus, achievement of the set
goals is maximized. The programmes put in place focus on adopting the international and local instruments
for safeguarding interests and promoting well-being of juveniles to grow and develop to become productive
adults.

VIII. APPENDIX
A. References
1. Books
Dodge, Kenneth, (et. al), Deviant Peer Influences in Programs for Youth: Problems and Solutions (New York:
Guildford Press, 2006).
Dietrich, Rauschning, et al, Key Resolutions of the United Nations General Assembly 1946-1996 (Cambidge:
Cambidge University Press, 1996).
Robert, Hoge, et al. (ed.) Treating the Juvenile Offender (New York: Guilford Press, 2008).
Winterdyk, John, Juvenile Justice Systems: International Perspectives (Toronto: Canadian Scholars, 2002).
2. Articles
Patricia, Chamberlain and John, Reid, “Comparison of Two Community Alternatives to Incarceration for
Chronic Juvenile Offenders”, Journal of Consulting and Clinical Psychology, Vol.66, No.4. Accessed: www.
researchgate.net on 06/11/2016.
Christie, Gayre, et al, “Reducing and Preventing Violence in Schools”, Seminar Paper, 1999. Accessed: https://www.peacebuilders.com/media/pdfs/research/QueenslandUniversity.pdf on 05/11/2016.
Paul, John, and Francis, Cullen, “Juvenile involvement in occupational delinquency”, Journal of Criminology,
Vol.38, No.3, 2000, p.863. Accessed: https://scholar.google.com on 03/11/2016.
Scott, Henggeler, et al, “Family Preservation Using Multi-systemic Therapy: An Effective Alternative toIncarcerating Juvenile Offenders”, Journal of Consulting and Clinical Psychology, Vol. 60, No. 6, 1992.
Accessed: http://n.ereserve.fiu.edu/ba579161.pdf on 02/11/2016.
Reynolds, Arthur, et al, “Long-term Effects of an Early Childhood Intervention on Educational Achievement
and Juvenile Arrest”, American Medical Association, Vol.285, No.18. Accessed: http://www.precaution.
org/lib/effects_of_early_intervention.010509.pdf on 06/11/2016.
Tate, David, et al, “Violent Juvenile Delinquents: Treatment Effectiveness and Implications for Future
Action”, American Psychological Association, Vol. 50, No. 9, 1995. Accessed: www. researchgate. net on
06/11/2016.
3. Oral Interviews
Oral interview with Harriet, Childrenʼs officer, Kikuyu Sub County on 04/11/2016.
Oral Interview with Mr. Robert Mulwa, senior Superintendent of Police, Kikuyu Sub County Commander,
Administration Police Service on 04/11/2016.

29

Oral interview with Harriet, Childrenʼs Officer, Kikuyu Sub County on 05/11/2016.

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Oral Interview with Julius Kaimenyi, a Police Officer based at Gender and Child Protection Office, Kikuyu
Police Station on 04/11/2016.
Oral interview with Leah, Probation Officer, Kikuyu Sub County on 04/11/2016.

200

A MALDIVIAN PERSPECTIVE ON JUVENILE JUSTICE
Zaeema Nasheed Aboobakuru＊

I. INTRODUCTION
The Maldives is a signatory to the United Nations Convention on the Rights of the Child.1 In 1991, theMaldivian parliament enacted the Law on the Protection of the Rights of the Child,2 to give effect to the rights
and state obligations under the Convention. Sections 9 and 29 of the said Law, prescribes a separate criminal
justice system for minors accused of criminal wrongdoing.3 The new Penal Code of the Maldives reinforces
the requirement of a specialized justice system for juvenile offenders.4
The number of minors engaged in criminal behaviour has increased rapidly over the years, and theirinvolvement in serious criminal offences such as murder, gang violence, organized crime, and drug trafficking
offences has risen at an alarming rate. With the limited resources and expertise that are currently at our
disposal, we have attempted to gain some understanding of the causes and patterns of juvenile offending in
the Maldives. Some factors that stand out in this discussion are our unique geography, as well as theunderlying socio-economic issues.
In this paper, we aim to provide information about the relevant legislation governing this area of the law, abrief outline of the causes and patterns of juvenile offending in the Maldives, the extent of compliance withinternational standards and norms and best practices, challenges in implementing crime prevention andcriminal justice policies as well as exploring possible solutions.

II. JURISDICTION OVER JUVENILE CRIMES
On 1st August 1997, the Juvenile Court was established in the capital city, Maleʼ, vested with jurisdiction
to adjudicate criminal offences committed by children under the age of 18, unless otherwise provided by law.
Although the Juvenile Court came into existence prior to the enactment of the Judicature Act,5 thejurisdiction of the Court has now been incorporated in the Judicature Act.6
The Drug Court has special jurisdiction under the Drug Act7 to adjudicate drug abuse offences, where thejuvenile confesses to the abuse of drugs.
Further, magistrate courts in the atolls also have jurisdiction over juvenile offences where the matter falls
within the judicial sector in which the court operates, unless it has been exempted under the Judicature Act8
or in any other statute. However, major criminal offences such as murder, rape, sedition and treason,
terrorism, dishonesty offences that exceed a monetary value of Maldivian Rufiya 100, 000. 00, counterfeit
offences, and property offences that exceed a monetary value of Maldivian Rufiya 5000,000.00, and all drug
offences are exempted from the jurisdiction of the magistrate courts.9 The above-listed cases must therefore,

Registrar, Juvenile Court, Maldives.
United Nations Convention on the Rights of the Child (1989) (A/RES/44/25, 20th November 1989).
2
Law on the Protection of the Rights of the Child 1991 (No: 9/91).
3
Law on the Protection of the Rights of the Child 1991 (No: 9/91) (1991), ss 9 and 29.
4
Penal Code of the Maldives 2014 (No: 9/2014), s 53(d).
5Judicature Act 2010 (No: 22/2010).
6
Judicature Act 2010 (No: 22/2010), sch 4.
7
Drug Act 2011 (No: 17/2011).
8
Judicature Act 2010 (No: 22/2010).
9
Judicature Act 2010 (No: 22/2010), sch 5.
＊
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be submitted to the Juvenile Court in Maleʼ. This is law as of 19th December 2016.
Given the fact that the country is now implementing the new Penal Code of the Maldives,10 as well as the
Criminal Procedure Act11 set to come into force on the 2nd of July 2017, more changes are to be expected.

III. THE JUVENILE JUSTICE UNIT
The Juvenile Justice Unit (JJU), which operates under the Ministry of Home Affairs, is tasked with themandate to formulate national policies on juvenile justice, and to provide assistance and rehabilitation
services to children in conflict with the law.12
Social workers and counsellors from the JJU work in close collaboration with the relevant government
agencies, in order to provide the optimum outcome for the juvenile concerned. As such, the institution has
become an integral part of the juvenile justice system in the Maldives. Where a juvenile offender isconcerned, the JJU is a party to the proceedings. The Juvenile Court Regulation expressly requires the JJUʼspresence at the proceedings at the Court.13

IV. LEGISLATION
Article 35 (a) of the Constitution of the Republic of Maldives14 affords special protection and special
assistance to children and young persons, provided by the family, the community and the State. The
Maldivian legal system recognizes the international definition of children, as those below the age of 18 years.15
The Juvenile Justice Bill,16 which is comprehensive legislation, is currently in the final stages of drafting at
the Attorney Generalʼs Office. At present, matters concerning the administration of juvenile justice aregoverned by the Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences17
which has been given force of law in Schedule 2 of the General Regulations Act.18
Section 4 and 5 of the said regulation lists details about the age of criminal responsibility in the Maldives,
which begins at 10 years.19 Between the ages of 10-15 years, minors can be charged for prescribed Shariʼahoffences (Hadd offences) such as apostasy, treason, fornication, defamation (Qadf),20 aAlcohol consumption,
murder and related offences, as well as all drug-related offences. Minors above the age of 15 years can be held
accountable on all criminal offences. With the operation of the new Penal Code of the Maldives,21 morechanges are to be expected to the current regime of juvenile offences.
Special laws such as the Prohibition on Gang Violence Act,22 allows authorities to charge minors of andabove the age of 14 years for gang-related criminal activity.
Juvenile offenders who confess to the abuse of drugs have their cases forwarded to the Drug Court, which
has special jurisdiction under the Drug Act23 to adjudicate drug abuse offences. Indicative assessments are
made to evaluate the level of addiction and to determine the most appropriate treatment plan for theindividual.24 As per section 67 of the Drug Act, the court may issue “Rehabilitation Orders” for the individual
Penal Code of the Maldives 2014 (No: 9/2014).
Criminal Procedure Act 2016 (No: 12/2016).
12
Juvenile Justice Unit / Ministry of Home Affairs <http://jju.gov.mv/>.
13
Juvenile Court Regulation 2014 (R-25/2014), s 54(4).
14Constitution of the Republic of Maldives 2008, art 35(a).
15
Law on the Protection of the Rights of the Child 1991 (No:9/91), s 30; Penal Code of the Maldives 2014 (No: 9/2014), s 17(64);Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 2(a).
16Juvenile Justice Bill.
17
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ.
18
General Regulations Act 2008 (No: 6/2008), sch 2.
19
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, ss 4 and 5.
20
Defamation (“Qadf”) in Islamic Sharia amounts to the malicious accusation of adultery.
21
Penal Code of the Maldives 2014 (No: 9/2014).
22
Prohibition on Gang Violence Act 2010 (No: 18/2010), s 19(b).
23Drug Act 2011 (17/2011).
10
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to participate in the drug rehabilitation programme carried out by the National Drug Agency.25 In cases of
non-compliance, the court has power to terminate rehabilitation orders and to issue orders for incarceration
under section 82(b) of the Act.26
The new Drug Act27 was the result of changed community perceptions that saw drug addiction as a
medical condition that needed treatment. At the same time it was also an attempt to strike a balance
between this new perception and the necessity of saving the community from the scourge of drug addiction
and the associated socio-economic costs. The new legislation therefore imposed harsher penalties on the saleand trafficking of drugs.
In addition to other general defences, the new Penal Code of the Maldives provides a defence for children
below the age of 15 years accused of criminal wrongdoing, who are entitled to the defence by reason of theirimmaturity.28 The defence excludes Hadd offences under the Islamic Shariʼah and violent criminal offences.29
However, the legal operation of this very technical defence remains to be seen as thus far, it has not beenargued by the defence in any of the proceedings before the Court. Moreover, it raises interesting questions
about the desirability of early intervention in the case of at-risk youth. As this is an issue that has direct
relevance to the age of criminal responsibility in the Maldives, it remains to be seen how the High Court of
the Maldives may interpret the provision, and provide guidance to the authorities.
Except in cases where the Islamic Shariʼah prescribes punishment (Hadd offences), juvenile offenders
receive 2/3rds of the minimum penalty stipulated under the relevant law.30 If it is a first offence, the judge
has discretion to issue a suspended sentence,31 and the Court has greatly used this discretion in order toprovide the juvenile with the chance to reform.
Where Islamic Shariʼah prescribes punishment for certain offences (Hadd offences) such as murder, thecourt or judge has no discretion to provide any leniency in the sentence.32 As per the Constitution of theMaldives, our legal system is governed by the principles of Islam, and no law contrary to this can be enacted
in the country.33 Islamic Shariʼah prescribes capital punishment for persons convicted of murder, where theheirs of the victim are unanimous in seeking legal retribution. However, the implementation of the sentence
will be postponed until the juvenile attains 18 years of age.34 The regulation governing capital punishment
lists various procedural safeguards before the implementation of a death sentence, such as the exhaustion of
the appeal process, and mediation between the offender and the victimʼs family with regard to the death
sentence.35 The Ministry of Islamic Affairs has the mandate to coordinate the process of mediation with due
consideration to the best interests of the child. Beginning from 2013, the court has sentenced five (5) juveniles
to death. All five have appealed to the High Court of the Maldives.
Given the seriousness of Shariʼah offences and the prescribed punishments, as well as to ensure justice isserved, the Supreme Court has issued Circular No: 2015/14/SC36 requiring the courts to send cases involving
Shariʼah offences for automatic appeal to the High Court and the Supreme Court of the Maldives.
In addition to this, there are special provisions in the new Criminal Procedure Act37 that recognize
procedural differences in the investigation, prosecution and adjudication of offences committed by minors.
Drug Act 2011 (17/2011), ss 62 and 63.
Drug Act 2011 (17/2011), s 67.
26
Drug Act 2011 (17/2011), s 82(b).
27Drug Act 2011 (17/2011).
28
Penal Code of the Maldives 2014 (No: 9/2014) s 53(b)(1) and (2).
29
Penal Code of the Maldives 2014 (No: 9/2014) s 53(c).
30Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 17(e)(1).
31
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 24.
32
The Holy Quran, Ch(2):178; Ch(17):33.
33
Constitution of the Republic of Maldives 2008, s 10.
34
Regulation on Investigation and Execution of Sentence for Willful Murder 2014 (R-33/2014), s 11 (1) (a); Penal Code of theMaldives 2014 (No: 9/2014), s 53(c).
35Regulation on Investigation and Execution of Sentence for Willful Murder 2014 (R-33/2014), ss 8 and 9.
36
Supreme Court of the Maldives, Circular No: 2015/14/SC (15.11.2015) <www.supremecourt.gov.mv>.
37
Criminal Procedure Act 2016 (No: 12/2016).
24
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Parents or guardians of juveniles arrested must be duly informed of the reasons for arrest, and the law
stipulates a maximum period of four (4) hours to fulfill this notification procedure.38 Further, minors may only
be interviewed by the Police, in the presence of a parent or guardian or in the presence of those able toguarantee the best interests of the child, such as social workers from the Juvenile Justice Unit.39

V. BRIEF OUTLINE OF THE CAUSES AND PATTERNS OF JUVENILE
OFFENDING IN THE MALDIVES
A large majority of the population resides in the capital, Maleʼ city, often living in congested housing
conditions. This includes children and their families who migrate from the islands in the hope of attaining
better education, health services and job opportunities, facilities that are inadequate within the atolls. The
meagre income their families earn is spent on rent. As a result, in some cases, children turn to sources otherthan their families to fulfill their needs and wants.40
Underage girls and boys engage in prostitution and drug offences as a means of earning income.41 Gangs
exploit these vulnerabilities within the community and have also increasingly made use of the leniency
granted to minors under the law, to manipulate juveniles into committing the crime of drug trafficking.42 For
instance, whereas an adult can be sentenced to 25 years imprisonment for drug trafficking,43 juveniles may
only be sentenced to 2/3rds of that time,44 i.e., a term of 16 years and 8 months, which may be revoked by theJuvenile Court if the juvenile successfully completes the rehabilitation programme. Juvenile offenders who
have gained notoriety within the system are well aware of the leniency the law affords them, and hence, haveat times abused the process. Juveniles who are arrested with drugs, with a quantity that amounts to theoffence of drug trafficking, have sometimes confessed to the abuse of drugs, even though they are clean ‒ forthe sole purpose of having their cases channeled to the Drug Court for rehabilitation orders and to avoid themuch harsher sentence of trafficking in drugs.45
Minors have also been used by wealthy business persons and politicians to commit political violence suchas vandalism, serious assault and murder.46 Criminal gangs attract juvenile offenders who come fromneglected family backgrounds to their lifestyle, providing them with a sense of identity and brotherhood aswell as protection from rival gangs.47 Once in, they find it next to impossible to exit gang life, for fear of theirand their familyʼs safety.48
Further, some cultural factors contribute in this cycle of poverty, helplessness and crime. Maldives has
one of the highest divorce rates in the world.49 Most juveniles who are brought to court come from
dysfunctional families, lacking the normal hierarchical structures of a stable family life. They either live with
their single mothers, step parents or grandparents, who at times have proved to be unable or unwilling toprovide the necessary care, support and nurturing conducive to a stable environment for a child to thrive in.50
Fathers, who are seen as authority figures within our culture, are in some cases, completely absent from thelives of their children. In very unfortunate situations, some juveniles have been completely abandoned bytheir families, who refuse to attend the court hearings or visit the juvenile in prison. The Juvenile Court has
Criminal Procedure Act 2016 (No: 12/2016), s 43(e).
Criminal Procedure Act 2016 (No: 12/2016), s 46(j).
40
Human Rights Commission of the Maldives, Submission to the Universal Periodic Review of the Maldives, April-May 2011<http://www.hrcm.org.mv/Publications/otherdocuments/UPR_submission_Sept_2014.pdf>, p. 4.
41
Ibid.
42
“Rapid Situation Assessment of Gangs in Male” Maldives 2012 The Asia Foundation in collaboration with MIPSTAR, p.9(available online at: <http://asiafoundation.org/publication/rapid-situation-assessment-of-gangs-in-male/>).
43
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 17(e)(1).
44
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 17(e)(1).
45
Anectodal evidence from consultations with key stakeholders during case conferences at the Juvenile Court.
46“Rapid Situation Assessment of Gangs in Male” Maldives 2012 The Asia Foundation in collaboration with MIPSTAR, pp 18-19(available online at: <http://asiafoundation.org/publication/rapid-situation-assessment-of-gangs-in-male>).
47
Ibid.
48
Ibid.
49
“The haven for honeymooners where everyone gets divorced”, The Telegraph, 26 September 2016 (available online at: <http://www.telegraph.co.uk/travel/maps-and-graphics/mapped-countries-with-highest-divorce-rate/>).
50
Information contained in the confidential Social Inquiry Reports submitted to the Court by the Juvenile Justice Unit.
38
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issued six (6) “Protection Orders” between 2014 ‒ 2016 granting the State, custody over children in conflictwith the law, who come from such neglected backgrounds and are in dire need of care and support for them
to be reintegrated into society as rehabilitated individuals.
Most children who enter into criminal life become repeat offenders and gain notoriety within the system.
They begin with petty crimes and progress in their descent to serious criminality. Juveniles who have been
convicted of murder had a series of criminal records that initially began with minor offences such as theft,
disturbance of peace and order offences, etc.51 Some of these juveniles had served time and had been released
to the community after a period of rehabilitation. Nonetheless, lack of proper intervention mechanisms andtreatment programmes̶that takes into account our cultural and socio-economic factors, led to their relapse
into criminal behaviour. As for the gender disparities, girls are more likely to be involved in sexual offences,whereas boys are involved in various criminal offences, including sexual offences.52

VI. COMPLIANCE WITH INTERNATIONAL STANDARDS AND NORMS
As per the Strategic Plan for Reform of the Juvenile Justice System,53 the nation follows the principles of
the restorative justice model that seeks to address the injury caused to the victim, the wrong done to thesociety, as well as the accountability, rehabilitation and reintegration of the offender. Rules and regulations on
investigation, prosecution and adjudication have been designed to give effect to the rights and obligations
under the CRC and other international human rights treaties.54 Additionally, the UN Guidelines on Juvenile
Justice have become an integral part of practice at the Juvenile Court of the Maldives.55
A. Investigation
The regulation governing the conduct of criminal matters involving juveniles stipulates the confidentialand expeditious determination of cases at every phase of the criminal justice system.56 Investigating officers
are required to be in plain clothes and must consider the best interests of the child at all times.57 Having
considered the nature, seriousness and gravity of the offence, and the criminal record of the child, theinvestigating authorities have discretion to issue informal and formal warnings, providing the child with anopportunity to reform, instead of forwarding the matter for prosecution.58 Such warnings take the form of abinding agreement between the authorities and the juvenile and their parent or guardian, with conditions andconsequences in the event of breach.
All interviews and communications with the child must be undertaken in the presence of aparent/guardian or in the presence of such other persons able to guarantee the best interests of the child.59
Provisions in the new Criminal Procedure Act require the police to audio or video record interviews of allarrested persons.60
Once an arrest is made, the Maldives Police Service is required to send referrals to the Juvenile Justice
Unit,61 which will then assign a case worker for the juvenile, to provide support and assistance throughout thecriminal justice process.
Article 48(d) of the Constitution of the Republic of Maldives requires any person(s) arrested to be brought
before a judge within 24 hours to determine the validity of arrest and further remand in police custody.62
Court Registry of Criminal Records (Confidential information).
Court Registry of Criminal Records.
53
Strategic Plan for Reform of the Juvenile Justice System 30 September 2004, Attorney Generalʼs Office (available online at:<http://www.mvlaw.gov.mv/pdf/publications/5.pdf>).
54
United Nations Convention on the Rights of the Child (1989), art 2, 3, 12 & 40; International Covenant on Civil and Political
Rights (1966) (RES/2200A (XXI))(16th December 1966) art 14.4.
55
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33) (1985).
56
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, ss 3 and 21; Juvenile
Court Regulation 2014 (R-25/2014), s 122(1).
57Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 9(b).
58Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 10.
59
Criminal Procedure Act 2016 (No: 12/2016), s 46(j).
60
Criminal Procedure Act 2016 (No: 12/2016), s 46(k).
61Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 11(b).
51
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According to the Juvenile Court statistics, 597 remand hearings were held in the year 2015, of which mostwere brought in for subsequent offending.63 Beginning from 2016, there has been a steady decline in thenumber of juveniles brought to court for further remand in custody with 500 hearings in 2016 and just 111
hearings by the end of May 2017.
B. Prosecution
Juvenile cases received at the Prosecutor Generalʼs Office (PGO) are investigated, and if the case warrants
a prosecution, it is submitted to the Court. Prosecutorial Guidelines64 on juvenile offences are as follows:
1.

Where appropriate, having regard to the nature and gravity of the offence, to dispose of cases committed
by children without recourse to formal trial proceedings.

2.

As a general rule, having regard to the sufficiency of evidence received, sexual offences committed
against children (including those perpetrated by juveniles) are to be sent for prosecution, save for
exceptional circumstances.

The current policy at the Prosecutor Generalʼs Office, is to minimize the number of cases sent for
prosecution, unless they are serious in nature. Instead, the PGO relies on agreements with juveniles, divertingthem away from prosecution, with conditions and consequences in the event of subsequent criminal
behaviour. The Criminal Procedure Act provides a mechanism for the Prosecutor Generalʼs Office to counsel
offenders who commit minor offences and who confess to the crime during the investigatory stage, instead ofpressing charges and prosecuting the matter.65 According to section 100 of the Act, the Prosecutor Generalmust enter into an agreement with the accused if the Prosecutor General decides not to prosecute the matter,with assurance from the accused to abide by the conditions of the agreement.66 The Prosecutor General must
consider the interests of justice as well as the best interests of the child in concluding such an agreement.67
Juveniles are then required to participate in rehabilitation programmes under the supervision of the Maldives
Police Service and the Juvenile Justice Unit.
Further, the Prosecutor General also has discretion to discontinue proceedings or withdraw charges at
any time before the court issues a verdict.68 The office of the Prosecutor General has frequently used thisdiscretionary power to withdraw minor cases from the Court, in order to pave way for the rehabilitation ofjuveniles.
C. Adjudication
1. Case Management
In order to facilitate a speedy process in juvenile cases, the Court requires the Prosecutor General tosubmit written reasons explaining the delay in submitting the case if a year has lapsed between thesubmission and the date of the incident.69 The court, on its own initiative, implemented case management
procedures such as stricter guidelines to schedule hearings in order to ensure continuous proceedings. Unlessthere are justifiable circumstances for the delay, a first hearing must be scheduled within 3 working days ofthe court receiving the case documents.70 Further, judges must decide on cases assigned to them within 6months, and if it exceeds that period, must submit written reasons to the Chief Judge of the Court, and reportto the Chief Judge on the progress of the case at least once a month.71 The Supreme Court of the Maldives
has issued Practice Directions (No: 2015/08)72 requiring all courts to streamline its case management
procedures to provide for the speedy determination of cases. Additionally, the Criminal Procedure Act
envisages the implementation of continuous hearings73 and pre-trial procedures,74 to further expedite the trial
Constitution of the Republic of Maldives 2008, art 48(d).
Disaggregated data unavailable, but evident from the Court Registry of Criminal Records (Confidential information).
64
Published on the Prosecutor Generalʼs Office website <www.pgoffice.gov.mv>.
65
Criminal Procedure Act 2016 (No: 12/2016) s 100.
66
Criminal Procedure Act 2016 (No: 12/2016) s 100.
67
Criminal Procedure Act 2016 (No: 12/2016), s 99.
68
Constitution of the Republic of Maldives 2008, art 223; Prosecutor General’s Act 2008 (No: 9/2008), s 15.
69
Juvenile Court Regulation 2014 (R-25/2014), s 35(9).
70Juvenile Court Regulation 2014 (R-25/2014), s 43.
71
Judges’ Act 2010 (No: 13/2010), s 55(a).
72Supreme Court of the Maldives, Practice Directions (No: 2015/08) 12.08.2015 (available online at: <www.supremecourt.gov.mv>).
62
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process̶the Maldivian judiciary is still in the process of adapting to these new procedures.
2.

Proceedings
According to the spirit of the CRC75 and the relevant UN Guidelines, all hearings at the Court are closed tothe public to ensure maximum protection and privacy to the juvenile.76 All personal information of thejuvenile are redacted from the media releases and case reports published on the Courtʼs website.
Case workers from the Juvenile Justice Unit are required to attend all proceedings including remandhearings and trials, along with the parent or guardian.77 In cases, where the juvenile is also a victim of abuse,
the Ministry of Family and Gender as well as the Human Rights Commission of the Maldives, may apply tointervene in the proceedings as and when necessary.78
Every child brought before the court is guaranteed due process and a fair trial. They are provided with alllegal rights, including the right to legal representation.79 Article 53(b) of the Constitution states: “In serious
criminal cases, the State shall provide a lawyer for an accused person who cannot afford to engage one.”80
Currently, legal aid is provided only in cases involving serious criminal offences such as murder, trafficking in
drugs, major assaults with a lethal weapon, assaults causing grievous bodily harm, terrorism cases,
counterfeit offences, dishonesty offences that exceed a monetary value of Maldivian Rufiyaa 50, 000. 00,
offences of sedition and treason, as well as offences that stipulate a mandatory sentence of 25 yearsʼ
imprisonment.81 The Attorney Generalʼs Office is currently holding consultations to finalize the Draft Legal
Aid Bill and to establish a mechanism for pro bono legal representation, and the Public Defendersʼ Office.
The Court conducts its judicial proceedings in compliance with Article 12 of the CRC, by respecting thechildʼs right to be heard in all matters affecting the child.82 Juveniles are actively encouraged to speak at
judicial proceedings as well as at the community conferences held at the Court. Any child who does notunderstand or speak the local language is provided with an interpreter at the hearing. The Juvenile Justice
Unit is required to submit social inquiry reports both at the remand stage and during trial and sentencing.83 It
must be noted that the views of the child are given due weight in the disposition of remand hearings, where
the child is given responsibility to adhere to the conditions of release, or house arrest. Generally, the judge
would order the child to attend school or vocational centres at designated times, under the supervision of theparent or guardian.
3.

Conferencing
The Court conducts three types of conferences in relation to the cases submitted to the Court: Case
Conference; Family Conference and Community Conference.
A Case Conference enquires into the desirability of proceeding to trial, by exploring other options for thejuvenile. It may also be held to clarify issues related to the juvenile and to bring the parties up to date withthe records of the juvenile concerned. All stakeholders, including the Maldives Police Service, the Prosecutor
Generalʼs Office and the Juvenile Justice Unit take part in this conference.
A Family Conference is usually held when there are pressing family issues that need to be addressed, forinstance, lack of family care and support for the juvenile, or cooperation with the authorities.
Criminal Procedure Act 2016 (No: 12/2016), s 142.
Criminal Procedure Act 2016 (No: 12/2016), ch 13.
75
United Nations Convention on the Rights of the Child (1989), arts 2, 3, 12, & 40.
76
Constitution of the Republic of Maldives 2008, art 42(c)(2); United Nations Convention on the Rights of the Child(1989), art 40(2)(b)(vii); International Covenant on Civil and Political Rights (1966), art 14.1; United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33)(1985), r 8.
77
Juvenile Court Regulation 2014 (R-25/2014), s 54.
78
Juvenile Court Regulation 2014 (R-25/2014), s 54.
79
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ, s 8; United Nations
Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33)(1985), r 7 and 15.
80
Constitution of the Republic of Maldives 2008, art 53(b).
81
Attorney Generalʼs Office Guidelines on Legal Aid (available online at: <www.agoffice.gov.mv>).
82
United Nations Convention on the Rights of the Child (1989), art 12.
83
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33) (1985), r. 16.
73
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In the final stages of the case, the Probation Officer, would make arrangements to hold a Community
Conference, where prospects of the juvenileʼs rehabilitation may be explored. In keeping with the principlesof the restorative justice model, the conference serves as an avenue for the victim and the offender to meet,paving way for a dialogue between the parties. If the Court thinks it is in the best interest of the victim andthe juvenile to meet, the court may make such arrangements. Juvenile offenders are encouraged to apologize,compensate for the injury or pain caused, or provide restitution for the damage caused. In 2015, the Court
held a total of 52 conferences in relation to cases submitted to the court.
4.

Sentencing, Incarceration, Rehabilitation and Reintegration
Where the judge has discretion to sentence the juvenile to house arrest, the juvenile may be ordered toattend educational or vocational centres,84 and the Maldives Correctional Services would take on the task ofmonitoring the juvenile. Juveniles enrolled in the rehabilitation programme are subjected to periodic reviews.
Between 2010 and 2015, eighty-nine (89) juveniles were admitted into the rehabilitation programme, of which
11.2% successfully completed the programme having been released with the remainder of their sentences
revoked. 44% of non-compliance cases were sent back to serve the remainder of their sentences.
Conviction for serious offences, such as drug trafficking, leads to a lengthy period of incarceration.85 There
are no separate detention centres for juveniles. They are currently held in adult facilities, albeit separate fromthe adults. These institutions lack the necessary resources and capacity to conduct rehabilitation for thejuveniles. However, some measure of rehabilitation opportunities are provided while in prison. This includes
encouraging them to enlist in O/L courses and Quranic learning “Qari” courses. They are also provided with
Islamic counselling services, individual counselling sessions with the Juvenile Justice Unit, as well as
programmes aimed at raising awareness about crime and criminal behaviour in order to prevent further
offending.
The Juvenile Justice Unit, in close collaboration with the Maldives Police Service, the Prosecutor Generalʼs
Office, the Juvenile Court and the Maldives Institute of Technology, began an ambitious juvenile
rehabilitation programme titled “Ummeedhu (Hope)” in June 2016, with Phase I of the programme held as aboot camp at Dh Atoll. Vaani. The programme enlisted 20 participants with minor to serious criminal
records. As this is a very recent programme, with Phase II consisting of educational and vocational training
and job placements, yet to be completed, evaluating the success of the programme remains inconclusive fornow.
D. Challenges
Resources and capacity are the most significant hurdles in implementing international best practices inthis area of the law.
Key legislation remains pending. The Draft Juvenile Justice Bill, which would enable wide-ranging
changes to the current system, is yet to be enacted as law.
Unreasonable delays in the investigation and prosecution of matters involving minors is of great concern.
There have been instances where cases have been submitted to court by the Prosecutor General, after two or
more years have passed since the incident. Delays in the prosecution of juvenile offences have consequences
for the childʼs educational and employment prospects. In some instances, juvenile offenders are adults withdependent families and responsibilities by the time their cases are submitted to the court. Under the
restorative justice model, the juvenileʼs sense of wrongdoing is a basic requirement for his or her reformation
to begin, but delays in the prosecution and adjudication would mean that the chances of the restorative justiceprocedures to have impact would have elapsed. This is partly due to the difficulties encountered insubmitting cases to the Magistrate Courts in the atolls, as well as difficulties in tracing the whereabouts of
the accused.86
The country lacks a systematic rehabilitation programme that clearly identifies target groups and their
Regulation on Conducting Trials, Investigation and Fair Sentencing of Juvenile Offences (2006)/XX/MJ (R-25/2014), ss 17(b) &19.
85
Drug Act 2011 (No:17/2011).
86
Concerns raised by the Prosecutor Generalʼs Office during stakeholder consultations.
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particular risks and needs. Different categories of offenders require different types of interventions andtreatment programmes.87 Although it is too early to evaluate the success of the “Ummeedhu (Hope)”
programme̶authorities have noted instances of relapse to criminal behaviour among some participants,
once they were brought back from the camp. This was due to the lack of a suitable environment for thejuveniles to reform, as the ground realities remained unchanged. The Prosecutor Generalʼs Office has decided
to prosecute minors who reoffended, as they had breached the conditions agreed with the Prosecutor
Generalʼs Office.
Given that we have been unable to implement a successful rehabilitation scheme yet in the Maldives,
institutional arrangements become crucially important especially in the case of juveniles. There are nojuvenile specific detention or rehabilitation centres at the moment.88 The Education and Training Centre forChildren (ETCC) which had some measure of success in conducting juvenile rehabilitation has now beenclosed due to maintenance purposes. The Court has been in consultation with the relevant government
agencies since 2010, but thus far, there has been no progress on this issue. In order to raise concern over thisand encourage authorities to implement this measure, the Juvenile Court has begun issuing orders forjuveniles to be placed specifically in juvenile rehabilitation centres beginning on 1st of July 2015.
In addition, although the Drug Act 2011 stipulates the establishment of child-specific detoxification andtreatment centres within eighteen months from the date of ratification of the law,89 there are no specifictreatment centres for juveniles convicted of drug abuse. The current practice is to treat them while in thecommunity. This has not proved to be very effective, as attendance at these community treatment centres
that also cater for adults are based on voluntary compliance with the court order.
Our unique geography has also proved to be a factor hindering efforts at implementing a nation-widejuvenile rehabilitation scheme. Article 20 of the Constitution guarantees, “equality before and under the law,and the right to equal protection and equal benefit of the law”.90 Most magistrate courts in the atolls lack thecapacity and resources to provide probation and juvenile rehabilitation facilities. Some of the international
best practices followed at the Juvenile Court in Maleʼ are unavailable in the magistrate courts. There is nopresence of the Juvenile Justice Unit (JJU) within the atolls, to some extent the Ministry of Family andGender has stepped into the breach to provide support to juveniles accused of crime. But the lack of JJUʼspresence within the atolls is a major factor impeding efforts to coordinate rehabilitation programmes forjuveniles residing in the islands.91 The Juvenile Court has had limited success in coordinating rehabilitation
efforts with the island councils.
Inter-agency coordination has at times been difficult to achieve, due to overlapping mandates and theabsence of a unified approach to child care and juvenile justice. This is especially true in the case of dual
status youth, who make up the bulk of children in conflict with the law. The social inquiry reports submitted
by the JJU are replete with instances of abuse, neglect and abandonment of children̶issues that should have
put the authorities on notice, before the children ended up in the criminal justice system as offenders.
E. Possible Solutions
The authorities need to step up efforts to pass the Juvenile Justice Bill in order to devise a comprehensive
mechanism for the administration of juvenile justice in the Maldives.
The new Criminal Procedure Act introduces electronic submission of cases.92 Agencies working within
the criminal justice system must enforce a concerted effort in the expeditious processing of juvenile offencesat every stage. It is expected that this would provide some remedy to the problem of delayed submission ofcases.

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33)(1985), r. 26;
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (A/RES/45/113) (1990), ss. C, D & E.
88
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (A/RES/45/113) (1990).
89
Drug Act 2011 (No: 17/2011), s 47(a)(3).
90
Constitution of the Republic of Maldives 2008, art 20.
91
Discussions at stakeholder consultations.
92
Criminal Procedure Act 2016 (No: 12/2016), s 78.
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The country needs to devise a comprehensive rehabilitation and reintegration plan. International bestpractice dictates that such treatment programmes should proceed on a risks and needs basis, and must be
individualized to fit the particular circumstances of the juvenile concerned.93 The plan must also take into
account our geographical uniqueness and address issues of coordination between Maleʼ and the atolls. The
Maldives Police Service is looking to expand their role in juvenile crime prevention, by planning andimplementing school programmes for minors who are within the vulnerable age-group as well as the at-risk
group.
Establishing juvenile detention and rehabilitation centres is critical to the implementation of effective
rehabilitation schemes. A juvenile drug rehabilitation facility is of utmost importance to combat drug
addiction among minors, and existing structures need to be strengthened as well as compliance andmonitoring mechanisms. We have renewed our efforts and are currently in dialogue with the Ministry ofHome Affairs and the relevant government agencies concerning the establishment of well-resourced
detention and rehabilitation centres for juvenile offenders. The current Minister of Home Affairs has beenbriefed about the situation and the changes that are required immediately.
We need to find ways to transfer knowledge and expertise from Maleʼ to the magistrate courts in theatolls, where juveniles can be provided with equal protection and equal benefit of the law. To counter the
infrastructural deficiencies within the atolls, an option is to enlist the support of the magistrate courts in the
supervision and monitoring of juvenile offenders who have been placed on probation or in rehabilitation by
the Juvenile Court orders. In addition, civil society groups can act as an auxiliary to the formal structures of
the criminal justice system, by providing monitoring and support facilities within the atolls.
Specialization within their respective agencies and departments is vital for the successful implementationof juvenile justice policies.94 The Family and Child Protection Unit (FCPU) is a specialized unit of the Maldives
Police Service that investigates domestic violence and juvenile offences; however, other units anddepartments, such as the Drug Enforcement Department and the Serious and Organized Crime Department,
also investigate crimes where juveniles are involved. Many of the batches of investigating officers,
corrections officers and custodial personnel now receive introductory guidance to the principles of juvenile
justice and international standards and norms. To effect real change in the entrenched mindsets and less thanfavourable practices, officers need much more than a week-long training workshop. They need to be able tointernalize the belief that the special principles and functions of the juvenile justice system serve an
important purpose and contribute to the overall strengthening of the law enforcement agencies and thecriminal justice system.
Similarly, prosecutors and defence lawyers handling juvenile cases need to be trained in juvenile justiceprinciples and best practices, as the juvenile justice trial proceedings greatly vary from the mainstream
criminal justice processes. Further, they should be aware of their respective duties to the court and to theaccused. In this respect, special communication skills have proved to be vital. Most juveniles and minors who
become witnesses in court, lack the ability to converse in formal language or to follow-through rigorous
examination and cross examination. Lawyers therefore should be able to adapt their language according to
the understanding of the accused or witness.
Child care and protection agencies must step-up efforts to be vigilant, and pay special attention to thecategory of dual status youth who initially enter the system as victims. Issues of abuse or neglect must be
dealt with promptly and effectively. While international best practice recommends children not to be
removed from family life as far as possible, there may be cases when, in the best interests of the child, that is
the right thing to do. Further, inter-agency coordination is vital for the successful implementation of childrights and juvenile justice polices. To that end, an efficient, child victim and juvenile offender database isimportant, in order to keep the agencies up-to-date with the location and status of minors, involved in thesystem.
More research is required to understand the causes of juvenile offending and ways to better implement
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (A/RES/45/113) (1990).
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (A/RES/40/33) (1985), r 12;
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (A/RES/45/113) (1990), V.

93
94

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juvenile justice policies. Maintaining a systematized statistical database is a requirement for analytical studies
on this subject. Partnering with international organizations and foreign governments and institutions would
be of assistance to improving our current regime of juvenile justice.

VII. CONCLUSION
The country has made significant improvements in the field of Juvenile Justice since becoming party to
the UN Convention on the Rights of the Child.95 A look at the current system would reveal the progressachieved in implementing international norms and best practices in this area of the law. The nation has
incorporated the restorative justice model in its juvenile justice policies, and has had some measure of successin implementing rehabilitation and reintegration programmes.
Still, hurdles remain. Capacity, lack of resources and expertise stand out as the most crucial factors
hindering further development. The recent reforms to the criminal justice system have highlighted the needfor reform of the juvenile justice system, which are more urgent than ever. We aim to maintain a sustained
effort towards our commitment to the development of the juvenile justice system in the Maldives.

ANNEX AJUVENILE REHABILITATION STATISTICS ‒ JUVENILE COURT OF THE
MALDIVES

95

United Nations Convention on the Rights of the Child (1989).

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RESOURCE MATERIAL SERIES No. 102*Request to participate ‒ generally juveniles who are accused of criminal behaviour are given an opportunity
to participate in the rehabilitation programme by submitting documents of confirmation from an educational
institution, vocational training centre or job confirmation from employer.
*Granted acceptance ‒ the total number of juvenile applications accepted into the programme during the year.
This will include undecided applications from the previous year.
*Completed Programme ‒ the number of juveniles who completed the rehabilitation programme for thedesignated duration.
*Successfully completed ‒ the number of juveniles who successfully completed the rehabilitation programme,with the remainder of their sentence revoked by the Court.
*Terminated ‒ the number of juveniles who were terminated from the rehabilitation programme and sent
back to prison to serve the remainder of their sentence.
*Served Full Sentence ‒ the number of juveniles who took part in the rehabilitation programme but also
served their full sentence.
*Undecided ‒ the number of applications to participate in the rehabilitation programme that remained
undecided at the end of the year
*Conferences ‒ the number of conferences held regarding juvenile offenders during the year. This may
include several conferences held on individual juvenile offenders.

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ANNEX B
REMAND HEARING STATISTICS ‒ 2009-2016*as of 19.12.2016

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ANNEX CCASES SUBMITTED TO COURT ‒ 2009-2016*Pending at year end ‒ the number of undecided cases from previous years at the beginning of the current
year (there was a huge backlog of cases which was reduced after the establishment of the Drug Court)*Submitted ‒ the total number of cases submitted to court during the year.
*Decided ‒ the number of cases in which the court has passed a verdict and issued a sentence*Undecided ‒ the number of cases that remained undecided at the end of the current year.

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ANNEX D
TYPES OF CASES ‒ 2015

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ANNEX E
TYPES OF CASES ‒ 2016

216

REPORTS OF THE SEMINARGROUP 1A FEW MEASURES TO REDUCE AND PREVENT RECIDIVISM
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisor

Ms Alessandra Charbel Janiques REBOUCAS
Mr. Yam Bahadur BANIYA
Mr. Tuaine Junior MANAVAROA
Mr. Mohamed BASHEER
Mr. Rinzin DORJI
Mr. Bi Ohou Noel BOTI
Mr. Rahim GUL
Ms. Liana Edith ORTEGA
Ms. Cathy Fred KAIUN
Mr. Naoto NISHIE
Professor Nozomu HIRANO(Brazil)(Nepal)(Cook Islands)(Maldives)(Bhutan)(Cote dʼIvoire)(Pakistan)(Panama)(Papua New Guinea)(Japan)(UNAFEI)TABLE OF CONTENTS
PAGE No.
Introduction ㌀
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Prompt Intervention and Implementation㌀
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Comprehensive Assessment of the Juvenileʼs Needs ㌀
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The Key Roles and Responsibilities of Parents and Guardians ㌀
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Diversionary Mechanisms㌀
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Restorative Justice ㌀
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Multi-Agency Cooperation with the Community and the Private Sector㌀
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Recommendations and Conclusion ㌀
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I. INTRODUCTION
Childhood in general and for those in conflict with the law requires special attention on the part of thesociety due to the vulnerability of children. This aspect has been perceived by the international community,
which, under the leadership of the United Nations, has devoted to it a number of international documents,
including the Convention on the Rights of the Child (CRC), the Beijing Rules, the Riyadh Guidelines, and theHavana Rules etc.
The juvenile justice systems of Bhutan, Brazil, Cook Islands, Cote dʼIvoire, Maldives, Nepal, Pakistan,
Panama, Papua New Guinea and even Japan need improvement. At least 20 years after ratifying the CRC, themajority of these signatory countries still face rights violations and increased juvenile delinquency.
The implementation of the above-mentioned conventions in the various signatory countries has revealed
several flaws to be reconciled in order to meet the imperative need to maintain the child as an indispensablelink for humanity, despite being in conflict with the law.
The 165th International Senior Seminar on Crime Prevention and Criminal Justice provided a framework
for reflection on the status of the effective implementation of international conventions and guidelines
relating to juvenile justice in different countries, with a view to making recommendations for improving
practices on the ground.
Recidivism among juveniles has become a pressing international issue. Recidivism literally means “afalling back” and usually implies “into old bad habits”, yet it is defined differently in each country. A common
definition involves reoffending within a limited timeframe; typically this interval ranges from a few months tomore than a year. A few factors contributing towards recidivism include personal characteristics, social
economic conditions/status, education and skill levels, family issues, an inefficient juvenile justice system, etc.
The subject chosen by the group discusses the measures aimed to prevent and reduce recidivism. The
final part of the report offers recommendations and suggestions based on the above-mentioned theme.

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II. PROMPT INTERVENTION AND IMPLEMENTATION
Celerity has been highlighted as an extremely important element in youth interventions for the wellrounded development of the juvenile and for deterrence. As explained by Butts, Cusick and Adams, citing
Grisso, “adolescents have less ability to take long-term consequences into consideration and a greater
propensity for short-sighted decision-making.”1 So, interventions with juveniles have to be prompt in order toeffectively shape future behaviour; if not, the linkage between the offending act and the interventions
established is less likely to occur and the system will be less effective in reducing recidivism.2 If the response
takes too long, the young offender will not take full advantage of the educational aspects of themeasures/interventions determined and perhaps will even feel encouraged to reoffend.
In the commentary to rule 20.1 of the “Beijing Rules” it is stated that the speedy conduct of juvenile cases
is a “paramount concern”: “[o]therwise, whatever good may be achieved by the procedure and the dispositionis at risk; [a] s time passes, the juvenile will find it increasingly difficult, if not impossible, to relate theprocedure and disposition to the offence, both intellectually and psychologically.” No wonder, “promptly
addressing the causes and consequences of their behaviour, and providing services or support where
necessary to prevent recidivism and encouraging positive reintegration into the community, has been foundto cut repeat offenses in half and incarceration rates by two-thirds as compared to a control group.”3 The“earlier the investment in an individual, [...] the more cost effective the investment.”4
Celerity has been a characteristic of the Japanese and many North American statesʼ juvenile justiceprocedures, and these countries have been showing a decrease in youth delinquency. In the USA, expeditious
judicial and non-judicial dispositions are possible in many jurisdictions through the multi-agency collaborative
approach of Juvenile Assessment Centers, with simultaneous accomplishment of required legal and social
service interventions5 on the same day and/or days following the arrest. By the civil citation programme̶adiversionary mechanism in the state of Florida for certain first time misdemeanour offences̶the youth will
not be arrested, but will promptly be assigned to a court counsellor with an issued date for an interview.6 If
community service is to be performed, the juvenile shall report to the “monitor within 7 working days after
the date of issuance of the citation”, to begin the implementation of 50 hours of community service at a rate of
not less than 5 hours per week (Chapter 985 Section 12 ‒ 2016 Florida Statues, at 4); and in the case of
possession of drug paraphernalia or 20 grams or less of marijuana, the youth must appear at the Juvenile
Diversion Program office the day following the offence for an interview, drug screening and risk assessment,
as well as for treatment recommendation and monitoring.7
In Japan, when the juvenile is not kept in preventive detention, Family Court investigating officers, during
the investigation process (which usually takes at most 3 months), can apply educative measures such ascommunity service activities, camp with parents, drug/sex education classes, traffic rulesʼ lessons andemployment assistance̶which are done before the Family Court investigation report. If the case is notdismissed by the Family Court or referred back to the prosecutor for prosecution, the dispositions(“protective measures”: probation, juvenile training school and referral to a childrenʼs self-reliance support
facility) begin expeditiously̶usually on the same day. For example, according to the Profile of the Tokyo
Probation Office, “after the family courtʼs decision, which places the juvenile on probation, the juvenile andButts, Jeffrey; Cusick, Gretchen, and Adams, Benjamin. Delays in Youth Justice. Google books. Doc nr : 228493, October 2009,p. 10.
2
See Butts, Jeffrey; Cusick, Gretchen, and Adams, Benjamin. Delays in Youth Justice. Google books. Doc nr : 228493, October
2009, p. 10.
3
Heather Hojnacki, “Graham v. Florida: How the Supreme Courtʼ s Rationale Encourages Reform of the Juvenile Justice
System” (2012) 12 Pepp. Disp. Resol. L.J. 135 at 155
4
United Nations, Fact Sheet on Juvenile Justice, online: UN <http://www.un.org/esa/socdev/unyin/documents/wyr11/
FactSheetonYouthandJuvenileJustice.pdf>.
5
Dembo, Richard, “Juvenile Assessment Center” (lecture, ʻUNAFEI 165th International Senior Seminar on Juvenile Justice andthe United Nations Standards and Normsʼ, January 25, 2017), slide 4.
6
Juvenile Diversion Programs, Tampa, FL, USA, Administrative Office of the Court. Juvenile Arrest Avoidance Program(UNAFEI 165th International Senior Seminar on Juvenile Justice and the United Nations Standards and Normsʼ, January 26,2017).
7
Dembo, Richard, “Civil Citation Program ‒ 13th Judicial Court” (lecture, ʻUNAFEI 165th International Senior Seminar on
Juvenile Justice and the United Nations Standards and Normsʼ, January 27, 2017), slide 23.
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his/her guardians are directed to visit the probation office as soon as possible; [i]n many cases, they visit thisoffice on the day of the disposition.”8
In the other states participating in this seminar, when preventive detention is used, the procedures
concerning such cases by the investigative bodies and the courts were found to be fast, in accordance withrule 17 of the “Havana Rules”. On the other hand, many states have not emphasized ensuring a time limit forjudicial procedures when the juvenile is not preventively detained or for starting the implementation of theinterventions delivered through the juvenile system.
For example, although Papua New Guinea, Nepal, Pakistan and Bhutan have specific legislation that
establishes the maximum timeframe to complete the juvenile justice procedures until the final ruling (14 daysin the case of PNG and approximately 4 months in the three other countries), Panama, Maldives, Japan, Cook
Island and Brazil do not provide such time limits. In Cote dʼIvoire, legislation determines that the wholejuvenile justice procedure, depending on the severity of the offence committed, can take up to 18 months ̶quite a long period.
In Brazil, although the justice system usually establishes dispositions rapidly (especially in the case of
preventive detention, up to 45 days), often there is a big delay in summoning the juvenile to start theimplementation of non-custodial measures determined either through diversion or by the courtʼs final ruling,differently from most of the participating stateʼs systems (e.g., Japan, Panama, Papua New Guinea, Maldives,
Cook Islands and Cote dʼIvoire). Thus, this absence of prompt implementation leads the juvenile to feel that
nothing happens when breaking the law, and creates the impression of impunity. In many of the Brazilian
states, damage repair, community service or assisted freedom (similar to probation) can take months or evenover one year to begin; ultimately, in many cases these dispositions are hindered by time-barring. The usualanswer for this delay has been the lack of available spots in the programmes/services related to theimplementation of these measures by the local state agencies, usually due to scarce resources or political will(or both). In addition, the disarticulation and physical distance between the bodies responsible for establishing
the measures/interventions (Prosecution/Court), and the ones responsible for implementing them(administrative bodies of the local state authority) are also challenges that contribute to this time gap.
Ultimately, rehabilitation is affected in a very negative way.

III. COMPREHENSIVE ASSESSMENT OF THE JUVENILEʼS NEEDS
Many children involved in criminal acts present issues related to neglect, physical or sexual abuse, alcohol
or other drug use, mental health problems and family, social, psychological and educational functioning,among others.9 Thus, in the words of Dembo and Brown, “[c]omprehensive information needs to be collectedon these youthsʼ service needs so that appropriate interventions can be developed.”10
In reality, the assessment of childrenʼs needs to ensure their wide range of rights/protections to which
they are entitled̶accessible even to those who already have criminal histories̶is an important factor forsound development and, hence, to prevent juvenile delinquency and recidivism.11 As highlighted in “crime
prevention literature, children and youth are less likely to become involved in serious crime when risk factors
are reduced̶abuse, neglect, poverty, maltreatment̶and when protective factors are enhanced such assupports for children in families, schools, and communities.”12 So, juveniles need to be served in a holisticmanner, “not one problem at time terms.”13
No wonder, this holistic and comprehensive approach to dealing with youth is cited in many international
Tokyo Probation Office. Profile of the Tokyo probation office, 18th January 2017. p. 03. (UNAFEI 165th International Senior
Seminar on Juvenile Justice and the United Nations Standards and Normsʼ, site visit at Tokyo Probation Office, January 2017).
9
See Dembo, R & Brown, R. (1994). The Hillsborough County Juvenile Assessment Center. Journal of Child & Adolescent
Substance Abuse, vol 3(2), 28.
10
Ibid, p. 27.
11
See R. Brian Howe, “Childrenʼs Rights as Crime Prevention” (2008) 16 Intʼl J. Child. Rts. 457 at 457.
12
Ibid.
13
Dembo, R & Brown, R. (1994). The Hillsborough County Juvenile Assessment Center. Journal of Child & Adolescent
Substance Abuse, vol 3(2), 28.
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documents, including the CRC14 and the UN standards and norms on juvenile justice.15 The UN Office on
Drugs and Crime has highlighted that “[a]n effective juvenile justice system requires that the varying needs ofchildren be assessed, that children in conflict with the law are referred to appropriate services, and that they
are offered care and assistance with reintegration into the community” (“Manual for the measurement ofjuvenile justice indicators”, 2006, at 1).16
So, although many countries are still focusing on punitive strategies to tackle youth delinquency withharsh penalties, a few other jurisdictions have been making substantial efforts by taking a holistic approach tojuvenile offenders and in developing a comprehensive continuum of services, showing good results. For
instance, many North American states and Japan have invested in a quality individual assessment of the wide
spectrum of aspects of the juvenileʼs life to subsidize the decision-making of the measures/interventions to be
determined.
The Japanese system, by the adoption of the principle of individual treatment (article 1 of the Juvenile
Act), focuses, first, on clarifying the aspects that led the juvenile to commit an offence and then on
implementing specific treatment̶which means “to remove or mitigate factors fomenting delinquency andenhance factors deterring delinquency”.17 Family Court investigating officers, in the majority of youth cases,
have the duties to “proceed [with] an investigation by utilizing knowledge and methodologies in connection
with behaviour science (including medical science, psychology, pedagogy, sociology and the study of social
welfare), clarify the mechanism of juvenile delinquency to foresee the juvenileʼs recommitment probability ofdelinquency, and propose to the judge his/her opinion about the juvenileʼs treatment”.18 For those juveniles
who are put in preventive detention (up to usually 4 weeks and exceptionally 8 weeks) until the final decisionby the Family Court, the Japanese Juvenile Classification Homes, through multidisciplinary teams, are not
only responsible for consultation and advice, but also for the process of classification (assessment) to assist the
Family Court judge on reaching an educated decision. Classification “is the indication of the appropriate
guidance to contribute to the amelioration of a situation for a juvenile upon identifying the problematiccharacter or environmental circumstances influencing such delinquency, based on knowledge and skills, suchas in medicine, psychology, pedagogy and sociology.”19 In order to perform its functions, classificationinterviews (regarding family, school, friends, work, remorse, delinquency etc.), psychological testing,behavioural observation, gathering of external information and medical diagnosis are done with each juvenile
on a regular basis, with an overall “classification report”.20 Whenever the Family Court places the juvenile on
probation or in a Juvenile Training School, new assessments will be performed by specialized officers (basedon the ones done before by the Family Court investigating officer and/or by the Classification Home), tosubsidize the decision concerning the best interventions/methods to be used.
In the USA, since 1994 there has been a growth in the number of Juvenile Assessment Centers (JACs),“24-hour centralized adolescent receiving, processing and intervention facility[ies]” 21, which have improved
the local juvenile justice systems by “co-locating relevant agency operations to permit simultaneous
accomplishment of required legal and social service interventions.”22 JACs “represent an important
CRC, Article 40.4.
Beijing Rules: Articles 2.3 (a) and 24.1; Riyadh Guidelines: Articles 5 (a and d) and 60; JDL Rules: Art 80. See also the Guidelines
for Action: Article 8.
16
United Nations Office on Drugs and Crime, “Manual for the measurement of juvenile justice indicators” (2006) at 1, online:
UNODC, <http://www.unodc.org/pdf/criminal_justice/06-55616_ebook.pdf>
17
Kawamoto Seigan, “Juvenile Justice Procedure in Japan” (lecture, ʻUNAFEI 165th International Senior Seminar on Juvenile
Justice and the United Nations Standards and Normsʼ, January 30, 2017), slide 9;
18
Ibid.
19
Ministry of Justice of Japan, Correction Bureau. Juvenile Classification Homes (UNAFEI 165th International Senior Seminar on
Juvenile Justice and the United Nations Standards and Normsʼ, site visit to the Kyoto Juvenile Classification Home, February 03,2017), <http://moj.go.jp>.
20
Masayo Ysohimura, “Welcome to Kyoto Juvenile Classification Home” (lecture, ʻUNAFEI 165th International Senior Seminaron Juvenile Justice and the United Nations Standards and Normsʼ, site visit to the Kyoto Juvenile Classification Home, February
03, 2017), slides 4 and 5.
21
Dembo, R & Brown, R. (1994). The Hillsborough County Juvenile Assessment Center. Journal of Child & Adolescent
Substance Abuse, vol 3(2), 25.
22
Dembo, Richard, “Juvenile Assessment Center” (lecture, ʻUNAFEI 165th International Senior Seminar on Juvenile Justice andthe United Nations Standards and Normsʼ, January 25, 2017), slide 4.
14
15

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opportunity to identify the problems of troubled youth and promptly involve them in helping services andintervention programs”.23 One key element of the JAC is the immediate and comprehensive preliminary
assessment of the juvenileʼs circumstances, through detention risk and psychological assessment instruments,
alongside the “Positive Achievement Change Tool” screening instrument and voluntary urine sample; ifnecessary, an in-depth assessment is followed.24 Information is collected on the following areas: substance use
history, psychiatric history, mental status, physical health history and current medications, legal history,
educational/vocational history and risk and protective factors.25 As stated by Dembo and Brown, this“information, incorporated in a comprehensive information system, can provide a basis from which to develop
precise, prescriptive, dispositional recommendations to the juvenile court; and guide case management efforts
throughout the various program placements of the youths”.26 The data is then used by competent authorities
for making decisions about the adequate judicial and non-judicial interventions (for instance, by the State
Attorneyʼs Office and Diversion Program, in the case of diversion-eligible youth, or by the Department ofJuvenile Justice, in the case of detention-eligible offenders, and to the department of health, in the case oftreatment or follow-up). Lastly, individual assessment is also a big focus in other relevant programmes thatemerged in the state of Florida, such as the Juvenile Diversion Program and the Civil Citation Program, bywhich youths receive assessment and appropriate, targeted interventions.27
On the other hand, many countries have not focused on quality individual assessment of youths enteringin the juvenile justice system as an important pre-requisite for adequate decision-making on themeasures/interventions to be imposed. In a few of the participating countries of this seminar, assessment is
not even done because the law does not provide for it; in others, although provided for or encouraged by law
in all or in the majority of cases, it is not always implemented in a comprehensive and appropriate way.
For instance, in Pakistan and Bhutan, there is no place to accommodate the assessment of the youthʼsneeds in the juvenile justice system, as no law provides for it. In Cote dʼIvoire, Maldives and Cook Islands, aquality assessment is only done in some cases, depending on the severity of the act.
In Nepal, Panama and Papua New Guinea, the comprehensive assessment of the youthʼs needs is
mandatory in all cases. More specifically, in PNG the Written Pre-Sentence reports (WPSR) are filed before
the magistrate of the juvenile court, or the judge of the national court hands down the sentence (disposition).
Juvenile Justice Officers (JJO) from the Department of Justice and Attorney General prepare the WPSR. In
some provinces, where there is no JJO, it is an accepted practice that Probation and Parole Officers (who arealso employed by the Dept. of Justice and Attorney General) can prepare the report and submit it to thecourt. The JJO can complete the report no later than 14 days after the Courtʼs request, according to theJuvenile Justice Act 2014.
In Brazil, although the legal framework recognizes the importance of assessment in the decision-making
process, in practice this assessment can be poor and narrow in a great deal of cases, considering that in mostjurisdictions social inquiry reports are only done when preventive detention is established during judicial
proceedings.28 In cases of diversion and of dispositions for youths not kept in preventive detention, theassessment of the juvenileʼs needs is usually done by prosecutors during the informal hearing and/or byjudges during judicial interrogation, with no prior specialized assistance, considering that the majority of thejurisdictions have no or insufficient multidisciplinary personnel support (even though the law provides for its
existence).29 By informal or judicial hearings, prosecutors and judges briefly collect impressions about thejuvenileʼs personality, social and family circumstances, reasons for his/her actions etc.30, which may allow an
overview of his/her needs and, possibly, the choice of appropriate interventions. However, due to theIbid, slide 6.
Ibid, slides 13 and 14.
25
Ibid, slide 16.
26
Dembo, R & Brown, R. (1994). The Hillsborough County Juvenile Assessment Center. Journal of Child & Adolescent
Substance Abuse, vol 3(2), 28.
27
Juvenile Service Department Miami, FL, USA, Miami-Dade County. Civil Citation Program (UNAFEI 165th International
Senior Seminar on Juvenile Justice and the United Nations Standards and Normsʼ, January 26, 2017).
28
Despite rules 16.1 and 7.1 of the ʻBeijing Rulesʼ and the ʻTokyo Rulesʼ, respectively
29
Article150, Child and Adolescent Statute, Brazil;
30
Article 112, parag. 1, Child and Adolescent Statute, Brazil.
23
24

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limitations of time and even technical skills, in many other cases, they are not able to comprehensively andadequately assess the various aspects of the offenderʼs life. In addition, they will rarely be familiar with allcommunity, private sector and state programmes/services available for referral. Hence, the interventionsdelivered may not always be the most suitable.

IV. THE KEY ROLES AND RESPONSIBILITIES OF PARENTS AND
GUARDIANS
The Beijing Rules (UN Standard Minimum Rules for the Administration of Juvenile Justice) have given
the right to the juvenile to be represented by a legal adviser or to apply for legal aid where there is provision
for such aid in the country; and parents or the guardians shall be entitled to participate in the proceeding.
However, they may be denied participation if such exclusion is necessary in the interests of the juvenile. The
law also guarantees and gives special provision for this right by permitting juveniles in conflict with the law
to be accompanied by their parents/guardians during their trial, unless it is considered not to be in the bestinterests of the child, during all stages of the proceedings.
The parentsʼ involvement in the judicial proceeding plays a very crucial role in all aspects of the juvenileʼswell-being. Involvement in the proceedings helps the parents to understand the misconduct of the child and,on the other hand, helps identify the underlying problem of the particular juvenile. Proper cause can be
identified by the adequate involvement of the parents and an appropriate solution can be identified for theprotection and treatment of the juvenile, thereby preventing recidivism. In addition, the parentsʼ involvement
strengthens the correctional activities and monitors the released juvenileʼs activities, thereby avoiding
recidivism. Parents and/or guardians are encouraged to cooperate and collaborate with all the elements ofthe community, including Non-Governmental Organizations, to prevent reoffending and to bring unity to thefamily. This level of involvement is very crucial.
On the contrary, the unprecedented socioeconomic developments in various countries have brought aboutmajor improvement in the living standards and prosperity of the people. However, certain sections of thesociety have been left behind and are not able to cope with the changes. Consequently, vulnerable groups ofchildren that are living in difficult circumstances come into conflict with the law. Many children remain
vulnerable in the absence of proper caregivers and essential support from their parents, despite thegovernmentʼs efforts to provide free health and education to the children. Thus, the various social andeconomic background and lack of cooperation from the parents pose big challenges to completely reform thechildren.
In the event of failure of the parents to supervise the juvenile, the state/government shall issue a warning
to the parents for noncompliance to keep the parents vigilant. Inappropriate behaviour by parents and/or
guardians before children that may affect the child negatively should be avoided. For example, they should
avoid over indulging in alcohol in front of the juvenile and also explain the bad consequences of consuming
intoxicating liquor. The parents/guardians should make appropriate arrangements for the proper educationof the juvenile and also ensure that the juveniles abstain from associating with negative influences.

V. DIVERSIONARY MECHANISMS
Juvenile diversion is an intervention strategy that redirects youths away from formal processing in thejuvenile justice system, while still holding them accountable for their actions. Diversion programmes mayvary from low-intensity warn-and-release programmes to more-intensive treatment or therapeutic
programming, all in lieu of formal court processing.
Diversion programmes are also designed to be less costly than formal court proceedings because they
reduce the burden on the court system, reduce the caseload of juvenile officers, and free up limited resources
and services for high-risk juvenile offenders. The goal of diversion programmes is to reduce recidivism or theoccurrence of problem behaviours without having to formally process youth in the justice system.
Diversion programmes generally provide avenues to eliminate first time youth offenders who commit
minor offences and avoid processing the juvenile through the formal court system. This enables the juvenile
the liberty of having no criminal record.
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In certain countries, various diversion mechanisms have been implemented; however, there are alsocountries that do not have any diversion programmes legislated or implemented. Certain countries face thechallenge of having no diversion system before sentencing; however, the sentence can be suspended by thejudge, releasing the juvenile to the custody of his or her parents/guardians or to a reform home (rehabilitation
centre) with or without conditions. Other countries implement the procedure of diversion mechanisms where
the police, Prosecutor General and/or court, have authority to impose diversion. Conditions can also be
imposed upon juveniles who have been diverted. Some countries face the obstacle of having no diversion
scheme due to the lack of legislation.
As stated above, the challenges faced in terms of diversion mechanisms are that certain countries havenot enacted such programmes and there is a need for diversion to be enacted (specific laws outlining
diversion programmes). Cultural values and traditions are also hindering the process of diversion
programmes. It was revealed that some countries that have diversion used on a daily basis have ineffective
diversion programmes or implement their interventions only under traditional methods; thus, there is a needfor more diversion programmes to give more options for the juvenile and to eliminate the “gaps of content” inaddressing his/her needs.
In addition to the challenges faced, lack of competent/technical skills of human resources and institutions
hinder effective diversion programmes for juveniles. Other factors were that there is no feedback on the
output from the diversion programme facilities, i.e., no analysis, statistics, lack of evaluation and monitoring of
the diversion programmes, to analyse the effectiveness of the programme.
The groupʼs discussions have revealed that the benefits of including and legislating diversion programmes
outweigh the disadvantages. Therefore, it is recommended that to have an effective juvenile justice system,
there is a need to implement and enact diversion mechanisms or programmes. Providing legislation fordiversion, especially for petty and minor cases, will be an avenue to avoid the formal justice procedure andensure that first-time offenders are given the opportunity to avoid criminal conviction.
There is a need to establish and use a variety of methods. The Japanese diversion system provides
varieties of options to choose from such as educational trainings, counselling etc. and could be used as amodel. The need for public awareness of the importance of diversion programmes is also paramount, as thisenables the cooperation between the juvenile justice system and the public. Finally, to have an effective
diversion programme, training and specialized knowledge for personnel conducting the programme must beof importance.
As outlined by Mr. Robert D. Hoge and Ms. Holly A. Wilson, they stated the following in their article on
The Effect of Youth Diversion Programs on Rates of Recidivism:
Pre- and post-charge diversion programs have been used as a formal intervention strategy for youth
offenders since the 1970s. This meta-analysis was conducted to shed some light on whether diversion
reduces recidivism at a greater rate than traditional justice system processing and to explore aspects ofdiversion programs associated with greater reductions in recidivism. Forty-five diversion evaluation
studies reporting on 73 programs were included in the meta-analysis. The results indicated thatdiversion is more effective in reducing recidivism than conventional judicial interventions. Moderator
analysis revealed that both study- and program-level variables influenced program effectiveness. Of
particular note was the relationship between program-level variables (e.g., referral level) and the risk
level targeted by programs (e. g., low or medium/high). Further research is required implementing
strong research designs and exploring the role of risk level on youth diversion effectiveness.

VI. RESTORATIVE JUSTICE
Restorative justice is an approach to problem solving that, in its various forms, involves the victim, theoffender, their social, networks, justice agencies and the community. Restorative justice programmes are
based on the fundamental principle that criminal behaviour not only violates the law, but also injures victims
and the community. Any efforts to address the consequences of criminal behaviour should, where possible,
involve the offender as well as these injured parties, while also providing help and support that the victim andoffender require.
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Restorative justice refers to a process for resolving crime by focusing on redressing the harm done to thevictims, holding offenders accountable for their actions and engaging the community in the resolution of thatconflict. Participation of the parties is an essential part of the process that emphasizes relationship building,reconciliation and the development of agreements around a desired outcome between victims and offenders.
Restorative justice processes can be adapted to various cultural contexts and the needs of different
communities. Through them, the victim, the offender and the community regain some control over theprocess. Furthermore, the process itself can often transform the relationships between the community andthe justice system as a whole.
On the question of restorative justice, reference can be made to UNITED NATIONS OFFICE ON
DRUGS AND CRIME Vienna, Handbook on Restorative Justice Programmes- Criminal Justice Handbook
Series, UNITED NATIONS New York 2006. “The Vienna Declaration on Crime and Justice; Meeting the
Challenges of the Twenty-first Century (2000) encouraged the development of restorative justice policies,
procedures and programmes that are respectful of the rights, needs and interest of victims, offenders,
communities and all parties. In August 2002, the United Nations Economic and Social Council adopted aresolution calling upon Member States that are implementing restorative justice programmes to draw on aset of Basic Principles on the use of Restorative Justice Programmes in Criminal Matters. In 2005, thedeclaration of the Eleventh United Nations Congress on the Prevention of Crime and Treatment of Offenders(2005) urged Member States to recognise the importance of further developing restorative justice policies,
procedures and programmes that include alternatives to prosecution”.
Some countries have restorative justice policies and legislation to guide them in the administration andpractice of juvenile justice, while some apply protective measures and retributive justice in juvenile justiceadministration.
In Papua New Guinea, restorative justice is the overall National Law & Justice Sector Policy for thecountry. Each justice sector agency has developed its own juvenile justice administration policies, protocols
and guidelines based on the general principles established in the Restorative Justice Policy. Restorative
justice is applied at the community level and also applied by all law and justice sector agencies in the formal
criminal justice process and procedure. Restorative justice has worked alongside retributive justice as an
approach to reduce crime and restore peace. The PNG National Juvenile Justice Policy accommodates
approaches for restorative justice. The new revised Juvenile Justice Act 2014 stipulates for juvenile diversion
to be applied, taking into account restorative justice principles.
Along the same lines, in Panama the principles of restorative justice and also prevention measures areapplied. Police and NGOs facilitate the process and procedures. Prosecution is the last resort. The positiveeffect is that it reduces recidivism.
Maldives and Cook Islands also apply restorative justice. Juvenile diversion and community mediation isfacilitated by the police. In the outer islands, recognized community leaders also perform community-based
mediation of minor offences involving the community/villages. Restorative justice principles are not appliedin the formal criminal justice setting.
In Japan and Brazil, although the legal framework provides openings for restorative practices in juvenile
justice, restorative justice has not played an important role. For instance, in Brazil, recent legislation
expressly mentions restorative justice as a principle for youth interventions and for the justice system;
however, its use in juvenile justice is still limited or, in most jurisdictions, nonexistent. For example, themeasure of damage repair is applied less frequently, even though most acts are property offences. Since 2005,
despite the ongoing initiatives that have emerged in the country (usually inspired from Canadian circles),restorative justice is still in an embryonic stage.
In Pakistan and Bhutan, restorative justice is applied in the court system if the victim and offender agree
to resolve/mediate the crime through payment of compensation to the victim/complainant.
In Nepal and Cote dʼIvoire, the restorative justice principle has not been introduced in the criminal justicesetting or in the local communities as a measure to restore peace and harmony. As there is no law, legal
practitioners cannot apply restorative justice in the criminal justice system as well as in the224

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community/social settings.

VII. MULTI-AGENCY COOPERATION WITH THE COMMUNITY AND THE
PRIVATE SECTOR
The protection of children in conflict with the law requires, among other measures, multi-sectoral
cooperation between the community and the private sector. As is evident from the spirit of the United
Nations standards and norms, the care of juvenile offenders should, principally, borrow or embrace noncoercive means as solutions to the problems posed by such minors.
Consequently, recourse to community support or private sector support appears, in many respects, to be
salutary and praiseworthy for the re-socialization of the juvenile in conflict with the law by circumventing all
the gravity and rigor of the classical system and orthodox theory proposed by state judicial formalism.
It is therefore at this stage of the care of the juvenile delinquent that both (i) non-governmentalorganizations and (ii) private sector structures come into play as essential bodies.
A. The Role of Non-Governmental Organizations
In point (2) of the United Nations Guidelines for the Prevention of Juvenile Delinquency, known as the“Riyadh Guidelines”, adopted and proclaimed by the General Assembly in its resolution 45/112 of 14
December 1990, it is stated that: “The prevention of juvenile delinquency is paying off, the whole society mustensure the harmonious development of adolescents, respecting their personality and promoting thedevelopment of young people from the earliest childhood”.
This text is an interpellation with a view to the junction of all the actions both governmental and nongovernmental in respect of a better and efficient care of minors in conflict with the law. Since the statescannot, by themselves, eliminate all the problems generated by the issue of juvenile delinquency, the nongovernmental organizations find the basis of their indispensable involvement in resolving the issue of juvenile
offenders.
It is therefore very often that they intervene, especially as regards the part of the social reintegration of
the juvenile offenders, in many of the states parties or not to the various United Nations conventions on theissue of children in conflict with the law. Thus, as their name suggests, there are many non-governmentalorganizations that act in support of the states in the social, psychological and medical care as well as those ofchildren in conflict with the law for the purposes of their re-socialization and with a view to avoiding
recidivism.
In developing countries, such as Côte dʼIvoire to name but a few, non-governmental organizations such as“CARE OF CHILDREN” are very active. Their actions are perceptible both upstream and downstream of theclassic judicial proceedings relating to juvenile delinquency.
Upstream, this NGO intervenes as psychological and moral support of the minor at the preliminary
investigation by giving him confidence, looking for, in many cases, his biological family when it is unavailable
or unknown. At this stage, the NGO also intervenes with the victims, depending on the nature of the offence
and the content of the harm, so that negotiated remedial channels can be used to prevent the juvenile
delinquent from the rigor of classical legal prosecution.
If his action does not prosper upstream and in spite of it, the juvenile offender was brought before thejudicial authorities, then that NGO will intervene, this time downstream, in order to give moral support to thejuvenile, to find him a lawyer, to obtain subsides if he is placed in preventive detention and fully associatehimself with the programme of re-socialization of the latter in case of possible conviction.
In Japan, halfway houses are available. Halfway houses provide accommodation for juveniles and others
who are not immediately able to become self-reliant, for reasons such as the absence of a person to be relied
upon, such as parents, etc. In addition to paying meals, private entities, such as rehabilitation corporations,provide employment support, daily guidance, etc. There are 103 halfway houses throughout the country.
While expenses are covered by government expenses for many facilities, some facilities may be engaged in
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for-profit activities such as managing parking lots and cleaning businesses.
The challenge is that the government expenses are paid according to the number of inhabitants in care, so
it is difficult to generate stable income, and local residents often express opposition to the facility as being a
nuisance especially when rebuilding or relocating.
The field of care for minors in conflict with the law is so vast and important that it requires thecoordination of several actors in support of the state actions, like NGOs but also volunteers such as Japanesevolunteer probation officers (VPOs).
However, it should be noted that the involvement of NGOs in the sphere of juvenile justice in conflict withthe law is appreciated differently. Thus, while the role of the NGOs is genuinely regulated, and their actions
are accepted without exception in countries such as Côte dʼIvoire and Japan, it is different for other countries
such as Pakistan and Bhutan.
Such a finding or contradiction between the practices of the various countries, which are all signatories tothe international conventions on the protection of minors in conflict with the law, need recommendations toharmonize practices in the best interests of children in conflict with the law.
B. The Role of Volunteer Probation Officers
The intervention of volunteers in the search for solutions with a view to the re-socialization of juvenile
offenders and their avoidance of recidivism draws, among other bases, its sources in the combined reading ofarticles 25-1 of the United Nations Standards Minimum Rules concerning the administration of juvenile
justice known as the Beijing Rules, 6 and 10 of the United Nations Guidelines for the prevention of juvenile
delinquency, known as the Riyadh Guidelines.
Article 25-1 of the Beijing Rules states: “Volunteers, voluntary organizations, local institutions and othercommunity services shall be required to contribute effectively to the reintegration of the minor into acommunity framework and, as far as possible, within the unit family”.
Articles 6 and 10 of the Riyadh Guidelines stipulate, respectively, that “community programmes andservices for the prevention of juvenile delinquency should be set up, especially in cases where no conventional
service has yet been established, and to have recourse as a last resort to classical social control services”.
“Emphasis should also be placed on prevention policies that facilitate the successful socialization andintegration of all children and young people, especially through the family, the community, peer groups,
education, vocational training and the world of work and through the use of voluntary organizations (...)”.
The common spirit of all these texts is that volunteering is important for the care of the minor offenders
from the perspective of their social reintegration. They express the clear will of the international community
to see more voluntary service as an adjunct to the reworking of a palliative solution to the problems arisingfrom juvenile delinquency.
This appeal has been heard by states such as Japan which have instituted voluntary work as an additional
solution to the fight against juvenile delinquency and, above all, as a non-binding way of re-socializing
juveniles in conflict with the law. Furthermore, about 50,000 volunteer probation officers have beencommissioned by the Minister of Justice nationwide. According to Article 32 of the Offenders Rehabilitation
Protection Act: “Volunteer probation officers shall supplement the work not covered sufficiently by probation
officers, being instructed and supervised by the director of the probation office, based on the provisions
specified in the Volunteer Probation Officers Act, and shall engage in affairs under the jurisdiction of theprobation office”.
Volunteer probation officers are often community leaders, and they also typically have strong connections
to local social resources. For example, for VPOs who are retired school teachers, coordinating social
circumstances for a juvenile to return to school will be made more convenient as the school teacher will be ofgreat assistance to the juvenile due to his/her teaching background.

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165TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINARIn Article 30 of the same Act, as a request for cooperation etc., the director of a probation office may
request public agencies, schools, hospitals, organizations relating to public health and welfare and otherpersons to provide necessary assistance, and cooperation for the purpose of performing the affairs under its
jurisdiction. There are cases in which probation officers, together with volunteer probation officers, arepromoting cooperation with related organizations etc.
As the average age of VPOs continues to increase, new shortcomings are raised. On the other hand, as aCommittee for Examining Candidates of Volunteer Probation Officers, organizations of neighbouring areas,such as local public entities and social welfare councils, elementary and junior high school PTAs, and womenʼs
associations, we also promoted a system to recommend nominees, and the decline in the number of VPOs has
been stopped.
In Japan, regarding the recruitment of VPOs, the committee for examining VPO candidates is required tomaintain a database that includes VPOsʼ retirement age, employment and so on.
Both halfway houses and VPOs are required to promote the idea of the healthy development of juveniles
in the community, so as to gain greater understanding of the public.

VIII. RECOMMENDATIONS AND CONCLUSION
As discussed in this paper, in order to address the measures to prevent and/or reduce recidivism, there isa need for a holistic approach on the part of all the stakeholders of the juvenile justice system as well as theactive participation of parents and/or guardians. Taking this into account, it is also important to implement
the comprehensive assessment of each juvenileʼs needs, prompt intervention and implementation, various
diversion mechanisms and restorative justice. Thus, the following are proposed:
1.

Cooperation, interaction and coordination31 between the bodies/agencies involved in determining themeasures/interventions, and those responsible for implementing them should be improved;

2.

Physical co-location of relevant agency operations (like police, prosecution, public defence, the judiciaryand social assistance bodies) should be implemented, in order to permit simultaneous accomplishment oflegal and social service interventions;

3.

Specific legislation/rules/guidelines should be enacted to determine the maximum time limit toinvestigate, judicial procedure and to summon the juvenile to start the implementation of themeasures/interventions established by the justice system. One way to guarantee its strict enforcement is
to establish a monitoring agency/body and the submission of periodic reports about the accomplishments
made.

4.

Specific legislation/rules/guidelines should be enacted to establish, in all cases, a comprehensive andquality assessment of the juvenileʼs needs to support the decision-making of the interventions/measures
to be applied;

5.

Reliable assessment tools (which do not uniquely depend on the individual capability of who performs theassessment) should be developed and used;

6.

Professional qualification and expert training should be provided to the personnel in charge of theassessment;

7.

The social inquiry reportsʼ format should be more comprehensive;

8.

Parents and/or guardians should be liable for the upbringing of the juvenile and held accountable for any
misconduct;

31

Riyadh Guidelines, Article 60

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9.

Diversion mechanisms should be implemented and enacted as per the needs of each country;

10.

To implement an effective diversion programme, there should be constant training and specialized
knowledge for personnel conducting the programme;

11.

There should be a mechanism for monitoring and data analysis, which should be strengthened based on
the countryʼs needs;

12.

The use of restorative justice practices in the juvenile criminal justice system to compliment current
practices of prevention measures and retributive justice should be legislated;

13.

Capacity-building and technical skills should be provided to enhance the implementation of restorative
justice;

14.

The government should emphasize the importance of the juvenileʼs healthy development in thecommunity through public relations or information sharing activities, so as to create supportive public
opinion;15.

Governments should recognise and strengthen the work of community leaders and NGOs;

16.

There should be a flexible system for incorporation between the juvenile justice system and the NGOʼs
and all stakeholders (i.e. multi-agency cooperation, the community, the private sector etc.)

17.

Standard operating procedures should be developed for a multi-sectoral approach, which will help todefine the different agencies roles and responsibilities.

18.

The role of NGOs in the juvenile justice system should be broadened to avoid limiting their
responsibilities.

This paper has covered only a portion of the measures in reducing and preventing recidivism among
juveniles. All countries require diverse avenues in addressing recidivism as we all experience various
obstacles, impediments and the like; yet we are united in the aspiration of securing and endeavouring a
faultless juvenile justice system as we strive to protect and guide the most vulnerable, our children. We alldesire a healthy future, and this future we pursue will be cultivated by our children who are our future
generation; therefore, they must be nurtured and guided accordingly through the right channel. Thus, thepath set out for the child today will determine the childʼs destination tomorrow.

228

GROUP 2

REDUCING JUVENILE CRIME AND RECIDIVISM:DISCUSSIONS AND SUGGESTIONS

Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteurs
Members

Adviser

Zacharia Kuria MWANGI (Mr.)
Suzie Uware VUVUT (Ms.)
Kattiya RATANADILOK (Ms.)
Luiz Ricardo DUARTE (Mr.)
Zaw Min Oo (Mr.)
Koffi Jean Claude ABOYA (Mr.)
Terepai OBEDA (Mr.)
Surendra Prasad MAINALI (Mr.)
Junko ETO (Ms.)
Masaya YAMAMOTO (Mr.)
Professor Hiroyuki WATANABE (Mr.)(Kenya)(Papua New Guinea)(Thailand)(Brazil)(Myanmar)(Cote DʼIvoire)(Cook Islands)(Nepal)(Japan)(Japan)(Japan)I. INTRODUCTION“Juvenile justice system” (JJS) refers to the structure of the criminal system responsible for dealing withcrimes and offences committed by juveniles, usually between the ages of 10 and 18 years. The juvenile justicesystem operates according to the premise that youth are fundamentally different from adults, both in termsof level of responsibility and potential for rehabilitation. It must be considered, as stated in the Riyadh
Guidelines1, “that youthful behaviour or conduct that does not conform to overall social norms and values isoften part of the maturation and growth process and tends to disappear spontaneously in most individuals
with the transition to adulthood.” The existence of the system is justified based on the need to prevent
delinquency and to adopt protective measures which can guarantee opportunities to the juvenile to retake
control of their lives and reintegrate into society. Its main goals involve protection, prevention of offences,
treatment and rehabilitation. For almost all countries, one of the main problems faced by the JJS is related toadoption of measures to reduce recidivism, and how to do that by using multi-agency and inter-organizational
cooperation approaches.
A. Factors Contributing to Juvenile Recidivism
Factors that have been known to contribute to recidivism include ineffective intervention programmes,
inadequate follow up after release, insufficient coordination and cooperation among related agencies,
inadequate resources and infrastructure for youth rehabilitation services. Even though these factors arewidely accepted to be the causes, to be able to address juvenile recidivism in each country effectively, one
would need to understand the specific context and development of the problems.
1. Brazil ‒ Since enactment of Child and Adolescent Act in 1990 (Law 8069/1990), Brazil is seeking toprovide measures for adequate treatment to prevent recidivism. Existing structures are unable to provide
necessary conditions to achieve the objectives proposed by law that support and refer the countryʼs position
towards international treaties and rules regarding the guarantees of children and adolescents of which thecountry is a signatory. Increased violence is becoming a national concern that mainly affects juveniles2, inmany cases related to drugs and substance abuse, as well as the tendency to co-opt children and adolescents
to serve as forced labour for drug trafficking. There are several reasons that lead to increased violenceagainst the youth in Brazil such as lack of programmes and structures in the follow-up services, parental
supervision, skills training, community-based rehabilitation, school-based peace-building and commitment toschool. In addition, the public preference of applying harsher punishment to criminal offences committed by
45/112. United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).
According to Atlas da Violência, homicides in Brazil are responsible for 17.3% of 10-14 year-old youth deaths, 53.0% of 15-19
year-old youth deaths, 49. 0% of 20-24-year-old men deaths and 40. 7% of 25-29 year-old male deaths. IPEA ‒ Instituto de
Pesquisa Econômica Aplicada. Atlas da Violência, 2016. Available: <http://www.ipea.gov.br/portal/index.php?option=com_
content&view=article&id=27406&Itemid=6> accessed 30 Oct 2016.
1
2

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youth could lead to a vicious cycle of violence in the society. However, there are still alternatives toimprisonment that can and should be brought on board before starting to ineffectively simplify criminal
treatment. As the juvenile criminal justice system in the country has gaps, some measures taken in othercountries may prove interesting and could help to readjust the criminal justice system and improve policies ofprotection, prevention, correction and rehabilitation.
2. Cook Islands ‒ In Cook Islands, a combination of factors leads to recidivism. Family issues such aslarge families, domestic violence, divorce, death of parents/guardians and poverty. Juveniles lack psychosocial and other support which triggers children to leave home and to live with friends, and as a result they
go hungry which influences them to steal; breaking the law becomes the norm. Most of these juveniles comefrom a poor home environment where both parents are alcoholics, which results in children being neglected
and left without parental guidance. Children are then left to fend for themselves, and the only way to do thatis to steal. Those released after detention sometimes commit another offence just to get back into the system
due to the poor family situation; they want to remain in prison where there can have free accommodation,
meals three times a day and so forth. Training facilities are inadequate to provide vocational skills that help
them to build better career paths. Lastly, children are being co-opted to commit crimes by adults. Once they
are released from the prison, they ended up being used to commit another offence.
3. Côte dʼIvoire ‒ In Côte DʼIvoire, the phenomenon known as street children or street families observedin the early 1990s as a result of the economic crisis, has intensified in recent years because of the militarypolitical crisis. This situation, aggravated by high levels of poverty and cases of irresponsibility of the parents
has caused children to move into the streets and resort to committing crime for survival. It has developed
gangs composed of children called “microbes” who, armed with machetes, attack passers-by before robbing
them; often they commit murder during aggression. This armed and economic crisis resulted in diverting
attention of government towards other priorities such as the post-conflict reconstruction. There are limited
alternatives to imprisonment for children who commit crimes. When children are held in custody, it is usuallyfor a long period of time and, without appropriate care, results in the regular violation of the physical andmoral integrity of the children. Children born in prison or living with their mothers in custody are not at all
taken care of: the prison administration has nothing for them. This pushes them to criminality.
4. Japan ‒ In Japan, there are several main factors that contribute to juvenile recidivism. The first issocial stigma. Once juveniles become stigmatized, it is difficult to obtain jobs or reintegrate into theircommunity. The second is the lack of places to live upon release, such as, safety houses, schools andworkplaces. The third is lack in perseverance or impatience, namely, habits that are not helpful to the workrequirements. Some juveniles do not want to work, and this habit comes from poor child rearing, lack of goodrole models and the inability of parents to communicate and convey proper values to their children.
Furthermore, there is relative poverty leading to the cycle of crime among children due to lack of adequate
provision of basic needs. Juvenile offenders are stigmatized which makes them feel hated and become
recidivists.
5. Kenya ‒ In Kenya, the situation is dynamically characterized by multi-faceted causative factors. The
age of the juvenile has been floated as contributing to recidivism. The age of first onset of criminal behaviour
is declining. Those who engage in drugs and substance abuse reoffend in order to get money to buy drugs
and also achieve gratification of other desires with a “dead conscience”. Family conditions such as poverty,
breakdown and poor relationships lead to reoffending. The broader social environment comprised of schoolcommunity, mass media when characterized by vices such as bullying, criminal gangs, violence, drug abuseand questionable conduct push juveniles toward offending. Negative role models such as known current orformer criminals who appear wealthy as compared to low or middle class educated working or businesspersons attract recidivism because it appears in the mind of juvenile that he/she stands to gain fromengaging in crime. Adolescents also have great respect for their peers and the influence if negative leads todelinquency. Retrogressive cultural beliefs and practices often times promote crime and violence byencouraging youth to commit murder, livestock theft, and sexual violence among other vices. The
perpetrators are honored and held in high esteem. This promotes ethnic-based conflicts that remain
protracted.
6. Myanmar ‒ In Myanmar, there is a high rate of crime due to lack of funds to promote after-carefacilities and to create more infrastructure, which implies that the treatment process is not sustained.
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Discrimination by society after juveniles are released from correctional facilities such as training schools
makes them feel unwanted; thus, they opt to reoffend. This is compounded by inadequate human resource
capacity, especially social workers.
7. Nepal ‒ Nepalese society is faced with the problem of street children from broken homes. Juveniles
become vulnerable and develop high affinity for reoffending. Crimes commonly committed by the youth in
Nepal include pickpocketing, theft in abandoned houses while under the influence of the drugs. Poverty levels
are high hence juveniles lack provision of basic needs. There are situations that drive children to the streets
and force them to resort to committing crime for survival. In addition, recidivism also is caused by lack ofaftercare facilities and discrimination by society after release. There is also a lack of correctional facilities as
currently there are 3 of 75 districts with facilities, which compromises the treatment process.
8. Papua New Guinea ‒ Papua New Guinea is plagued by social and economic issues, where former
offenders have little chance to be successful in normal society. They go back to the same area, same criminal
friends and criminal enterprises. It becomes a vicious cycle of arrest, conviction, sentence and a repeat ofthose elements. Family conditions characterized by poverty and broken marriages lead to single parenthood,large families, violence and abuse. He/she feels frightened, angry and unsafe at home and may join street
families. Poor education due to dropping out of school denies juveniles skills and knowledge to compete forsocio-economic and other opportunities in the broader environment, which makes the juvenile feel useless andcauses them to lose hope. As a consequence, many resort to habitual criminality. Juveniles have great respect
for peer groups; hence fear of being rejected by fellow members leads to recidivism when the influence isnegative. Rapid social change leads to a high rate of urbanization, where people move from rural areas totowns in search of a better life. In most cases their expectations are not met, they become jobless, and mostyouths resort to crime and reoffending. The criminal justice system has gaps that lead to recidivism.
Juveniles are confined together with adults and learn bad habits. Juveniles become hardened, join gangs andother criminal organization. When released they try to emulate their peers and thereby reoffend.
9. Thailand ‒ Juveniles commit criminal offences for various reasons, but mainly due to the fact thatsociety has failed to provide appropriate care for them. Once they are committed to the juvenile justicesystem, it is the responsibility of the society to help rehabilitate and bring them back to their homes andcommunities. Limited utilization of evidence-based intervention programmes for youths, both in thecommunity and in the residential placements, is one of the key factors contributing to the high rate ofyoungsters returning back to their former criminal activities. Reformation is in process but it is slow due toan inadequate number of researchers to address many areas that need improvement and expansion,
particularly, for the development of alternatives to judicial process and community-based intervention.
Limited involvement of family due to lack of awareness, failure of the juvenile justice systems to empower thefamily unit, and lack of coordination among the related organizations in reintegrating the youth back into
their communities are the main factors contributing to the rise of juvenile recidivism.
B. Ways to Address Recidivism
The factors that lead to recidivism may not be the same factors that are needed for children to stop
committing offences. During our group discussion, we found several practical suggestions to improve thesituation of recidivism that could be useful to address the specific issues in different countries.
1. Brazil ‒ To reduce recidivism in Brazil, some measures must be taken to restructure the services
offered by the State. This may imply the need to create new services and remodel existing ones. At the
government level, for example: (1) Revise diversion programmes, offering new structures as family courts,
juvenile courts, probations offices and officers. In some countries, an alternative taken into consideration was
the recruitment of volunteer probation officers, to provide wider coverage in services, enhance communitybased follow-up services and to involve ordinary people in juvenile rehabilitation. (2) Create new services andfacilities like halfway houses. (3) Revise the procedures of the court system, applying new concepts according
to the services and international procedures. (4) Reinforce juvenile policy as a priority. (5) Reinforce family
awareness, offering counselling for parents. (6) Reinforce law enforcement against the recruitment of children
to crime. This may require some adjustments in the penal system, but it is a necessary step to be taken.
2. Cook Islands ‒ Among other reasons, similar to many other countries such as inadequate parental
supervision, stigmatization, and insufficient facilities to provide appropriate care for the juveniles, an ability of231

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the Cook Islanders to travel freely to New Zealand and Australia was perceived to be one of the main causesof the increase in juvenile crime and recidivism. Unable to count the number of its own population due to thismobility, the information regarding the amount of the juvenile offences and the effectiveness is a main
challenge to solving the problems. Moreover, it was believed that the New Zealand authorities have used the
Cook Islands as a dumping ground for delinquent teenagers of Cook Island descent3. From the suggestion of
the participants in this group, the improvement of the situation can be accomplished by creating anagreement or a memorandum of understanding among the three countries to deal with the problems. The
issues that need to be discussed among the three countries relating to the issues are standard of datacollecting and sharing of the information among agencies in the justice system, factors that contribute tojuvenile crime and recidivism, and effective treatment and intervention programmes for children in conflictwith the law across the three countries.
3. Côte dʼIvoire ‒ For Côte dʼIvoire, at the national level, it is desirable that the government makes theissue of children a national priority of governmental policy by establishing a national programme for the careof street children in general and those in difficulty with the law in particular with a view to their resocialization. In this regard, the state must set up specialized centres in education, assistance, vocational
training and the psychological care of minors in difficulty in general, including the training of appropriate andcompetent staff in the treatment of juvenile delinquency as a priority. Because the country is currently in theprocess of developing, it is as paramount to receive support from international organizations to ensure its
ability to conform to the international standards and norms in administration of the juvenile justice system.
For the actors such as police officers, social workers and magistrates who are already involved, the State
must strengthen their capacity and provide them with the necessary means to carry out their tasks.
4. Japan ‒ In Japan, the number of juvenile offenders has been decreasing over the last decade, but therate of juvenile recidivism has been increasing. As a result, the rehabilitation programmes provided by thejuvenile training schools and probation offices need to be improved to be able to serve the youth and reduce
recidivism. The intervention methods that could help reduce recidivism are to assist the parents and teachersand correctional personnel to develop skills in communicating with the juveniles to instill social norms andvalues, foster appropriate work habits for youths and reduce stigmatization from the community. But
nowadays, at the end of parole, a number of youths cannot return back to schools or jobs and recommit
offences. Multi-agency cooperation is necessary to assist and support the youths in their return to school orfinding employment. More juveniles will be reintegrated into society and prevented from reoffending if thegovernmental organizations, NGOs and NPOs take action to help remove the stigma. In Japan, this idea isreferred to as creating a “Place to Belong” and creating “Opportunity” in the Community. The problems ofnegative views of the juveniles that resulted in inadequate support for youth after release can be addressedby creating campaigns and events to develop a better understanding of the nature of juvenile behaviour andthe value of public support for reintegration of the youth. Since Japan has set the goal to become the safest
country in the world, this goal can be used as part of the campaign to communicate to the public using theslogan “together, we can.” The acceptance of the community may help to increase the chances that the youth
will find their turning points and continue to prosper and be productive members of society.
5. Kenya ‒ For Kenya, it is suggested that institutional reforms be adopted to make the justice system
more friendly to juveniles. Comprehensive monitoring of the related agencies in the criminal justice systemneeds to be developed and executed. Another important point that needs to be addressed, as it is relevant tothe countryʼs development history, is the inequality of the opportunities provided for men and woman. For
example, there is a Youth and Women Fund that provides loans to youth and women for investment but none
for men. The aggressive campaign to empower girls in the 1990s and affirmative active action policy by thegovernment led to the emerging disparities in the social, economic and political achievements where womenappear to be gaining more mileage than men. The suggestion is for the government to encourage more
empowerment for boys. This will address the recidivism issues by having more involvement of men in theprovision of care for children in the family resulting in empowerment of family units socially andeconomically.

From “A Situational Analysis of Children Youth & Women.” Government of Cook Islands with Assistance from UNICEF, 2004,
p. 11.
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6. Myanmar ‒ In Myanmar, recidivism of juvenile crime can be reduced by increasing awareness of the
public and relevant agencies in the communities of their imperative roles in rehabilitating and reintegrating
youth back into society. Involvement of the agencies will lead to a greater variety of alternative ways to treat
children in conflict with the law. In addition, increasing political will power and convincing the related
government entities to allocate their resources to this population are the keys to improving the quality ofservices that the youths need.
7. Nepal ‒ For Nepal, because the resources from the government sector are quite limited, it is morepractical, and possible in a shorter time, to obtain support from non-governmental entities, not only from theorganizations but also from the people from the community and family themselves. This can be done bydisseminating the information by using the mass media such as radio or television broadcasting to the people
in communities of the significant roles that they have in helping to prevent juvenile crimes and increasechances for the children to be reintegrated back into their homes and communities. In Nepal, there is plentyof assistance being provided by INGOs and NGOs, and they are all required to register their services with thegovernment, but the quality of services in addressing the recidivism is not yet determined. Thus, to be able toutilize the already available resources from the NGOs, it is helpful for the related government agencies todevelop an evaluation system to ensure the effectiveness of the work of these organizations. With these
activities, the problems of street children and the number of children who return to commit more crimes may
be reduced. For a longer-term plan, more government facilities that provide intervention and reintegration
services for youth should be built since the services provided in those districts are effective and havecontributed to the reduction of recidivism.
8. Papua New Guinea ‒ For Papua New Guinea (PNG), four main solutions to the problems were
proposed. (1) Improve the quality of the rehabilitation programmes for youth to ensure that they receive
programmes that provide education, job skills, pro-social life skills, and effective behaviour intervention that
fit their individual needs and interests. The support should also continue after they are released from theinstitutions to ensure successful reintegration. (2) Develop a comprehensive data collecting and management
system to capture the situation of recidivism so that the state can make policy and plan to address the
problems more accurately. (3) Increase the use of administrative measures such as diversion, mediation, andAlternative Dispute Resolution (ADR) instead of judicial measures. (4) Provide regular training for related
personnel including probation officers, psychologists, and particularly in the judiciary (judges/magistrates) to
avoid the order of confinement and to use alternative penalties such as suspension of sentences and probation.
Also, it is important to increase public awareness by disseminating information and promoting a better
understanding of the importance of the reintegration of youth. To achieve these suggestions, Juvenile
Rehabilitation Bills would need to be drafted to ensure full financial and managerial support from thegovernment.
9. Thailand ‒ For Thailand, the juvenile justice system is undergoing a major reform to ensure that itcomplies with the international standards and norms and also to serve the main purpose of the system, thatis, to prevent reoccurrence of criminal offences committed by youths. Advancement can be seen in thedevelopment of the risks and needs screening system and some research studies that showed promising
results in reduction of recidivism. However, the greater challenges were in the implementation of the system
nationwide. With offices located in 77 provinces and about 4, 000 staff members working under the
department, the training and monitoring of the implementation of the programmes are the targets that need
to be attended to. In addition, more creative and efficient ways of inviting participation from the public andprivate sectors are needed, and most importantly, members of the youthʼs family must be a part of theintervention and reintegration process. Finally, the evaluation of the effectiveness of the programmes is indire need. Not until last year, in 2016, did we know how many youths recommitted crimes after release fromjuvenile training schools. The indicators of success should be set in ways that reflect the goal of the juvenile
justice system. To accomplish that, better use of information technology would need to be in place so thatdata entering and utilization of significant processes and outcomes can be done to aid the monitoring andevaluation effort.
C. Multi-agency Cooperation with the Community and the Private Sector
1. Brazil ‒ To stimulate and expand inter-agency cooperation to contribute to the protection, treatment
and rehabilitation of juveniles, it is necessary to adopt initiatives that seek to facilitate the involvement of nongovernmental organizations, favouring the formation of networks. In this sense, it is necessary (1) to stimulate233

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companies to offer more opportunities of work to youths, offering, for example, tax reduction and providing
tax incentives, or financial support to do that. (2) Stimulate companies to offer training for youths that need to
improve job skills. (3) Stimulate community treatment and counselling for youths involved in minor cases. (4)Create programmes based on volunteer work to offer counselling and guidance, or improve job skills. (5)Create anti-discrimination programmes based on acceptance of differences, avoiding stigmatization. These
initiatives should be carried out within communities and especially in the school environment, with mass
media support. (6) Create programmes based on school, promoting academic achievement and self-esteem.
Within non-governmental organizations, initiatives can range from (1) recruitment of volunteers to diverse
activities aimed at rehabilitating young people, to the (2) accreditation of institutions for the reception and/or
treatment of young people with drug abuse problems. Besides that, (3) companies must open their doors tooffer more opportunities to employ and to encourage youths to change their lives. Offering vocational training
can contribute to building solid foundations for a future professional career, to rebuild self-esteem and todevelop a work culture. (4) Schools, mainly the public ones, need to be prepared to receive youths on parole.
This may require prior preparation of the school environment and training of staff to be able to offer suitableconditions for reception and rehabilitation of juveniles. (5) Involve community structures, such as community
boards, to work together with the juvenile justice system. In this case, the community boards need to be
trained for that, being prepared to offer counselling and guidance. (6) Promote, with the support ofinternational humanitarian agencies such as UNICEF and other agencies, a joint effort to prevent violence
and recidivism, building a culture of peace. Inter-organizational cooperation is imperative for government
efforts to integrate services and provide adequate conditions for the application of new concepts related tothe juvenile justices system. Starting with (1) the adoption of integrated registration systems for cases
involving juvenile delinquency, the lack of reliable data does not allow for a deeper understanding of the
problem nor help to define priorities or policies. Thus, there is a need to define indicators and invest in local,
national and international research, as well as share results and experiences, especially those of success. In
addition, it is (2) necessary to promote a wide discussion about the roles in prevention, treatment andrehabilitation of juveniles. At this point, the role of agencies in areas such as education, health, social welfare
and the juvenile justice system in the prevention and reduction of criminal behaviour needs to be clearly
defined.
2. Cook Islands ‒ The country does not have juvenile rehabilitation centres or classification homes toaccommodate juveniles in conflict with the law. This is because the country is yet to adopt the United Nations
Standards and Norms. The government has established two vocational training centres in the country: The“Cook Islands Trade Training Centre”, where they offered some training on job skills such as electrician,carpentry and mechanics/engineering, and the “Cook Islands Hospitality Training Centre”, which offers
training on catering and hotel services. However, these training centres are not specifically established forjuveniles in conflict with the law or detainees, but provide job skills training for the general community.
These training centres have been very effective in offering training and guidance to offenders. On completionof the training, the trainees are issued trade certificates which can help them get into the labour market.
However, even though these training centres are fully funded by the government, it only funds half of theenrolment fee and the other half must be covered by the trainees. So for the programme to be effective, theDepartment of Probation Service has to look for sponsorship to help out with the fees. We also have twoNGOs that also play a big role in the countryʼs justice system. One is the “Pananga Tauturu”, which provides
counselling and support to women and children victims of violence, and the “Rotaianga Menʼs Support
Center”, which provides counselling on anger management and alcohol abuse.
3. Côte dʼIvoire ‒ In Cote dʼIvoire, there are a number of international partners, like UNICEF, BICE
(International Catholic Child Office), International Rescue and Aid to Prisoners (LISAP), the World HealthOrganization (WHO), Prisoners Without Borders and the International Committee of the Red Cross, that
support rescue apart from other humanitarian activities provided to prisoners. The national partners are
Akwaba St Camille, the Red Cross, ANAP (National Prisonersʼ Assistants Associations), Caritas of theCatholic Church, the Association of Visitors to Prisons, private orphanage centres, and several other NGOs
that intervene directly in prisons. They aim to provide assistance in the form of care, intervention
programmes for juveniles, orphanages and prisoners to improve the conditions of detention of minors byproviding necessities and the preparation of their reintegration or social reclassification. Legal assistance isalso provided for juveniles. At least there is some level of collaboration but more work needs to be done bynational agencies to create a policy framework enabling agencies to collaborate and to address issues of234

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minors. Also, the State could grant facilities such as removing customs barriers and providing all kinds ofconveniences necessary to their activities for the welfare of minors.
4. Japan ‒ There are many governmental organizations which are involved in the prevention of juvenile
recidivism; however, from the statistical point of view, those organizations do not function well so far.
Therefore, NGOs and NPOs have an important role to prevent juveniles from reoffending by providing
assistance in the fields of education, welfare, employment, and medical care. Above all, “Therapeuticcommunities” which achieve a measure of success in treating addiction in the United States and Canada arealso useful in Japan. The “Kodomo-Shokudo” (childrenʼs diner), one of the NPOs, creates a “Place to Belong”
for youth and their single-parents all over Japan.
5. Kenya ‒ Like in most developing countries, Kenya has experienced a higher rise of recidivism byminors. There are international and national agencies present to ensure reduction of delinquency recidivism.
The agencies and intuitions basically start at home, working with parents and the community, and provide
initial guidance, counselling and support. Everyone should contribute to the juvenileʼs up-bringing and ensure
there is no stigmatization or offender labeling. The national and county governments are responsible toensure good governance and strategic planning to addressing issues of law and order in the country. The
government has developed polices that address youth empowerment and poverty eradication. The main aim
is to bring effective and efficient basic service delivery to the majority of the countryʼs population. Meanwhile
law enforcement agencies have a much bigger role in building awareness targeted at juveniles, through talkshows, counselling and instilling professionalism. Faith-based organizations (churches and mosques), agenciesof the United Nations, Non-Governmental Organizations, the media, corporate entities, e.g., banks, among
others contribute to providing guidance to juveniles and empowerment programmes. They complement
government efforts and, thus, fill gaps left due to resource constraints in diverse areas, e.g., health, education,water and agriculture. They engage in assisting recipient communities in agriculture, nutrition, education
through scholarships, promote ethics in their work such as responsible journalism, and programmes todiscourage delinquency. They have scholarship programmes and deserving cases of bright children, personaland development loans for universityʼs and also partnered with prisons services.
6. Myanmar ‒ The involvement of the public and private sectors needs to be encouraged. Many
professionals who deal directly with the criminal justice system and the causes of violence have insufficienttraining to be able to develop their activities satisfactorily and contribute to building a safer society. In
addition, the country needs to adjust to international standards to deal with juvenile violence and recidivism,
prioritizing policies aimed at raising awareness among the public. To achieve these goals, it is necessary to (1)increase public awareness, which can be done by using mass media capable of reaching large audiences
across the country and helping to develop greater awareness of public safety responsibility; (2) Capacity
building for social workers and related organizations; (3) Counselling programmes for juveniles who
committed crimes, supporting initiatives for job skills training and school achievements; (4) Increasing
political will power and convincing the related government entities to allocate their resources to be placed forjuvenile delinquency prevention and rehabilitation. In terms of support coming from international andnational non-governmental agencies, Myanmar relies on UNICEF (which provides funding and technicalassistance), the WHO (which takes care of children and women), the UNODC (which works in cooperation
with UNICEF to provide funding and technical assistance to enhance capacity building), MANA ‒ Myanmar
Anti Narcotic Association ‒ (Assists by paying for public awareness campaigns to prevent juvenile crime),
the Child and Women Care Association (CWCA), which assists in caring for children and women, the Women
Association (which assists in caring for womenʼs rights and children), the Volunteer Red Cross Association(which assists in the collaboration and coordination within youth communities) and the Volunteer Fire
Brigade Association (which assists in collaboration and coordination within youth communities). Finally, morecoordination between these different agencies related to crime prevention is needed to reduce recidivism.
7. Nepal ‒ In Nepal, the Ministry of Women and Children Central Level Coordination Committee provides
extensive programmes for child care and development addressed to abandoned orphans and also offers
support to children from low income families and strengthens the capacity of the nationwide network. Nongovernmental agencies like the UCEP (Under Privileged Children Educational Program) provide behavioural,
educational and vocational programmes for underprivileged and disadvantaged children in partnership withthe government. CIWIN (Child Workers in Nepal) seeks to empower homeless children. This programme isavailable for 10 of 75 districts. The institution Namaste Children Nepal rescues children, including ex235

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offender youth. Institution Fresh Nepal also offers security, health and education for at-risk children. Karuna
Foundation helps to rescue children in conflict with the law, including ex-offender youth. The different nongovernmental institutions must submit their programmes to government evaluation and work as partners of
the Ministry of Woman and Children Welfare.
8. Papua New Guinea ‒ Apart from parents who provide basic support and assistance, unconditional love,attention and support for the offendersʼ well-being and development, various government and nongovernmental organizations also cooperate and work together to reduce juvenile recidivism in thecommunity. The law and justice agencies represent the state as the key players in the juvenile justice system,
which includes the judiciary, police, Community Based Correction Services, juvenile institutions andCorrectional Services to ensure the Juvenile Justice Act is implemented. There are specific juvenile justicepolicies and guidelines that encourage agencies to be involved to ensure good governance and that juveniles
are dealt with fairly and justly in line with the international standards and norms. The Juvenile Justice Act
also provides for the formation and appointment of National and Provincial Juvenile Working Committees
that convene meetings to address juvenile issues and to be the mouthpiece of the provincial and national
governments for agency support. Statutory organizations like the local radio and television are important
media for dissemination of information to a wider audience to enhance awareness, law talks and use of
airtime for panel discussions on new laws and juvenile delinquent issues. Also, Non-Government Organizations like the City Mission, Gini Goada, and Morata halfway house provide care for the homeless anddisadvantaged, while the Young Womenʼs Country Association (YWCA) provides day training and career
guidance. UNICEF and AUS-AID (JSS4D) provide financial and much needed technical assistance in capacity
building and training for all law and justice agencies including juvenile justice for progressive implementationof its activities. Similarly, various religious organizations are contracted to assist in the management of four of
the State-owned juvenile institutions located in the provinces with subsidized management fees paid annuallyfrom the stateʼs budget. Others like the Salvation Army, Haus of Hope, Haus Root and Life-line provide
spiritual enrichment, counselling and guidance. In order for effective coordination between agencies to exist,
it is suggested that a separate bill for Rehabilitation Centers be passed, as it would oblige agencies tocooperate and focus more on rehabilitation and re-integration of juveniles to reduce recidivism. The process
will also involve parents, victims and communities in restoring and building a harmonious and peacefulsociety. Also, it will gain more attention and support from the government to be successful.
9. Thailand ‒ For Thailand, even though the establishment of the Juvenile Court Act of 2010 does provide
an opportunity for the Department of Juvenile Observation and Protection (DJOP) under the Ministry ofJustice to authorize and provide monetary support to non-governmental organizations to provide services
and intervention programmes for the youth, until now, the rules and regulations have not yet been developed.
As a result, the level of participation of the non-governmental organizations in providing rehabilitation foryouth is limited. Also, like other countries, multi-agency cooperation to provide services for children needs tobe well organized. The youth entering the justice system need supervision and support from adults until they
can stand on their own feet. Merely having the agencies that provide service is not sufficient. So, with all of
the services available, the effective case management for each young person should also be available. Thiscan be done by working with the Department of Probation to strengthen the skills of probation officers andvolunteer probation officers in organizing the services available in the community to fit the needs of eachindividual youth in his or her own community.

II. CONCLUSION
The purpose of this paper is not to provide an extensive review of the causes and the ways to eradicate
juvenile recidivism, but rather to shed some light on the problems and possible solutions from the experiencesof the members of the participating countries. We hope the information shared in this report will help thereader understand the situation of the juvenile justice system that we currently experience and be inspired totake part in reformation of the system to better serve the youth and their families for a just, safe and securesociety for all.

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GROUP 3
A HOLISTIC APPROACH TO THE JUVENILE JUSTICE SYSTEM
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisors

Ms. Meera Chaudhary
Mr. Rootman Estivens Perez Alvarado
Mr. Pablo Neri Pereira
Ms. Zaeema Nasheed Aboobakuru
Mr. Nakazawa Satoshi
Mr. Nakagawa Takahisa
Mr. Omega Jireh Deocares Fidel
Ms. Elly Elis Naphal
Mr. Collin Sakap
Mr. Luis Alberto Zegarro
Mr. Ghulam Ali
Professor Ayuko Watanabe
Professor Fumiko Akashi(Nepal)(Guatemala)(Brazil)(Maldives)(Japan)(Japan)(Philippines)(Papua New Guinea)(Papua New Guinea)(Panama)(Pakistan)(UNAFEI)(UNAFEI)

I. INTRODUCTION
This paper aims to compare and contrast different practices, legal systems and best available choices ofour respective countries and to look for means and ways which may be practical and result oriented inaddressing Juvenile Delinquency. Irrespective of different environment, norms and mores and religious
backgrounds, we can agree upon minimum standards for the improvement in the juvenile justice system.
There need to be continued and sustained efforts in this regard. Considering the diversity of cultural, politicaland economic aspects of our countries and the varying differences in our criminal justice systems,
establishment of equal treatment for juveniles worldwide according to international standards and norms
may prove to be challenging.
But keeping in view the international instruments as explained through various conventions, guidelines
and rules, we are required to set certain criteria in the pursuit of our ideals. With the coming into being of the
Universal Declaration of Human Rights (UDHR) and the evolution of human rights, a series of norms that
focus on the issue of juveniles in conflict with the law have been built gradually, including:A)

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing
Rules”);B)

The United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh Guidelines”);

C)

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty;

D)

The UN Convention on the Rights of the Child (CRC).

The scope of the discussion is limited to the topics which the group believed can help in the formulation of
workable policies and measures that will address, if not resolve, the current challenges in our respective
countries, as follows: the minimum age of criminal responsibility, diversion, special procedures for juveniles(compared to adults), inter-organizational cooperation among related agencies, and multi-agency cooperation
with the community and the private sector.
A. Minimum Age of Criminal Responsibility
1. Standards
The definition of “juvenile” in Article 2. 2 (a) of United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, “The Beijing Rules”, adopted by General Assembly Resolution 40/33 on
29th November 1985, is: “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.”

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RESOURCE MATERIAL SERIES No. 102

In the Convention on the Rights of the Child, Article 1 states, “A child means every human being below
the age of 18 years unless under the law applicable to the child, majority is attained earlier”. Professor Matti
Joutsen1 says that General Comment 10 of the Committee on the Rights of the Child seeks to provide
guidance to be used in establishing age limits for criminal responsibility:“...MACR (minimum age of criminal responsibility) shall not be fixed at too low an age level, bearing in
mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee hasrecommended State parties not to set a MACR at too low a level and to increase the existing low
MACR to an internationally acceptable level. From these recommendations, it can be concluded that aminimum age of criminal responsibility below the age of 12 years is considered by the Committee not
to be internationally acceptable. State parties are encouraged to increase their lower MACR to age of
12 years as the absolute minimum age and to continue to increase it to higher age level.2”2.

Practice
Although most of countries have signed or ratified the CRC, discrepancies still exist in the minimum ageof criminal responsibility. However, efforts are underway to enhance this limit to 12 years.
The Minimum Age of Criminal Responsibility

age
Papua New Guinea
Nepal
BrazilMaldives
PanamaJapan
Philippines
GuatemalaPakistan

10
*
*

11

12

13

14

15

*
*
*
*
*
*
*
* : Including this age

As we observe, the minimum age of criminal responsibility in Japan is fourteen years, while in somecountries variation in minimum age of criminal responsibility ranges from ten to fifteen years. Therefore, theneed of the hour is to have unanimity regarding the minimum age of criminal responsibility.
B. Diversion
The baseline definition in Article 11.1 of “The Beijing Rules” is: “Consideration shall be given, wherever
appropriate, to dealing with juvenile offenders without resorting to formal trial by the competentauthority…”3Diversion, invoking removal from criminal justice processing and redirection to community support
services, is commonly practiced on a formal and informal basis in many legal systems. This practice serves tohinder the negative effects of subsequent proceedings in juvenile justice administration, e.g. the stigma ofconviction and sentence. In some cases, non-intervention would be the best response. This is especially thecase 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.
The first analysis of the differences among the diversion systems of the countries in question looks at the
JOUTSEN Matti. From Soft to Hard Law. Tokyo, Public Lecture, 2017, p. 23.
JOUTSEN Matti. From Soft to Hard Law. Tokyo, Public Lecture, 2017, p. 23 (citing General Comment 10 of the Committee on
the Rights of the Child).
3
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) Adopted by General
Assembly resolution 40/33 of 29 November 1985.
1
2

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points where diversion is available, i.e., the police, social workers, prosecutors, courts, etc. Commonly useddiversion measures are caution, reprimand, counselling, referrals, warning, apology, compensation, restitution
and affidavit/bond. Further, differences have been noted in the formal procedures and measures of diversion
among the countries under discussion.
In Brazil, the prosecutor can handle diversion without trial but these measures have to be approved by
the judge. The Brazilian diversion system provides juveniles with educational measures by prioritizing theirreintegration instead of placing them under protection. The Brazilian Federal Law 8. 069/90 “Statute ofChildren and Adolescents,” adopted an ideology based on the theory of integral protection, placing children
and young people in the special category of human beings under development and considered vulnerable.
The Guatemalan legal system expressly establishes in the “Law on the Comprehensive Protection ofChildren and Adolescents and Adolescents in Conflict with the Criminal Law”, the minor offences: 1.
Reconciliation 2. Remission 3. Opportunity Criterion (Imposing on the adolescent the obligation or prohibitionof performing certain actions such as attending therapies or restraining visits to certain places). One of the
weaknesses of the diversion measures in Guatemala is that the relationship between the justice system andcitizen participation is still weak. Strengthening community participation is needed. In that sense, it isimportant to make the public aware to avoid misconceptions about juvenile offenders, particularly about therehabilitative measures.
Japan, as a policy, refers all cases to the family court, and the diversion takes place through the family
court. However, the family court can refer juveniles who commit heinous crimes to the prosecutor. The mostcommonly applied diversion measures in the Japanese system are probation (non-custody) or referral to thejuvenile training school (custody). These diversions come in to effect at the hearing stage. Prior to the hearing
stage, another diversion system exists. During a social investigation by the family court investigating officer,
various types of educative measures for juveniles take place, e.g. “on-site learning,” “group work,” “equippingknowledge,” “employment assistance” and so on. These measures are intended for juveniles, who commit
minor offences. Using these steps, Family Court investigating officers enhance the juvenileʼs perception ofdelinquency, remorse, and self-recognition. These measures assess the reflection of juveniles and thelikelihood of their transformation. In most cases, these measures are effective. Then, the judge dismisses thecase after hearing (or without a hearing). According to the statistics (Final Rulings in 2014), dismissal without
hearing takes place in 51% of all cases, and 20% percent are dismissed after hearing. Family court
investigating officers have to select the most efficient measure based on the particular juvenile. Findings are
based on three viewpoints: Biological, Psychological, and Sociological (the “BPS” model).
In Maldives: There are two stages of diversion being practiced. Matters relevant to children in conflictwith the law are governed by the Regulation on Conducting Trials Investigation and Fair Sentencing ofJuvenile Offences. The first is at the police level where juveniles are provided with an “informal caution” in thepresence of a parent or guardian, followed by a “formal caution” if they persist in criminal behaviour. Next,
the Prosecutor General has discretion to issue a formal caution and to divert the child to a rehabilitation
programme under the guidance of the Juvenile Justice Unit (JJU), or to sign an agreement with the juvenile tocomply with certain conditions (attending an educational or vocational centre) and to refrain from criminal
behaviour. The JJU operates under the Ministry of Home Affairs and is tasked to provide support andassistance to children in conflict with the law. There is no court-level diversion in the Maldives. However, theOffice of the Prosecutor General often withdraws cases registered at the court, in order to provide thejuvenile with the chance to rehabilitate. Except for serious offences, or offences that warrant a sentence
under Islamic Shariʼah, the general approach is to divert juveniles away from trial.
Nepal has no specific legal framework regarding diversion. However, measures like caution, reprimand,
warning, apology, conciliation, compensation and affidavit/bond are being practiced at police units. If thesemeasures are incorporated in the legal system of the country, their efficacy and effectiveness is expected to
improve.
Pakistan, like Nepal, has no specific legal framework regarding diversion. However, measures likecaution, reprimand, warning, apology, reconciliation, compensation, fine and affidavit/bond are informallybeing practiced at police stations and in the courts. If these measures are incorporated into the legal systemof the country through legislation, their efficiency and effectiveness is expected to improve. Since these239

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diversions are being practiced without a specific legal framework, sometimes it causes complications forpractitioners.
Panama has the following forms of diversion provided by law: 1- remission, in which the judge, in specificcases designated by the law, dismisses the case. 2- Criteria of opportunity. The prosecutor decides to refrainfrom prosecuting the case. 3- Conciliation. The teen has met the obligations imposed. Additionally, in the mostrecent amendment to the law, enforcement was established: “reparation of harm”, community service and theobligation of an assistance programme and orientation.
Papua New Guinea Juvenile Justice Acts provide for a wide range of diversion programmes in dealing
with minor juvenile offenders. Forms of diversion include caution and discharge, formal apology, counselling
service, community service, reconciliation, restitution, compensation, juvenile/family conferencing, andrestorative justice approaches such as mediation. Diversion takes place at two stages (i). Diversion by PoliceInitial Contact and (ii). Diversion by Court ‒ Pre-hearing.
In the Philippines, when a juvenile/child over the age of 15 but under 18 commits an offence, the childshall be referred to a social worker who shall determine whether the child acted with discernment. If withdiscernment, the child will be subjected to a diversion programme as the case may be. If without
discernment, the child shall be referred to his parents through the barangay (“village”) for a properintervention programme. A child aged 15 and below who committed a minor offence shall be referred to theparents through the social worker for proper intervention, and if the child committed a serious offense or is arepeat offender, the child shall be referred to a youth rehabilitation centre for proper intervention.
C. Special Procedures for Juveniles (Compared to Adults)
Since juveniles are the most vulnerable section of the society and they are yet to attain maturity, special
procedures are of utmost importance for the investigation, adjudication and imposition of punishment,
wherever necessary for offences committed by juveniles. Preference shall be given to the best interests of thechild by rehabilitation without imposing punishment on such child.
Brazil: The statute addresses all issues related to children and adolescents including the rights ofjuveniles as well as the obligations of parents and family, and public servants involved in the processes andthe State. The law created a specific structure, parallel to the ordinary criminal justice system, to deal withthe misconduct, treatment, and rehabilitation of juveniles. For the Brazilian law, young people cannot formallycommit crimes; rather they commit “infraction acts.” Therefore, they are treated differently and held in
detention until the fulfillment of socio-educational measures in specific establishments.
Guatemala: since 2003, the Law of Integral Protection of Children and Adolescents and Adolescents inConflict with the Criminal Law has been approved. This law is in consonence with the international standards
and norms. This law establishes the creation of special courts, specialized prosecution and specialized police
units for juvenile justice. They are supported by Specialized Juvenile Courts (Courts of First Instance and the
Appeals Chamber), and the Prosecutorʼs Office is specialized in adolescents in conflict with the criminal law(assistance by interdisciplinary teams of experts).
Japan: There are three basic principles in the procedures for juveniles: the educational principle, theprinciple of individual treatment, and the inquisitorial principle. These principles promote educational
treatment for rehabilitating juveniles that have fallen into delinquency (educational principle). Family courts
should strive to eliminate delinquency by protective measures. Imposing penalties on juveniles is the
exception. Moreover, all juvenile cases are referred to family courts. Family courts should perform treatment
according to the needs of each juvenile delinquent (principle of individual treatment). Treatment is decided
according to the problems of the juvenileʼs nature and the juvenileʼs environment. Treatment is not decided
only according to the weight of the facts/evidence constituting the alleged delinquent acts. In addition,
because of the special nature of juvenile hearings, it is not open to the general public. Family courts presideover the procedures themselves (inquisitorial principle). At the hearing, prosecutors and juveniles do not
oppose each other, and judges speak directly to the juveniles. All attendees of the hearing have the purpose of
rehabilitating juveniles.
Maldives judicial procedure mandates that the cases of juveniles must be referred by the Police to the240165TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

Juvenile Justice Unit (JJU) immediately. It is pertinent to mention that JJU is under the administrative controlof the Ministry of Home Affairs. The JJU will then assign a case worker who will provide support andassistance to the juvenile throughout the criminal justice process. No child can be questioned without thepresence of a parent or guardian or a representative of the JJU. It is mandatory for the JJU to attend all
hearings at the court including remand hearings and trial. Social Inquiry Reports are obtained during remand,
trial, pre-sentencing and the post-sentencing rehabilitation stage, which will provide background informationon the juvenile to the authorities in the disposition of the case. The juvenile court proceedings are closed tothe public. There is a specialized unit of the Police (Family and Child Protection Department), but otherdepartments also deal with juveniles accused of serious offences. Except for serious offences, juveniles areusually placed on house arrest subject to conditions.
Nepal, after the ratification of the CRC, has passed different laws and initiated various policies toimplement the juvenile justice system. The Childrenʼs Act 2048 (1992) and Juvenile Justice (Procedure) Rules
2063BS (2007) are the primary laws that stipulate juvenile justice procedures. The Childrenʼs Act, 2048 (1992)
introduced the concept of juvenile justice as a separate branch of the justice system which includes the legal
provisions in order to protect the rights and best interests of the children for physical, mental and intellectual
development. The Women and Children Services Directorate of the police is specially tasked to deal withmatters of juvenile and other vulnerable social groups. It has established 23 separate buildings for the Womenand Children Service Center (WCSC), 40 districts with juvenile justice officers, and 20 child friendly rooms at
the district level. As a special measure, adolescents cannot be investigated during the night and even not for
more than one hour per day. Juvenile offenders may not be handcuffed, cannot be compelled to provide
statements and have the right to be silent. Free legal assistance to the juvenile is the responsibility of thestate. Their cases must be tried expeditiously. On the initiative of the Nepal Police, the state of Nepal has
formulated “Gender Policy 2069”. It has facilitated the incorporation of gender issues in various police training
curricula, separate posting of 1,344 personnel for WCSC units, establishment of a national centre for children
at risk with a hotline number 104, and formulating victim support SOP- 2070. The police and legal counsel
shall appear in civilian clothes in closed proceedings. Provisions relating to the investigation include arequirement that all police staff shall introduce themselves by showing identity and explaining the cause forthe arrest, informing the child about his or her constitutional rights in a language understood by him/her,informing both parents of the child as far as possible, at least one if both are not available, and he or she shall
examine the physical and the mental health of the child.
In Pakistan, no proper or separate procedure to deal with juvenile offenders has been established.
However, the country, being a signatory of the CRC and other related international treaties, has promulgatedthe Juvenile Justice System Ordinance, 2000 (JJSO), Child Welfare Commission Act and the Bursal InstituteAct to deal with the offenders. Moreover, with the approval of High Courts, the District and Session Judges
have been declared as juvenile judges to handle the cases of adolescents. Statements of the accused cannot berecorded without the presence of his/her guardian or counsel. No other hearing is fixed on the date when thejuvenile case is to be heard by the judge. All hearings are in camera. Juvenile offenders are provided with freelegal assistance by the state. All juvenile cases must be decided within four months. The victim is allowed toparticipate in the hearing. Juveniles have the right to remain silent. If the police officer wants to join theproceedings, the police officer must not be in uniform; instead he/she should participate in plain clothes.
Media coverage is not allowed.
In Panama, there is a separate family court to deal with the affairs of children, and there are criminal
courts for juvenile offenders. These courts are part of the judiciary. There is also a police unit of childhood
and adolescence, specialized in protection of minors when they are victims and a special adolescents unit totake care of juvenile offenders judicially, under the control of the Ministry of Security. Moreover, there is the
specialized division of adolescents, charged with the responsibility of assisting the prosecution of teenagers ininvestigation. There are specialized prosecutors to prosecute juvenile cases supervised by the Public
Ministry.
Papua New Guinea: The Juvenile Justice Act and Juvenile Justice Policy provide for special Juvenile
Justice Procedure with strong emphasis on community-based treatment options such as diversion measuresand non-custodial sentencing (Probation, good behaviour bond and fine). These measures are effective intreating juvenile offenders, and custodial sentences are only ordered as a last resort and for the shortest
necessary period. Diversion takes place at two stages: the juveniles cannot be placed in police cells; rather
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they are released or handed over to their parents or guardians or are kept in juvenile remand centres
pending trial. The country has a separate court with trained juvenile court magistrates and trained police
prosecutors. The police shall appear in civilian clothes, including legal counsel, in closed proceedings. Free
legal aid is provided by the government. Social Inquiry Reports are mandatory before disposition. Juveniles
who commit serious offences are sent to juvenile institutions or to a separate juvenile section in a correctional
institution depending on the nature of the offence and surrounding circumstances. It is mandatory for juvenile
justice officers to be present at any juvenile court proceeding. In addition, the police protocols and the juvenile
court protocols on magistrates provides for juvenile police officersʼ, juvenile court magistratesʼ, police
prosecutorsʼ, juvenile court officersʼ and the correction services officersʼ duties and responsibilities in handling
juvenile cases.
In the Philippines, during the initial contact (the term “arrest” is avoided), the Women and Children
Protection Center/Desks of the police handle cases involving children. Juveniles shall be turned over to asocial worker within 8 hours for proper disposition. Custody of the child while undergoing diversion orintervention shall be referred to the parents, youth rehabilitation centre or to the social worker. Additionally,
the juvenile shall be provided with a lawyer (Public Attorneyʼs Office) during investigation. In the case of
adults, the general investigation of the police shall handle the criminal case, which shall be referred to theProsecutorʼs Office within 9 hours for minor offences, 18 hours for less serious offences and 36 hours forserious offences. The prosecutor, upon determination of probable cause, shall file the case with the court fortrial. The adult shall be committed to jail.
D. Inter-Organizational Cooperation among Related Agencies
Bearing in mind the intricacies of the issue, the objectives of the system cannot be achieved without interorganizational cooperation among the relevant stakeholders and organizations. Since juvenile justiceinstitutions are directly involved in the process while some have to be involved for the well-being of the child,such as health, education, social welfare, etc.; therefore, there has to be close collaboration and cooperation
among them.
Brazil: Without a doubt, one of the biggest challenges for the Brazilian system is cooperation. Interagency cooperation throughout the criminal justice system chain is considerably integrated and rapid. The
problem is that to the extent the new legislation imposes a system based on protective measures, a structureof protection, shelter and re-education for young offenders is needed. At the moment, the demand comingfrom the criminal justice system, due to the high participation of youths in crimes, does not find institutional
support for the reception of youth. The Brazilian State urgently needs to improve and expand the institutions
that work with juvenile offenders after passing through the system of justice.
Guatemala: It has been made possible to establish a workspace composed of the highest level officials ofeach of the public institutions involved in the juvenile justice system: the Public Ministry; the judiciary; theInstitute of Public Criminal Defense; the Ombudsmanʼs Office and the Secretariat of Social Welfare. As aresult, a Strategic Plan on Adolescents in Conflict with the Criminal Law has been implemented in a holistic
way for the cases of adolescents as a vulnerable group, which deserves adequate intervention and protectionof the State. As a recommendation, good practices and procedures should be institutionalized so that juveniles
do not depend on a particular person.
Japan: When family courts make final rulings, the courts receive input from juvenile classification homes
and probation offices (both of them are organizations of the Ministry of Justice). In addition, family courts giveinformation to juvenile training schools, probation offices and childrenʼs self-reliance support facilities (which
operate under the organization of the Ministry of Health, Labor and Welfare) for determining concrete
educative measures for the juveniles.
Maldives: There is a good level of inter-agency cooperation in Maldives. The Police work in close
collaboration with the Juvenile Justice Unit and notify the unit if and when an arrest is made. Consultations
take place between the different agencies on how best to deal with a particular juvenile. The Prosecutor
Generalʼs Office also takes into consideration the recommendations made by the JJU as to the circumstancesof the individual child in deciding on the alternatives to prosecution. Agencies have cooperated in the recent
diversion programmes run by the Police and the JJU. However, there are calls for improvement. All police
personnel handling juveniles must be trained in juvenile justice principles and standards, regardless of242

165TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

department or division. In addition, the Prosecutor Generalʼs Office must also train special prosecutors who
may only handle juvenile cases, in order to make the system more efficient. Further, parental cooperation is
crucial to the successful implementation of juvenile justice policies. The State therefore needs to raiseawareness about juvenile justice matters.
Nepal: Inter-organizational cooperation among related agencies is in place. The national and district levels
are composed of different departments (social welfare, police, justice, education, health, etc.) to supervise theimplementation of the juvenile system. The Co-ordination Committee conducts meetings to review
administrative policies on the juvenile system.
Pakistan operates the Ministry of Human Rights, the National Commission for Human Rights, the Social
Welfare Department, and the Probation and Parole Department at the national level. Whereas in private
sector, relevant INGOs/NGOs are also working, the Ministry of Human Rights is a monitoring body for thissystem since the government has multiple departments to look into this issue and all are state owned.
Therefore, strong cooperation, coordination and collaboration exists among them.
Panama: The Ministry of Social Development through the National Secretariat of Children, Adolescentsand the Family (SENNIAF) provides training and education for juveniles. The Commission of Parliament isworking on new laws for juvenile protection according to the international standards. The Ministry of Public
Security and Office of Citizen Participation (responsible for the national police) developed community
programmes in coordination with the General Prosecutor (independent), which aim to provide protection ofjuvenile offenders, prevent crimes, contribute to public safety and to reduce the social cost of crime.
Papua New Guinea: The main agencies involved in the PNG Juvenile Justice System are the Police, theCourts, the Ministry of Justice (Community-Based Correction (CBC) ‒ Probation, Parole and the Juvenile
Justice Services Office of the Public Solicitor, which provides free legal service, the Office of the Public
Prosecutor, which prosecutes heinous crimes in the National Court), the Ministry of Correctional Service andMinistry of Community Development ‒ Juvenile Welfare. Apart from these, NGOs and churches in PNG
assist in rehabilitation programmes.
Philippines: Inter-organizational cooperation among related agencies is in place. The Juvenile Justice andWelfare Council was created at the national level composed of different departments (social welfare, police,
justice, education, health, etc.) to supervise the implementation of the juvenile system. The council regularly
conducts meetings to review administrative policies on the juvenile system.
E. Multi-Agency Cooperation with the Community and the Private Sector
The baselines of prevention initiatives or programmes regarding the strengthened relationship between
government and the private sector are necessary to carry out the objectives of the juvenile justice system.
Some countries have a strong partnership with the INGOs/NGOs, and other agencies are left to their own
fate. The latter system remains weaker and vulnerable to unwanted interventions.
During the discussion, it was identified that all the countries have a multi-agency framework to implement
between the community and juvenile working groups including INGOs/NGOs, which work in the area ofjuvenile justice. In some countries, Volunteer Probation Officers (VPOs) are working closely with thegovernment authorities to provide juvenile rehabilitation services. Moreover, it highlighted the importance of
close networking among the government authorities and INGOs/NGOs.
Most of the countries under discussion are working closely with UNICEF to streamline and strengthen
their juvenile justice systems. However, due to overlaping mandates of government agencies, stakeholders
and INGOs/NGOs, it is difficult to work together. Most of the INGOs/NGOs have their own plans of action,
which sometimes conflict with government stakeholdersʼ mandates or action plans. Moreover, some of the
INGOs/NGOs are working self-centeredly, which creates complications and hindrances to the way forward.

II. CHALLENGES, RECOMMENDATIONS AND CONCLUSIONS
A. Challenges
In line with the international standards and norms, the participants are encouraged to improve their243

RESOURCE MATERIAL SERIES No. 102

respective juvenile justice systems. But due to various reasons, despite having good legislation, they have notbeen able to achieve standardized results. To outline the hindrances and obstacles in the process ofimprovement, the following points have been identified:
1.

Lack of community participation and mobilization of the public;

2.

Juvenile justice systems in every aspect in terms of resources and capacity are lacking priority;

3.

Untrained personnel;

4.

For some countries, key pieces of legislation remain pending;5.

Some countries lack a systematic rehabilitation programme that clearly identifies target groups and their
particular risks and needs;

6.

The difficulty of implementing a successful rehabilitation scheme due to lack of arrangements, likeinstitutional arrangements, become crucially important especially in the case of juveniles;

7.

Lack of inter-agency/multi-agency cooperation and coordination;

8.

Unreasonable delay in the investigation and prosecution of matters involving minors is a great concern;

9.

Lack of specialized programmes and the expertise in dealing with drug offenders;10.

Lack of legal frameworks to institutionalize diversion;

11.

Non-compliance with UN standards and norms to implement a minimum age of criminal responsibility.

B. Recommendations
1. Strengthen the community participation/mobilization of the public by utilizing community police andVolunteer Probation Officers (VPOs);
2.

More research is required to understand the causes of juvenile offending and ways to better implement
juvenile justice policies;

3.

Specialization within their respective agencies and departments is vital for the successful implementationof juvenile justice policies. Competent officers would be better to comply with the laws and internationalguidelines concerning juvenile offenders, thereby contributing to the development of institutions;4.

Authorities need to step up efforts to pass the relavent juvenile justice bills and regulations in order toestablish a comprehensive mechanism for the administration of juvenile justice in relevant countries;

5.

Some countries need to devise comprehensive rehabilitation and reintegration plans for juveniles thattake into acount the different categories of offenders in their particular needs and risks;

6.

Establishment of relevant institutions;7.

Networking with international organizations and foreign governments and institutions would be great
help in improving the current situation of juvenile justice;8.

Agencies working within the juvenile justice system must enforce a concerted effort in the expeditious
processing of juvenile offences at every stage. It is expected that this would provide some remedy to the
problem of delayed submission of cases;

9.

For some countries, establishing a child-centered drug rehabilitation facility is of utmost importance tocombat drug addiction among minors, and existing structures and facilities need to be strengthened aswell as compliance and monitoring mechanisms;244

165TH INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

10.

Countries should establish a legal framework to institutionalize diversion;

11.

In compliance with UN standards, countries with ages of criminal responsibility below age 12 areencouraged to increase the age to this level.

C. Conclusion
The participating countries have made significant improvements in the field of juvenile justice since theratification of the UN Convention on the Rights of the Child. Investigation, prosecution, adjudication, andtreatment and supervision of juvenile offences have been streamlined according to international standards
and norms.
The participating countries have also incorporated the Restorative Justice Model into their juvenile
justice policies, and have had some measure of success in the implementation of rehabilitation andreintegration programmes. And still there is room for more improvement. Capacity, lack of resources andexpertise stand out as the most challenging factors for further development in this area of the law. The
participants aim to maintain a sustained effort towards the commitment to the development of the juvenile
justice system in their countries.
References
JOUTSEN Matti. From Soft to Hard Law. Tokyo, Public Lecture, 2017, p. 23. Thirteenth United Nations
Congress on Crime Prevention and Criminal Justice Doha, 12-19 April 2015.
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”)
Adopted by General Assembly resolution 40/33 of 29 November 1985.
United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) A/RES/45/
112, 68th plenary meeting, 14 December 1990.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty Adopted by General Assembly
resolution 45/113 of 14 December 1990.
Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by
General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordancewith article 49.

245

PART THREE
SUPPLEMENTAL MATERIAL

The Basic Principle and Revision of the Juvenile Act

Anti-Corruption Measures: A Short History in Japan

UNAFEI

THE BASIC PRINCIPLE AND REVISION OF THE JUVENILE ACT
Toshihiro Kawaide＊

I. THE BASIC PRINCIPLE OF THE JUVENILE ACT
A. Trends in the Juvenile Act
Because juveniles are generally less mature than adults, but more plastic, in other words, they have more
promise, it is regarded as necessary and reasonable to treat juvenile offenders differently from adultoffenders. This view has been widely accepted, whether ancient or modern, eastern or western. Based on thisview, juvenile delinquents have been specially treated by special proceedings.
Each country has enacted a juvenile law or a juvenile court law as the basic law for the treatment ofjuvenile delinquents. Roughly, there are two trends in juvenile law. One of them is based on the theory of
criminal justice developed with the progress of criminology. It is based on the view that the purpose of crime
prevention can be achieved better by imposing an appropriate punishment through not only judging theobjective aspects of a crime from a legal perspective but also paying attention to the individual criminal.
From this point of view, because juveniles are highly plastic and can be improved by education, the treatmentof each juvenile delinquent by the use of an educational method is effective for making the juvenile a healthy
member of society, which also meets the purpose of social defense. According to this view, a juvenile law is a
special criminal law that covers juveniles who have committed a criminal act.
The other trend in juvenile law is based on the tutelary and welfare view that originated from the idea of
equity. According to this view, if a child has not received appropriate protection from his/her parents or
sufficient welfare, the State is responsible for giving him/her the care and education and promoting thechildʼs social adaptation and independence in place of his parent or guardian by exercising judicial power.
This view is based on the idea of parens patriae. That is to say, if a child commits a crime, the child will betreated like a child who commits delinquency or has been abused or neglected by the parents. This idea on
juvenile protection was born as a result of the child-saving movement in the US in the 19th century. The idea
was embodied when the first juvenile court was established in Cook County, the State of Illinois in 1899. After
that, juvenile courts were established all over the US. In 1943, a revised Standard Juvenile Court Act was
published by the National Probation and Parole Association. It has been regarded as a culmination of such
movements.
B. Principle of Delinquency Control
The difference between these two trends arises from what grounds a State has to intervene in a juvenile
delinquentʼs rehabilitation, even against his will. The former trend is based on the view that the Stateʼsgrounds for intervention lie in the juvenileʼs infringement of another personʼs interest through delinquency(the “principle of harm”). The prevention of repeat delinquency through reformatory education of juveniles isdeemed to be the same as special prevention as a purpose of criminal punishment, and the purpose of thejuvenile law is to ensure the safety of society by preventing the juvenile from committing a delinquency
again. According to this, the juvenile law is clearly a part of the criminal justice system. This view has been
adopted by continental-law countries. In Germany, for example, the Juvenile Court Law, which is based on“educational ideology” and only covers criminal juveniles, is regarded as a special law for the criminal code,
the code of criminal procedure, and the code of Prison Administration, and this field of law is called “juvenile
criminal law.”
According to this view, a special disposition (protective measures) to which a juvenile delinquent isProfessor at the University of Tokyo.

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sentenced under the juvenile law is imposed as a sanction against the juvenileʼs delinquency based on thejuvenileʼs blameworthiness. In this sense, the disposition is a form of criminal punishment and is regarded as a
special criminal punishment imposed with consideration for juvenilesʼ lower criminal responsibility thanadults, and juvenilesʼ high plasticity.
On the other hand, the latter trend is based on the view that any measures under the juvenile law isallowed only for the benefit of a juvenile who has committed a delinquency. Because the juvenile does nothave sufficient judgment due to immaturity, if he is left as he is, he may repeat delinquencies and become
unable to live a decent or normal life. Therefore, the State intervenes to prevent this from occurring, for the
benefit of the juvenile himself. In this view, the Stateʼs intervention in juvenile delinquents can be explainedby the principle of protection (paternalism). This idea typically appears in the above-mentioned idea of parens
patriae.
According to this view, protective measures are taken not for the purpose of blame for juvenilesʼ
delinquency but on behalf of juveniles. In this sense, they are not sanctions. Therefore, protective measures
are completely different from criminal punishment, and the juvenile law will be regarded as a law for thewelfare of children like other social welfare laws.

II. CHARACTERISTICS OF THE JAPANESE JUVENILE ACT
A. Purpose of the Juvenile Act
In Japan, the first Juvenile Act was enacted in 1922. It was revised after World War II and the present
Juvenile Act came into force in 1948. Article 1 of the existing Juvenile Act provides that the purpose of thisAct is to subject delinquent juveniles to protective measures to correct their personality traits and modify
their environment, and to implement special measures for juvenile criminal cases, for the purpose of juvenilesʼ
sound development. Based on this provision, the basic idea of the Juvenile Act is the sound development ofjuveniles. This means that the purpose of the Juvenile Act is not to punish juveniles for crime or delinquency
they committed but to educate juveniles to prevent them from repeating a crime or delinquency. Because ofthis, the proceedings based on the Juvenile Act are called juvenile protection proceedings.
B. Outline of Proceedings under the Juvenile Act
1. Target of Proceedings
The target of the proceedings under the Juvenile Act is juveniles (defined as a person under the age of 20)
who have committed a delinquency. They include three types of juveniles: juvenile offenders, juveniles
engaged in illegal behavior, and pre-delinquent juveniles. Juvenile offenders are juveniles who havecommitted a crime. Juveniles engaged in illegal behavior are juveniles under 14 years of age who haveviolated any criminal law or regulation. Because the Penal Code provides that any juvenile under 14 years ofage has no criminal responsibility, an act by such a juvenile that violates a criminal law or regulation is not acriminal act. Therefore, no punishment is imposed on the juvenile under the Penal Code. However, theJuvenile Act deals with such acts too. Pre-delinquent juveniles are juveniles who meet any of the four criteria
specified in Article 3 (1) (iii) of the Juvenile Act (the “cause of pre-delinquency”) and, in light of theircharacteristics or environment, have the possibility to commit a crime or a violation of a criminal law or
regulation. The four criteria for pre-delinquency are: (a) having a propensity not to submit to legitimate
supervision by the custodian; (b) staying away from home without a justifiable cause; (c) associating withpersons with a criminal nature or immoral persons, or frequenting places of ill repute; and (d) having apropensity to engage in harming the morals of the juvenile or those of others. None of these violates acriminal law or regulation.
In this way, the Juvenile Act also covers the violations that are not regarded as crimes under the Penal
Code because the offenders have not reached the age of criminal responsibility; and it also covers juveniles
who have committed pre-delinquent acts that do not fall under corpus delicti (crime).
2.

Flow of Proceedings
The proceedings for juvenile delinquents under the Juvenile Act are greatly different from the criminal
proceedings for adults. I would like to show the characteristics of juvenile protection proceedings ascompared with criminal proceedings.

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SUPPLEMENTAL MATERIALFirstly, the court of the first instance for an adult criminal case is a district or summary court in principle,
while a juvenile case is under the exclusive jurisdiction of a family court. Because of this, a juvenile case isreferred from a police officer or a public prosecutor to a family court. Each family court has not only judges
but also family court investigating officers. Both a judge and a family court investigating officer jointly deal
with each case. Most family court investigating officers are specialists in psychology, pedagogy, sociology, etc.
and are expected to investigate each juvenileʼs problems and play a part in determining the most suitabledisposition for the juvenileʼs improvement and rehabilitation.
Secondly, the principle of discretionary prosecution is adopted for adult criminal cases, under which publicprosecutors have the power to suspend prosecution. On the other hand, in juvenile cases, the investigating
authority refers all cases to family courts, in principle, as long as there is any suspicion. This is based on thefollowing view: even if a juvenile case seems trivial from its objective aspects, it may indicate the juvenileʼs
deep criminality; therefore, it is necessary to examine it well and carry out the most appropriate measures forthe juvenile; and the agency appropriate for such examination and judgment is not the investigating authority
but a family court that has sufficient staff.
Moreover, if a juvenile who violates criminal law is under the age of 14 or a pre-delinquent juvenile isunder the age of 14, the case will be referred to a child consultation center, which is a welfare institute forchildren. Only if the center decides that, instead of taking measures itself, it is better for a family court todecide how to deal with the juvenile, and sends the case to a family court, the family court will deal with thecase. This is called the principle of prior deliberation by a child welfare institution. This is based on the viewthat it is better for juveniles under the age of 14 to be treated under the Child Welfare Act, which has themain purpose to promote the welfare of children, instead of being treated under the Juvenile Act which is apart of the criminal justice system.
Thirdly, in the criminal proceedings, if an indictment is brought and the court accepts the case, a public
trial will begin after some preparatory proceedings are carried out. On the other hand, in a juvenile case, after
the case is accepted by a family court, a family court investigating officer carries out the investigation as towhat problems the juvenile has concerning his characteristics and family environment and what measures
will be necessary for improving the problems. Moreover, the juvenile may receive assessment, or mental andphysical diagnosis carried out by the expert in the Juvenile Classification Home. Because the criminal
proceedings in Japan have no pre-sentence investigation system, this point is one of the great differences
between the juvenile protection proceedings and the criminal proceedings. In addition, during theinvestigation, the family court investigating officer not only carries out the investigation but also actively
encourages the juvenile to receive reformatory education. In this way, the juvenile is given treatment
through the process of the proceeding. It is another difference from the criminal proceedings that thispractice has been squarely approved.
Fourthly, in a criminal case, it is examined during the trial whether the defendant committed the charged
offence. In a juvenile hearing, however, examination is carried out as to not only whether the juvenilecommitted the delinquency, but also whether the juvenile is likely to commit a delinquency again. This factor
is called the “need of protection”. Because of this, even if it is found that the juvenile committed thedelinquency, no family court hearing will be held and the proceedings will end if it is found as a result of theinvestigation that the juvenile has no need of protection. In addition, if need of protection disappears as aresult of a judgeʼs encouragement or the like after the beginning of the hearing, no disposition will berendered and the hearing will end.
Fifthly, the judge, the juvenile, and the juvenileʼs guardian attend the hearing without fail. If an attendant(i. e., a defense lawyer in the criminal procedure) is appointed, the attendant has the right to attend thehearing. On the other hand, the public prosecutor is allowed to attend the hearing with the permission of thecourt only if the case is serious and the prosecutorʼs attendance is necessary for finding the facts of thedelinquency.
Sixthly, a juvenile hearing is held in camera. The hearing itself is not open to the public and the results are
not published. The principle of confidentiality is applied not only to the hearing but also to the investigation at
the family court and the investigation by police or prosecutor.

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Seventhly, while the adversary system is applied to the trial in a criminal case, the inquisitional system isapplied to the juvenile hearing. Because the purpose of the hearing is not to examine the juvenileʼs criminal
responsibility but to clarify the problems of the juvenile himself and his environment, and determine the mostappropriate measure for the juvenileʼs improvement and rehabilitation, it is more appropriate to apply
proceedings whereby every person concerned, including judge, attendant and prosecutor, cooperate witheach other, than to apply proceedings whereby the parties are opposed to each other. In addition, to use ahearing as an opportunity for reformatory education and counseling, it is desirable for the judge to advancethe proceedings, talking directly to the juvenile.
In this way, to respond flexibly to each juvenileʼs problems by a method similar to case work, it isdesirable to apply proceedings suitable for each case at the courtʼs discretion rather than establishing a strict
form of proceedings beforehand. For this reason, the Juvenile Act has very few provisions concerning
examination of evidence and rules of evidence at a hearing.
However, because the protective measures also restrain the freedom of juveniles against their will, it isrequired to guarantee due process even in the case of a family court hearing, It especially applies to the cases
in which the juvenile denies the alleged delinquency. Therefore, at present, some provisions for guaranteeing
the juvenileʼs procedural rights are placed in the rules of juvenile proceedings: concretely speaking, notifying
the juvenile of the facts constituting the alleged delinquency and giving him opportunities to present his
defense; notifying him of the right to remain silent and the right to appoint an attendant. In addition, in thepractical affairs of a juvenile hearing, when the juvenile denies the alleged delinquency, the court is supposed
to guarantee the opportunity to cross examineimportant witnesses. Furthermore, in order to secure ajuvenileʼs procedural rights effectually, it is very important to receive the assistance of an attorney. From thisviewpoint, when the juvenile and his or her guardian cannot employ an attorney themselves due to poverty
etc., the court can appoint an attendant who is an attorney for the juvenile. This system was introduced in
2007, and the range has been extended to cases where the juvenile is detained for an offence that is
punishable by the death penalty, life imprisonment, or imprisonment for more than three years. It covers afairly large range. For example, this system also applies to cases involving theft.
Eighthly, if, in a family court hearing, the facts of the delinquency are proven, and it is found that thejuvenile is in need of protection, the court renders a decision to impose protective measures. There are three
types of protective measures: (1) probation; (2) referral to a childrenʼs self-reliance support facility or a foster
home; and (3) referral to a juvenile training school. Which measure should be applied is determined according
to the juvenileʼs need for protection in light of which measure is the most appropriate for giving reformatory
education to the juvenile and preventing him from committing a delinquency again. The content of thedelinquency is only indirectly taken into consideration as an important factor for the judgment about need forprotection.
On the other hand, if a family court judge finds it more appropriate to impose criminal punishment on thejuvenile rather than protective measures, the court will make a decision to refer the case to a publicprosecutor. After the public prosecutor files the case, a criminal trial will be held under the Code of Criminal
Procedure as in an adult criminal case. There is no special proceeding for juvenile defendants. However, there
are special rules about punishment. For example, indefinite imprisonment can be imposed on juveniles, unlike
adults.
C. Legal Characteristics of the Juvenile Act
What characteristics does the Juvenile Act of Japan have in light of the above-described trends and theprinciple of delinquency control? The enactment of the existing Juvenile Act in 1948 was greatly influenced
by the General Headquarters (GHQ) based on the idea of parens patriae, which was predominant in the US at
the time. It can be said that the framework of the present system is suitable for the principle of protection(paternalism), because the purpose of the system is to foster juvenilesʼ sound development, public prosecutors
are excluded from the hearing in principle, and family courts with expert staff impose protective measuresaccording to each juvenileʼs need for protection.
However, the existing Juvenile Act only covers juvenile offenders, juveniles engaged in illegal behavior,and pre-delinquent juveniles; it does not cover a wide range of juveniles in need of protection like the juvenile
courts in the US in the 1940ʼs. In addition, the idea of parens patriae is based on the view that protective
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measures for juveniles are completely different from criminal punishment. As opposed to this, the existing
Juvenile Act includes provisions concerning criminal proceedings and punishment after cases are referred to
public prosecutors and the juveniles are indicted. These provisions also reflect the juvenilesʼ sounddevelopment specified in Article 1 of the Juvenile Act. In other words, in the existing Juvenile Act, protective
measures and punishment for juveniles coexist within the framework of the criminal justice system. In thissense, the existing Juvenile Act is not a system based on the idea of parens patriae in a pure sense. This isreflected also in the fact that the Child Welfare Act was enacted in addition to the Juvenile Act in 1947 afterWorld War II and, as a result, the treatment of juvenile delinquents was administered by two laws.
In this way, the Juvenile Act is not a welfare law in a pure sense but a law within the criminal justicesystem. Therefore, it is impossible to explain the intervention based on the Juvenile Act only by the principle
of protection, and it seems hard to deny that the intervention is based on the principle of harm. In otherwords, under the Juvenile Act, the Stateʼs intervention is based on both the principle of harm and theprinciple of protection. The two principles are not mutually exclusive, but justify measures for preventing
juveniles from committing a delinquency again through reformatory education. Although punishments andprotective measures are common as long as they are based on the principle of harm, the two are different
from each other in that protective measures aim for only special prevention, while punishment aims for
retribution and general prevention.

III. BACKGROUND AND CONTENTS OF RECENT REVISIONS OF THE
JUVENILE ACT
Although the Juvenile Act had not been revised for more than 50 years after it was enacted in 1948, it was
extensively revised in 2000, 2007, 2008, and 2014. These four revisions vary in contents, but they are common
in that all of them reduced special treatment for juveniles. Because the direction differs among the four
revisions, it cannot be simply summarized as making punishment for juvenile crimes stricter as statedfrequently by the opponents of the revisions. The following are explanations about the background to therevisions and the relations of the revisions to the basic principle of the Juvenile Act.
A. The Background of the Revisions
The revisions vary in content and background. The factors for the revisions can be roughly divided in thefollowing four:
1.

Clarification and Accurate Fact-finding of the Delinquency
The first factor is a request for the clarification and accurate fact-finding of the delinquency. Under theJuvenile Act, the family court intervenes on the ground of the juvenileʼs misconduct. Because the intervention
is disadvantageous to the juvenile, whatever the final purpose, in that it is accompanied by the limitation of
freedom against the juvenileʼs will, the existence of the delinquency, which serves as the ground for theintervention, must be proven. In addition, because the intervention is carried out by the family court as a
judicial agency, it is natural for the court to have the intention to determine the facts accurately.
Even before the revision in 2000, the view that the facts of the delinquency should be regarded as more
important factors in juvenile cases was firmly established for the family courtsʼ practical affairs. This was
based on the firm establishment of the view that the object investigated in a juvenile hearing is not only theneed for protection but also the facts constituting the alleged delinquency. Based on this view, attention has
been paid to the procedure for determining the facts of the delinquency. For example, this was reflected in
the Supreme Courtʼs decision that a family courtʼs examination of evidence about the delinquency must be
based on reasonable discretion and on the fact that the following view has become the main trend in thefamily courtsʼ practical affairs: the view is that the family courts are obliged to examine evidence at their own
discretion as long as the examination is necessary for discovering the truth, whether advantageous ordisadvantageous to juveniles.
In this way, the interpretation and practical use of the Juvenile Act were accumulated in the direction ofplacing importance on the facts of the delinquency. Recently, however, the courts encountered problems that
could not be solved in this practical way. As a result, some judges began to demand revision of the Act.
From the 1990s, there were a series of cases where finding the facts of the delinquency at family court
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hearings was regarded as problematic. In such cases, the courtsʼ judgment differed as to whether juveniles
committed the delinquency. This revealed difficulties in finding facts at family court hearings if the juvenile
denied the alleged delinquency. It was pointed out that the fact finding procedure at family court hearings
under the then Juvenile Act had systematic problems if the juvenile fiercely disputed the alleged delinquency,
because of the following: (1) even if a case was serious and difficult, the hearing was held by only one judge;and (2) since a public prosecutor could not attend the hearing, if the judge finds it necessary to clarify facts,
the judge has to carry out acts disadvantageous to the juvenile, for example, impeach the witness who
testified in favor of the juvenile. As a result, the judge and the juvenile might look as if they had been opposed
to each other.
Responding to this criticism, the Juvenile Act was revised in 2000. In the revision, the collegiate court
system was adopted, public prosecutors became able to participate in hearings to avoid any adversarial
situation between the court and the juvenile and to obtain multiple viewpoints, and a system for theparticipation of a court-appointed attendant, who is an attorney, was introduced in the case of a prosecutorʼsparticipation.
Subsequently the Juvenile Act was revised in 2007, responding to several serious crimes committed byyounger children. In this revision, some provisions were added to establish the policeʼs power to investigate
cases where juveniles under 14 years of age violated a criminal law or regulation. These provisions wereadded to solve the problem in the following situation: because the police could not investigate sufficiently andthe child consultation centers did not have sufficient investigating ability to clarify the facts of thedelinquency, sufficient evidence was not collected concerning the facts of the delinquency when family courts
accepted cases, resulting in difficulties of fact finding in the hearing. In this sense, it can be said that thisrevision also aimed to find the facts of the delinquency accurately.
The latest revision in 2014 expanded the range of cases in which public prosecutors and court-appointed
attendants can participate in the hearing. This revision also primarily aimed to improve the appropriatenessof the procedure for finding the facts of the delinquency in the hearing.
Such improvement of the procedure for finding the facts of the delinquency was encouraged not only by
the above-mentioned demand from within the family courts but also by the increased attention of the generalpublic to issues of juvenile justice. The background to this trend included the following: demand for thetransparency of the public agenciesʼ activities was expanded to the juvenile protection proceedings; and social
interest in victims sharply increased from the second half of the 1990s.
Specifically, one of the grounds for approval of public prosecutorsʼ participation through the revision in2000 was establishing the trust of victims and other members of the general public in family court hearings.
In addition, in the revision in 2007, a provision was enacted to the effect that the directors of the childconsultation centers must, in principle, send certain kinds of serious cases to family courts, while maintaining
the principle of prior deliberation by child welfare institutions. This aimed to increase the transparency of the
judicial proceedings for the general public and victims through the family courtsʼ findings of fact of thedelinquency and determination of disposition, instead of keeping juvenile cases at the child consultation
centers.
2.

Juvenilesʼ Criminal Responsibility
The second factor for the revisions is that increasing attention was paid to the view that if a serious crime
is committed by a juvenile, an appropriate punishment should be imposed on the juvenile. Generally, this isregarded as demand to impose stricter punishments for juvenile crimes.
This view itself was not necessarily new. Under the former Juvenile Act, a case should be referred to a
public prosecutor if a criminal punishment is suitable for the crime. It involves the cases in which it seems
impossible to reform the juvenile by protective measures and it is possible to do so, but it is inappropriate totreat the juvenile by protective measures due to the facts of the case or the social influence of the case. Many
people supported this opinion, which was based on the following view. Because the juvenile justice system
occupies a part of the criminal justice system, when the family court decides how to treat a juvenile who
committed a delinquency, it is not allowable to ignore the viewpoint of social defense and general prevention.
In addition, even the juvenile justice system cannot work well unless it has the support of the general public.
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In practice, serious cases were referred to public prosecutors more frequently than less serious cases. On
the other hand, because the principle of giving priority to protection was deeply rooted in the family courts, acautious attitude was assumed toward the referral of cases to public prosecutors. However, since the second
half of the 1990s, there was a trend across society towards the imposition of stricter punishment for crime. A
series of atrocious crimes by juveniles occurred, and the above-mentioned trend applied to juvenile cases too.
The case that had the greatest impact on society was a 14-year-old boyʼs murder of children in 1997. In thiscase, the boy, a third-year student in junior high school, hit an elementary school girl on the street with ahammer. The girl died from a brain contusion. About two months later, he strangled an elementary schoolboy, cut off his head, and left it in front of the main gate of a junior high school.
As a result of this situation, the Juvenile Act was revised in 2000 concerning the referral of juveniles topublic prosecutors. Two points were revised. First, although previously juveniles under 16 years of age could
not be referred to public prosecutors, it became possible to send juveniles aged 14 and 15 to publicprosecutors and impose criminal punishment on them. The other point was that although judgment
regarding whether to send juveniles to public prosecutors was previously made according to uniform
standards, it was provided that if a juvenile aged 16 or older killed someone by a willful criminal act, thejuvenile must be referred to a public prosecutor in principle.
According to the view that even juveniles should undergo reasonable punishment if they commit serious
crimes, the punishments imposed after the referral of juveniles to public prosecutors should be proportional
to their crimes with consideration for their ages. Responding to this opinion, the Juvenile Act was revised in2014 to make it possible to impose punishment proportional to criminal responsibility. To this aim, themaximum term of indefinite imprisonment was raised from 5-10 years to 10-15 years.
3.

Consideration for Crime Victims
The third factor for the revisions is the demand for considering crime victims and protecting their rights
and interests. In Japan, victims originally had no special status even in criminal proceedings. That was
especially true in juvenile protection proceedings, the basic principle of which is sound development ofjuveniles. For example, victims could neither observe the hearing nor receive notice of its result on the
ground that the hearing is not open to the public.
However, in a series of cruel serious offences in the 1990s, when victims spoke out and the press covered
their stories, social concern about crime victims increased rapidly. In response, policy measures considering
the rights of victims were developed by the police, prosecutors and the courts. In 2000, the act was amended
to protect victimʼs interests in both criminal and juvenile protection proceedings
In the revision in 2000, three systems were introduced. The first is to notify victims of the results of thehearing. The second is to enable victims to read and copy hearing records. The third enabled the family court
to hear the opinions of victims.
The relevant provisions of the Juvenile Act are summarized as follows. For the first system, thenotification to the victim, upon a request from the victim, the family court shall inform the victim of (i) the
name and residence of the juvenile and the legal representative of the juvenile and (ii) the date of the ruling,
the main text thereof and summary of the reasons. The second system, inspection and copying of records by
the victim, authorizes the victim to inspect or copy records, excluding the so-called “social record”. The third
system, hearing of opinions by victims, requires the family court, upon a request from the victim, to hear by
itself or order a family court investigating officer to hear from the victim.
These systems were introduced aiming at a victimʼs own interests, without bringing it into question
whether it contributes to the juvenileʼs sound development or not. These systems ensure that the existence ofa victim is clearly recognized by the Juvenile Act, and it was clarified that the victim has a special legal status
in juvenile protection proceedings. However, all systems introduced by this revision are accepted on thecondition that they do not hinder the sound development of the juvenile. For example, the hearing of opinionsfrom victims is not always carried out in front of the juvenile at the hearing, unlike a victimʼs statement of
opinion in a criminal trial. This is because there is a risk that the statement by the victim may obstruct theeducational function of the family court hearing and the entirety of the proceedings in that case if the victim
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victim displays intense anger directed at the juvenile during the hearing.
After the revision in 2000, victims and victim support groups requested further revision, noting that thecontents of the above-mentioned revision were insufficient. In addition, the Basic Act on Crime Victims wasenacted in 2004, and in this act the expansion of victim participation in juvenile protection proceedings wascalled for. In response, the Juvenile Act was revised again in 2008. In this revision, two new systems for thevictim were introduced. The first is to enable victims to observe hearings. The second is explaining the statusof hearings to victims.
Among these, the first system permits, upon the request of the victims, observation of hearings by victims
under limited circumstances. The family court may permit the victim to observe the hearing of a case of ajuvenile who committed an intentional criminal act that caused the death or injury of the victim. However,observing the hearing is not permitted when a juvenile under 12 years old committed a criminal act. The
second system allows, upon request from the victim, the family court to explain the status of the hearing to
the victim. For example, the family court may explain the role of the juvenileʼs attendant, the procedure of thefamily court, and what the juvenile said during his or her statement in the hearing. There is no limitation
based on the type of crime committed.
These two measures are permitted when the family court finds it unlikely to hinder the sounddevelopment of the juvenile. On this point, the fundamental view since revision in 2000 has been maintained.
On the other hand, in criminal proceedings, a victim participation system was introduced in 2007. In thissystem, the victim of certain serious offences can attend court on the trial date, examine witnesses withincertain limitations, ask the accused questions and state an opinion on the findings of fact or the application of
the law. In comparison, the involvement of victims in juvenile protection proceedings is limited in order toachieve the sound development of the juvenile, which is the purpose of the Juvenile Act.
4.

Improvement of the Appropriateness and Effectiveness of the Juvenile Protective Proceedings
The fourth factor for the revisions is the demand for making the determination and execution of theprotective measures more appropriate and effective in practice. For example, in the revision in 2007, theminimum age for referring juveniles to juvenile training schools was lowered from 14 to about 12, responding
to the opinion of some practitioners that, from the viewpoint of rehabilitation, it is sometimes desirable torefer juveniles under 14 years of age to juvenile training schools rather than to childrenʼs self-reliance support
facilities to give them reformatory education earlier. In addition, the Juvenile Act was also revised to make itpossible to send juveniles on probation to juvenile training schools if they violate probationary conditions,
responding to a remark that the effectiveness of probation could not be secured because there was no means
to cope with cases where juveniles on probation violate their conditions of probation. Although some people
criticized these revisions for promoting stricter punishment, such criticism is based on a misunderstanding,for the revisions make it possible to treat juveniles more appropriately according to each case and aim tostrengthen the treatment of juveniles. The same is true for the revision in 2014 to expand the range of cases
in which court-appointed attendants can participate, because the expansion contributes to the determinationof appropriate treatment through environmental coordination with the participation of an attendant from thehearing stage, as in the case of improving the appropriateness of the procedure for finding facts of thedelinquency.
B. Influence on the Basic Principle of the Juvenile Act
None of the four revisions made from these various factors touched Article 1 of the Juvenile Act, which
specifies juvenilesʼ sound development as the basic principle of the act. When the revision in 2008 was underdiscussion, there was the opinion that even the juvenile protective proceedings should place equal importanceon both the sound development of juveniles and the protection of victimsʼ rights and interests, for the Basic
Act on Crime Victims covers juvenile cases. However, this opinion was not adopted.
Among the above-described four factors, the fourth factor aims to improve the system for contributing tojuvenilesʼ sound development, which clearly supports the basic principle of the act. The first factor, whichaims to improve the procedure for finding the facts of the delinquency is also consistent with the basic
principle of the act, because accurate fact-finding of the delinquency is essential for determining appropriate
treatment of juveniles. However, depending on how to prepare the procedure, it may go against the basic
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idea. The revision in 2000 took this into consideration and maintained the existing inquisitional system insteadof adopting the opinion that the adversarial system should be introduced into juvenile hearings too.
Responding to this basic thinking, a system unusual from the viewpoint of comparative law was adopted
concerning the participation of the public prosecutor. Although public prosecutors were allowed toparticipate in hearings, they were neither a party to the proceedings nor a plaintiff demanding punishment,
but a cooperator for the hearing who participates only in the stage of fact-finding of the delinquency to theextent necessary.
The third factor for the revisions ‒ consideration for victims ‒ brought into the Juvenile Act aheterogeneous element that does not directly contribute to juvenilesʼ sound development. However, allsystems introduced as a result of the revisions are limited to those approved as long as they do not hinder thesound development of the juvenile. Therefore, those systems have been designed not to contradict the basic
principle of the Juvenile Act.
What is problematic is the second factor. If it aims only to make punishment for juvenile crimes stricter, it
seems to contradict the basic principle of the Juvenile Act. What is the most problematic is the revision of theprovision concerning the referral of the case to public prosecutors. During the process of legislation, theproposer of the revision explained that this revision aimed to promote juvenilesʼ sound development by
increasing their awareness of social responsibility and their normative consciousness. In that sense, thisrevision was also regarded as being within the framework of the juvenilesʼ sound development, because it
does not aim to impose severe punishment for serious crimes, but to prevent crimes by developing juvenilesʼ
responsibility and normative consciousness. I think it doubtful whether this explanation is persuasive, but this
explanation somehow reflects the legislatorsʼ efforts to protect the basic principle of the Juvenile Act, despite
efforts to reject the basic principle itself.

IV. RECENT TRENDS
In Japan, the suffrage age, the age of adulthood under the Civil Code, and the age of adulthood under theJuvenile Act have been uniformly set at 20. However, as a result of the revision of the Public Offices Election
Act, the suffrage age was lowered to 18, and the new suffrage age came into force in June last year.
Consequently, consideration is required for the treatment of the age of adulthood under the Civil Code andother laws and ordinances. With regard to the age of adulthood under the Civil Code, the Legislative Councilof the Ministry of Justice has already submitted a report to the effect that the age of adulthood should belowered to 18 if some conditions (useful for protection of young adults) are fulfilled. Following that, thediscussion about lowering the age of adulthood under the Juvenile Act will begin in the Legislative Council ofthe Ministry of Justice soon. At present, this is the hottest topic concerning the Juvenile Act.
There is strong objection to lowering the age of adulthood under the Juvenile Act. Those who oppose
lowering the age of adulthood insist that the Juvenile Act has so far effectively functioned to givereformatory education to juveniles who have committed crimes at the age of 18 and 19 and prevented themfrom committing crime again. Therefore, if the age of adulthood under the Juvenile Act is lowered, the repeat
offenses by persons in this age group will likely increase because the application of the proceedings andprotective measures under the Juvenile Act is denied. In addition, there is the opinion that the mental
maturity of the person at the age of 18 and 19 is lower than before, and therefore they should not be treatedas adults. Concerning the lowering of the age of adulthood in other areas of law, they insist that the age ofadulthood should be determined according to the purpose of each law, and therefore it is unnecessary to unify
the age of adulthood in different fields of law.
There is also the opinion that even if such a view (that it is unnecessary to unify the age of adulthood) is
generally correct, it is necessary to coordinate ages if laws have common grounds for applying different
treatment between adults and minors. On the ground that juveniles are immature and highly plastic, from theviewpoint of reformatory education, the Juvenile Act allows guardian-like intervention by the State, which is
not allowed in the case of adults. Because minors are subject to their parentsʼ supervision under the present
Civil Code, there is no inconsistency in the treatment of minors under the two laws. However, if the age ofadulthood is lowered to 18 under the Civil Code, it might not allow the State to make guardian-likeinterventions against the will of 18- and 19-year-old juveniles, who are not subject to their parentsʼ
supervision. For this reason, the age of adulthood under the Juvenile Act should be lowered in accordance
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with the age of adulthood under the Civil Code. On the other hand, in order to eliminate the negative effects ofthe exclusion of 18- and 19-year-old juveniles from the target of the Juvenile Act as much as possible, it isnecessary to establish a system for giving special treatment to 18- and 19-year olds and other young adultoffenders through correction and rehabilitation.

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ANTI-CORRUPTION MEASURES: A SHORT HISTORY IN JAPANTsuyoshi Yukawa＊

I. INTRODUCTION
The theme of this lecture is Japanese anticorruption measures. Japan is sometimes referred to as a
successful country with regard to combating corruption. Yes, as I indicate later, the number of corruption
cases has decreased in recent years, but Japan does not have any agencies specialized in combating
corruption. Moreover, Japan still has not ratified the United Nations Convention against Corruption, and somequite useful tools of investigation are lacking in the Japanese criminal procedure. These tools include
wiretapping and plea bargaining in corruption cases. If asked what is the important element in Japanesecriminal procedure to combat against corruption, I would say that the continuous efforts of the Japaneseprosecutors have played a vital role. Thus, in my presentation, I will highlight some issues in our experiencein Japanese history to fight against corruption, especially with regard to the relationship between corruption
and politics.

II. ANTI-CORRUPTION MEASURES BEFORE WORLD WAR II
I understand that there are many UNAFEI alumni here, and you have learned at UNAFEI about theJapanese criminal justice system. As for criminal procedure, Japan first introduced the continental legal
system, such as in France or Germany, but after World War II, Japan was occupied by the United States, andour criminal procedure was heavily affected and drastically changed by the common law system. Although I
will not go into the specific changes here, I would like to start my presentation by focusing on actual cases ofcorruption experienced in Japan before World War II.
A. The First Major Corruption Case and Some Background Information
The first major corruption case which appeared in Japanese history was the “Nitto” case, which was
revealed in 1909, more than 100 years ago. As the political and economic climate in Japan contributed to thecorruption case, both of these factors deserve brief mention here. In 1867, a “new” or modernized Japanese
government was formed. Before that, Japan was in the Samurai era, during which Japan was, in principle,
closed to international commerce and immigration. At that time, European countries and the US struggledwith each other to acquire colonies, and the new government of Japan emerged to form a modernized legal
system to be recognized as an independent nation. Thus, it enacted many laws, including the “Meiji”
Constitution in 1889. It also made several laws and regulations in the criminal justice field, and the Penal Codeenacted in 1907 was one of those efforts. Actually, this Penal Code is still in force today, although it has been
amend many times. The first major corruption case arose just after the enactment of the current Penal Code.
From the late 19th century to the beginning of the 20th century, Japan fought wars against China and thenRussia. The Russo-Japan War took place from 1904 to 1905, and the war was fought in northeastern China.
This war exhausted the Japanese economy, and after the war ended Japan suffered a severe depression.
Many companies struggled during this period, and one of those companies was the Nitto Company, which had
a big share in the market for sugar.
B. The Nitto Case
Representatives of Nitto gave bribes to the parliament representatives to enact laws related to sugar
products. First, a law about taxes over sugar products was successfully passed through the parliament, but abill to establish a national sugar company failed. The Nitto Company made efforts to field candidates for theProfessor at the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders(UNAFEI). (This article is based on the presentation made by Professor Yukawa at the Japan-Brazil Criminal Justice Seminar
held in Brasilia on June 19th, 2017.)＊

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parliament election to obtain some influence in the parliament.
At that time, police and prosecutors were authorized to conduct investigations, and in this caseprosecutors took the initiative to investigate. It is said that this was the first real case in which prosecutors
took charge of an investigation, and the prosecutors conducted the investigation independently from thepolice. They succeeded in prosecuting many members of parliament and executives of the company.
This was a very big case at that time, and prosecutors had found other evidence which suggested that
another oil company also tried to influence the parliament and bribed some of its members. Prosecutors wereactually proceeding with the investigation against this company and other politicians, but suddenly theinvestigation was terminated. It was reported that the Prime Minister called the Prosecutor General to stop
the investigation. As far as I know, there was no legislation or regulation authorizing the Prime Minister toterminate investigations. But at that time, the Prosecutor General was appointed by the Cabinet, so he had nochoice but to follow the instruction.
C. The Navy Corruption Case
Although the Nitto investigation was terminated, after a few years prosecutors found another big
corruption case in the Japanese Navy. This was just before World War I and the Japanese Navy was eager tobuy weapons, ships and other equipment from European companies. There was evidence that Siemens andVickers, both European weapon companies at that time, bribed some high officials in the Japanese Navy tosell their products. Prosecutors conducted an investigation under the leadership of the Prosecutor General,
who had been the Head of the Tokyo Appellate Prosecutorsʼ Office, which conducted the Nitto caseinvestigation. This investigation was successful and some high officials were prosecuted. This case also raiseda serious question about the budget of the Navy and caused a political dispute in the parliament. The Prime
Minister was, unluckily enough, from the Navy. As a result of the dispute he failed to pass the budget bill in
the parliament and had to resign his position.
D. Observations
Even in this early stage of the history of the Japanese prosecution service, prosecutors were quite eager
to investigate these corruption cases. Their proactive attitude was also supported by the public. At the time
when the Navy case was revealed, there were several public demonstrations in support of the investigatorsand protesting against the Cabinet and Navy. Prosecutors were admired in Japan. After these cases, thesystem of nomination of the Prosecutor General was altered so that the Emperor would directly appoint theProsecutor General, instead of the Cabinet. This was an honourable solution for the Japanese people becuase
the Emperor at that time was the most powerful figure in the country.
Regarding the influences on politics, the first major investigation, as mentioned above, was terminated by
the order of the Prime Minister, who was a politician. Also, the Navy case showed that the investigation could
heavily affect political disputes. Actually, the authority of investigation is quite powerful, and it can be easily
abused. Our history just before World War II tells us that such authority can be abused to suppress politicalopinions, which resulted in Japanʼs engagement in the tragic World War II.

III. ANTI-CORRUPTION MEASURES AFTER WORLD WAR II
As mentioned, Japan was occupied by the United States, and the US headquarters ordered the Japanese
to modify their criminal procedure under the influence of the American legal system. In practice, the postwar period in Japan experienced quite a lot of criminal cases.
A. Creation of the Special Investigation Department
One case involved the misappropriation of the equipment of the Japanese Army and Navy after the war.
The US headquarters ordered the seizure of the equipment, but much of it was lost. In 1947, a special division
to investigate such misappropriation cases was established in the Tokyo District Prosecutorsʼ Office, andcapable prosecutors were engaged in the investigation. Later, this special division changed its name to theSpecial Investigation Department, which is generally in charge of economic crimes, tax evasion cases and also
corruption cases.
This Special Investigation Department was created first in Tokyo, then in Osaka and Nagoya. As you
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probably know, Japan does not have any special agency focusing on the investigation of corruption cases, butthese Special Investigation Departments have played a major role in the investigation of corruption cases.
Prosecutors assigned to SIDs are known in Japan as specialists in investigation, especially against politicalcorruption, and it is also known that most cases they prosecute result in conviction. There are many highprofile cases handled by this Department, such as the Lockheed case in which the SID arrested the Prime
Minister.
B. Independence from Politics
After World War II, a new law was enacted, which clearly stated that only the Minister of Justice has theauthority to designate the Prosecutor General to take action with respect to a particular case. So now, in alegal sense, the Prime Minister cannot directly instruct prosecutors to take action on a case, and even the
Justice Minister cannot order individual prosecutors to handle a case in a particular way.
The Justice Minister is also a politician, as he or she is nominated by the Prime Minister from among themembers of parliament belonging to the ruling party. It might be easy to conclude that the Justice Ministerwould allow political circumstances to influence an ongoing investigation. This actually happened in 1954, butsince then there are no other cases in which this authority was exercised.
C. Corruption Case in 1954
This case involved a shipbuilding company that bribed high-level government officials and members ofparliament. The Special Investigation Department in the Tokyo Prosecutors Office conducted theinvestigation, and four members of parliament were arrested and prosecuted.
The next target of the SID was the Secretary General of the ruling party, who was suspected to havereceived money from the shipbuilding company. It is said that the prime minister strongly advised the Justice
Minister to exercise his authority to terminate the investigation. In May 1954, the Justice Minister ordered
the Prosecutor General not to arrest the secretary General, and right after he exercised this authority theJustice Minister resigned his position. This also caused a dispute in the parliament, and the Prosecutor
General was called to the parliament to testify about his conduct. The public strongly opposed his conduct,
and therefore this authority has never been exercised again.
D. Observations
Even after World War II, the prosecutorsʼ proactive attitude against corruption remained the same. This
attitude is also widely supported by the public, which even hinders the exercise of the authority that has beenclearly delegated to the Justice Minister by law. As a result, prosecutors have achieved de facto
independence from politics. The authority to investigate and prosecute cases may be strong enough to affectpolitics, but prosecutors in Japan after World War II have been careful not to influence politics. They
prosecute the cases in which evidence is sufficient to obtain a conviction, regardless of the political party thatthe suspects belong to.
E. Current Situation of Anti-corruption Measures in Japan
Below are some statistics, which indicate the number of bribery cases handled in Japan. The number wasquite high right after the war, but it has decreased significantly since then. In recent years, statistics showthat there are only 30 or 40 bribery cases a year.

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Then, what kind of tools do we have in order to investigate corruption cases? Wiretapping, undercover
operations, or plea agreement ̶ these are recognized as quite effective tools to investigate corruption cases,
but in Japan these measures are not allowed. We have some laws that allow wiretapping, but this tool is quite
restricted and used only in drug dealing cases in practice. Thus, Japanese prosecutors rely on traditional
measures such as financial investigation, search and seizure, and interrogation of suspects.
F. Financial Investigation
What makes the SID of the Tokyo Prosecutorsʼ Office the most special one is its techniques for conducting
financial investigation. The Japanese Code of Criminal Procedure authorizes prosecutors to ask private or
public entities without a warrant, as a non-compulsory measure, to provide financial records. Even on a
voluntary basis, when prosecutors ask banks for certain account information, banks are very cooperative inproviding it. The prosecutors use this method for seeking account information and bank records quite often.
We refer to it internally as “opening the account”, which means to ask the bank for account information.
There are many other methods for conducting financial investigation. One of those methods is to cooperatewith tax agencies, which have a lot of information about transactions that taxpayers in Japan engage in.
Tokyo SID is in charge of tax evasion cases, and it is quite good at cooperating with the Tokyo Tax Agency.
G. Recent Legislation
Lastly, I would like to touch upon legislation in Japan. Some important conventions on corruption havebeen adopted over the past two decades. One of them is the 1997 OECD convention against bribing foreign
public officials. Japan ratified this convention and amended its domestic law to criminalize the act of giving
bribes to foreign public officials.
There is also an important UN convention, which is the United Nations Convention against Corruption.
Japan signed the convention in 2003 but has not yet ratified it, because the amendment of criminal law andprocedure to ensure the domestic legislation compatible to the Convention was the subject of a hot dispute in
the parliament. This amendment was just adopted in the parliament last week, so I am sure that the Japanese
Government will ratify this convention very soon.
Also recently, there was an amendment to the Code of Criminal Procedure which passed the parliament
last fall, which introduces the plea agreement into Japanese criminal procedure. Before that, plea agreements
were prohibited in Japan. Of course, plea agreements are quite useful tools to accomplish fruitfulinvestigations, like in Operation Lava Jato or other cases in Brazil. This amendment will enter into force in
2018, and I hope this tool will be utilized properly in Japan. This amendment refers also to issues such as
extending the list of crimes subject to wiretapping, but corruption crimes still fall outside the scope of
wiretapping in Japan.
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This is the end of my presentation. I believe that this seminar has allowed us to better understand eachother in order to strengthen future cooperation in the fight against corruption.

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APPENDIXUNAFEIThe 165th International Senior Seminar

Left to Right:
Above
Mr. Gary Hill (United States), Dr. Matti Joutsen (Finland), Dr. Kittipong Kittayarak (Thailand), Dr. Anne
Skelton (South Africa)
4th Row
Ms. Oda (Staff), Ms. Iwakata (Staff), Mr. Ozawa (Staff), Mr. Haneda (Staff), Ms. Yamada (Staff), Mr.
Miyagawa (Staff), Mr. Furuhashi (Staff), Ms. Sato (Staff), Mr. Sakap (Papua New Guinea), Ms. Eto (Japan), Mr.
Nishie (Japan), Mr. Nakagawa (Japan), Mr. Nakazawa (Japan), Ms. Yamamoto (JICA)
3rd Row
Ms. Odagiri (Chef), Mr. Pereira (Brazil), Mr. Perez Alvarado (Guatemala), Mr. Duarte (Brazil), Ms. Kaiun(Papua New Guinea), Mr. Obeda (Cook Islands), Mr. Mainali (Nepal), Ms. Chaudhary (Nepal), Ms. Vuvut (Papua
New Guinea), Mr. Yamamoto (Japan), Mr. Mohamed (Maldives), Ms. Aboobakuru (Maldives), Ms. Ortega(Panama)
2nd Row
Ms. Ema (Staff), Ms. Ratanadilok (Thailand), Ms. Naphal (Papua New Guinea), Mr. Dorji (Bhutan), Mr. Fidel(Philippines), Mr. Manavaroa (Cook Islands), Mr. Mwangi (Kenya), Mr. Gul (Pakistan), Mr. Aboya (Cote dʼIvoire), Mr. Ali (Pakistan), Mr. Boti (Cote dʼIvoire), Mr. Zegarro (Panama), Mr. Zaw Min Oo (Myanmar), Mr.
Baniya (Nepal), Ms. Reboucas (Brazil)
1st Row
Mr. Schmid (LA), Prof. Yukawa, Prof. Watanabe, Deputy Director Morinaga, Dr. Richard Dembo (UnitedStates), Director Senta, Dr. Vetere (Italy), Prof. Hirano, Prof. Akashi, Prof. Yamamoto