Report of the Workshop

ROLE OF THE UNITED NATIONS STANDARDS AND NORMS
IN CRIME PREVENTION AND CRIMINAL JUSTICE IN
SUPPORT OF EFFECTIVE, FAIR, HUMANE AND
ACCOUNTABLE CRIMINAL JUSTICE SYSTEMS:
EXPERIENCES AND LESSONS LEARNED IN MEETING THE
UNIQUE NEEDS OF WOMEN AND CHILDREN, IN
PARTICULAR THE TREATMENT AND SOCIALREINTEGRATION OF OFFENDERS

Thirteenth United Nations Congress
on Crime Prevention and Criminal Justice
Doha, Qatar, 12-19 April 2015

United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders(UNAFEI)
March 2016TOKYO, JAPANThe views expressed in this publication are those of the respective presenters and authors
only, and do not necessarily reflect the views or policies of the United Nations, UNAFEI,
or other organizations to which those persons belong.

YAMASHITA Terutoshi
Director
United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan

http://www.unafei.or.jp
unafei@moj.go.jp

________________CONTENTSFORWARD................................................................................................................................ 1
INTRODUCTION
Background Paper ................................................................................................................. 5
Workshop Programme ........................................................................................................ 22
PAPERS AND CONTRIBUTIONS
Panel I (Women) ................................................................................................................. 29
KEYNOTE ADDRESSHer Royal Highness Princess Bajrakitiyabha Mahidol of Thailand ............................ 31
PRESENTATIONS
Penal Reform International .......................................................................................... 36
Dr. Kittipong Kittayarak (Thailand) ............................................................................ 38
Ms. Maria Noel Rodriguez (UNODC) ......................................................................... 43
Dr. Uju Agomoh (PRAWA) ........................................................................................ 50
Dr. Kelley Blanchette (Canada) ................................................................................... 70
Dr. Sandra Fernandez (Dominican Republic) .............................................................. 77
Ms. Sara Robinson (United Kingdom) ........................................................................ 82
Ms. Masako Natori (Japan) .......................................................................................... 87
Panel II (Children)............................................................................................................... 93
PRESENTATIONS
Ms. Alexandra Martins (UNODC)............................................................................... 95
Mr. Yvon Dandurand (ICCLR) .................................................................................. 102
Dr. Zhao Bingzhi (CCLS) .......................................................................................... 107
Dr. Carlos Tiffer (ILANUD) ...................................................................................... 115
Mr. Horace Chacha (Kenya) ...................................................................................... 137
Mr. Christian Ranheim (RWI) ................................................................................... 148
Mr. Christer Isaksson (Sweden) ................................................................................. 152
Ms. Valerie Labaux (UNODC) .................................................................................. 160
REPORT OF WORKSHOP I ................................................................................................ 167
ANNEX.................................................................................................................................. 175

FORWARD
Ensuring that the rule of law applies equally to all segments of society—in particularwith respect to vulnerable groups such as women offenders and children in conflict with the
law—is a continuing challenge experienced throughout the world. On the basis of thisrecognition, Workshop 1 on the “Role of the United Nations standards and norms in crime
prevention and criminal justice in support of effective, fair, humane and accountable criminal
justice systems: experiences and lessons learned in meeting the unique needs of women andchildren, in particular the treatment and social reintegration of offenders” was convened on
13 April 2015 in Doha, Qatar within the framework of the Thirteenth United Nations
Congress on Crime Prevention and Criminal Justice.
The Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI), a
member of the United Nations Crime Prevention and Criminal Justice Programme Network(PNI), was responsible for the administration of this workshop as an official component of
the Congress, and played the leading role in its organization and preparation. The United
Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI), as one of the PNI institutes, offered to take an active role in organizing
Panel I on the treatment of women offenders. Additionally, UNAFEI offered to publish thereport of the workshop.
The workshop aimed to describe the unique needs of women and children impacted by
the criminal justice system, assess the status of implementation of relevant United Nations
standards and norms, and develop effective strategies to ensure women offenders andchildren in conflict with the law receive fair and equal treatment that addresses their uniqueneeds. The workshop, consisting of a panel on women offenders and a panel on children in
conflict with the law, offered an opportunity for government representatives, experts andpractitioners to exchange information on strategies and best practices for addressing theunique needs of women and children. The conclusions of the panel discussions, assummarized by the moderator, appear at the end of the Workshop Report, which is publishedherein.
The present publication is a compilation of the summary of all the presentations anddiscussions of the Workshop, and all the reference papers made available to the workshop.
It is our great pleasure to publish this comprehensive report of the workshop to further
disseminate its outcomes globally.
I would like to express my sincere appreciation to the moderator and all of the presentersand pannellists of the workshop—the 18 prominent experts from all over the world without
whose strenuous contributions the workshop would not have been such an outstanding
success. Furthermore, I would like to thank the UNODC and RWI for their leadership inorganizing the workshop, and to all the individuals whose unselfish efforts behind the scenes
contributed significantly to the realization of both the workshop and this publication.

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Finally, I am convinced that this publication is essential reading material for all those
who are interested in offender treatment and reintegration, including criminal justicepractitioners, policy makers, and academics. I am also confident that it will serve as avaluable reference source for international, as well as local, training activities.
March 2016

YAMASHITA Terutoshi
Director of UNAFEI-2-

INTRODUCTIONBACKGROUND PAPER FOR WORKSHOP 1

*

*

*

WORKSHOP 1 PROGRAMME

Item 3 of the provisional agenda *Successes and challenges in implementing comprehensive
crime prevention and criminal justice policies
and strategies to promote the rule of law at thenational and international levels, and to support
sustainable development

Workshop 1: Role of the United Nations standards and norms incrime prevention and criminal justice in support of effective, fair,humane and accountable criminal justice systems: experiences
and lessons learned in meeting the unique needs of women andchildren, in particular the treatment and social reintegration of
offenders **Background paper
SummaryThis background paper highlights issues for consideration by Member States whendeveloping crime prevention and criminal justice strategies and measures that ensure theinclusion of gender and children-oriented perspectives, particularly with regard to thetreatment, social reintegration and prevention of recidivism of women and children. The
paper also provides an overview of the United Nations standards and norms in crime
prevention and criminal justice that are relevant in addressing the unique needs of womenand children in conflict with the law, in particular the treatment and social reintegration of
offenders. It further presents national experiences and key lessons learned in meeting thoseneeds, providing a set of specific recommendations for consideration during the Workshop.

I. Introduction

1. An important function of the United Nations has been the development of a broad range ofstandards and norms in the area of crime prevention and criminal justice. Many of these
instruments deal with the treatment of offenders and prisoners such as the Standard Minimum
Rules for the Treatment of Prisoners, 1 the Procedures for the Effective Implementation of theStandard Minimum Rules for the Treatment of Prisoners, 2 the Body of Principles for theProtection of All Persons under Any Form of Detention or Imprisonment, 3 the Basic*

A/CONF.222/1.
The United Nations Secretariat wishes to express its appreciation to the members of the United Nations Crime
Prevention and Criminal Justice Programme network of institutes, especially to the Raoul Wallenberg Instituteof Human Rights and Humanitarian Law and the United Nations Asia and Far East Institute for the Preventionof Crime and the Treatment of Offenders, for assisting in the organization of the Workshop.
1
Human Rights: A Compilation of International Instruments, Volume I (First Part), Universal Instruments(United Nations publication, Sales No. E.02.XIV.4 (Vol. I, Part 1)), sect. J, No. 34.
2
Economic and Social Council resolution 1984/47, annex.
3
General Assembly resolution 43/173, annex.
**-5-Principles for the Treatment of Prisoners 4 and the United Nations Standard Minimum Rules
for Non-custodial Measures (the Tokyo Rules). 5 In 2010, recognizing the need to provide
global standards with regard to the distinct considerations that should apply to women
prisoners and offenders, the United Nations Rules for the Treatment of Women Prisoners andNon-Custodial Measures for Women Offenders (the Bangkok Rules) 6 were adopted as asupplement to the Standard Minimum Rules for the Treatment of Prisoners.
2. Several standards and norms relating to the administration of justice for children in conflictwith the law 7 have also been adopted, including the recent United Nations Model Strategies
and Practical Measures on the Elimination of Violence against Children in the Field of Crime
Prevention and Criminal Justice, 8 which provide guidance to countries on how to develop
and implement the necessary legal, policy and institutional frameworks for preventing andresponding to violence against children in the field of crime prevention and criminal justice.
3. The above standards and norms represent important milestones in the treatment of women
offenders and children in conflict with the law. However, despite these achievements, crime
rates have escalated and there is an increased number of women offenders, while challenges
in meeting the needs of children in conflict with the law persist worldwide. Hence, it iscritical for Members States to develop crime prevention and criminal justice strategies andmeasures which ensure the inclusion of a gender and children-oriented perspective,
particularly as regards their treatment and social reintegration and the prevention ofrecidivism. Equally important are the efforts to eradicate all forms of discrimination andviolence against women and children at all levels of society, particularly when women andchildren enter in contact with the law.
4. More than 625,000 women and girls are held in penal institutions throughout the world,
either as pretrial detainees or as convicted and sentenced persons. 9 Women in conflict withthe law tend to be young, poor, undereducated and unskilled. It is recognized that women
have been adversely affected by poverty, lack of empowerment, as well as social, economic
and political marginalization and exclusion from the benefits of education, health andsustainable development. These challenges have placed them at higher risk of delinquency
and violence. It is therefore crucial that States address the structural causes that contribute to
women’s incarceration, as well as the root causes and risk factors related to crime andvictimization through social, economic, health, educational and justice policies.
5. The efforts to address these challenges should be linked to those related to the prevention
and elimination of all forms of gender-based violence. Violence against women, in fact, isamong the causal factors for women’s involvement in criminal offences and subsequentimprisonment. In the report entitled “Pathways to, conditions and consequences ofincarceration for women” (A/68/340), the Special Rapporteur on violence against women, its
4

General Assembly resolution 45/111, annex.
General Assembly resolution 45/110, annex. See also the Kampala Declaration on Prison Conditions in Africa(Economic and Social Council resolution 1997/36, annex) and the basic principles on the use of restorative
justice programmes in criminal matters (Economic and Social Council resolution 2002/12, annex).
6
General Assembly resolution 65/229, annex.
7
The definition of “children in conflict with the law” includes children alleged of, accused of or recognized ashaving infringed the penal law as mentioned in article 40, paragraph 1, of the Convention on the Rights of theChild. See also General Comment No. 10 of the Committee on the Rights of the Child.
8
General Assembly resolution 69/194.
9
Roy Walmsley, “World female imprisonment list”, 2nd ed. (London, International Centre for Prison Studies,2012).
5-6-

causes and consequences notes that there is a strong link between violence against women
and women’s incarceration, whether prior to, during, or after incarceration, and that evidence
from different countries suggests that incarcerated women have been victims of violence
prior to entering prison at a much higher rate than is generally acknowledged by the legal
system. The report also notes that those women belonging to ethnic and racial minorities or
victims of intimate violence or with histories of poverty, mental health problems, sexual
victimization and/or substance abuse are much more prone to entering the criminal justicesystem than are male offenders or women in the general population.
6. Gender stereotypes 10 also play a significant role in women’s involvement in the criminal
justice system and in the way punishment for women offenders is administered. Genderstereotypes have been a source of substantive harmful effects on women offenders andprisoners, including patterns of increased sentencing and specific forms of physical,
emotional and sexual violence, compared with male prisoners. Gender stereotypes associate
women more with the private sphere and characteristics of submissiveness and weakness.
Men, on the other hand, are traditionally seen as belonging to the public sphere and areassociated with the characteristics of strength and assertiveness. That narrative holds that men
are violent and women are peacekeepers. This is one of the cultural explanations for society’s
tendency to be unforgiving towards women offenders and for the persistence of thesubconscious belief that women offenders need to be punished more than rehabilitated.
7. The adoption of punitive approaches seems to be the prevailing response to issues related
to juvenile justice. This has led to an increasing number of children being drawn into thecriminal justice system and deprived of their liberty. Research shows that the majority ofdetained children are awaiting trial and that a large proportion of these children are held forminor offences and are first-time offenders. Many of these children belong to groups thatshould not be institutionalized. These include children with mental health problems, children
with substance abuse problems, children living and working on the streets, children in need ofcare and protection and unaccompanied migrant children (see A/HRC/21/25). In most cases,
they are first-time offenders and/or have committed petty offences. It is therefore crucial thatcountries have in place appropriate measures to prevent detention, including throughalternative measures to judicial proceedings such as diversion and restorative justice.
Likewise, it is crucial that countries have in place proper measures to address the specificneeds of children deprived of their liberty, in particular as relates to health-care services,hygiene and environmental sanitation, education, basic instruction and vocational training,
rehabilitation and reintegration programmes. Children in conflict with the law, and especiallychildren deprived of their liberty, face a high risk of violence, including as a result of public
stigmatization and the prevalence of physical and psychological punitive approaches. Everychild in conflict with the justice system must therefore be treated in a manner consistent withhis or her rights, dignity and needs, in accordance with international law, bearing in mind
relevant international standards and norms in the field of crime prevention and criminal
justice.

10

The term “gender” is not interchangeable with “women”. Gender refers to both women and men, to theirrelations, the dynamic of their interactions and the distribution of power between them. See the guidance notefor UNODC staff entitled Gender mainstreaming in the work of UNODC (Vienna, 2013), p. 13.

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II. Relevant international standards on women offenders andprisoners and children in conflict with the law
A. Women offenders and prisoners

8. Historically, most prison facilities worldwide were designed primarily for male prisoners,
ignoring the special needs of women, the number of whom in prisons has increased
significantly over the years. Consequently, women have remained in a disadvantaged position
with respect to their treatment during their interaction with the criminal justice system. The
United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures
for Women Offenders (Bangkok Rules) have been adopted with a view to improving thetreatment of women prisoners at all levels of their encounter with criminal law while
addressing the special gender needs that have gone unattended so far. They constitute asignificant advancement in the recognition and guarantee of women’s rights, as well as a
crucial step forward towards a modern gender-based approach for rehabilitation andreintegration of women offenders. The Rules also provide for the involvement of
non-governmental organizations in the design and implementation of pre- and post-release
reintegration programmes and extend the gender perspective to activities of capacity-building
for staff employed in women’s prisons. Furthermore, they advocate the application of
non-custodial measures for women offenders, particularly girl children in conflict with thelaw; reiterate the need to avoid institutionalization to the maximum extent possible for girlchildren in conflict with the law; and recognize the obligation to take into account thegender-based vulnerability of juvenile female offenders in all decision-making processes.
9. The first section (rules 1-39) of the Rules includes the rules of general application such asadmission, allocation, registration, gender-specific health-care services and programmes. The
second section (rules 40-56) refers to special categories of women and juvenile prisoners,
addressing classification and individualization, gender-sensitive risks assessment, special carefor women victims of violence or with a history of drug abuse, pregnant women, foreign
nationals and minorities and indigenous peoples, and prisoners under arrest or awaiting trial.
The third section (rules 57-66) entails non-custodial sanctions and measures, underlining theneed for developing gender-specific options for diversionary measures and pretrial andsentencing alternatives; while the fourth section (rules 67-70) deals with the promotion ofcomprehensive and result-oriented research on the reasons, impact, and characteristics thatforce women to confront the criminal justice system.
10. Violence against women has an impact on women’s contact with the criminal justicesystem and such violence may be a cause of women’s involvement in criminal offences andsubsequent imprisonment. With a view to assisting countries to strengthen their crime
prevention and criminal justice responses to violence against women, in December 2010 theGeneral Assembly adopted the updated Model Strategies and Practical Measures on the
Elimination of Violence against Women in the Field of Crime Prevention and Criminal
Justice, 11 which represent a comprehensive framework to assist States to eliminate violenceagainst women and to promote equality between men and women within the criminal justicesystem. The updated Model Strategies and Practical Measures provide a series of broad
recommendations organized around the following themes: criminal law; criminal procedure;police, prosecutors and other criminal justice officials; sentencing and corrections; victim
support and assistance; health and social services; training; research and evaluation; crime
11

General Assembly resolution 65/228, annex.

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prevention measures; and international cooperation. It should be highlighted that this
instrument specifically provides that in cases where women and girl victims of violence arecharged with crimes, relevant national criminal procedure laws should ensure that claims ofself-defence by women who have been victims of violence, particularly in cases of “batteredwoman syndrome”, are taken into account in investigations, prosecutions and sentences
against them. 12

B. Children in conflict with the law

11. In the Salvador Declaration on Comprehensive Strategies for Global Challenges: Crime
Prevention and Criminal Justice Systems and Their Development in a Changing World,13
adopted by the Twelfth United Nations Congress on Crime Prevention and Criminal Justice,Member States recognized the importance of preventing youth crime, supporting therehabilitation of young offenders and their reintegration into society, protecting child victims
and witnesses, including efforts to prevent their revictimization, and addressing the needs ofchildren of prisoners.
12. All interventions aimed at children in conflict with the justice system should abide strictlyby the principles and provisions of the Convention on the Rights of the Child 14 and otherrelevant international standards and norms. The Convention sets out the key principles that
apply to, and should be reflected in, a juvenile justice system, as well as specific due process
guarantees. Articles 37, 39 and 40 of the Convention pertain to children’s rights with respect
to juvenile justice and, more generally, the criminal justice system as a whole. Other articlesof the Convention set out the four leading principles that must be taken into account inaddressing the situation of children in conflict with the law, namely, (a) the principle ofnon-discrimination, irrespective of a child’s or his or her parent’s or legal guardian’s race,
colour, sex, language, religion, political or other opinion, national, ethnic or social origin,property, disability, birth or other status (art. 2 of the Convention); (b) the best interest of thechild, which should be a primary consideration in all matters affecting the child (art. 3); (c)the child’s right to survival and development (art. 6); and (d) the right of the child toparticipate in decisions affecting him or her, and in particular, to be provided the opportunity
to be heard in any judicial or administrative proceedings affecting him or her (art. 12).
13. The Convention on the Rights of the Child requires States to promote the establishment oflaws, procedures, authorities and institutions specifically applicable to children alleged as,
accused of, or recognized as having infringed the penal law (art. 40, para. 3, of theConvention). This provision is regarded as imposing a progressive requirement upon States toestablish a juvenile justice system which takes into account the child’s age and provides
human rights and legal safeguards and to establish alternatives to judicial proceedings.
Furthermore, the Convention requires States to establish a juvenile justice system with due
process guarantees to be applied to all children under the age of 18 who are in conflict withthe law; the system should promote the child’s reintegration and help the child to assume a12

Battered woman syndrome is suffered by women who, because of repeated violent acts by an intimate partner,
may suffer depression and are unable to take any independent action that would allow them to escape the abuse,including refusing to press charges or to accept offers of support (see para. 15 (k), including the footnote
thereto), of the updated Model Strategies and Practical Measures on the Elimination of Violence against Womenin the Field of Crime Prevention and Criminal Justice.
13
General Assembly resolution 65/230, annex.
14
Adopted by the General Assembly in its resolution 44/25 of 20 November 1989; entered into force on 2
September 1990.

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constructive role in society (art. 40, para. 1). The Committee on the Rights of the Child, 15 in
its general comment No. 10 (2007) on children’s rights in juvenile justice, 16 explains theneed for a general and comprehensive policy of protecting the rights of children in conflictwith the law based on the principles of the doctrine of comprehensive protection taking a
restorative and educational approach, as it provides the best conditions for effective social
rehabilitation and reintegration, preventing the recurrence of the behaviour. The Committee
also analyses the necessity of specialized justice and treatment for children in conflict withthe law to respect the principle of the best interests of the child.
14. The international normative framework related to children in conflict with the law alsobuilds upon a series of United Nations standards and norms adopted throughout the years.
15. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice(the Beijing Rules) 17 represent the internationally accepted minimum conditions for thetreatment of children who come in conflict with the law. They contain specific provisions
covering various stages of juvenile justice and stress that placement of a child in conflict withthe law in an institution shall always be a measure of last resort and be for the shortest
appropriate period of time. The United Nations Guidelines for the Prevention of Juvenile
Delinquency (the Riyadh Guidelines) 18 set forth standards for the prevention of crimes
committed by children. They have a child-centred orientation and are based on the premisethat it is necessary to offset conditions that adversely influence and impinge on the healthy
development of the child. The United Nations Rules for the Protection of Juveniles Deprivedof their Liberty, 19 which advocate the least possible use of deprivation of liberty, provide
specific principles that apply to all children in conflict with the law held in any form ofdetention and in any type of facility. They call for the separation of children from adults indetention and the classification of children according to their sex, age, personality andoffence type. They also set forth special provisions covering various aspects of institutional
life. Finally, the 1997 Guidelines for Action on Children in the Criminal Justice System 20
were adopted with the aim of implementing the provisions of the Convention on the Rights of
the Child with regard to children in the context of the administration of juvenile justice andpromoting the use and application of relevant standards and norms.
16. The Model Strategies and Practical Measures on the Elimination of Violence against
Children in the field of Crime Prevention and Criminal Justice, recently adopted, aim at
improving the effectiveness of the criminal justice system in preventing and responding toviolence against children and of protecting children against any violence that may result fromtheir contact with that system. The Model Strategies are grouped into three broad categories:(a) general prevention strategies to address violence against children as part of broader childprotection initiatives; (b) strategies and measures to improve the criminal justice system’sability to respond to violence against children and effectively protect child victims; and (c)strategies and measures to prevent and respond to violence against children in contact withthe justice system. They place a strong focus on the complementary roles of the justicesystem on the one hand, and the child protection, social welfare, health and education sectors,
15

Established pursuant to article 43 of the Convention to monitor progress made by States parties in
implementing their obligations under the Convention.
16
CRC/C/GC/10.
17
General Assembly resolution 40/33, annex.
18
General Assembly resolution 45/112, annex.
19
General Assembly resolution 45/113, annex.
20
Economic and Social Council resolution 1997/30, annex.

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on the other, in creating a protective environment and in preventing and responding toviolence against children.
17. Finally, the Bangkok Rules adopted special positive measures for children’s rights in thefollowing areas: (a) children admitted with their mothers in prison, (b) children that are about
to be born (pregnant mothers), (c) breastfed children/infants, (d) children of imprisoned
mothers/children visiting prisoners, (e) children living with a non-resident foreign-national
woman prisoner, and (f) girl children in conflict with the law.

III. Meeting the unique needs of women and children, inparticular treatment and social reintegration: national
experiences
A. Women prisoners

18. Even before the adoption of the Bangkok Rules in 2010, Thailand had been committed toaddressing the specific needs of women in prisons and mitigating the impact on their families
and children through the implementation of the Kamlangjai project, which provided
assistance and opportunities to female prisoners while in prison and to those about to bereleased, and of the “Enhancing lives of female inmates” project aimed at raising thestandards for the treatment of female prisoners. 21 Currently, Thailand is engaged in ensuring
the widest use and application of the Bangkok Rules at the national level. In that framework,in March 2013 the Thai judiciary decided to apply the Bangkok Rules in court trials
nationwide, 22 particularly with regard to their provisions related to alternatives toimprisonment. The Thailand Institute of Justice, in cooperation with Penal Reform
International, launched the Toolbox on the United Nations Bangkok Rules, which includes a
guidance document and index of implementation, a short guide to the Bangkok Rules, a free
online course entitled “Women in detention: putting the United Nations Bangkok Rules inpractice”, and a guide to gender-sensitive monitoring of women in detention. 23
19. In Afghanistan, a project run by the non-governmental organization Medica Afghanistanoffers general legal advice to women and provides female prisoners with criminal defence incourt. Since the project began, some 8,000 women have benefited from mediation, legal
advice or criminal defence in court. About 2,000 women facing a court case were acquitted or
received a sentence lower than what the State prosecutors had demanded thanks to theassistance provided in court. 24 In Kyrgyzstan, as part of the project entitled “Support toprison reform in the Kyrgyz Republic”, jointly implemented by the European Commission
and the United Nations Office on Drugs and Crime (UNODC), in the female prison in
Stepnoe village a course on soy milk production as an income-generating activity was set up
for women prisoners. Furthermore, UNODC provided support to the research project
conducted by Penal Reform International entitled “Who are women prisoners? Survey results
21

Nathee Chitsawang, “Key issues of women prisoners: lessons learned from Thai prisons”, in Annual Reportfor 2012 and Resource Material Series No. 90 (Tokyo, Asia and Far East Institute for the Preparation of Crimeand the Treatment of Offenders, August 2013), part two, Work Product of the 153rd International Senior
Seminar “Treatment of Female Offenders”,
pp. 106-118.
22
www.nationmultimedia.com/national/Bangkok-Rules-for-women-convicts-30202577.html.
23
Available at www.penalreform.org/priorities/women-in-the-criminal-justice-system/
bangkok-rules-2/tools-resources/.
24
Further information is available at www.wunrn.com.

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from Kazakhstan and Kyrgyzstan”.
20. In Nigeria, the Kirikiri prison in Lagos is implementing a project on preventing
HIV/AIDS among female prisoners based on the following elements:(a) the organization of peer education training to raise awareness of the prevention of
HIV/AIDS among prisoners and prison personnel who act as caregivers;(b) the development, production and distribution of material to raise awareness;(c)the holding of pre- and post-test counselling sessions for prisoners and prison personnel;(d) the provision of relief materials for infected mothers and their babies; and (e) the
provision of drugs to infected prisoners. 25 In Sierra Leone, the non-governmentalorganization AdvocAid has produced a handbook on the Bangkok Rules to assist prison
officials, prisoners and civil society in promoting the enforcement of human rights
standards for girls, women and their children in the criminal justice system. 26
21. One of the interesting experiences in prison management and administration in the Latin
American and Caribbean region is the New Model of Prison Management in the Dominican
Republic, which covers 18 prisons: 14 for men and 4 for women. The self-assessment of the
new Model noted the following results: a zero illiteracy rate after six months; inmates wereactively participating in educational programmes and work, spiritual, sport and artistic
activities; prisoners had access to computer schoolrooms in all centres and no cases ofovercrowding; and well-trained and motivated prison staff at all levels. The Model is basedon strict compliance with the international standards and norms related to the treatment ofprisoners, including the Bangkok Rules, and other important elements such as mandatory
participation in educational and rehabilitation programmes.
22. Under the framework of a UNODC project on prison reform, Panama has achieved
significant results for the treatment of women prisoners. First, an inter-institutional working
group to improve conditions for female prisoners was established. Then, a specialized
programme focusing on the female inmates, designed in line with the Bangkok Rules, wasimplemented, and a special informative pamphlet for female inmates was prepared.
Regarding education and training, the University of Panama opened a branch inside thefemale prison in Panama City, and more than 60 inmates are currently participating indifferent university studies. Furthermore, the number and the quality of reintegration
activities for women have increased, including through new productive projects such as one
on hydroponics. Prison staff have received gender and human rights training, and UNODC
prepared an online self-paced course based on its Handbook on Women and Imprisonment.27
Several lessons can be learned from the implementation of this project. First, the project
showed that, because women make up a small percentage of the prison population andbecause the women prisoners rarely caused major incidents or problems, it was not easy forthe authorities and prison staff to immediately see the importance of developing specificprogrammes and services for women prisoners. Second, the establishment of an
25

For more information, see: www.wunrn.com/news/2012/01_12/01_16/011612_women2.htm.
For more information, see: www.advocaidsl.com/2011/12/09/advocaid-and-giz-producehandbook-on-unstandards-for-the-treatment-of-female-prisoners/.
27
Handbook on Women Imprisonment, Criminal Justice Handbook Series (United Nations publication, Sales
No. E.14.IV.5).
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inter-institutional working group was an excellent way to address female prisoners’ problems
and needs through a holistic and integrated approach. Further, a crucial element for the
success of the project was the active involvement of the women prisoners in the design of the
programmes and workshops. Likewise, it was crucial to work with female prisoners andprison staff in parallel so that prison staff would not feel that their own needs were notrecognized or addressed. Finally, the successful implementation of the project also relied on
the sharing of information about offences committed by women and prison conditions for
women to sensitize criminal justice agents and community.
23. In Brazil, the Ministry of Justice, in cooperation with the Federal Prison Department, hasestablished specialized schools for prison staff and postgraduate courses on prison
management with a gender perspective. In Ecuador, on the basis of the country’s Constitution,indigenous women have developed their own “rules for living together well”, in line withindigenous justice principles, addressing the rehabilitation and reintegration of women
offenders and children in conflict with the law. The rules ensure that no violence anddiscrimination will be used when exercising indigenous justice. In Haiti, the International
Committee of the Red Cross, working in cooperation with the national prison administration,
has just completed a new custody area in the civilian prison in the southern city of Les Cayes,
one of the most overcrowded detention facilities in the country, where more than 600 people,
including around 30 women, are being held. The new custody area had to be built as a matterof priority to give women the protection they required because of their special needs. The two
new cells will accommodate some 30 women and will be equipped with renovated sanitaryfacilities and an improved electrical and air circulation system. 28
24. After the adoption of the Bangkok Rules, several initiatives have been taken at theEuropean level to bring relevant policies, strategies, programmes and training in line with the
new instrument. In 2011, the Inspector of Prisons of Ireland published supplementary
documentation to give guidance to the prison services on best practices for the managementof women’s prisons. In 2012, the United Kingdom of Great Britain and Northern Irelanddeveloped and issued new criteria to evaluate conditions and improve the management of
women’s prisons; 29 while the European Organisation of Prison and Correctional Services(EuroPris) has started to organize workshops on “Education and training for values-driven
work: future concepts” and on gender, for prison staff. The programme “Education for
women offenders” has been successful in Europe. In Slovenia, women prisoners, who are few
in number, have the possibility of attending programmes at outside educational institutions,and the national system provides educational opportunities for each prisoner according to herneeds and wishes. In the Czech Republic, education for prisoners is guaranteed only to theend of the primary school level, while in Estonia education goes up to the secondary schoollevel. In Belgium, in response to the need to offer to women prisoners a type of security
system already in use with male prisoners, the first open prison for women will open in 2016,
with room for 100 female prisoners.
25. In the light of the need to develop gender-specific programmes and measures in prisons toensure equal access and equal rights for all prisoners, the European Institute for Crime
Prevention and Control, affiliated with the United Nations, and the Scientific Institute of the
28

International Committee of the Red Cross, “Haiti: new custody area for women in Les Cayes prison”, 21 May
2014. Available at www.icrc.org/.
29
Caroline Pradier, “Penal reform and gender: update on the Bangkok Rules”, in Gender and Security Sector
Reform Toolkit, annex, Megan Bastick and Kristin Valasek, eds. (Geneva, Geneva Centre for Democratic
Control of Armed Forces, 2008).

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Medical Association of German Doctors launched the project “STRONG: Capacity-building
on female prisoners with a history of violence and abuse” to identify existing European
programmes and practices addressing women in prison who have experienced childhood,
intimate partner or other forms of physical and sexual violence. The project has been
implemented in Finland, Germany, Lithuania, Poland and Scotland. Based on the inputs
gathered, a training programme for prison staff was developed with the aim of helping staff tobetter meet the needs of female prisoners who have experienced violence. In October 2012, a
national seminar and three prison training sessions were organized in Finland in cooperation
with the Training Institute for Prison and Probation Services to pilot the training material.
26. In the United States of America, in 2011 the organization Greenhope opened in New
York City the Kandake House, a community residential facility that enables women offenders
to carry out their sentence while remaining with their children. The facility can house up to
72 women, including 28 women with children, and takes a holistic, dynamic and flexible
approach to the care of women offenders. It has an alumnae association of women who havesuccessfully ended their involvement with the criminal justice system and can guide others.
The recidivism rate among women assisted by Greenhope is less than 10 per cent, while therate of successful parole completion is around 75 per cent, and the rate of job placement is 65
per cent. 30 In Australia, several good practices are in place in the management of the healthof women prisoners, including the establishment of a dedicated facility in New South Walesfor women with complex psychological issues. The facility provides the following services:
provision for the timely and relevant health screening (i.e., breast checks, cervical screening
and ultrasound scans); drug-free units; attending to the specific nutritional needs for women
who report being pregnant and/or lactating; and a broad range of on-site medical services
such as general medical assistance and psychiatry, dental, optical, podiatry and mental healthassistance during imprisonment and upon release. 31
27. States have taken different approaches to the issue of children whose mothers are theprimary carers. In Poland and Spain, prisons have special units to allow pregnant women andmothers to stay with their children under the age of three. Similarly, in Kyrgyzstan, women
who were incarcerated while pregnant can keep their young children with them until the ageof three. Germany allows mothers to have their children with them in prison until the childreaches the age of six years, while Argentina and Italy allow for house arrest if certain
conditions are met. Furthermore, Italy offers an alternative work programme for mothers withchildren under the age of 10 years. In Canada, a judge of the British Columbia Supreme
Court, in December 2013, ruled that imprisoned mothers have the constitutional right to carefor their newborn babies. The decision came as a result of a lawsuit brought by two former
inmates on behalf of all women incarcerated in the province, and the suit centred on a
programme for mothers of newborn babies at the Alouette Correctional Centre for Women in
Maple Ridge, which was cancelled by the government of British Columbia in 2008. The court
ruled that the decision was unconstitutional because it would separate mothers and babies
during a critical bonding period. 32

B. Children in conflict with the law

28. Several lessons can be learned from the UNODC experience in improving detention
conditions and the reintegration of child offenders. Good practices include, in particular, the30

Further information is available at www.greenhope.org.
L. Bartels and A. Gaffney, Good Practice in Women’s Prisons: A Literature Review (Canberra,
Australian Institute of Criminology, 2011).
32
For further information, see www.cbc.ca/1.2466516.
31- 14 -

adoption of a holistic approach and the involvement of all relevant stakeholders byfacilitating coordination and collaboration between international, regional and national actors,
including civil society organizations.
29. In its work to support the juvenile justice system in Jordan, UNODC partnered with
non-governmental organizations which organized rehabilitation programmes for children inthree juvenile centres together with staff training programmes. This partnership allowed all
stakeholders to benefit from the expertise and prior experience of the non-governmentalorganizations in implementing similar projects in the country and helped to avoid pitfalls andincrease efficiency. In Lebanon, UNODC supported the setting-up of a Youth Department in
the Ministry of Justice and the strengthening of the prison administration for juveniles. The
involvement of a wide range of partners was crucial to achieve results, starting with a detailed
assessment of the existing situation, to legislative reform, followed by information andawareness campaigns, training programmes and study tours. A key lesson learned withrespect to coordination and ownership was that various decrees, ministerial decisions andorders adopted by relevant national stakeholders contributed to the project’s implementation.
The participation of selected qualified adult prisoners in the rehabilitation programmes ofyoung offenders not only contributed to the development of vocational training for juvenile
detainees but also led to improved detention conditions of the adults concerned and opened
up possibilities for introducing rehabilitation programmes for other adult prisoners. In Egypt,
UNODC supported a juvenile correctional institution in the Marg area of Cairo, facilitating
vocational and literacy training and setting up a cinema club, a barber shop, a gymnasium, acomputer lab and a sports facility. The project reduced violence among children in detention
and improved relationships with social workers. The project also improved the capacities ofsocial workers to better handle difficult personalities and rehabilitation problems, andcontributed to more positive attitudes towards social rehabilitation among public officials. A
holistic implementation approach resulted in an integrated development model for thedetention conditions covering both social and physical aspects. Coordination was equallycrucial to the success of the project. The participation of all parties involved, including
officials from the Ministry of Social Solidarity and the Ministry of Interior, correctional
personnel, the children and youth in detention and UNODC, in conducting the assessment
study was crucial in identifying the appropriate rehabilitation activities to improve thedetention conditions. Effective coordination was achieved by placing the implementation of
relevant activities under the authority of the Ministry of Social Security, while theparticipation of the Ministry of Interior in the planning and implementation of activities
contributed to changing the attitudes of its personnel towards the social rehabilitation
component.
30. Work by UNODC on the reform of the juvenile justice system in Afghanistan has
highlighted the need to take the cultural context seriously. By training local trainers in Kabul,a group was formed of competent nationals, who could deliver the knowledge and skills they
had gained to the trainees in their own language. Given the language proximity and similarity
in cultural backgrounds, that resulted in a better understanding among trainees and easieraccess to new ideas.
31. Other important lessons can be drawn from the experiences of other countries that havedeveloped and implemented innovative approaches to the issues of treatment andrehabilitation/reintegration of children in conflict with the law. Albania, Azerbaijan,
Kazakhstan, Turkey and Ukraine, for example, have established police juvenile reception
centres, which have a broad range of functions, including temporary detention or shelter for- 15 -

runaway children suspected of offending and illegal migrants under the age of 18. In
Bangladesh, a local non-governmental organization, Aparajeyo-Bangladesh, promotes
alternatives to pretrial detention in selected districts through its juvenile justice project. In
that framework, social workers regularly visit target police stations to monitor children in
conflict with the law and negotiate the release of children from police stations. The legal
advisor and panel of lawyers represent the children in court and advocate for the release of
the child on bail. In some cases, Aparajeyo provides funding for a bail bond if the child’s
parents cannot be located or cannot afford to pay. In 2000, India introduced a partnershipapproach for the management of children’s institutions. One of the best examples is the
Prayas Observation Home for Boys in Delhi. Prayas, a local non-governmental organization,
made significant changes to the facility in Delhi, making it less prison-like and morechild-friendly. Prayas has a team of counsellors and probation officers that assess the children
and conduct family tracing and family reunification. All children participate in education andvocational training and regularly take part in recreational and cultural activities. In Nepal, thenational police and the United Nations Children’s Fund have developed an innovative
juvenile justice training programme for officers who are to be assigned to the newly createdjuvenile police units. The programme is practical, rather than theoretical, focusing on the coreskills, procedures and tasks that police need to know to deal with a child offender in achild-friendly way. Using case studies, the training programme encourages police trainees tofollow special procedures and to develop solutions within the national context for theprotection of children.
32. In South Africa, with regard to child offenders, the innovative one-stop Child JusticeCentres prevent young people from being pushed from service to service and thereby getting
lost in the system. The Child Justice Act 75 of 2008 envisages that one-stop Child JusticeCentres will be established to streamline the entire justice process, from arrest to the formal
court process. In Zambia, as part of the development of the Arrest, Reception and Referral
Services centres, officials have received training in South Africa on a fairly wide andintensive basis, with the assumption that they would implement the training in the pilot
projects. In Malawi, the Child Care, Protection and Justice Act states that the officer incharge of the police station has the power to caution and discharge a child offender with orwithout conditions. This may happen only if the offence committed was not serious, if there
is sufficient evidence to prosecute the child, and if the child voluntarily admits responsibility
for the offence.

IV. Conclusions and recommendations

33. Member States ought to act with due diligence to prevent, respond to, protect against andprovide redress for all forms of gender-based violence. As this type of violence has an impact
on the incarceration rate of women, by acting with due diligence in preventing andresponding to gender-based violence, Member States can significantly contribute to reducing
the number of women offenders and prisoners. In addition, Member States should endeavour
to address the structural causes that contribute to women’s incarceration as well as the root
causes and the risk factors related to crime and victimization. Likewise, Member States havean obligation to protect the rights of children in conflict with the law and ensure that they are
deprived of their liberty only as a measure of last resort and for the shortest period of time.33
Member States must protect the human rights and best interests of children, as called for in33

See article 37 (b) of the Convention on the Rights of the Child and rule 13.1 of the Beijing Rules. See also
A/CONF.222/RPM.1/1, para. 26; A/CONF.222/RPM.2/1, para. 16; and A/CONF.222/RPM.4/1, para. 23.

- 16 -

the Convention on the Rights of the Child and the Optional Protocols thereto, 34 and in otherrelevant United Nations standards and norms.
34. In addition to respecting the provisions of the international human rights framework,
primarily the Convention on the Elimination of All Forms of Discrimination against Womenand the Convention on the Rights of the Child, it is important that States address in an
integrated and holistic way the close interrelation between gender stereotypes, violence,
discrimination and the needs of women offenders and children in conflict with the law,guaranteeing their full reinsertion into society and the prevention of recidivism. That requires
a range of strategies including providing active support, training and assistance to local actors
and consulting and cooperating with prison staff in order to adapt policies and strategies tolocal needs.
35. The Bangkok Rules constitute an important achievement in providing a gender-based
response to the needs of women offenders and prisoners. Since their adoption, several
countries have adopted strategies, policies and programmes in line with this instrument, andefforts have been made to foster their use and application in the design and implementation ofpenal policies. The national experiences provide some general, key lessons upon which
Member States can draw in meeting the needs of women prisoners.
36. First, it is crucial to recognize that even if women prisoners represent a minority of theprison population, they do have special needs that must be catered for. Secondly, it isimportant that policymakers and relevant authorities recognize that in many cases women
who enter in contact with the criminal justice system are not violent offenders but that manyof them are victims of mental and/or psychological abuse. Therefore, as advocated by the
Bangkok Rules, national legal systems should provide for a proper system of gender-specificalternatives to sentencing for women offenders, particularly for pregnant women and womenwith child-care responsibilities, and should recognize women’s histories of victimization
when making decisions about incarceration. It is also crucial that countries address the
structural causes that contribute to the incarceration of women, as well as the root causes andrisk factors related to crime and victimization through social, economic, health, educationaland justice policies. Furthermore, it is vital to equip women prisoners, both from an economic
and an educational perspective, with skills that facilitate their reintegration into society after
release, thus preventing recidivism. It should also be recognized that specific policy guidanceon how to deal with foreign women prisoners should be developed, as they face additional
problems, including receiving fewer visits and less support from their relatives, difficulties inunderstanding the local language or adapting to the local culture, and being uninformed ofwhat is happening to their families while they are awaiting trial or serving a sentence abroad.
37. With regard to the treatment and social reintegration of children in conflict with the law,countries should recognize the need to integrate children’s issues in their overall rule of law
efforts, to pay particular attention to the issue of child justice and to take into consideration
applicable United Nations standards and norms for the treatment of children in conflict withthe law, particularly those who are deprived of liberty, and child victims and witnesses ofcrime, taking into account the gender, social circumstances and development needs of suchchildren.
38. Nowadays, there are several good practices for the treatment and reintegration of children,
34

United Nations, Treaty Series, vols. 1577, 2171 and 2173, No. 27531.

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in particular the adoption of a holistic approach and the involvement of all relevant
stakeholders. The experience of countries also indicates that not enough attention has been
given to the problem of girls in conflict with the law as, traditionally, the number of cases
was not large. Therefore, their particular needs had not been sufficiently attended to prior to
the adoption of the Bangkok Rules. Greater attention needs to be given to incorporating agender perspective in the implementation of all goals set in the Bangkok Rules for juvenile
female offenders. In particular, Member States should make sure that a broad range ofalternative and educative measures are available at the pre-arrest, pretrial, trial and post-trial
stages, in order to prevent recidivism and promote the social rehabilitation of female juvenile
offenders. Applying mechanisms for the informal resolution of disputes is crucial. In all thesedecision-making processes, not only the family but also the child should be involved, to theextent that such processes operate in favour of the best interest of the child offender. The
principle of minimum intervention must be respected at all times. Furthermore, in recognitionof the consideration that no crime prevention or criminal justice reform strategy is complete
without effective measures to address the problem of recidivism, it is important that acomprehensive strategy addressing children in conflict with the law takes into accounteffective social integration or reintegration programmes as essential means of preventing
recidivism and increasing public safety.
39. The experience of the past years indicates that one of the most important developments inaddressing the challenges of crime prevention and criminal justice has been the recognition of
the role played by civil society and the relevance of community involvement. Throughout theyears, community involvement has played a critical role in promoting the United Nations
standards and norms in support of an effective, fair, humane and accountable criminal justicesystem. Community involvement approaches reduce opportunities for crime andvictimization, promote a proactive problem-solving approach to local crime problems, andsupport social reintegration to women offenders and children in conflict with the law during
their phase of re-entry into society, as well as the period starting from prosecution up to therelease stage.
40. Effective efforts to address today’s challenges in crime prevention and criminal justice,which take into account the particular vulnerabilities and risk factors for crime and thevictimization of women and children, require effective partnerships among internationalorganizations, Governments and civil society organizations, including indigenous and local
communities, local and national governments, the business community, academia and theprivate sector. Nowadays, several community-based rehabilitation programmes have beendeveloped based on mobilizing civil society for supporting valid initiatives of reintegration
programmes for women offenders and children in conflict with the law. 35 Similarly, theinvolvement of the general public and the community in campaigns and relevant training
programmes is crucial to combat attitudes that assign women and girls an inferior status andlegitimize discrimination and violence against them, to dispel negative stereotypes on women
offenders and children in conflict with the law and to systematize awareness-raising
campaigns on zero tolerance for violence against women.
41. Furthermore, creating a non-discriminatory environment for women offenders andchildren in conflict with the law requires strengthened political commitment, leadership andintensive training for the professionals involved. Efforts should be made to ensure that35

See UNODC, Introductory Handbook on the Prevention of Recidivism and the Social Reintegration of
Offenders, Criminal Justice Handbook Series (Vienna, 2012).

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relevant staff are carefully selected, trained and supervised. Likewise, authorities mustencourage and recognize staff, particularly female staff, by establishing a gender responsive
promotion policy.
42. In conclusion, bearing in mind the objective to meet the unique needs of women andchildren, in a more effective, fair and humane manner, pursuant to the relevant United
Nations standards and norms, the Workshop may wish to consider the following
recommendations:(a) Member States should recognize the special needs of women and children as victims ofviolence and criminalize all forms of violence against women and children;(b) Member States should consider developing and implementing policies and measures toprotect victims, prevent the re-victimization of women and children and ensure reparation,in accordance with the requirements of due diligence;(c) Member States should adopt relevant policies and measures for women offenders andchildren in conflict with the law in line with the Bangkok Rules and relevant United
Nations standards and norms applicable to the administration of justice for children;(d) Member States should promote the use of alternative measures to judicial proceedings,
such as diversion and restorative justice, both for women and children offenders. The
attention of civil society and the media should be drawn to the importance and relevanceof using alternatives to imprisonment in the case of children;(e) Building on the successful outcomes of restorative justice programmes in some countries,
Member States should ensure that more resources are invested in programmes that have a
proven impact in reducing recidivism;(f) Member States should share information on good practices to reintegrate ex-prisoners andchildren who have been released from detention facilities into society and to build thecapacity of correctional officers and child detention centre personnel with regard torehabilitation and social reintegration approaches;(g) Member States should support awareness-raising and public participation in theidentification of solutions to prison overcrowding and effective measures for the social
reintegration and rehabilitation of offenders;(h) Member States should prioritize unrestricted access for all women and children deprivedof their liberty to the various levels of formal education and should offer incentives topersons who studied while deprived of their liberty;(i) Member States should recognize that education for incarcerated women must take into
account their specific conditions and situation which are often consequences of poverty
and/or their family situation. Furthermore, the presence of babies and children in prisonsmust be taken into account so as to ensure that education includes not only women but
addresses also the developmental needs of their children;- 19 -

(j) Member States should ensure that relevant training for women and child offenders takes
into consideration their individual capacities and vocations, as well as market demand. In
this regard, partnerships with the private sector should be pursued;(k) Member States should develop rehabilitation and social reinsertion activities andprogrammes for girls deprived of their liberty which are not based on traditional,
gender-biased occupations.
(l) Recognizing the specific problem of foreign women prisoners, who are at a particulardisadvantage for a number of reasons, Member States should be encouraged to develop
policy guidance on how to deal with such cases in line with the provisions of the Bangkok
Rules. Particular attention should be paid to the situation of women migrants held incustody, typically on administrative grounds, who are either asylum-seekers or irregularimmigrants awaiting adjudication of their claims;(m) Member States should consider establishing appropriate mechanisms to ensure prompt
access to justice for women and children held as suspects;(n) Member States should ensure compliance with the principle that the deprivation of libertyof children should be used only as a measure of last resort and for the shortest appropriate
period of time, as well as avoid, wherever possible, the use of pretrial detention forchildren, and provide support and services for children deprived of their liberty prior toand after release in order to promote their rehabilitation and reintegration into thecommunity;(o) Member States should recognize the specific challenges of dealing with unaccompanied
migrant children and should develop appropriate criminal justice strategies in line withexisting international instruments;(p) Likewise, Member States should recognize the specific challenges of responding tocrimes committed by minors against minors and should develop appropriate criminal
justice strategies in line with existing international instruments;(q) Member States should establish within the juvenile criminal justice system specialized
positions for judges, prosecutors and public defenders who are duly qualified in theadministration of sentences.
43. Furthermore, the Workshop may wish to consider the following additional
recommendations:(a) The Commission on Crime Prevention and Criminal Justice should be invited to complete
the revision of the Standard Minimum Rules for the Treatment of Prisoners, inaccordance with existing mandates;(b) UNODC should facilitate, in cooperation with the Office of the United Nations HighCommissioner for Human Rights and its National Institutions Unit, a worldwide
dissemination of the Bangkok Rules, produce gender-sensitive tools for the monitoring ofprisons worldwide and facilitate the collection of data on prisoners disaggregated bygender;- 20 -

(c) UNODC should, in cooperation with relevant partners, conduct a global study on thestatus of children deprived of their liberty with a view to informing international andnational policymakers on global trends and patterns with respect to the size and thecharacteristics of the phenomenon and to developing and implementing appropriate
measures;(d) UNODC should provide comprehensive technical assistance, upon request by Member
States, on how to reintegrate into society women and children who are deprived of theirliberty.

- 21 -

- 22 -

Organised by the United Nations Office on Drugs and Crime (UNODC) in cooperation with the Raoul Wallenberg Institute of
Human Rights and Humanitarian Law (RWI), Lund/Sweden, the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders (UNAFEI), Tokyo/Japan, the European Institute for Crime Prevention and Control,
affiliated with the United Nations (HEUNI), Helsinki/Finland, United Nations Latin American Institute for the Prevention of
Crime and Treatment of Offenders (ILANUD), San José/Costa Rica, The International Centre for Criminal Law Reform andCriminal Justice Policy (ICCLR), Vancouver/Canada, The International Centre for Crime Prevention and The College for Criminal
Law Science of Beijing Normal University, (CCLS) Beijing/China, and the Thailand Institute of Justice (TIJ)

13-14 April 2015

“The role of the United Nations standards and norms in crime prevention and criminal justice in support ofeffective, fair, humane and accountable criminal justice systems: experiences and lessons learned in meetingthe unique needs of women and children, in particular the treatment and social reintegration of offenders”

Workshop 1

Thirteenth United Nations Congress on Crime Prevention and Criminal Justice
Doha, Qatar

- 23 -

Monday 13
April,
Morning Session

 Presentation of the workshop by the Moderator
Prof. Yvon Dandurand, Fellow and Senior Associate, International Centre for Criminal Law
Reform and Criminal Justice Policy (ICCLR), Vancouver, Canada

Mr. Yamashita Terutoshi, Director, United Nations Asia and Far East Institute for thePrevention of Crime and the Treatment of Offenders (UNAFEI), Tokyo, Japan

Mr. Morten Kjaerum, Director, Raoul Wallenberg Institute of Human Rights andHumanitarian Law (RWI), Lund, Sweden

 Opening remarks
Ms. Claudia Baroni, United Nations Office on Drugs and Crime (UNODC), Vienna Austria

 Opening
Chairperson

 Keynote speech by HRH Princess Bajrakitiyabha Mahidol of Thailand
Addressing the needs of women prisoners through effective and sustainable
implementation of the United Nations’ Standards and Norms
 Why the Bangkok Rules are needed and their implementation five years on
Ms. Taghreed Jaber, Regional Director, Middle and Northern Africa Office, Penal Reform
International (PRI), Amman, Jordan

10.30-10.50

10.5012.30

Panel I on “Women: treatment of offenders, rehabilitation and social reintegration

10.00-10.30

- 24 -

Monday 13
April, Afternoon
session(Panel I cont’d +Panel II)

15.40-16.20

15.00-15.40

12.30-13.00

Discussion from the floor and wrap up of Panel I by the Moderator

 Capacity-Building of Female Correctional Officers: From the Perspective of
Administration of Women’s Prisons in Japan
Ms. Masako Natori, Director of Facilities Division, Ministry of Justice, Japan What works to reduce re-offending? A distinct approach to the management offemale offenders in the community in England and Wales
Ms. Sara Robinson, Deputy Director, National Probation Service, United Kingdom

 Video on the Bangkok Rules

 Women in the Context of Confinement: Impact of Penitentiary Reform Implemented
at Female Corrections and Rehabilitation Centers of the Dominican Republic
Ms. Sandra Fernández, Academic Director, Regional Penitentiary Academy, Office of the
Attorney General of the Dominican Republic A gender-informed approach to interventions for women offenders
Dr. Kelley Blanchette, Director General, Mental Health Branch, Correctional Service, Canada Bridging the gap between incarcerated mothers and their children in Thailand: five
years on after the adoption of the Bangkok Rules
Dr. Kittipong Kittayarak, Executive Director, Thailand Institute of Justice, A Critical Analysis of the Current Situation of Female Offenders in African Countries
Dr. Uju Agomoh, Executive Director, Prisoners Rehabilitation and Welfare Action (PRAWA),
Nigeria Implementation of the Bangkok Rules in Latin America — Best Practices
Ms. Maria Noel Rodriguez, Prison Reform Team Coordinator, UNODC-ROPAN

- 25 -

 Introducing the United Nations Model Strategies and Practical Measures on the
Elimination of Violence against Children in the Field of Crime Prevention andCriminal Justice
Ms. Alexandra Martins, Crime Prevention Officer - Justice for Children, Justice Section,
Division for Operations, UNODC, Vienna

16.40-18.00

 Treatment of child offenders, rehabilitation and social reintegration: A case of
Shikusa Borstal Institution, Kenya
Mr. Horace Chacha, Chief Superintendent in charge of Chikusa Borstal Institution, Kenyan
Prisons Service

 The practice of dejudicialization in the Costa Rican criminal justice system
Dr. Carlos Tiffer, Criminal Law Consultant, ILANUD, Costa Rica

 The treatment and social reintegration of juvenile offenders in China
Prof. Zhao Bingzhi, Dean of the Law School and College for Criminal Law Sciences, Beijing
Normal University, Beijing, Peoples’ Republic of China

 Implementing the United Nations Model Strategies and Practical Measures on the
Elimination of Violence against Children in the Field of Crime Prevention andCriminal JusticeProf. Yvon Dandurand Keynote Speech by Dr. Marta Santos Pais, Special Representative of the United
Nations Secretary-General on Violence against Children (Recorded Video Message)

16.20-16.40

Panel II on “Children: treatment of offenders, rehabilitation and social reintegration

- 26 -

Tuesday 14
April, Morning
Session(Panel II cont’d) Final and overall wrap up and remarks
Prof. Yvon Dandurand, moderator

12.15-13.00
 Closing
Chairperson

 Discussion from the floor

 Information briefing on the updating and revision process of the UN Standard
Minimum Rules for the Treatment of Prisoners (SMRs)
Ms. Valerie Lebeaux, Chief, Justice Section, UNODC

 Discussion from the floor and wrap up of panel II by the Moderator

 Treatment of female juvenile offenders in Sweden
Mr. Christer Isaksson, Director, Office for International Affairs, the Swedish Prison and
Probation Service

 The reintegration and social rehabilitation into the community of delinquent
children: A Saudi empirical study
Dr. Mohammed Hassan Al Sarra, Dean of Training College, Naif Arab University for Security
Studies (NAUSS), Riyadh, Kingdom of Saudia Arabia

 Key issues on treatment, rehabilitation and social reintegration of juvenile
offenders, as identified in an RWI study in the ASEAN countries
Mr. Christian Ranheim, Head of Office, RWI’s Indonesia country office, Jakarta, Indonesia

11.50-12.15

11.30-11.50

10.50-11.30

10.00-10.50

PAPERS AND CONTRIBUTIONSPANEL 1***PANEL IIPANEL I
KEYNOTE ADDRESSHer Royal Highness Princess Bajrakitiyabha Mahidol of Thailand
PRESENTATIONS
Penal Reform International***

Dr. Kittipong Kittayarak (Thailand)***

Ms. Maria Noel Rodriguez (UNODC)***

Dr. Uju Agomoh (PRAWA)***

Dr. Kelley Blanchette (Canada)***

Dr. Sandra Fernandez (Dominican Republic)***

Ms. Sara Robinson (United Kingdom)***

Ms. Masako Natori (Japan)- 29 -

KEYNOTE ADDRESSADDRESSING THE NEEDS OF WOMEN PRISONERS THROUGHEFFECTIVE AND SUSTAINABLE IMPLEMENTATION OF THE
UNITED NATIONS STANDARDS AND NORMS
Her Royal Highness Princess Bajrakitiyabha Mahidol of Thailand*
Excellencies,
Distinguished Delegates,
Ladies and Gentlemen,
It gives me a great honor and privilege to speak at Workshop 1 of the 13th UN Crime
Congress this morning. First of all, I would like to congratulate the United Nations Office on
Drugs and Crime, the Raoul Wallenberg Institute and the United Nations Asia and Far East
Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) and for theirleading efforts in preparing this workshop.
The role of the United Nations standards and norms in crime prevention and criminal
justice in support of fair and humane and accountable criminal justice systems has always
been an inseparable part of the UN Crime Congress. So as we celebrate the 60th anniversaryof the Congress here in Doha, this gives us an opportunity to reflect upon our achievements
and to renew our commitments toward the future.
For many years, the United Nations has been active in developing and promoting
standards, norms and guidelines in the field of crime prevention and criminal justice. Derived
from the commitment of Member States to keep society safe, secure and humane, the UN
standards and norms have stood the test of time as a global benchmark that guides national
governments to strengthen the effectiveness of criminal justice systems and their responses tovarious forms of crime.
Through international consensus a significant number of standards and norms have been
adopted by the UN General Assembly and the Economic and Social Council, anddisseminated to practitioners globally. These instruments deal with a wide variety of issues
ranging from juvenile justice, treatment of prisoners, violence against women and crime
prevention and restorative justice. In keeping with the main theme of this Congress in taking
an integrated approach, I hasten to add that these UN standards and norms should be viewed*

Ambassador Extraordinary and Plenipotentiary of the Kingdom of Thailand to the Republic of Austria.

- 31 -

in a larger context of the promotion and protection of human rights in the administration ofjustice as well.
Among various international standards and norms, the United Nations Standard
Minimum Rules for the Treatment of Prisoners were the first instrument adopted by the FirstUN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, andsubsequently approved by the UN Economic and Social Council in 1957. Since then, they
have been an important guideline for the treatment of all prisoners and the key point ofreference in designing and evaluating corrections laws and policies the world over.
After the adoption of the SMR, many additional standards and norms relevant to thetreatment of offenders have continued to flourish. The Milan Congress in 1985, for example,
gave birth to the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice, or the Beijing Rules. The Havana Congress in 1990, approved among many otherthings, the United Nations Standard Minimum Rules for Non-custodial Measures, or the
Tokyo Rules, the Basic Principles for the Treatment of Prisoners, the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty, the United Nations Guidelines for
the Prevention of Juvenile Delinquency, or the Riyadh Guidelines.
Despite this progressive development which suggested that the UN recognized various
categories and conditions of offenders in light of the SMR, the fact remains that theoverwhelming prison populations are male. In many countries, the number of male inmates
takes up to 90 percent of national prison population. Therefore, correctional facilities in mostplaces were originally designed and built primarily for male prisoners.
However, over the last few decades, the number of women in prison has dramaticallyincreased worldwide. Although smaller in actual number, the percentage of growth in women
prisoners is rising faster than that of their male counterparts. Nevertheless, statistics showthat the crimes committed by women are less serious and usually non-violent.
Women prisoners are often referred to as the “forgotten population”. For a long time, theneeds of women prisoners, which are very much specific and multi-dimensional, have been
overlooked. These include personal hygiene, reproductive health needs, and higher risk tohave psychological and mental problems. In most cases, women prisoners are also motherswith child rearing responsibilities, pregnant and breast-feeding mothers. The fact that prisons
do not adequately respond to women’s specific needs has caused several challenges,
including their vulnerability to re-victimization in prison settings.
Recognizing such gap, the government of Thailand initiated an effort to bring this issue
into consideration of the United Nations. With support from many Member States, experts
and the United Nations Office on Drugs and Crime, the United Nations Rules for theTreatment of Women Prisoners and Non-custodial Measures for Women Offenders, or the“Bangkok Rules”, were developed and presented to the international community for the first- 32 -

time at the 12th Congress in Salvador. The Rules were subsequently adopted by the General
Assembly in 2010.
The Bangkok Rules represent a significant achievement of the international community
in addressing specific needs of women in the criminal justice system. The Rules take into
account existing standards and norms such as the SMR and the Tokyo Rules, while
incorporating elements of the Convention on the Elimination of All Forms of Discrimination
against Women and the Convention on the Rights of the Child. With the mainstreaming ofgender sensitivity being the underlying principle, the Bangkok Rules are applicable to all
categories of women deprived of their liberty, including untried or convicted women, as wellas to women subject to non-custodial measures.
It should also be emphasized that the Bangkok Rules are not intended to replace prior
existing standards and norms in anyway. On the other hand, they bring further clarity toexisting provisions to ensure that the needs of women and girls in criminal justice systems
are adequately and effectively addressed.
From Salvador to Doha, the Bangkok Rules journey is now back at the Crime Congress– this time – for a critical evaluation. At this workshop, we will see how the Bangkok Rules
have contributed to the work of prison administration in addressing the treatment and social
reintegration of women prisoners, and preventing their recidivism.
I believe we have come a long way in promoting the implementation of the Rules. Today
we can find good practices in many correctional facilities around the world. Nevertheless, theBangkok Rules are soft law which does not impose obligations on States to apply. In
practice, the degree to which States implement standards and norms differs greatly from one
jurisdiction to another. In essence, such flexibility is the very beauty of the UN standards andnorms.
Although the application of standards and norms may vary due to the social and politicalcontext of different countries, I take this opportunity to underline some of the necessary key
points in which countries should strive in achieving effective and sustainable implementationof the UN standards and norms on women prisoners.
First, efforts should be made to ensure that national legislations and policies are in linewith the UN standards and norms. Relevant domestic laws and sentencing policies shouldemphasize rehabilitation and reintegration. Imprisonment of women should be considered asa last resort. The use of non-custodial measures and alternatives should be encouraged morein order to reduce overcrowding and stigmatization caused by imprisonment. Of equal
importance is the government’s commitment and financial support. This should be long-termin order to ensure the sustainability and effectiveness of fair and humane correctional
practices.

- 33 -

Second, awareness of the importance of the UN standards and norms is crucial inboosting their implementation. Through capacity-building activities, criminal justiceprofessionals should be given an opportunity to broaden their understanding. For instance,
Thailand in cooperation with UNODC hosted the East Asia-Pacific Regional Meeting on the
Implementation of the Bangkok Rules in Bangkok in 2013. The meeting was a great exampleof how countries in the region share their experiences on programmes and activities designed
for women prisoners, while building a network of cooperation on this front.
In addition, training on gender sensitivity is also an important way to equip criminal
justice practitioners with fundamental knowledge in implementing the Bangkok Rules. Thiskind of training is crucial because we need to build a positive attitude and mindset ofcorrectional staff to be gender-sensitive when treating women offenders. Clearly, this is oneof the key elements in achieving successful prison reform.
Lastly, the Bangkok Rules, as well as other UN standards and norms, have been used asa reference to develop technical tools for institutional staff. Currently there are a variety ofpractical tools and handbooks developed by the UNODC and non-governmentalorganizations. For instance, the Penal Reform International and Thailand Institute of Justice
have jointly published the Guidance Document and the Index of Implementation of the
Bangkok Rules as reference documents and resources. Also, the UNODC published several
handbooks, including a “Handbook for prison managers and policymakers on women andimprisonment” of which the latest edition provides clear explanations and good practices
with reference to the Bangkok Rules.
In speaking of the sustainable implementation of the UN standards and norms, I would
be remiss not to mention the review of the Standard Minimum Rules for the Treatment of
Prisoners. If anything, what the Bangkok Rules did at the 12th Congress was not only togalvanize the global attention on a particular category of prisoner, that is, women, but also to
trigger critical momentum on a broader question of the review of the Standard Minimum
Rules for the Treatment of Prisoners. As a result, the General Assembly mandated theCommission on Crime Prevention and Criminal Justice to establish the intergovernmental
expert group to conduct such a review process so as to reflect the advancement incorrectional science.
During the period of 2012 to 2015, the intergovernmental expert group, through its four
meetings, took us from Vienna to Buenos Aires, and finally to Cape Town, where it finallycompleted its work. I am pleased to note that we now have the revised version of the SMR
which shall be known as the “United Nations Standard Minimum Rules for the Treatment of
Prisoners”, or the “Mandela Rules”, in honour of the legacy of the late President Nelson
Mandela of South Africa. I hope that momentum can be gathered here in Doha for the new
Mandala Rules to be approved by the Crime Commission and the General Assembly within
this year.

- 34 -

In conclusion, I would like to emphasize that all UN standards and norms related tocrime prevention and criminal justice are useful in assessing needs and gaps in legislationand practice. While a number of standards and norms have been adopted and several tools are
made available, Member States should be urged to use these instruments in order to bringcorrectional practices into line with international standards and norms, and to fulfill their
obligations in promoting and protecting the fundamental human rights of those behind bars.
I would like to take this opportunity to thank all those involved in organizing thisimportant workshop, and look forward to the presentations and a lively and meaningful
discussion today.
Thank you very much.

- 35 -

WHY THE BANGKOK RULES ARE NEEDED AND THEIRIMPLEMENTATION FIVE YEARS ON
Taghreed Jaber *As the introductory speaker, this presentation will set the scene by covering five key
points introducing the background of the Bangkok Rules, the typical profile of women
offenders and observations on the state of implementation:I.

THE BACKGROUND TO THE BANGKOK RULES

There is a gap in the specific international standards on women offenders (the SMR only
has a few provisions, and the Tokyo Rules are silent), gender-neutral systems globally. Dueto the leadership of HRH Princess Bajrakitiyabha and the Government of Thailand, theBangkok Rules were adopted in December 2010. From roughly 2000 to the beginning of
2013, the number of women in prison has increased by over 40 per cent.
II. TYPICAL, SPECIFIC CHARACTERISTICS OF WOMEN OFFENDERS/PRISONERS
Unique profile of women offenders and their corresponding needs:• particular role of poverty and marginalisation for women offenders• educational profile reflects discrimination in education in society• high percentage are mothers, often sole or primary caretakers or lead a single-headedhousehold• high number have experienced violence in their lives, including sexual abuse• as a consequence high rates of mental health illness, substance dependencies andsusceptibility to self-harm and suicide among women prisoners• typical offences committed by females are drug-related offences, property and othernon-violent crimes• violent female offenders often experienced extreme violence themselves, or respond todomestic violence• higher percentage of first-time offenders• lower recidivism rates• greater stigmatisation than that faced by their male counterparts.
This specific profile is illustrated, for example, by PRI’s research series ‘Who are women
prisoners?’ conducted in 2013-14 which involved surveying almost 1,200 women in prisonin 3 regions and 6 countries (Armenia and Georgia, Kazakhstan and Kyrgyzstan, Jordan and*Regional Director, Middle and Northern Africa Office, Penal Reform International (PRI), Amman, Jordan.
The presentation during the workshop was delivered by Mr. Haitham Shibli, Research and Communication
Manager, Penal Reform International.

- 36 -

Tunisia). The findings show commonalities across countries including poverty,
discrimination and damaging long-term consequences from imprisonment.
Most women said that they were of very poor to average income, and 7 or 8 out of ten
women had children. Economic offences (theft and fraud) were the most common offences
women were charged with or convicted of (with the exception of Armenia). In Georgia,
Kazakhstan and Kyrgyzstan around a third of convicted women were in prison for drugrelated offences. The main consequences of imprisonment for women were loss of
employment and housing, stigma, and family breakdown. Also, across all six countries, thewomen surveyed had extremely high rates of depression and insomnia.
III.

PUSH FOR IMPLEMENTATION

To date, implementation is still sporadic and not concerted. To assist in theimplementation of the Rules, PRI has developed a set of resources, the ‘Toolbox on the UN
Bangkok Rules’ (multilingual and free), together with the Thailand Institute of Justice,including a Guidance Document and Index of Implementation. Further resources to support
states in implementation are a free online training course and a guide to gender-sensitive
monitoring.
In line with the objective of the workshop to share good practice, two examples of efforts
towards implementation from the Middle East North Africa region will be described. The
participants will be briefly introduced to the available Toolbox on the Bangkok Rules,
designed to assist different stakeholders in assessing their system and implementing a gendersensitive one in line with the Rules and other international standards.
IV. OBSERVATIONS COMMON ACROSS COUNTRIES AND REGIONS
Observations will be shared, drawing on PRI’s extensive work on the Bangkok Rules
from the past five years, common to a variety of countries/regions, which will be the basis forthe concluding recommendations:••••

Extreme stigma of women in conflict with the law by their families
Disparities in the provision of rehabilitation programmes for women prisoners in time,quality and variance
Little understanding on how to design and deliver gender-sensitive non-custodial
measuresNeed to holistically address mental health issues of women offenders and prisoners
V. RECOMMENDATIONS

Our recommendations point to three issues that should be addressed in terms ofadditional research and pilot projects in order to create good practice in PRI’s view:a. Focus on initiatives to develop gender-sensitive alternatives to imprisonment;b. Addressing the mental health issues among women offenders;c. Countering the disparity in rehabilitation programmes for women prisoners andproviding after-care.

- 37 -

BRIDGING THE GAP BETWEEN INCARCERATED MOTHERS AND
THEIR CHILDREN IN THAILAND: FIVE YEARS ON AFTER THE
ADOPTION OF THE BANGKOK RULES
Dr. Kittipong Kittayarak *It is my great pleasure to address the important topic of the treatment of pregnant women,
nursing mothers and women with children in prison. First of all, I would like to express mysincere appreciation to the Raoul Wallenberg Institute, the United Nations Asia and Far East
Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) as well as other
Programme Network Institutes for their hard work in preparing this workshop.
The issue related to treatment of pregnant women, nursing mothers and women withchildren in prison is one of the significant features of the Bangkok Rules.
I.

OVERVIEW OF MOTHERS AND CHILDREN IN PRISON

A large majority of women in prison worldwide are mothers or primary caretakers ofchildren. This includes 87 per cent of women prisoners in Brazil, 80 per cent in the United States
and Russia, 66 per cent in the United Kingdom, 82 per cent in Thailand and 78 per cent inArmenia and Georgia. Among these numbers, there are pregnant women, breastfeeding mothers
and women with dependent child in prison. These particular groups of women require special
attention regarding medical care, food, exercise and facilities. These requirements often posechallenges in prison administration.
As the population of women prisoners grows, the number of children affected by maternal
imprisonment is therefore increasing. Statistics show that there are 221 children in Armenia, 486
children in Georgia, and 256 children in Thailand staying in prison with their mothers. However,there are no precise statistics on the total number of children living in prison with their mothers
worldwide, and it is almost impossible to know how many children outside of prison are affectedby imprisonment of their mothers. Therefore, children of imprisoned parents are often describedas the “forgotten or hidden victims”.
II. IMPACT OF IMPRISONMENT ON INCARCERATED MOTHERS AND THEIR
CHILDREN
A. Difficulties Faced by Incarcerated Mothers
Pregnancy and raising a child in prison is not an easy experience. Studies show that common
problems faced by pregnant inmates include difficulties to catch up on missed sleep and missed
meals due to the inflexibility of the prison regime.
*

Executive Director of the Thailand Institute of Justice.

- 38 -

Also, pregnant women and breastfeeding mothers have specific health concerns related toprenatal, postnatal and child care in addition to standard health care. Some women face problems
in getting access to appropriate and timely medical support during labour and after giving birth.
Stress and disruption of family links caused by imprisonment can lead to harmful effects on
the progression of a pregnancy and generate negative emotional impacts on women prisoners,
particularly in the case of foreign inmates who are imprisoned further away from their homes.
This group of prisoner usually faces difficulties in receiving visitation and keeping in contact
with their children and family. This might be due to the lack of economic means to travel,difficulties to make a telephone call due to different time zones or their families just simply do
not want to contact them. This results in severe emotional impacts and may reduce rehabilitation
and resettlement prospects of women prisoners.
B. Impact on Children
On the other hand, research has found an association between the child problem behaviour
and their experience in having a parent in prison. It has been indicated that children of
imprisoned parents have twice the risk of developing behavioural problems and poor
psychological health. They are also at greater risk of future imprisonment themselves.
Moreover, distressful impacts during childhood caused by imprisonment of their mothers
can lead to life-long problems such as impairment of attachments to others, emotional
maladjustment and personality disorders.
Therefore, there has been an international debate as to how the rights and welfare of childrenof imprisoned mothers shall be protected. While some suggest that children should be allowed tolive with their mother in prison, some believe that the development of newborn babies can beretarded due to prison environment.
Despite diverse views, most have come to general consensus that the best interests ofchildren should be the primary consideration. To ensure the best interest of the child, conditions
and the quality of care in prison should be as close as possible to those outside. However, somecountries are facing difficulties in providing appropriate care and facilities for children. In
practice, countries around the world have different laws addressing how long children can staywith their mothers in prison, ranging from one month to six years.
III. RELEVANT INTERNATIONAL STANDARDS AND NORMS
Regarding international standards and norms, the Standard Minimum Rules for theTreatment of Prisoners (or the “SMR”) adopted in 1955 has only general provision which
requires that women’s institutions have special accommodation for pregnant women andbreastfeeding mothers, and that arrangements should be made for children to be born in a
hospital outside prison.
To supplement the SMR, the Bangkok Rules set out further important guidance in relation totreatment and support which should be provided to this group of prisoners. This includes, for- 39 -

instance, prohibition of the use of shackles or restraints on pregnant women, provision ofadequate food and healthcare and guidance on how to treat children of imprisoned mothers.
IV. THE ROLE OF THAILAND IN PROMOTING THE TREATMENT OF WOMENPRISONERS INCLUDING SPECIAL CATEGORIES OF WOMEN
For many years, Thailand has attached great importance to the promotion of humane
treatment of women prisoners. One outstanding initiative entitled the “Kamlangjai”(or “Inspire”) Project was established under the initiative of Her Royal Highness Princess
Bajrakitiyabha Mahidol in 2006 with a focus on enhancing the quality of life of female inmatesand babies born to incarcerated mothers. The Kamlangjai Project took partnership with several
private sectors and organized a number of charity-based activities and vocational training for
women prisoners to supplement the work of the Department of Corrections. As a result, theKamlangjai Project has become a unique and effective model of public involvement.
After the success of the project, the Government of Thailand launched an international
project entitled “Enhancing Lives of Female Inmates” in 2008 to raise awareness about thesituations of women prisoners. Thailand proposed the development of a new set of UN
international standards which specifically address the needs of women prisoners and women
offenders. With international support, the Bangkok Rules were subsequently drafted and adopted
in 2010.
Following the adoption of the Bangkok Rules, the Thailand Institute of Justice (or the “TIJ”)
was established by the Government of Thailand in June 2011 to carry on its continuous
commitment to promote humane treatment of women prisoners nationally and internationally.
V. THAILAND’S EFFORTS IN PUTTING THE BANGKOK RULES INTO PRACTICE
It has been almost five years since the adoption of the Bangkok Rules. What Thailand haslearned is that to successfully put the Bangkok Rules into practices requires collective efforts
from three main aspects. These include gender-sensitive law and policy, right-based correctional
practices and support from the public. Despite our remaining challenges,
I am very pleased to share with you some efforts and improvements Thailand has made in recent
years.
A. National Law and Policy
At the national law and policy level, there are several ongoing efforts to review existing law
and develop tools to facilitate the implementation of the Bangkok Rules.
First, about a week ago the Cabinet approved a proposal for amendment of the Penitentiary
Act of Thailand. Such Act is dated 1936 and amended in 1980 while some of its provisions arefound to be out-of-date. Therefore, the legislative review has been undertaken with a view to
updating and ensuring that the national law and regulation are compliance with international
standards. Substantial changes are expected to be made including insertions of some principles of- 40 -

the Bangkok Rules particularly on the treatment of pregnant women, nursing mothers andwomen with children in prison.
Second, the TIJ in cooperation with the Department of Corrections of Thailand havedeveloped an assessment tool containing a set of indicators aiming to assess compliance and gaps
in implementing the Bangkok Rules in Thai correctional institutions. The assessment tool isbased on the Index of Implementation of the Bangkok Rules jointly published by the TIJ and thePenal Reform International. The assessment tool has been pilot tested and will be used by the
Department of Corrections in the future.
Another important initiative is the development of the gender sensitive investigation tool andmethods to collect data on background and individual circumstances of women offenders such as
number of children and history of victimization. The information will be collected in a gendersensitive manner and sent to the court for their consideration before giving any sentences towomen offenders.
B. Correctional Practices
With regard to prison operation, pregnant inmates are registered and have regular medical
check-ups in a local hospital. They are transported to outside medical facilities to give birth withno restraints being used during transfers to hospitals, medical examinations, and delivering birth.
Prisons also provide additional food to pregnant women to ensure that they receive adequate
nutrition during pregnancy. Children can stay with their mothers up to the age of one. They also
receive appropriate diet and regular check-ups at the community hospital. Many womencorrectional institutions also have programmes and activities appropriate to pregnant women.
However, the extent to which pregnant inmates are provided with appropriate and adequate
care depends on financial resources and the physical design of each correctional facility. Femaleonly prisons are usually better equipped with necessary requirements such as mother and baby
units and space for exercise. In contrast, women's units within male prisons are likely to face
more difficulties and limitations in provision of care of pregnant inmates.
C. Public Involvement
Public involvement is another key to success in improving lives of pregnant inmates andchildren in prison. It is also a great way to provide moral support for women behind bars andhelp them go through difficult times.
As mentioned earlier, the Kamlangjai Project is a unique model for public and private
cooperation. A number of activities have been organized through partnerships with non-profit
organizations and private sectors such as hospitals, universities, television stations, privatecompanies, and department stores. These activities include, for instance, the “Quality
Pregnancy” programme and the “Yoga in Prison” programme.
Furthermore, the Department of Corrections also works with faith-based organizations toorganize several activities such as prison chorus and meditation programme, as part of therehabilitation programme, with the purpose to enrich the lives of prisoners.

- 41 -

VI. WAY FORWARD
Thailand, like many other countries, is facing many challenges in ensuring successful
implementation of the Bangkok Rules. These common challenges include prison overcrowding
and lack of financial resources and professional staff.
However, in moving forward we should aim to achieve an increase in the use of alternative
forms of sentencing, including restorative justice approaches and community service, where theoffence is not serious. This will help reduce the number of mothers in prison and the impact ofmaternal imprisonment on children.
Also, the prison regime should be flexible enough to respond to and accommodate specificneeds of women and children in prison. Special programmes such as pregnancy care and childrearing programmes should be made available to enhance women’s ability to raise their children.
Partnership between prison authorities and the private sector or non-governmentalorganizations should be encouraged as effective means to physically and mentally support
women behind bars. Lastly and most importantly, we all as policy makers and practitioners
should always remember that women who have failed as citizens can succeed as mothers. And
we should ensure that prison can provide an opportunity for them to become a better parent.

- 42 -

IMPLEMENTATION OF BANGKOKRULES IN LATIN AMERICA
BEST PRACTICES
María Noel Rodríguez
Prison Reform Team
Coordinator
UNODC -ROPAN

Bangkok Rules, a gender perspective of female
imprisonmentOn December 21st, 2010 the General Assembly adopted the UN Rules for theTreatment of Women Prisoners and Non-custodial Measures for Women
Offenders.



Bangkok Rules provide guidance to States in order to adopt concrete measures
to address the special needs and requirements of women prisoners or
offenders.



Rule 1: Basic principle, no discrimination: In order for the principle of nondiscrimination embodied in rule 6 of the Standard Minimum Rules for theTreatment of Prisoners to be put into practice, account shall be taken of the
distinctive needs of women prisoners in the application of the Rules. Providing
for such needs in order to accomplish substantial gender equality shall not be
regarded as discriminatory.

- 43 -

Bangkok Rules implementation progress

PANAMA

A specialized attention program for female inmates was designed and implemented in linewith Bangkok Rules.

Special informative pamphlets were prepared for female inmates.

Prison statistics were improved by incorporating gender variables. Parental status isrecorded upon admission.

The number and quality of reintegration activities for women were increased (education,
work, vocational training, productive projects), in order to facilitate the social
reintegration and eliminate gender stereotypes.



63% of female inmates participated in reintegration activities.



A branch of the University of Panama was open in the Female prison in Panama City andmore than 60 inmates are enrolled in various university degrees.(video).

- 44 -

Prison staff received gender and human rights training (including the publication of 500 copies of Bangkok
Rules, study visits and workshops)



UNODC prepared an online self-paced course based on the Women Imprisonment Handbook.
(only in Spanish)

Women prisoners are able to exercise conjugal visits on an equal basis with men.



Cultural activities, such as: theater “834, vidas detrás del muro”, and the book of poems “Mujeres enrelieve”.

Workshops on Human Rights and sexual and reproductive health .



Two campagins were launched :“A book in prison, a window to freedom”“Think before you act” (video)- 45 -

Review of legislation in line with Bangkok Rules
Drugs issues:Act 9161 enables alternatives to imprisonment (home detention, probation, released
with electronic monitoring) for women who introduce drugs into prisons, given some
proof of vulnerability (poverty, caretaking responsibilities) (video).



Reduction of sentences to people who traffic minor amounts of drugs (2014).
(nota informativa).

Pardon granted to people convicted of micro traffic (2008)

COSTA RICA

ECUADOR

Alternatives measures for mothersHome detention or suspended sentences for pregnant women or mothers with young
children is a practice widely applied in Latin America. (Panama, Argentina, Uruguay,
Colombia, Costa Rica).

LATIN
AMERICA

Housing for pregnant women and mothers with children

Nursery and half way home, Female Federal Centre “Ntra. Sra. Del Rosario de San Nicolás” (Unit 31).
Health programme to attend female prisoners´ children, Federal units.



Nursery, Female Prison, San José, has a sector to host pregnant women and mothers with children under 3 years.

Santa María Nursery, caters to children older than one year. This nursery is run by an NGO (video).

Child Development Centre, Izalco Farm, San Salvador (150 children and their mothers). The centre was built by people
deprived of liberty. (video).



Nursery, Female Prison Chorrillo I, Lima. The Ministry of Education provides teachers, pedagogic materials, workshops
for mothers, etc.

Mother and Baby Unit “El Molino”, Montevideo, hosts mothers and children under 4 years.

Nursery outside the prison “Pájaros pintados” to attend female prisoners´ children, staff´s children and kids from thelocal community



ARGENTINA

COSTA RICA

EL SALVADORPERÚURUGUAY- 46 -

SPECIAL PROGRAMMESASSISTANCE PROGRAMME FOR ENGLISH-SPEAKING WOMEN PRISONERS, ARGENTINAPROGRAMMES TO REDUCE DRUG ADDICTION. ARGENTINA, COSTA RICA.

“SERVICE DOG PRISON PROGRAMME”. EZEIZA, ARGENTINA.

PROGRAMME “MY VOICE FOR YOUR EYES”, PANAMA.

FACTORY PRISON (with the support of a private company) in Ciudad del Este, PARAGUAY.

INDUSTRIAL CLOTHING WORKSHOP (with the support of trade unions), URUGUAY.

PROGRAMMES TO STRENGTHEN THE CULTURAL IDENTITY, GUATEMALA.

Child Development Centre, Izalco, Salvador- 47 -

Coordination mechanisms and networkingInter-institutional Protocol to deal with female prisoners and ex offenders (Costa Rica).

NGOs: Colectivo Artesana (Guatemala); NNAPEs.

Inter-institutional working group to improve female prisoners conditions (Panama).

Regional Gender Programme (Conference of Ministers of Justice of Iberoamerica,COMJIB)
http://www.comjib.org/sites/default/files/PROGRAMA%20REGIONAL%20DE%20GENERO.pdf

Draft norms to facilitate the social-labor inclusion of female prisoners and ex offenders in Latin
America (EUROSOCIAL-COMJIB-IJJO). These standards seek to promote the inclusion of the genderspecific perspective in prison intervention to improve the processes of social and labour reinsertionof women prisoners and released women.

Regional levelRegional workshop on best practices in the implementation of Bangkok Rules, with the participationof Central American countries and NGOs. A regional roadmap was agreed to achieve a better andwider application of the Rules.

http://www.unodc.org/ropan/en/IndexArticles/PrisonReform/October2014/regional-workshop-on-theimplementation-of-the-bangkok-rules-in-guatemala.html
Informative section on the UNODC website (Spanish only):

http://www.unodc.org/ropan/es/PrisonReform/Reglas_de_Bangkok/presentacion.html- 48 -

Recommendations


Inform, raise awareness, train and disseminate the Bangkok Rules among prison staff, justice officers,
police agents, NGOs and the community.

Establish or strengthen inter-agency working groups/networks to comprehensively address the needs ofwomen in prison and ex offenders. These groups should include women deprived of liberty.



Amend national legislation to adapt it to the Bangkok Rules, review the penalties of drug laws (based on
the quantity and role of the offender), decriminalize minor criminal offences and set up programmes that
address drug abuse from a gender specific perspective.



Implement alternative measures to imprisonment for pregnant women and mothers. If not possible, create
special units for mothers, nurseries and care programmes for the children of female prisoners, incoordination with the competent authorities.



Create and promote opportunities for the exchange of experiences and regional coordination to achieve a
better implementation of the Bangkok Rules.

Amanece…
Y con la luz del alba
Renacen los sueños
Las esperanzas renovadas
Dejándose escuchar
El parloteo que viene y va
Rompiendo el silencio matutino
Voces de mujeres intensas
Que anhelan a gritos “Libertad”

Por: Victoria Sofía Nethersole- 49 -

A CRITICAL ANALYSIS OF THE CURRENT SITUATION OF
FEMALE OFFENDERS IN AFRICAN COUNTRIES
Dr. Uju Agomoh *I.

INTRODUCTION

The ever-rising number of prisoners around the world has remained the mostunderscored fact in current discourse within the international penal sector. According to theInternational Centre for Prison Studies, the world prison population is rising at a higher rate
than the total population. Between 1998 and 2013, the estimated world prison population has
increased by 25-30%, while the world population has risen by over 20%. 1Although women
prisoners are a small minority of the total prison population, there has also been a noticeablerise in women’s imprisonment in recent years. 2 In some countries the rate of this increase has
been higher than that of male prisoners. 3
Given their patriarchal nature, structures within many African countries present
considerable challenges in the protection and respect for women’s rights to equality while
fuelling widespread gender-based discrimination throughout the region. 4
Prisons are a reflection of the societies within which they are located. Thus, it isunsurprising that this discrimination is made manifest within the penal institutions whose
facilities were historically built and run to cope with the needs of the male majority.
Consequently, the small numbers of women prisoners were simply admitted to these prisonsand expected to cope with the same routines and facilities as men regardless of their different
and more complex needs.
This remains the practice in several African countries and has resulted in the neglect of
the human rights of these inmates without much consideration for the various international
standards and recommendations advocating for humane and equitable treatment for all. The
African prison system has become synonymous with a host of challenges, such as
overcrowding, abusive living conditions, deficits of good governance, funding, and other*Founder/Executive Director, Prisoners’ Rehabilitation And Welfare Action [PRAWA]; President, International
Corrections and Prisons Association [ICPA] – Africa Chapter; and Former Council Member, National Human
Rights Commission of Nigeria and Special Rapporteur on Prisons, Police and Other Centres of Detention in
Nigeria.
1
Walmsley R., World prison population list, 10th edition. London: International Centre for Prison Studies.
Available at: <http://www.prisonstudies.org/sites/prisonstudies.org/files/resources/downloads/wppl_10.pdf>[accessed 5 February 2015]. This list was published with prison information available as of December 2013.
2
Bastick M, Townhead L., Women in prison: a commentary on the United Nations standard minimum rules forthe treatment of prisoners. Geneva: Quaker United Nations Office; 2008. Available at:<http://www.quno.org/geneva/pdf/humanrights/women-in-prison/WiP-CommentarySMRs200806-English.pdf>[accessed 5 February 2015].
3
Ibid.
4
Women and Health: Today’s Evidence Tomorrow’s Agenda. Geneva: World Health Organization; 2009.
Available at: <http://whqlibdoc.who.int/publications/2009/9789241563857_eng> [accessed 5 February 2015].

- 50 -

resources; 5while the plight of women prisoners within the region is an often ignored subject
in governance, policymaking and research. 6
The objective of this paper is to critically analyse how a continent in which prisons rank
low on various lists of priorities has failed to adequately address the plight of incarcerated
women. Guided by the United Nations Rules for the Treatment of Women Prisoners andNon-custodial Measures for Women Offenders (The Bangkok Rules) as well as research
reports on various African prisons, this paper will provide practical steps that can be taken to
facilitate the improvement in the treatment and protection of female inmates in developing
countries using measures that have been adopted by some jurisdictions.
II. CONTEXT
The term ‘prisoner’ is defined as an individual who has been legally deprived of liberty
and kept under involuntary confinement or custody as a punishment for a crime or while
awaiting trial. 7 For the purpose of this paper, the term will be used to refer to awaiting
trial/remand prisoners, convicted/sentenced prisoners, debtors, lifers, prisoners on death row,
prisoners detained as ‘civil lunatics’ or’ criminal lunatics’, etc.
The Nigerian Prison Service recognizes five forms or legal reasons for the incarcerationof female prisoners, namely 8:•

Women against whom a court of competent jurisdiction has decided a case. These
are usually brought into prison with ‘Conviction Warrants’.

•

Women whose cases are pending before courts and are brought into prison with
‘Remand Warrants’ issued by such courts. These may either be awaiting trial or
awaiting sentence.

•

Women committed as judgement debtors by the courts for whom the judgement
creditor deposits feeding money with the prison authorities.

•

Women members of the armed forces who commit offences prohibited by the
military and civilian accomplices committed to prison through court martial.

•

Women committed to prison by the Inspector–General of Police or Chief of Army
Staff for acts detrimental to state security under Decree No 2 of 1984 (nowrepealed).

The fastest growing segment of the world’s prisoner population is female. 9 In Africa,
typical examples can be seen in Seychelles (775%), Burkina Faso (304%), Sao Tome and5Sarkin, J., ‘Prisons in Africa: An evaluation from a human rights perspective’, International Journal on Human
Rights. Available at: <http://www.surjournal.org/eng/conteudos/getArtigo9.php?artigo=9,artigo_sarkin.htm>.
6
Ibid.
7
The Merriam-Webster Dictionary, ‘Definition-Prisoner’. Available at : <www.merriamwebster.com/dictionary/prisoner>.
8
See Agomoh U and Ogun B (2000), ‘Manual for the Training of Prison Officer-Trainers on the United Nations
Standard Minimum Rules for the Treatment of Prisoners’, PRAWA: Lagos, at pages 17-18.
9
United States Department of State, (2012) ‘A Practical Guide to Understanding and Evaluating Prison
Systems’, Washington: United States Department of State.

- 51 -

Principe (166.7%), Benin (158.6%), Sierra Leone (106.1%), Republic of Guinea (104.9%),
Uganda (95%), Kenya (89.6%), Mauritius (79.5%), Burundi (73.1%), Nigeria (68.1%), andGhana (53.8%). 10 In some countries the rate of this increase has been higher than that of maleprisoners. 11 Furthermore, these offenders have unique needs, particularly when it comes tofamily considerations, causes for criminality, health care and psychology. 12
Given the patriarchal nature of many African societies, women face various forms of
discrimination that also play out within the continent’s criminal justice systems. In general,
African women have had fewer opportunities than men to access education and amass wealthor property. A lot of them, especially those originating from rural areas, are poorly educated,unaware of their rights in detention, unable to access and afford legal representation, post bailor pay fines. 13As a result of this, they face immense difficulties when accessing mechanismsof justice within their various communities.
It is argued in some quarters that women are less likely to commit violent and serious
crimes than men. Hence, they are less likely to receive long prison sentences. Available data
within the African region present diverse results. Reports from recent years indicate that asignificant number of female detainees in South Africa, Malawi and Zambia are held for
murder or violent crimes against their partners. 14 This trend is not the same in countries suchas Kenya, Botswana and Zimbabwe where women were more frequently arrested for nonviolent crimes. 15 In Benin, Sierra Leone, Nigeria, the Democratic Republic of Congo (DRC)and Egypt, women are detained in place of their brothers, husbands, sons or boyfriends whoare crime suspects 16 while in conservative religious countries like South Sudan, women arecommonly detained for crimes such as adultery. 17 In addition to this, in some societies,
women may also be detained as a result of discriminatory laws and cultural practices, or tribal
laws or traditions, rather than codified law. 18
Regardless of the nature of their crimes, research has consistently proven that a
considerable percentage of women offenders in Africa were victims of various forms ofviolence, mental health problems, and alcohol or drugs dependency 19 even before theirincarceration. 20 Sadly, their trauma is worsened by a number of critical problems within the10

Please refer to Appendix 1 for further information.
United States Department of State, (2012) ‘A Practical Guide to Understanding and Evaluating Prison
Systems’, Washington: United States Department of State.
12
Ibid.
13
Ackermann, M., (2014) ‘Women in pre-trial detention in Africa: A review of the literature’. South Africa:
Civil Society Prison Reform Initiative.
14
Ackermann, M., (2014) ‘Women in pre-trial detention in Africa: A review of the literature’. South Africa:
Civil Society Prison Reform Initiative, p. 7.
15
Ibid.
16
Agozino B (2005) Nigerian Women in Prison. In J Sudbury (Ed) Global Lockdown: Race, Gender and thePrison-Industrial Complex. New York: Routledge; Vetten L., (2008) The Imprisonment of Women in Africa. In
J Sarkin (Ed) Human Rights In African Prisons. South Africa: HSRC Press.
17
Ibid.
18
Womankind Worldwide (2008), ‘Taking Stock Update: Afghan Women and Girls Seven Years On’. London.
p. 35. Available at: <http://www.womankind.org.uk/takingstockdownloads.html>. [Accessed 10 February 2015].
19
Barzano, P. 2013. The Bangkok Rules: An International Response to the Needs of Women Offenders, United
Nations Asia and Far East Institute, Resource Material Series No. 90, p. 82–3. Available at:<http://www.unafei.or.jp/english/pdf/RS_No90/No90_11VE_Barzano.pdf> [accessed 2 February 2015].
20
Penal Reform International, ‘Penal Reform Briefing No. 3: Women in Prison – Incarcerated in a Man’s
World’, London, 2008, p. 2; Also see: United Nations Special Rapporteur on Violence Against Women. 2013.
Pathways to, Conditions and Consequences of incarceration for women, A/68/340, 21 August 2013, paragraphs
6 and 7, <www.ohchr.org/Documents/Issues/Women/A-68-340.pdf> [accessed 2 February 2015]; Tibatemwa11- 52 -

region’s penal institutions which disproportionately affect women and which threaten theirrights to human dignity and security of person. These include concerns around reproductive
health needs, mental disorders, increased vulnerability to abuse in prison, as well as
harassment and attempts of exploitation by law enforcement officers. 21
According to Medlicott, female imprisonment ought to be a specialised area of policy;
instead what has transpired is that the women’s prison population ‘has been subsumed into
the male population’ with little differentiation between the two in terms of reform
decisions. 22 This is probably because regardless of their high population growth rate, of the
99,0215 recorded incarcerated persons in Africa, 29,481 are women. 23 Based on this data,
women only make up about 2.97 % of those incarcerated in Africa’s already overstretchedpenal system, ensuring that their specific needs are seldom catered for. 24
It is an accepted fact that the prison service in many countries is generally not a priority
area of governance and as a result is often ignored and/or underfunded. However, it is also
important to note that whenever the rights of women prisoners are discussed, more attention
is placed on those in penal institutions to the detriment of those in police detentions.
In police detention, women are vulnerable to sexual abuse and other forms of violence
which may be used to force confessions to offences they have not committed. With the use ofan example in a report to the African Commission on Human and Peoples Rights, the Special
Rapporteur on Prisons and Conditions of detention noted that the conditions for women heldat police stations in Namibia were very poor, with poor ventilation and sleeping facilities. 25
Apart from women held in police detention, another vulnerable group of imprisoned
women are female combatants held as prisoners of war. These women are few in number
because they are in the minority in armed forces and groups and are also less likely to be infrontline areas where they could be captured. 26 The number of women held for security
reasons related to armed conflict or internal disturbances is also very small in comparison
with that of men, mainly because they are less likely to be perceived as combatants or
potential combatants. 27 But then, given the proliferation of intra-state conflicts in Africa,
there is need for the rights of imprisoned women combatants to become another priority area
in policy discourse and research.

Ekirikubinza L (1999) Women’s Violent Crime in Uganda. Kampala: Fountain Publishers; Vetten L, (2008) The
Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons. South Africa: HSRC
Press.
21
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.
22
Quoted in Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In
African Prisons. South Africa: HSRC Press. This statement was actually made with reference to the United
Kingdom. However, the author of this paper believes that it holds true even in the case of African countries.
23
Calculated based on available prison data on <http://www.prisonstudies.org/map/africa>. [Accessed 18
February 2015].
24
Ibid.
25
ACHPR (2001) Prisons in Namibia. Report on a visit 17-28 September 2001. Special Rapporteur on Prisonsand Conditions of Detention in Africa.
26
Charlotte Lindsey, Women Facing War, ICRC, Geneva, 2001, p. 163, available at <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/p0798> [Accessed 10 February 2015].
27
Ibid.

- 53 -

III. INTERNATIONAL LAW AND THE RIGHTS OF WOMEN PRISONERSInternational law provides the necessary model, best practice and assessment framework
for African prisons and their obligations to women prisoners. It is for this reason that thispaper will commence the analysis of its subject matter with an overview of existing
international standards.
In 1955, the First United Nations Congress on the Prevention of Crime and Treatment of
Offenders adopted the most recognised non-treaty text within the international legislative
framework on detention. This text, known as the United Nations Standard Minimum Rules
for the Treatment of Offenders (UNSMR) provides the basic guidelines to be observed bystates in the fulfilment of their obligations with regard to incarcerated persons. 28 But then, as
far as its specific application to women is concerned, the UNSMR addresses only theseparation of women and men, the medical care of pregnant detainees and provisions forchildren to be imprisoned with their mothers. 29
In 1988 and 1990, the UN adopted three additional instruments on imprisonment. They
are: the Body of Principles for the Protection of All Persons Under Any Form of Detention
or Imprisonment (1988), 30 the Basic Principles of the Treatment of Prisoners (1990), 31 andthe United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)(1990). Although they all attempted to fill existing gaps in the expected standards on thetreatment of prison inmates, these three instruments failed to address the UNSMR’s
inadequacies with respect to the particular needs and vulnerabilities of women in detention.
The inadequate protection offered to women prisoners by these instruments did not deterinternational discourse on the issue which was debated at about five annual United Nations
Congresses on the Prevention of Crime and Treatment of Offenders—from the Sixth
Congress held in 1980 to the Eleventh Congress in 2005. 32 At the Tenth Congress, member
states adopted the Vienna Declaration on Crime and Justice: Meeting the Challenges of the
21st Century, 33 in which they avowed to take into account and address, not only within the
United Nations Crime Prevention and Criminal Justice Programme, but also at domestic level,any disparate impact of programmes and policies on women, and to develop
recommendations relevant to the unique needs of female detainees. 34

28

United Nations Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955,<http://www.refworld.org/docid/3ae6b36e8.html> [accessed 2 February 2015].
29
United Nations Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955, Rules 8(a), 23 &53, Available at: <http://www.refworld.org/docid/3ae6b36e8.html> [accessed 2 February 2015]30
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
A/RES/43/173,
9
December
1988,
Principle
52.
Availableat:<http://www.un.org/documents/ga/res/43/a43r173.htm> [accessed 2 February 2015].
31
Basic Principles of the Treatment of Prisoners, 45/111, 14 December 1990, Available at:<http://www.un.org/documents/ga/res/45/a45r111.htm> [accessed 2 February 2015].
32
Barzano, P. (2013). The Bangkok Rules: An International Response to the Needs of Women Offenders. United
Nations Asia and Far East Institute, Resource Material Series No. 90, p. 85. Available at:<http://www.unafei.or.jp/english/pdf/RS_No90/No90_11VE_Barzano.pdf> [accessed 2 February 2015].
33
The Vienna Declaration on Crime and Justice: Meeting the Challenges of the 21st Century, A/RES/55/59, 17
January 2001, Available at: <http://www.unodc.org/pdf/crime/a_res_55/res5559e.pdf> [accessed 2 February2015].
34
United Nations Economic and Social Council, Official Record, Supplement No. 10, Commission on Crime
Prevention and Criminal Justice: Report on the Nineteenth Session (4 December 2009 and 17-21 May 2010),- 54 -

In 2003 and 2008, the United Nations General Assembly called for states to acknowledge
the problems faced by women in detention and to consider the impact of imprisoning womenwith child care duties, as well as babies or small children incarcerated with mothers. 35 At the18th session of the Commission on Crime Prevention and Criminal Justice in 2009, a
resolution submitted by the Government of Thailand was adopted, acknowledging as apremise to the Bangkok Rules that prison facilities are built primarily for males. It had
therefore become necessary to address and accommodate female detainees’ specific needs. 36
In 2009, a group of experts from 25 countries, met in Bangkok to develop supplementaryrules specific to the treatment of women in detention. At the 12th United Nations Congress
on Crime Prevention and Criminal Justice held in 2010 in Salvador, Brazil, the intergovernmental expert group reported on the outcome of the Bangkok meeting and presented
the draft version of the United Nations Rules for the Treatment of Women Prisoners andNon-custodial Measures for Women Offenders (the Bangkok Rules). 37 This was followed by
the adoption of a draft resolution by the Economic and Social Council on 22 July 2010 andfinally, on 21 December 2010, the General Assembly adopted the Bangkok Rules without avote. 38
The guiding objective for the adoption of the Bangkok Rules was not for it to replace the
UNSMR, but rather to complement it with respect to the treatment of women prisoners andoffenders. The Bangkok Rules sought to do this, either by providing clarification on certain
UNSMR rules or by adding provisions that will ensure that the UNSMR standards effectively
respect the rights of all prisoners without discrimination. The Bangkok Rules on the treatmentof female prisoners are applicable right from the moment of pre-trial detention. It also
addresses challenges faced by women in relation to physical and mental health care and thelinks between incarceration and prior victimisation.
In addition to the Bangkok Rules, several other international instruments advocating forthe respect and protection of the rights of women may be applicable within the African penal
system. They include: the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW); the United Nations Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT); the United Nations Convention
on the Rights of the Child (CRC); among others.
The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW) advocates for women’s rights to equality, with specific focus on the exercise of
E/CN.15/2010/30, p. 27 & 28, Available at:<http://www.unodc.org/documents/commissions/CCPCJ_session19/Draft_report/E2010_30eV1054137.pdf>[accessed 2 February 2015].
35
United Nations General Assembly Resolutions 58/183 of 22 December 2003 and 63/241 of 24 December
2008.
36
Penal Reform International & Quaker United Nations Office. 2011. Briefing on the UN Rules for theTreatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’), p. 2,
Availableat:<http://www.penalreform.org/wp-content/uploads/2013/05/PRI-QUNO_English_1-1.pdf>[accessed 2 February 2015].
37
Penal Reform International & Quaker United Nations Office. 2011. Briefing on the UN Rules for theTreatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’), p. 6,
Availableat:<http://www.penalreform.org/wp-content/uploads/2013/05/PRI-QUNO_English_1-1.pdf>[accessed 2 February 2015].
38
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders(the
Bangkok
Rules),
A/C.3/65/L.5,
6
October
2010,
Availableat:<http://www.ohchr.org/Documents/ProfessionalInterest/BangkokRules.pdf> [accessed 2 February 2015].

- 55 -

civil rights. Currently, South Sudan, Sudan and Somalia are the only African states not tohave signed or ratified CEDAW. 39
The United Nations Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (UNCAT) and the accompanying Optional Protocol to theConvention Against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment are authoritative umbrella texts that protect all persons against torture and illtreatment whilst deprived of their liberty. Its provisions are gender-neutral and must be
applied to all incidents which fit the description of torture or other forms of ill-treatment
listed in UNCAT. 40
The guiding principles enshrined in the United Nations Convention on the Rights of theChild (CRC) are relevant to women in detention and mothers separated from their children
through imprisonment; especially with respect to the fact that States Parties are expected toconsider the child’s best interest, as well as his or her right to family unity, before separating
him or her from the parent. 41
IV. APPLICABILITY OF THE BANGKOK RULES TO THE SITUATION OF
FEMALE OFFENDERS IN AFRICA
Driven by the significant increase of female detainees worldwide, 42 the Bangkok Rules
set out comprehensive guidelines and standards for the treatment of female prisoners. The
instrument recognises women as a vulnerable group within the criminal justice system andaims to address the various problems affecting them.
The first Bangkok Rule which supplements Rule 6 of the United Nations Standard
Minimum Rules on the Treatment of Offenders (UNSMR) emphasises the need for thepractice of the principle of non-discrimination through adequate consideration for the
distinctive needs of women prisoners and their children. However a critical review of thepresent conditions of several African prisons reveal diverse levels of structural, resource andinstitutional challenges which make it difficult for such obligations to be met. In some cases,
and as will be pointed out in this section, African countries have managed to transform
existing impediments into opportunities for innovation and best practices that can be
replicated across the continent.

39

United Nations Convention on the Elimination of Discrimination against Women, 34/180, 18 December 1979,
Available at: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> [accessed 2 February 2015];
List of signatories available at: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&lang=en> [accessed 2 February 2015].
40
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
A/RES/39/46, 10 December 1984, Available at: <http://www.refworld.org/docid/3ae6b3a94.html> [accessed 14
January 2015].
41
United Nations Convention on the Rights of the Child, 44/25, 20 November 1989, Articles 5, 8, 9(1) and 16.
Available at: <http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf> [accessed 2 February 2015].
42
Penal Reform International & Quaker United Nations Office. 2011. Briefing on the UN Rules for theTreatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘the Bangkok Rules’), p. 2,
http://www.penalreform.org/wp-content/uploads/2013/05/PRI-QUNO_English_1-1.pdf [Accessed 22 February2014].

- 56 -

A. Humane Treatment during Inmate Admission and Registration
Rule 3
1. The number and personal details of the children of a woman being admitted toprison shall be recorded at the time of admission. The records shall include,
without prejudicing the rights of the mother, at least the names of the children,
their ages and, if not accompanying the mother, their location and custody or
guardianship status.
2. All information relating to the children’s identity shall be kept confidential,
and the use of such information shall always comply with the requirement totake into account the best interests of the children.
Women prisoners are especially vulnerable at the time of their admission due to a variety
of factors, such as the trauma of separation from children, families and communities, pastvictimisation and fears for their safety, the particular stigma associated with theirimprisonment, minimal experience of contact with state authorities, or low educational andeconomic status, among others. Although Rule 3 of the Bangkok Rules recommends the
documentation of necessary information on the children of inmates during their registration
process. Through preliminary research on the Rights of Children of Incarcerated Persons,
PRAWA established that this practice is yet to be the norm in countries like Nigeria where
the rights of such children remain an undiscussed subject. 43
However, with respect to inmate admission, in many African countries there are Prison
Reception Boards made up of the officer in charge of the prison (or his/her designate), prison
officers drawn from the social welfare, medical, psychology, and vocational workshop
departments who will interview the inmate usually within the first 24 hours of his/heradmission into the prison. The purpose of this is to identify the risks and needs of theinmates and determine which cell/section of the prison the inmate will be accommodated andother programmes or services that will be made available to the inmate. Also, in some of thecountries, the prison/correctional services have developed a Prisoners’ Handbook containing
information on the prison rules and regulations, and information on where the inmate canseek help when in need. The Kenyan Prison Service has such a Prisoners Handbook as wellas big sign boards inside many of their prisons displaying the rights of the prisoners, courtesyof the Kenyan Human Rights Commission and others displaying some of the services
provided by NGOs. PRAWA, under the Human Rights Training Integrated (HRTI) Project,assisted the Nigeria Prison Service to produce a Prisoners’ Information Handbook on Rights
and Responsibilities of Prisoners in the English language and five other major Nigerian local
languages – Pidgin English, Ibo, Yoruba and Hausa. These were distributed by the Nigeria
Prison Service to inmates along with posters and stickers on sensitising inmates on their‘Rights and Responsibilities’ and on ‘How to Access the Prison Complaints and Redress
Mechanisms’. In the case of foreign nationals, many African countries do notify therespective consular offices of the detention of their national and they allow visits of suchinmates by the consular representative.
B. Humane Treatment during Inmate Allocation
Rule 4
Women prisoners shall be allocated, to the extent possible, to prisons close to
their home or place of social rehabilitation, taking account of their caretaking
43

Osude U & Imoka U (2015), Respecting the Rights of Children of Incarcerated Person in Nigeria, Nigeria:
PRAWA.

- 57 -

responsibilities, as well as the individual woman’s preference and theavailability of appropriate programmes and services.
Many imprisoned women are mothers and usually primary caregivers for their children. 44
The small numbers of imprisoned women's mean that there are fewer prisons for them,
resulting in women often being imprisoned further away from their homes and having limited
opportunity for interactions with their children. 45 This causes difficulties for the woman inmaintaining her family ties and is especially a problem if she has dependent children.
The existence of very few women's prisons also results in the collective accommodationof women convicted for a wide range of offences in a prison with a high level of security,needed only for very few women. For example, Nigeria has 239 penal facilities 46 across its
36 states but only one exclusive female prison in KiriKiri Lagos State. This prison is a
maximum security prison but is used for the custody of women prisoners within the Lagos
metropolis regardless of their offence.
When a mother is imprisoned, her family will often break up, resulting in many children
ending up in state care institutions or alternative care. Imprisonment far from home also
complicates a woman's resettlement after release.
Recognising these challenges, in 2001, the Kenya Prison Service, under the country’s
prison reform process, commenced an open door policy that resulted in the use of a Remote
Parenting System for inmate rehabilitation. 47 Given the sizeable percentage of single-parent
prison inmates in Kenya, the system encourages the maintenance and improvement of family
relations and the mental health of the inmates by providing them with the opportunity forunrestricted quality time with their children.
The Remote Parenting and Prison Open days occur every quarter at the end of the schoolterms. Currently, the law prohibits inmates from receiving visitors below the age of 18 years.
Through the Remote Parenting System, the Kenya Prison Service (using the inmate contact
information written on their arrest warrants) endeavours to inform members of the inmates’
families of the date for the open days. On those days, prisoners are given the opportunity to
discuss their children’s performance in school through their academic reports and also advise
them on the importance of leading crime free lives. This admirable practice is funded by the
Kenya Prison Service. It encourages good behaviour and promotes the acceptance of theoffenders by the nuclear family and the community at large, hence, positively impacting thesmooth re-integration of offenders at the end of their incarceration.

44

Declaration on women’s health in prison: correcting gender inequity in prison health. Copenhagen: World
HealthOrganization
Regional
OfficeforEurope;2009.
Availablefrom:<http://www.euro.who.int/__data/assets/pdf_file/0004/76513/E92347.pdf> [Accessed 20 February 2015]].
45
Vetten L & Bhana K (2005). The Justice For Women Campaign: Incarcerated Domestic Violence Survivors In
Post-Apartheid South Africa. In J Sudbury (Ed.) Global Lockdown: Race, Gender And The Prison Industrial
Complex. New York: Routledge.
46
The Nigerian Prisons Statistics, June 2013. Available at: <http://www.prisons.gov.ng/about/statisticalinfo.php> [Accessed 20 February 2015].
47
PRAWA, Compendium of Best Prison Practices. Available Online at: www.prawa.org. [Accessed 20
February 2015].

- 58 -

C. Humane Approach to Personal Hygiene
Rule 5[Supplements rules 15 and 16 of the Standard Minimum Rules for the Treatmentof Prisoners]
The accommodation of women prisoners shall have facilities and materials
required to meet women’s specific hygiene needs, including sanitary towels
provided free of charge and a regular supply of water to be made available forthe personal care of children and women, in particular women involved in
cooking and those who are pregnant, breastfeeding or menstruating.
Women in prisons have more specific health issues than men; the most prominent are
related to reproductive health such as menstruation, menopause, pregnancy andbreastfeeding. 48 However, given the poor state of prison infrastructure in various Africancountries, women have little or no access to adequate facilities that can meet theiraccommodation or health needs. Most times, they are housed in prisons specifically built for
male prisoners. A typical example can be seen in Uganda where the women’s wing of the
Masaka Prison was created from what were originally punishment cells for men who broke
prison regulations. 49 These cells lacked proper ventilation and were cold. 50 During a visit to
Abéché prison (Chad) at the end of May 2011 and in March 2012, women prisoners told
Amnesty International delegates that to protect their privacy from male inmates and maleprison guards, they waited until after dark or in the early morning to shower or go to thetoilet. 51
Apart from the poor accommodation facilities available for women prisoners, in several
African countries like Zimbabwe, Chad, Ethiopia, Malawi, Mozambique, Nigeria andUganda, these vulnerable individuals do not have easy access to sanitary towels and must
either depend on others to supply the basic need or improvise with cloths, newspapers, tissues,pieces of blanket or prison uniforms. 52
In a research report on Zimbabwe, women interviewed spoke of how once they had been
locked up for the day, they chose not to change pads or use the waste buckets so as not to
expose fellow inmates to the smell of blood. 53 They added that these buckets could also
overflow and users become splashed with bodily waste when using them while babies who
crawled about at night risked coming in contact with its contents. 54According to Amnesty
International, the lack of access to clean water and adequate sanitation facilities in Chadianprisons contributes to women’s ill-health and also exposes children, infants and babies livingwith their mothers in the prisons to infections which can be life-threatening. 55
48

Declaration on women’s health in prison: correcting gender inequity in prison health. Copenhagen: World
HealthOrganization
Regional
OfficeforEurope;2009.
Availableat:<http://www.euro.who.int/__data/assets/pdf_file/0004/76513/E92347.pdf> [Accessed 7 February 2015].
49
Tibatemwa-Ekirikubinza L (1999) Women’s Violent Crime in Uganda. Kampala: Fountain Publishers.
50
Ibid.
51
Amnesty International, (2012) ‘Chad: “We are all dying here” human Rights Violations in Prisons’. United
Kingdom: Amnesty International Ltd.
52
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press. p. 137; Also see Amnesty International, (2012) ‘Chad: “We are all dying here”
human Rights Violations in Prisons’. United Kingdom: Amnesty International Ltd
53
Samakaya-Makarati J (2003) Female Prisoners in Male Prisons. In C Musengezi & I Staunton (Eds) A tragedyof Lives: Women in Prison in Zimbabwe. Harare: Weaver Press.
54
Ibid.
55
Amnesty International, (2012) ‘Chad: “We are all dying here” human Rights Violations in Prisons’. United
Kingdom: Amnesty International Ltd.

- 59 -

In order to fill this gap, in some African countries, faith-based organisations provide
donations of sanitary towels. In 2013, PRAWA introduced a public appeal campaign togenerate individual support towards provision of sanitary towels for female prisoners in
Nigeria. This scheme is currently running in Kirikiri Female Prison Lagos, Lagos State as apilot and was extended to Suleja Prison in Abuja. The campaign is for the donation of 500
naira (approximately 3.2 USD) for the provision of a monthly supply for a female prisoner.
There are awareness flyers on this initiative for the general public reflecting opportunity for
one-off and regular donations. Water bore holes have also been constructed in few prisons to
help address the problem of water shortage and high cost of purchasing of water. These havebeen constructed either by the government or as a constituency project of some of the elected
legislators/politicians, for example, the construction of a water bore hole at Auchi prison in
Edo State of Nigeria is one of such interventions.
D. Humane Provision of Health Care Services, Mental Health Care and Substance
Abuse Treatment Programmes[Rules 6 to 17 Supplementing rules 22 to 26 of the UNSMR]
Prisoners do not represent a homogeneous segment of society. Many have lived at themargins of society, are poorly educated and come from socioeconomically disadvantaged
groups. They often have unhealthy lifestyles and addictions such as alcoholism, smoking anddrug use, which contribute to poor general health and put them at risk of disease. The
prevalence of mental health problems is very high: some prisoners are seriously mentally ill
and should be in a psychiatric facility, not prison.
Women prisoners frequently suffer from mental health problems, among which posttraumatic stress disorder, depression and self-harming are regularly reported. 56 They sufferfrom mental health problems to a higher degree than for both male prisoners and the general
population, 57 with rates as high as 90%. 58 Evidence shows that women prisoners are more
likely to self-harm and commit suicide than male prisoners, while this is the opposite in thecommunity. 59
Communicable diseases such as HIV, hepatitis and tuberculosis are more prevalent inprisons than in the community. 60 Women are at greater risk than men of entering prison withsexually transmitted infections such as chlamydia, gonorrhoea, syphilis and HIV/AIDS, often
as a result of past high-risk sexual behaviours including prostitution, sex work and being
56

Declaration on women’s health in prison: correcting gender inequity in prison health. Copenhagen: World
HealthOrganization
Regional
OfficeforEurope;2009.
Availableat:<http://www.euro.who.int/__data/assets/pdf_file/0004/76513/E92347.pdf> [Accessed 20 February 2015].
57
Bastick M, Townhead L. Women in prison: a commentary on the United Nations standard minimum rules forthe treatment of prisoners. Geneva: Quaker United Nations Office; 2008. Available at:<http://www.quno.org/geneva/pdf/humanrights/women-in-prison/WiP-CommentarySMRs200806-English.pdf>[Accessed 20 February 2015].
58
Rutherford M. The Corston report and the government’s response: the implications for women prisoners withmental health problems. London: Sainsbury Centre for Mental Health; 2008. Available at:<http://www.scmh.org.uk/pdfs/scmh_corston_response.pdf> [Accessed 20 February 2015].
59
Unequal, unfair, ineffective and inefficient: gender inequity in health. Why it exists and how we can change it. Finalreport to the WHO Commission on Social Determinants of Health. Geneva: World Health Organization; 2007. Available
at: <http://www.who.int/social_determinants/resources/csdh_media/wgekn_final_report_07.pdf> [Accessed 20
February 2015].
60
Health in prisons project. Copenhagen: World Health Organization Regional Office for Europe; 2011.
Available at: <http://www.euro.who.int/prisons> [Accessed 20 February 2015].

- 60 -

victims of sexual abuse. 61 Because of the short sentences that women often serve, there is ahigh turnover rate in women’s prisons which means that there is an intensive interaction
between the prison, the community and wider society. 62
Rule 6The health screening of women prisoners shall include comprehensive screening
to determine primary health-care needs, and also shall determine:• The presence of sexually transmitted diseases or blood-borne diseases; and,depending on risk factors, women prisoners may also be offered testing forHIV, with pre- and post-test counselling;• Mental health-care needs, including post-traumatic stress disorder and riskof suicide and self-harm;• The reproductive health history of the woman prisoner, including current or
recent pregnancies, childbirth and any related reproductive health issues;• The existence of drug dependency;• Sexual abuse and other forms of violence that may have been suffered priorto admission.
The South African Correctional Services Act prescribes a health status examination ofsentenced prisoners upon admission, which includes testing for contagious andcommunicable diseases. 63 A 2012 study conducted in two female prisons revealed thatfemale respondents did not receive annual general medical check-ups, routine pap-smears or
mammograms. 64 Access to health care was reported to be periodic and usually provided uponrequest by the detainee. 65 This notwithstanding, some African countries have introduced
programmes to address the above recommendations of the Bangkok Rules. For example, theZambia Prison Service has a comprehensive programme for screening, counselling andtreatment of inmates which it is running in partnership with NGOs.
Rule 12
Individualized, gender-sensitive, trauma-informed and comprehensive mental
health care and rehabilitation programmes shall be made available for women
prisoners with mental health-care needs in prison or in non-custodial settings.
Rule 13
Prison staff shall be made aware of times when women may feel particular
distress, so as to be sensitive to their situation and ensure that the women areprovided appropriate support.
61

Jones CM, McCann M, Nugent Z. Scottish Prisons’ Dental Health Survey 2002. Edinburgh: Scottish
Executive; 2004. Available at: <http://www.scotland.gov.uk/Publications/2004/02/18868/32855> [Accessed 20
February 2015] .
62
Declaration on women’s health in prison: correcting gender inequity in prison health. Copenhagen: World
HealthOrganization
Regional
OfficeforEurope;2009.
Availableat:<http://www.euro.who.int/__data/assets/pdf_file/0004/76513/E92347.pdf> [Accessed 20 February 2015].
63
Correctional Services Act (Act 111 of 1998) as amended, Section 5(b). Available at:<http://www.dcs.gov.za/Publications/Legislation/DCS%20Act%20111%20of%202008.pdf>[accessed
2
February 2015].
64Artz, L, Hoffman-Wanderer, Y & Moult, K. 2012b. Hard Time(s): Women’s Pathways to Crime andIncarceration. Gender, Health and Justice Research Unit,
University of Cape Town, p. 239. Available at: <http://www.ghjru.uct.ac.za/pdf/hard_times.pdf> [accessed 7
February 2015].
65
Ibid.

- 61 -

An example of this is PRAWA’s provision of trauma counselling and development of achecklist/protocol and a manual for prison health workers to use in the screening of inmates
as well as provision of training for prison health workers 66 on this as well as conducting
periodic medical outreach to prisons in partnership with Association of Christian Medical
Doctors and Medical Students and Medix Frontiers (a student medical association in Nigeria).
Rule 15
Prison health services shall provide or facilitate specialized treatment
programmes designed for women substance abusers, taking into account priorvictimization, the special needs of pregnant women and women with children,
as well as their diverse cultural backgrounds.
Some countries have programmes addressing these issues that are provided either by theprison service, the health department or by NGOs. For example, since 2013 PRAWA
introduced in Nigeria a faith-based drug abuse prevention and awareness programme
targeting both inmates and prison officers. This intervention has proved to be very successful,facilitating joint initiatives between inmates and prison authorities on prevention of
drug/substance abuse in prison. So far, this intervention has been implemented in thefollowing seven states: Cross Rivers, Edo, Rivers, Delta, Ogun, Imo, and Enugu States
covering over 30 prisons and reaching about 25 percent of the total inmate population inthese prisons. PRAWA has also developed a simplified awareness manual for inmates andothers (in and out-of-school youths). Giving the effect of substance abuse on crime, PRAWA
also has introduced this same scheme in secondary schools in one of the states of Nigeria(Enugu State).
E. Women Prisoners and Humane Protection against Abuse and Violence
Rule 7[Supplements rules 22 to 26 of the Standard Minimum Rules for the Treatmentof Prisoners]
1. If the existence of sexual abuse or other forms of violence before or
during detention is diagnosed, the woman prisoner shall be informed of her
right to seek recourse from judicial authorities. The woman prisoner should befully informed of the procedures and steps involved. If the woman prisoner
agrees to take legal action, appropriate staff shall be informed and immediately
refer the case to the competent authority for investigation. Prison authorities
shall help such women to access legal assistance.
2. Whether or not the woman chooses to take legal action, prison authorities
shall endeavour to ensure that she has immediate access to specialized
psychological support or counselling.
3. Specific measures shall be developed to avoid any form of retaliation
against those making such reports or taking legal action.
In many African prisons, as a result of resource inadequacy, services designed
specifically for women to help them feel safe and supported on gender-specific issues, are66This initiative was funded by the International Rehabilitation Council for Torture Victims with funds from
Oak Grants for implementation in the four prisons in Enugu State Nigeria (Nsukka, Oji River, Enugu and Ibitolu
Prisons).

- 62 -

seldom provided. 67 Many women prisoners in Africa are not only victims of gender based
violence before incarceration; given the poor level of security available in penal institutions,they are also victims of violence during incarceration.
According to the UNSMR, women should be kept separate from men. But then,dwindling prison capacity means that women have to be incarcerated with men in many
African countries. In Chad, the lack of effective separation between women and men, and thepresence of male security officers and prison staff in women prisoners’ courtyards,
jeopardized both the safety and security of women detainees. 68 During their visits, Amnesty
International noted that even in prisons with separate accommodation for women, it was easy
for men to move to and from women’s courtyards and cells. 69 In Uganda women prisoners
were only separated from their male counterparts at night. 70 In Natitigou Prison (Benin),
women and men used the same toilet and shower facilities. 71
Where women have no option but to share facilities, the limitations of separation andinsufficient female wardens leaves them exposed to physical, sexual and psychological abusefrom male prisoners which meagre numbers of staff cannot prevent and, indeed, sometimes
participate in. 72Women held in Tunisian prisons have been reported to be subjected to sexual
violence, electric shocks, beatings, cigarette burns and food and sleep deprivation. 73 Tunisianprisons are not the only ones accused of physical abuse. Such reports have also been received
from South Africa, Malawi, Uganda, and Namibia. 74
It is worthy to note that in countries such as Namibia, Ethiopia 75, the Gambia 76 and DRC(at least in one prison) 77, women are guarded primarily by women. But this is not the case inpolice detention. 78 There have been reports of sexual violence against women during police

67

Women in prison: a review of the conditions in Member States of the Council of Europe. Brussels: Quaker Council
for European Affairs; 2007. Available at: <http://www.quaker.org/qcea/prison/Final%20Report%20Part1.pdf>[Accessed 20 February 2015].
68
Amnesty International, (2012) ‘Chad: “We are all dying here” human Rights Violations in Prisons’. United
Kingdom: Amnesty International Ltd.
69
Ibid.
70
ACHPR (2001) Prisons in Uganda. Report on a visit 11-22 March 2001. Special Rapporteur on Prisons andConditions of Detention in Africa.
71
ACHPR (2000) Prisons in Benin. Report on a visit 23-31 August 1999 Series IV, No. 6. Special Rapporteur on
Prisons and Conditions of Detention in Africa.
72
Nana Adae-Amoakoh, ‘Behind Closed Doors: Crimes against Women in Africa's Prisons’, 2 May 2012,
ThinkAfricaPress. Available at: < http://thinkafricapress.com/gender/prison-crimes-women-africa > [Accessed 2
February 2015].
73
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.
74
Ibid.
75
ACHPR (2004) Prisons in Ethiopia. Report on a visit 15-29 March 2004. Special Rapporteur on Prisons andConditions of Detention in Africa.
76
ACHPR (1999) Prison in the Gambia. Report on a visit 21-26 June 1999, Series IV, No. 5. Special Rapporteuron Prisons and Conditions of Detention in Africa.
77
OMCT (2006) Violence against Women in the Democratic Republic of Congo (DRC). Alternative report
prepared for the Committee on the Elimination of Discrimination against Women, 36tgh session 7-25 August.
Available at: <http://www.omct.org/pdf/VAW/2006/CEDAW_36th/CEDAW36_DRC_en.pdf>[Accessed 20
February 2015].
78
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.

- 63 -

interrogations and/or detention in some countries such as Nigeria 79 , South Africa 80 , andCongo 81.
In countries such as Egypt, humiliation is adopted as a method of torture against female
relatives of suspected Islamist militants who are asked to strip naked and are then placed inclosed rooms with naked male detainees. 82
F. Humane Treatment of Pregnant Women, Breastfeeding Mothers andMothers with Children in Prison[Supplements rule 23 of the Standard Minimum Rules for the Treatment of
Prisoners]
Rule 48
1. Pregnant or breastfeeding women prisoners shall receive advice on theirhealth and diet under a programme to be drawn up and monitored by a qualified
health practitioner. Adequate and timely food, a healthy environment and regularexercise opportunities shall be provided free of charge for pregnant women,babies, children and breastfeeding mothers.
2. Women prisoners shall not be discouraged from breastfeeding their children,
unless there are specific health reasons to do so.
3. The medical and nutritional needs of women prisoners who have recently
given birth, but whose babies are not with them in prison, shall be included intreatment programmes.
Pregnant women rarely receive adequate ante-natal and post-natal care in prison. Prison
services in the large majority of African countries are under-resourced and understaffed.
Consequently, pregnant and breastfeeding mothers are not given enough and adequate food tomeet the minimum level of nutritional requirements for themselves and their babies. 83
In Botswana, the requirement for a healthy pregnancy, such as adequate nutrition,
exercise, fresh air and reasonably sanitary conditions, were reported as not being met. 84 In
countries such as the Central African Republic 85 , Benin 86 , Malawi 87 , Namibia 88 ,79

Agozino B (2005) Nigerian Women in Prison. In J Sudbury (Ed) Global Lockdown: Race, Gender and thePrison-Industrial Complex. New York: Routledge.
80
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.
81
OMCT (2006) Violence against Women in the Democratic Republic of Congo (DRC). Alternative report
prepared for the Committee on the Elimination of Discrimination against Women, 36tgh session 7-25 August.
Available at: <http://www.omct.org/pdf/VAW/2006/CEDAW_36th/CEDAW36_DRC_en.pdf> [Accessed 20
February 2015].
82
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.
83
Amnesty International, (2012) ‘Chad: “We are all dying here” human Rights Violations in Prisons’. United
Kingdom: Amnesty International Ltd.
84
Modie-Moroka T & Sossou M (2001) Women, Criminality and Multi-focal Empowerment Responses: Some
Prospects for Botswana. Journal of Social Development in Africa 2(16): 5-30.
85
ACHPR (2000) Prisons in the Central African Republic. Report on a Visit 19-29 June 2000 Series IV, No. 7.
Special Rapporteur on Prisons and Conditions of Detention in Africa.
86
ACHPR (2000) Prisons in Benin Report on a visit 23-31 August 1999 Series IV, No. 6. Special Rapporteur on
Prisons and Conditions of Detention in Africa.

- 64 -

Zimbabwe 89 or Mozambique 90 , lack of nutritious food for imprisoned women has beenreported. According to some reports, in Uganda, the government provides prisoners withclothing but does not extend this courtesy to their children, and some babies appeared to begetting the same food as their mothers. 91 On the contrary, in Rwanda a very innovative
scheme was introduced whereby cows are reared in prison and the milk from the cows is
given to the mothers with their babies in prison.
Rule 49
Decisions to allow children to stay with their mothers in prison shall be based on
the best interests of the children. Children in prison with their mothers shallnever be treated as prisoners.
The African Commission on Human and People’s Rights (ACHPR) reports 92 , andresearch has revealed, that children are imprisoned with their mothers in Benin, Ethiopia,
South Africa, Mozambique, The Gambia, Sudan, Nigeria 93 and Uganda. While children may
remain with their mothers until the age of 18 months in Ethiopia. A 2004 visit by the Special
Rapporteur of the ACHPR on Prisons and Conditions of Detention in Africa noted that there
were children as old as eight years in one Ethiopian women’s prison—these children were notattending school. 94 The same was the case for children with their parents in prisons in
Sudan. 95
V. RECOMMENDATIONS
Prisons are not only a reflection of the society within which they are located; their ability
to effectively rehabilitate and care for inmates has a considerable impact on public health,social structures and societal crime rates. In democratic societies the law underpins andprotects the fundamental values of society. To ensure the humane treatment of female
prisoners in African countries, reform efforts have to commence from policies governing
prisons and security agencies who have also been empowered to detain individuals. The
operations of security agencies are strictly governed by existing rules and regulations, thus,
there is a need for effective gender mainstreaming among African security agencies throughgender-sensitive policies that recognise and address the special needs of female inmates andofficers.

87

ACHPR (2001) Prisons in Malawi. Report on a visit 17-28 June 2001 Series IV, No. 9. Special Rapporteur on
Prisons and Conditions of Detention in Africa.
88
ACHPR (2001) Prisons in Namibia. Report on a visit 17-28 September 2001. Special Rapporteur on Prisonsand Conditions of Detention in Africa.
89
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.
90
ACHPR (2001) Prisons in Mozambique. Report on the second visit April 4-14 Series IV, No. 8. Special
Rapporteur on Prison and Conditions of Detention in Africa.
91
Tibatemwa-Ekirikubinza L (1999) Women’s Violent Crime in Uganda. Kampala: Fountain Publishers.
92
ACHPR (2000) Prisons in Benin Report on a visit 23-31 August 1999 Series IV, No. 6. Special Rapporteur on
Prisons and Conditions of Detention in Africa; ACHPR (2004) Prisons in Ethiopia on a visit 15-29 March 2004.
Special Rapporteur on Prisons and Conditions of Detention in Africa.
93
Osude U & Imoka U (2015), Respecting the Rights of Children of Incarcerated Person in Nigeria, Nigeria:
PRAWA.
94
ACHPR (2004) Prisons in Ethiopia on a visit 15-29 March 2004. Special Rapporteur on Prisons andConditions of Detention in Africa.
95
Vetten L., (2008) The Imprisonment of Women in Africa. In J Sarkin (Ed) Human Rights In African Prisons.
South Africa: HSRC Press.

- 65 -

Legal reforms cannot be considered effective without adequate resources for the
implementation of recommended standards. Resource inadequacy remains a major
impediment in the quest for African penal reform. As shown in this paper, this inadequacy
has further hindered the capacity of detention facilities to accommodate the needs of female
prisoners. In many countries, the security sector remains one of the most funded sectors.
However, since prisons are not considered among the traditional security institutions in
African nations, they remain the least funded criminal justice sector organ. This paper
maintains that there is a need for African countries to shed the past perception of prisons as
instruments for retributive justice and embrace instead the understanding that penal
institutions are rehabilitation facilities. This is a task that can be effectively implemented
through collaboration between government and non-governmental organisations.
Nevertheless, it falls on non-governmental organisations to drive this change by sensitisingboth policy makers and the public. A change in public perception will go a long way ininfluencing the government’s disposition and commitment to combating the problem ofresource inadequacy within penal institutions.
In November 2013 during its 21st Session, the African Committee of Experts adopted a
General Comment to Article 30 of the African Charter on the Rights and Welfare of the Child
which lays out a number of provisions ensuring ‘special treatment’ for pregnant women andmothers who are accused or convicted of criminal offences. The committee also mandated
State’s Parties to ensure that non-custodial sentences are always considered first for primary
caregivers, pregnant women and mothers of young children for whom they must establish
alternatives to detention. Although there is still little development within the continent in thisarea, these directives from the African Committee of Experts present a regional legal
framework binding on states for the protection of children of incarcerated persons and theircaregivers.
Given the poor state of prison health facilities there is a need for integration of the prison
health care services into the national public health care system, while mental health careservices are integrated into the primary health care system of African nations. This will
ensure that prison inmates have access to services available within communities, inaccordance with international human rights standards. Furthermore, the integration of mental
health care into the primary healthcare system will tackle the issue of stigmatisation andcriminalisation of mental health disabilities within African communities.
The management of prisons is primarily about the management of human beings, bothstaff and prisoners. There is a current consensus that safety and security in prisons dependon creating a positive climate which encourages the cooperation of prisoners. 96 This
perception of security is called Dynamic Security and is believed to be especially suitable
to the needs of female prisoners, due to the particularly harmful effects that high security
measures can have on women to the detriment of their mental well-being and social
reintegration prospects. 97
In addition to the above-mentioned physical security techniques, there is also need forthe development and adoption of clear policies and guidelines against the perpetuation ofviolence against inmates and sexual misconduct by staff in prisons. All forms of violence,
sexual intercourse with prisoners and sexual touching should be criminalised with obligations
96

UNODC (2008), Handbook for prison managers and policymakers on Women and Imprisonment, Criminal
Justice Handbook Series. New York: United Nations.
97
Ibid.

- 66 -

placed on prison officers to report instances of abuse or sexual misconduct perpetrated
by other staff in addition to both internal and external monitoring and oversight mechanisms.
Finally, African prison officers need to be trained and sensitised in gender issues.
VI. CONCLUSION
Regardless of their small numbers within the African penal system, the plight of female
prisoners cannot continue to be an afterthought in an already over-burdened system. As theprimary protection mechanism for its citizens, the state’s inability to provide adequate
rehabilitation services under humane conditions for female prisoners is a failure that must be
addressed.

- 67 -

APPENDIX 1
PRISON DATA FOR FEMALE INMATES INAFRICA 98

S/N COUNTRY

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Algeria
AngolaBenin
Botswana
Burkina
Faso
BurundiCameroon
Cape
VerdeCentralAfricanRepublic
Chad
Comoros
Congo(Brazzaville)
Cote
d'Ivoire
Democratic
Republicof Congo
Djibouti
Egypt
Equatorial
GuineaEritrea
Ethiopia

20
21
22
23

Gabon
GambiaGhana
GuineaBissau24 Kenya
25 Lesotho
26 Liberia
98

AVAILABLE PRISON DATAPAST PRISON DATAAS AT 18/02/2015
RATE OFINMATE FEMALE FEMALE YEAR FEMALE FEMALE POPULATIONPOPULATION INMATE INMATEINMATE INMATE INCREASE(TOTAL) POPULATION POPULATIONPOPULATION POPULATION(TOTAL) (%)(TOTAL) (%)
60000
600
1.0
2000
626
1.8
-4.2%
21634
80
2.7
1999
97
2.0
-17.5%
7247
362
5.0
2000
140
3.6
158.6%
4124
136
3.3
2001
289
4.6
-52.9%
5976
101
1.7
2001
25
1.0
304%

7793
25337
1434

374
506
57

4.8
2.0
4.0

2002
N/A
N/A

216
N/A
N/A

2.5
N/A
N/A

73.1%
-

845

69

8.2

N/A

N/A

N/A

-

4831
206
1500

135
4
43

2.8
1.9
2.9

N/A
N/A
N/A

N/A
N/A
N/A

N/A
N/A
N/A

-

8900

258

2.9

N/A

N/A

N/A

-

22000

660

3.0

N/A

N/A

N/A

-

550
62000
1000

30
2294
56

5.5
3.7
5.6

N/A
2002
N/A

N/A
2213
N/A

N/A
4.3
N/A

3.7%
-

N/A
93044

N/A
2605

N/A
2.8

N/A
2034

N/A
3.3

28.1%

3500
914
14728
92

N/A
28
220
4

N/A
3.1
1.5
4.3

N/A
2001/
02
N/A
N/A
2000
N/A

N/A
N/A
143
N/A

N/A
N/A
1.5
N/A

53.8%
-

53163
2401
1827

2817
84
58

5.3
3.5
3.2

2001
2000
2001

1486
139
N/A

4.2
4.5
5.0

89.6%
-39.6%-

Available at: <www.prisonstudies.org>.

- 68 -

27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56

Libya
Madagascar
MalawiMali
Mauritania
Mauritius
MayotteMoroccoMozambique
Namibia
Niger
Nigeria
Republicof Guinea
ReunionRwanda
Sao TomeandPrincipe
Senegal
Seychelles
SierraLeone
SomaliaSouth
Africa
South
Sudan
Sudan
Swaziland
Tanzania
Togo
Tunisia
UgandaZambiaZimbabwe

6187
18719
12156
4963
1664
2233
163
72816
15663
4314
7116
56785
2600

74
842
133
149
33
140
2
1747
610
116
213
1192
125

1.2
4.5
1.1
3.0
2.0
6.3
1.1
2.4
3.9
2.7
3.0
2.1
4.8

2004
2003
2001
N/A
N/A
2000
N/A
2002
1999
2000
2006
2000
2002

387
650
91
N/A
N/A
78
N/A
1776
551
104
183
709
61

3.3
3.4
1.3
N/A
N/A
4.7
N/A
3.3
6.3
2.1
3.2
1.9
2.0

-80%
29.5%
46.2%
79.5%
-1.6%
10.7%
11.5%
16.4%
68.1%
104.9%

1034
55618
194

37
3559
8

2.6
6.4
4.1

N/A
2002
2002

N/A
2925
3

N/A
2.6
2.3

21.7%
166.7%

8428
786
3792

286
35
136

3.4
4.5
3.6

2000
2002
2007

183
4
66

3.7
2.7
3.3

56.3%
775%
106.1%

3450
157824

N/A
3945

N/A
2.5

N/A
2000

N/A
3966

N/A
2.5

0.5%

7500

397

5.3

N/A

N/A

N/A

-

19101
3616
35301
4287
2500
41837
17038
17484

382
94
1200
137
67
1757
170
314

2.0
2.6
3.4
3.2
2.7
4.2
1.0
1.8

N/A
2002
2005
N/A
N/A
2005
2005
2001

N/A
133
1515
N/A
N/A
901
237
671

N/A
3.9
3.3
N/A
N/A
3.4
1.7
3.5

-29.3%-20.8%
95%-28.3%-53.2%- 69 -

A GENDER-INFORMED APPROACH TO INTERVENTION FORWOMEN OFFENDERS
Dr. Kelley Blanchette *I.

THE HISTORY OF WOMEN'S CORRECTIONS IN CANADA

The first Canadian federal correctional facility for women, the Prison for Women, opened inKingston, Ontario in 1934. Within four years of its opening, the Archambault Commission
became the first of many commissions to recommend its closure. The institution was repetitively
criticized on numerous grounds, including: overly austere security measures, poor programming,and inability to adequately address the needs of Aboriginal and Francophone women. In fact,
between 1938 and 1990, at least fifteen government reports had identified serious deficiencies inthe services provided to women inmates. The Prison for Women was the only federal prison forfemale offenders. This was the subject of fundamental and widespread concern; many federally
sentenced women were isolated from their families and social support networks and had greaterdifficulty preparing for release and reintegration into the community. Despite these concerns, thePrison for Women remained the only Canadian women's federal correctional facility for wellover half a century. The last inmate was transferred out of the Prison for Women in May; it was
officially closed on July 6, 2000.
In 1989, the Commissioner of Corrections called for a special Task Force to address
longstanding concerns with the inequitable treatment of women offenders. Its principle mandate
was to develop a comprehensive strategy for the management of federally sentenced women. The
research and consultation conducted by the Task Force was largely qualitative and included
surveys of both staff and women offenders, as well as comprehensive literature reviews. It was
the first time in the Correctional Service of Canada’s (CSC) history that the voices of women
offenders were afforded such serious consideration in the development of strategic policy
direction. In 1990, the Task Force published its report: Creating Choices. It represented a new
definition of effective corrections for women offenders, reached through consensus by a broad
range of correctional practitioners and government/non-government agencies. Creating Choices
was, and continues to be, considered exceptional in its advent of a woman-centered approach tocorrections.
The Task Force developed a holistic approach to corrections for women using five guiding
principles: empowerment; meaningful and responsible choices; respect and dignity; supportive
environment, and shared responsibility.
Empowerment acknowledges that the reduced life choices typically encountered by women
offenders often leaves them feeling powerless and unable to make effective choices. As a result,*

Director General, Mental Health Branch, Correctional Service Canada.

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they need assistance in gaining insight into their overall situation, identifying their strengths, andbeing supported and challenged to take positive action to gain control of their lives.
Meaningful and Responsible Choices highlights that women offenders need to havemeaningful options which allow them to make responsible choices. Having the opportunity tomake informed decisions will not only provide a sense of control and empowerment, but will also
assist them in building their self-esteem and sense of self-worth.
Respect and Dignity stresses that mutual respect among women offenders and staff is crucial
as is the importance of acknowledging the diverse needs and cultural identities of women
offenders as an integral part of the whole person. By engaging with another in a respectful anddignified way, one is more likely to increase their level of self-respect and to respond to others inthe same way.
Supportive Environment recognizes that a positive and supportive environment is deemed
important for fostering personal development, encouraging the use of acquired skills, empowering
women offenders to acknowledge their strengths, and promoting physical and psychologicalhealth.
Furthermore, positive community support and assistance accessing resources are
considered important to women’s achieving greater self-sufficiency and autonomy.
Shared Responsibility emphasizes the shared responsibility society has in receiving women
offenders back into the community and facilitating their successful reintegration, which includes
development, implementation, monitoring and evaluating interventions for women offenders.
These principles drove specific recommendations to replace the Prison for Women with five
regional facilities and an Aboriginal healing lodge. It was also recommended that these facilities
be constructed and operated using a 'community-living' model, where the women offenders would
reside in houses and be responsible for their daily meals, laundry, cleaning, and leisure time. The
Task Force further called for the development of women-centered interventions, including therapy
for survivors of abuse and mother–child programming.
In accordance with Task Force proposals, CSC opened five new facilities for federally
sentenced women, as previously described. Operations and programming both within theinstitution and post-release have been amended. In particular, the implementation of a Women
Offender Program Strategy (Federally Sentenced Women Program, 1994; Office of the Deputy
Commissioner for Women, 2000) has provided an opportunity for participants to benefit fromprograms that were developed specifically to meet women’s needs and styles of learning. For
instance, a mother-child program is operational at all regional facilities, allowing young children
to reside with their mothers on a full-time basis, while older children are permitted part-time
residency. Additionally, in late 1999, an Intensive Intervention Strategy (IIS) was introduced for
women offenders. The strategy provides a protocol for safe and secure accommodation for
women classified as maximum-security and those with special needs, while emphasizing
intensive staff intervention, programming, and treatment.

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II. GENDER-INFORMED POLICY
Correctional Service of Canada’s policies are gender-informed and inclusive of four policies
that are specific to women’s sites (staff protocol in women offender institutions; intensive
intervention strategy in women’s institutions; institutional mother-child program; and casepreparation and supervision of women offenders with children residing at a community-based
residential facility). The policy statement on staffing in women offender institutions waspromulgated to ensure that the dignity and privacy of incarcerated women are respected to thefullest extent possible, while maintaining safety and security. A second important objective of
this policy is to ensure that the presence of men in women’s prisons does not expose staff orinmates to vulnerable situations.
For example, the policy stipulates that only female staff will monitor women inmates who
are under camera surveillance. Additionally, monitor screens are situated in security posts insuch a way as to ensure the inmates’ privacy. Likewise, frisk searches are conducted by female
staff only, and strip searches are conducted, witnessed, and video-recorded by female staff only;
they are always conducted in a private area, out of sight of others, by one female staff and in thepresence of one female staff witness. Although escorts may be conducted by a man or a woman,due consideration is always given to the following factors prior to assigning a male escort: thenature of the escort, whether the inmate is comfortable being escorted by a male and whether the
male is comfortable providing the escort. Finally, the policy also articulates that any staff
member who has not received Women-centred training and who is required to work in a living
unit will be escorted by a staff member who has received Women-centred training.
III. CORRECTIONAL PROGRAMSCorrectional programs are aimed at addressing the risk and needs of women offenders in agender and culturally appropriate manner. Programs for women must use an approach that isrelevant in dealing with the multi-faceted needs of women offenders. In Correctional Service
Canada, the Women Offender Correctional Programs (WOCP) and Aboriginal Women Offender
Correctional Programs (AWOCP) are approaches that address emotional regulation needs,
cognitive functioning and other problematic behaviours leading to crime (substance abuse,violence, etc).
Programs and interventions for women offenders should be based on the most up to date
literature and empirical research in the area. This includes the correctional principles of Risk,
Need, and Responsivity (RNR model; Andrews, Bonta, & Hoge, 1990). In brief, the risk
principle posits that level of treatment should be matched to the risk level of the offender. Morespecifically, intensive services should be provided to higher risk offenders. The need principle
distinguishes between criminogenic and non-criminogenic needs. Criminogenic needs are asubset of an offender's risk level. They are dynamic attributes of the offender that, when changed,
are associated with changes in the probability of recidivism. Examples include substance abuse,antisocial attitudes, and lack of employment skills. Finally, the responsivity principle suggeststhat programs should be delivered in a style and mode that is commensurate with the learning
style and personal characteristics of the offender.

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Gender-informed program development and implementation is based on current researchand expertise about women offenders. Appropriate programs for women integrate a number ofgender-informed theories and methodologies in contemporary correctional services. Althoughsome of these interventions incorporate traditional elements of evidence-based practice (e.g.,
cognitive-behavioural, skills-based methods), they also explicitly consider needs that are
particularly salient to women, and are founded, at least in part, on theoretical models such as
relational-cultural theory (Miller, 1986), feminist paradigms, and strengths-based approaches(Van Wormer, 2001). Recognizing the elevated rates of historical trauma amongst girls andwomen, these programs should be trauma-informed (Grella, 2008; Messina, Grella, Burdon, &Prendergast, 2007) and consider the gendered context (or “pathways”) of female offending(Salisbury & Van Voorhis, 2009; Simpson, Yahner, & Dugan, 2008). For a more comprehensive
recent review of the conceptual and empirical foundations for gender-informed interventions, see
Kerig and Schindler (2013).
IV. SOCIAL PROGRAMSSocial programs help offenders to identify pro-social lifestyles, to choose activities that will
integrate them as productive members of society and law-abiding citizens. Women offenders areencouraged to participate in activities and social programs relevant to their interests and needs.
Social programs allow for transfer of skills learned in correctional programs, teach women
healthy ways of living, and introduce them to increased pro-social choices. Even though they do
not directly target criminal behaviour, social programs, as identity building activities supportiveof correctional and mental health interventions, play an essential role in CSC’s efforts to actively
encourage offenders to become law-abiding citizens
The Social Integration Program for Women (SIPW) was developed to assist women
offenders in preparing for their transition back into the community. It targets wellness,relationships, meaningful occupations and community functioning. SIPW is aimed at helping
women identify their strengths and areas of their lives in need of improvement. As part of thisprogram, participants are asked to set goals that will assist them in their reintegration. The
program increases women's awareness of community resources and services which can assist
them to overcome possible barriers to reintegration.
The goal of the mother–child program is to foster and promote stability and continuity forthe mother–child relationship. Mothers who meet the eligibility criteria are allowed to keep theirnewborns and/or pre-school aged children with them in the institution. The best interests of thechild is the pre-eminent consideration in all decisions related to the participation in the mother–child program. The safety and security as well as the physical, emotional, and spiritual wellbeing remain paramount in consideration of the best interest of the child. A new non-residency
element of the mother–child program includes the “Child Link” initiative, which facilitates video
visits for women with their children.

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The Peer Support Program is an inmate-based program in which trained and qualified
inmates provide peer support services to other inmates. The program also exists in thecommunity allowing parolees to provide support to other parolees in the community.
V. MENTAL HEALTH SERVICES/INTERVENTIONSIn the Canadian correctional system, women have greater mental health needs compared toboth their male counterparts and women in the general Canadian population. In the federal
system, research has demonstrated that 29% of women had a current mental health problem
during admission (Correctional Service of Canada, 2009). Furthermore, women tend to havecomplex mental health difficulties and present with unique needs. For example, in the federal
women offender population, 43% of women have engaged in self-injurious behaviour, and 75%of those women have attempted suicide (Derkzen, Booth, McConnell, & Taylor, 2012).
Women’s significant mental health concerns are often further compounded by issues such as
historical trauma and substance abuse, creating a complex interplay of challenges for treatment
providers in the criminal justice system.
In 2010, CSC launched its Mental Health Strategy. Considerable attention has been given to
the increasing prevalence of mental health needs of women offenders, and the implications of
this changing profile. Addressing the mental health needs of offenders promotes improved
quality of life, reduces suffering, and respects basic human rights. Moreover, in Canada, it is arequirement under the law (Corrections and Conditional Release Act) to provide essential healthcare services and reasonable access to non-essential services. Furthermore, promotion of mental
health stability may contribute to increased public safety either directly (i.e., by reducing mental
health symptoms that are linked to an offender's offending cycle) or indirectly (i.e., by enabling
participation in correctional programs to address those factors that support continued offending
such as substance use, criminal attitudes, etc.).
Canadian federal correctional facilities for women are designed such that women classified
as medium or minimum security live in house-style accommodation. Within the perimeter of
each women’s correctional facility, there is a Structured Living Environment (SLE) house. The
SLE provides intermediate mental health care in a therapeutic environment for women withsignificant cognitive limitations and/or mental health concerns.
Dialectical Behaviour Therapy (DBT; Linehan, 1993) is offered to women in all the SLEs.
DBT targets emotional dysregulation, unhealthy relationships and maladaptive behaviours, withthe goal of fostering adaptive behaviours. In cases where the inmate’s level of cognitive
functioning is not conducive to interventions through DBT, a detailed individual Treatment Plan
is devised under the lead of the chief of psychology or delegated mental health professional.
These treatment plans are tailored specifically to the needs and cognitive abilities of theindividual inmate. Treatment Plans through DBT as well as individual plans for those lesscognitively capable are also offered to women classified as maximum security.
For women offenders with significant mental health needs requiring more acute care,
psychiatric hospital care is also available.

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VI. STAFF RECRUITMENT AND WOMEN-CENTRED TRAINING
Staff working with women inmates should be carefully recruited and selected to ensure thatall staff applying for positions with direct inmate involvement meet essential qualifications,
including the ability to work in a women-centred environment. This means that they must
demonstrate an understanding of issues that may be more salient, or specifically relevant towomen inmates. As such, candidates in the selection processes should be assessed in terms of
their knowledge, skills, and abilities as they pertain to working with women offenders.
Staff members who have been selected to work in women’s correctional facilities should
also be provided with Women-Centred training to ensure that they work in a gender-informed
manner that facilitates their effectiveness in working with women. At minimum, this training
should include elements of trauma-informed care, as well as the interplay between mental health,trauma, and addictions; recognition of the potential impacts of vicarious trauma; provide anunderstanding of women’s unique needs and learning styles; and provide guidance on adherence
to gender-informed policies and practices.
VII. RECOMMENDATIONS
1. Correctional programs for women offenders should be gender-informed (i.e., inclusive oftheory and research that is specific to women).
2. Social programs and other services for women offenders should consider their unique needs.
Examples include mother–child initiatives, women’s health issues, relational–culturalconsiderations (e.g., peer support programs).
3. All staff providing direct services to women offenders should be carefully screened andselected and should receive training on gender-informed care for women.
4. Correctional policies should consider application to both men and women. Where appropriate,
policy exceptions or revisions should be made for women offenders. Gender-specific policies
for women should be developed and implemented, as appropriate.

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REFERENCES
Andrews, D. A., Bonta, J., & Hoge, R. D. (1990). Classification for effective rehabilitation:
Rediscovering psychology. Criminal Justice and Behaviour, 17, 19-52.
Correctional Service of Canada. (2009). The Changing Offender Population. Highlights, 2009.
Ottawa, ON, Correctional Service of Canada.
Derkzen, D., Booth, L., McConnell, A., & Taylor, K (2012). Mental health needs of federal
women offenders. Research Report R-267. Ottawa, ON: Correctional Service of Canada.
Federally Sentenced Women Program (1994). Correctional Program Strategy for Federally
Sentenced Women. Ottawa, Ontario, Correctional Service of Canada.
Grella, C. (2008). From generic to gender-responsive treatment: Changes in social policies,
treatment services, and outcomes of women in substance abuse treatment. Journal of
Psychoactive Drugs, 5, 327-343.
Kerig, P.K., & Schindler, S.R. (2013). Engendering the evidence base: A critical review of theconceptual and empirical foundations of gender-responsive interventions for girls’delinquency. Laws, 2, 244-282.
Linehan, M.M. (1993). Cognitive-behavioral treatment of borderline personality disorder. New
York: The Guilford Press.
Messina, N., Grella, C, Burdon, W., & Prendergast, M. (2007). Childhood adverse events andcurrent traumatic distress: A comparison of men and women drug-dependent prisoners.
Criminal Justice and Behavior, 34, 1385-1401.
Miller, J. B. (1986). What do we mean by relationships? Work in Progress No. 33. Wellesley,
Mass.: Stone Center, Working Paper Series.
Office of the Deputy Commissioner for Women (2000). Correctional program strategy for
women offenders. Unpublished draft, Ottawa, Ontario, Correctional Service of Canada.
Salisbury, E., & Van Voorhis, P. (2009). Gendered pathways: A quantitative investigation of
women probationer’s paths to incarceration. Criminal Justice and Behavior, 36, 541-566.
Simpson, S. S., Yahner, J. L., & Dugan, L. (2008). Understanding women’s pathways to jail:Analyzing the lives of incarcerated women. The Australian and New Zealand Journal of
Criminology, 41, 84-108.
Van Wormer, K. (2001). Counseling female offenders and victims: A strengths-based approach.
New York: Springer.

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WOMEN IN THE CONTEXT OF CONFINEMENT: IMPACT OF PRISONREFORM IN FEMALE CORRECTIONAL CENTERS OF THE
DOMINICAN REPUBLIC
Sandra Fernández *I.

CONCEPTUAL AND REGULATORY FRAMEWORK

A. From Vengeful Justice to Restorative Justice
Elio Gómez Grillo, in his presentation entitled “HISTORICAL DEVELOPMENT OF JAIL”,
indicated that: “The Prison institution appears in history of humanity as a formula of exploitationof captive labor and nothing else (House of work).” Nowadays we are not looking to make theinmate an exploited worker but a repenting sinner (House of correction)”. On the other hand
Tony Marshall talks about the transition, focusing on “Restorative justice is a process throughwhich parties or individuals who have been involved and / or have an interest in a particularcrime, solve collectively how to deal with the immediate consequences of this and its
implications of the future.”
B. Impact of the International Community
A tally of existing national and international instruments is presented from the Standard
Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on
the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the United
Nations Economic and Social Council in 1957, passing the Beijing Rules in 1985 by the Body ofPrinciples for the protection of all persons under any form of detention or imprisonment of 1988,
the Convention on the Rights of the Child in 1989, the Basic Principles for the Treatment of
Prisoners of 1990, the Tokyo Rules of 1990, the Riad guidelines in early 1990, Vienna
Declaration on Crime and Justice in 2000, up to the Bangkok Rules “RULES OF THE
UNITED NATIONS FOR THE TREATMENT OF WOMEN PRISONERS AND NONCUSTODIAL MEASURES FOR WOMEN OFFENDERS” and its adoption in 2010. The
Bangkok Rules represent an important tool for equitable treatment of women in conflict with thelaw. For the applicability of the 70 rules, special programs have been designed obtaining
excellent results.
II. DOMINICAN REPUBLIC PRISON MANAGEMENT MODEL
The Management Model's main purpose focuses on reintegration as the main purpose ofprison treatment. As a multidisciplinary team, the treatment area is comprised of professionals in
the fields of education, psychology, medicine, psychiatry, sport, culture, social production andwork together to achieve behavior modification and reduce recidivism through labor integrationand social reintegration in a condition to meet the standards and laws.
*

Academic Director, Regional Penitentiary Academy, Office of the Attorney General, Dominican Republic.

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All prison staff are educated by the National Penitentiary School, before entering the systemthey have to go through rigorous recruitment and selection procedures. After passing theselection process they are included in training programs, established accordingly to the area ofinterest and targeted to the area of performance, automatically entering programs of continuing
education and refreshing school education.
In our country, there are currently 18 CCRs of which 11 are run by women. The
management team of the Model Prison Management is 60% women with a performance ofregional dimensions.
III. PRISON TREATMENT PROGRAMS
A. Education: Main Aspect of Treatment
The Model Prison Management facilitates the promotion and development of educational
activities in Corrections and Rehabilitation Centers (RACs) at various levels and modalities. In
this sense an education policy is supported by the Ministry of Education and supplemented byconducting technical and training courses provided by local institutions of vocational andtechnical training. Necessary institutional relations develop, both at the national and local levels(a private, government and civil society level), to achieve the support for technical assistance,
logistical and financial support.
In order for detainees to access similar educational offer as to what’s available in a freeenvironment, in order to contribute effectively to their correction, rehabilitation and reintegration
into society, the Model Prison Management provides, in RACs, an educational diversity that
includes: formal education, technical, languages, computers, artistic, cultural, physical,
recreation and sports and education in values.
Literacy training as a compulsory activity, formal education that includes basic, middle andhigh school levels, college education offered on site and virtual classroom modality, technicaleducation currently offering 60 courses at this level, six different languages, computing isoffered in a virtual room present at each center, special education for inmates with special
conditions for learning, education in values that are keystones of the area of education:
1.

Mental Health offers psychological and psychiatric consultations, individual therapies,group therapy, programs for reducing aggression, behavior modification, suicide
prevention, hunger strike, psychiatric care program, anger management, stressmanagement, grief therapy, traumatic stress therapies, drug addiction therapy,
psychometric testing, qualification of conduct program and inside publication.

2.

Welfare with the aim of bringing and strengthen the family unit with the following
programs: family therapy, special rooms suitable for children's visits, adult visiting
room, virtual visit room, reconciliation with the environment, community outreach,labor activities, activities in coordination with the Prison Ministry, assignment room toaccompany their children to do their homework, home to family visits. It also has
adequate space for conjugal or intimate visits and its procedure regulations, taking- 78 -

consideration of the right of the inmate to have intimate contact with another person of
their choice, within relationships available for life in confinement within the frameworkof dignity and respect.
3.

Productivity to provide them tools with which they can earn a decent living when
steping out onto the free medium. Currently our centers have: chicken farms,
greenhouses, crop in the open, pig farms, crafting of clothing items where all
professional, service and security staff uniforms are made, electronics repair, crafting
workshops where beds that are installed in facilities under construction are made,cabinetmaking workshop where school seats are built and repaired for the communityand penitentiary centers, etc.

4.

Physical Education, Sports and Recreation as relief therapy promoting intra- andextramural sports such as: volleyball tournaments, domino tournaments, basketball
tournaments, physical education, recreation games.

5.

Art and Culture as a mechanism of “0” leisure developing activities such as: creating
theater groups, dance groups, choir, soloist, music classes, paintwork, artistic andcultural festival held every year. 2015 will be the seventh season.

6.

Physical Health providing care to them through the programs: Healthy Life Style,
Personal Hygiene Workshop, General Medicine and Specialty, Dentistry, Chronic
Patients Program, Disease Control Program, Primary Care Unit, Program for foodhandling.

7.

Legal Aid accompanying them in their legal process with a single file management
subsystem, comprehensive information system, tracking cases, reports of Conduct forsentence execution Judges, control transfers, control inputs and outputs, as well as
relapse control.

B. Special Programs
1. Conduct Qualification Program. Good Practices for Rehabilitation
The Multidisciplinary team of professionals in the Corrections and Rehabilitations Centers
perform three evaluations per year providing individualized and comparative data on the results
provided by the women prisoners in each of the areas of treatment, also the monitoring of their
behavior. The program objective is to induce permanent improvement of individual andcollective behavior of persons deprived of liberty in the MGP. The results of these evaluations
are publicly presented within accommodations and pavilions where the interns spend the night.
2.

Free Environment and Family. Preparing for Reintegration
Once put in place and matured, the stages of observation and treatment the system
introduces the concept “Free Medium” which enters into the stage of testing as part of goodpractice for reintegration. The aim of the Free Medium is to ensure execution of sentence in theframework of social and educational actions in accordance with the rights of persons deprived ofliberty, oriented to an effective rehabilitation and social reinsertion. The Free Medium Unit is- 79 -

responsible for regulating, monitoring and evaluating the implementation of plans in cases of:
Pre-release period, Probation and Management Alternate measurements in prison.
3.

Artistic and Cultural Festival
This activity was born in May 2009, allowing the development of artistic and culturalexpressions of detainees that are inmates in the Corrections and Rehabilitation Centers of the
Dominican Republic in the scheme of the New Model of Jail Management and part of incentives
by the exhibition of good behavior, and also promotes healthy competition between them. Desdesu nacimiento, ha sido celebrada cada año, exhibiendo grandes avances y llegando a niveles
profesionales de presentaciones que han sido presentadas en los escenarios más solemnes denuestro país.
4.

Productive and Craft Fair
This activity takes place annually at the RACs in different settings nationwide. All RACs
have in their execution Matrix to comply with annual participation fairs held locally with therecurrent date fixed for the anniversary of the center and national fairs that are held in the capitalcity, as the book fair, the agro-industrial fair, etc. In these shows, schools have the opportunity to
showcase the products harvested and / or manufactured with the particularity that are the same
inmates, which in turn serves as an opportunity for social reintegration.
5.

Food Handling
They learn to establish the health requirements to be met by performers in food handling
operations, while obtaining, receipt of raw materials, processing, packaging, storage,transportation and even marketing. All food handlers receive basic training in food hygiene todevelop these functions and other training courses according to the schedule established by thehealth authorities. In addition a special medical examination before admission to any area offood processing must be performed, and every six months, among other requirements.
6.

Healthy Lifestyles
It refers to a set of program activities for inmates in order to create healthy habits and toteach them to live with health conditions or situations that afflict. This program is developedwith activities focused for inmates that have controlled or catastrophic illness and to protect
healthy inmates from contagion, eliminating vectors and other actions.
7.

Virtual Tours Program. An Equity Rehabilitation
Rehabilitation and Correction Centers currently hold approximately 5% of foreign inmates,
also adding Dominican inmates with family members living in other countries or other areas
outside of the site location. Prisoners in these conditions tend to suffer the ravages of lonelinessand hopelessness on a larger scale, so, motivated to to offer all the same opportunities, we create
for them spaces where they can share with their immediate surroundings so that it can become anelement to strengthen programs to receive treatment and rehabilitation, family support throughthe tour. This program is being implemented.
8.

Suggestions Mailbox. An Observatory for Continuous Improvement
As a way to detect and resolve situations in a transparent way to the collective but importantfor individuals, suggestions mailboxes have been installed, for both inmates and MGP staff,- 80 -

allowing to express opportunities for improvement at any level. The objective is to analyze,
empower and resolve, according to the possibilities, complaints or suggestions to the satisfactionof needs and expectations as a means of consolidating quality.
9.

Infrastructure. A Distinguishing Element
Understanding that this issue is of central importance when trying to implement a model
where equity plays its role, the Bureau of Prison Architecture where differentiating elements
between women and men are discussed was implemented before construction of a CCR. This has
allowed different factors involved in this issue such as universities, civil society and prison staff.
Achieving the building of structures which takes into account the chronological and genderdifference of inmates, creating wards for men, women and children with their particularities inline with the minimum requirements accepted by international organizations. The
implementation of a new prison model based on the philosophy of respect for the humancondition of persons deprived of liberty, rests on three fundamental pillars; Construction of new
physical plant or adequacy of the same, human talent and application of the new system of prison
management and security are tools to support the development of treatment for rehabilitation andsuccessful reintegration.

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WHAT WORKS TO REDUCE RE-OFFENDING?
A DISTINCT APPROACH TO THE MANAGEMENT OF FEMALE
OFFENDERS IN THE COMMUNITY IN ENGLAND AND WALES
Sara Robinson *I.

WORKING WITH WOMEN IN THE COMMUNITY

A. Summary of Policy Drivers
1. Political Focus and Priority
The principles for working with women offenders in the community in England andWales is derived from the Corston Report 1 2007. The report was commissioned by the Home
Secretary as a response to a high number of female suicides in custody at that time. The
report reviewed the experiences of women across the UK criminal justice system and made aseries of fundamental recommendations, most notably, that a ‘distinct approach’ to the
management of women was required in order to redress the inherent inequalities in a criminal
justice system designed primarily for men. A more detailed description of the ‘Corston
model’ is provided in section B below.
2.

Legislation
There continues to be a strong political impetus for driving this policy area, with current
Ministerial direction and leverage from a Cross Government Forum, led until recently by the
Coalition Government Minister, Simon Hughes 2. This political driver was recently enshrinedin new UK legislation, which came into force on 1st February 2015 as part of theGovernment’s Transforming Rehabilitation Programme (TR) 3. The Offender Rehabilitation
Act 2015 places a new requirement on criminal justice delivery organisations to ‘identify any
specific rehabilitation and supervision activities that are intended to meet the particularneeds of female offenders’ 4.
3.

Accountability within the new structure of UK probation services
The TR programme has restructured the delivery of rehabilitative services across theprobation and prison services, creating a mixed economy of public, private and third sector
providers. Probation services are provided by the public sector National Probation Service(NPS), across 7 geographical divisions, and 21 Community Rehabilitation Companies(CRCs) 5.

In order to ensure that the supervision of women as a distinct group maintains a highprofile within the TR change programme, specific performance criteria have been included in
the new contracts for Probation Providers and Private Sector Prisons. Similarly, service level*

Deputy Director, National Probation Service Probation Service, United Kingdom.
A review of women with particular vulnerabilities in the Criminal Justice System, Baroness Corston, 2007.
2
Simon Hughes is currently Minister of State for Justice and Civil Liberties, April 2015.
3
Transforming Rehabilitation: A Strategy for Reform, 2013.
4
The Offender Rehabilitation Act 2015.
5
The providers who now own the 21 CRCs are a mixture of private, voluntary and a public consortia. These
consortia include charities and specialist services that meet the needs of female offenders.
1- 82 -

agreement performance targets have also been set for all probation services and public sector
prisons.
B. The Corston Report 2007
As outlined, Baroness Corston’s review of women in the criminal justice system was a
response to a disproportionately high number of suicides by women in custody. The report
investigated the experiences of women throughout all stages of the criminal justice system
and identified that the reasons women enter the criminal justice system are often different totheir male counterparts: for example high proportion of experiences of sexual and domestic
abuse; a history of being in care; substance misuse and mental health issues. The impact ofwomen going into custody was also identified as disproportionate for women, as women tend
to be the primary carers for children rather than men.
The overall conclusion of this review was that the UK criminal justice system is a systemdesigned for men, meaning that a different or ‘distinct’ approach is required to redress theimbalance and achieve equal outcomes for women. Specific recommendations were aimed at
implementing the distinct approach for supervision in the community, and theserecommendations have shaped development of the UK model for community based probation
services.
C. UK Model – Towards a Distinct Approach
1. The ‘One Stop Shop’ Delivery Model
The model for the supervision of women offenders should be an holistic approach – awhole system multi-agency response to meeting the distinct needs of women, withinterventions being delivered in ‘one stop shop’ style women’s centres. The one stop shopmodel is part of a more co-ordinated approach to addressing women’s offending related
needs in the community. These are centres where women can access a range of different
multi-agency services in one [safe], women only environment. These centres should beaccessible to both women offenders and women at risk of offending in order to promote
diversion from custody and community integration. A best practice example of a ‘one stop
shop’ is the Asha Centre in Worcester, West Mercia 6, where women can access the centre aspart of a community based sentencing option.
2.

Best Practice in the Delivery of Probation Services
Commissioning arrangements for women’s services should be structured to reflect thisdesign. Women offenders should normally be supervised by female probation officers andgiven the opportunity to report for probation supervision within a women only environment.
Best practice examples include probation officers being seconded in to work in local
women’s centres enabling the offenders to report into a women only environment, which ismore conducive to meeting their rehabilitative requirements. Where this is not feasible
probation offices should operate specific ‘women only reporting times’, in order to ensurethat women can report for their supervision in a safe, female only environment. This isparticularly important for women who have been victims of sexual and/or domestic abuse.
Probation staff should receive specific training in working with women offenders in order tounderstand and respond to their particular needs and underpin good quality sentencing
proposals in pre-sentence reports. Probation providers should work with local sentencers to
inform them about the available sentencing options and specific interventions for women, in
6

See www.ashawomen.org.uk and also, for further research and evidence into other alternatives to custody for
women, please see the report “Equal but Different”, October 2011, which highlights the work of Women’sCommunity Projects like the Asha Centre.

- 83 -

keeping with Corston’s recommendation that community based solutions should be the norm
for non-violent women offenders.
3.

Specific Criminal Justice Interventions for Women
Examples of specific interventions (sentencing options) for women in London include
the Women’s Programme (WP), the Women’s Senior Attendance Centre (SAC) Requirement
and Rehabilitation Activity Requirement (RAR). The WP is a cognitive behavioural group
work programme delivered in a Probation Women’s Centre and aimed at women who
commit serious acquisitive type offences. The SAC is available to young adult women aged
18-24 years, who are sentenced to attend a number of hours of purposeful activity linked totheir rehabilitative needs. A RAR may be similar in content to a SAC and are available insome parts of London where services have been commissioned from third sector providers of
women’s centres. Activities may also include mentoring either by peers or members of thecommunity.
D. Informed Commissioning
The provision of national common data sets is essential to inform commissioning decisions
and facilitate ongoing research and evaluation into what works with women in thecommunity. All UK providers of probation services must provide common minimal data sets
linked to the national offender management case record system – ‘Delius’. Delius enables us
to reports on the following criteria for all women:







Offence details
Sentence type
Personal information
Risk (of serious harm) level
Court reports
Attendance records

The national offender assessment system (OASys) provides another view of each case,identifying the specific offending related needs of each individual across 13 criteria. OASys
was developed jointly by the Probation and Prison Services and is a national system forassessing the risk and needs of an offender. It is designed to:• Facilitate the assessment of the likelihood of reconviction• Identify and prioritise offending relating needs• Facilitate the assessment of risk of serious harm
• Assist with the management of risk of serious harm
• Facilitate sentence planning• Measure change during supervisionThis combined information from these data sets is used nationally to commission
national interventions and regionally to commission local services.
E. Evaluation

We are still learning
Building an evidence base to inform practice-longitudinal research with control
groups.
Independent validation- 84 -

Collation of common data sets
Outcomes focus (not process) – 1) reduce re-offending 2) increased compliance 3)
reduced custodial sentences 4) reduced harm 5) reduce cost. Times of austerity –principles of value for money and move towards pooled budgets.
Service User Voice—what assists engagement/compliance?

F. Recommendations
This paper has identified four key recommendations in taking forward a distinct
approach to the supervision of women in the community by probation services.
1.
2.
3.
4.

Ensuring political support is in place to drive strategy, behaviours andcommissioning
A clear understanding of the particular experiences of women in the criminal
justice system in order to develop a distinct approach to the management of
women which is responsive to their needs
This response should be a whole system approach rooted in partnership with otheragencies/providers who may be specialists in the field of women’s services.
Building common data sets to enable evaluation of existing services/interventions
and inform the commissioning of future provision.

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Appendix A: The UK Probation Female Cohort 7
Numbers of women supervised by UK probation services:
•
•
•
•
•

22,000 female offenders currently supervised
16,700 Community Orders (76%)
3,000 pre-release supervision in custody (14%)
2,300 post-release supervision on licence (10%)
Approximately 800 are assessed as high risk of serious harm

Common offences types:
1.
2.
3.
4.

7

Theft and handling – 30%
Fraud and forgery – 17%
Violence against the person – 7%
Other summary (magistrates courts only) offences -30%

Snapshot data provided by the National Probation Service England, March 2015.

- 86 -CAPACITY-BUILDING OF FEMALE CORRECTIONAL OFFICERS:FROM THE PERSPECTIVE OF ADMINISTRATION OF WOMEN’S
PRISONS IN JAPANMasako Natori *I.

INTRODUCTION

Correctional officers who work directly with inmates are the most important people forachieving the rehabilitation of offenders. Accordingly, we must establish working
environments where female officers are properly trained and developed; where they gain
professional knowledge and enhance their skills on the treatment of inmates; and where theywork positively and sustainably. Doing so will directly impact the treatment of female
inmates and will contribute to their successful rehabilitation.
II. CURRENT STATUS OF FEMALE INMATES, WOMEN’S PRISONSAND FEMALE CORRECTIONAL OFFICERS IN JAPANA. Number of Female Inmates and Offence Type in Japan
1. Number of Inmates

At the end of 2014, there were 52,860 sentenced inmates in Japan nationwide. Out of that
number, female inmates make up 8.3%. After rapidly increasing from 1993 to 2006, the total
number of female inmates generally remained flat, while the number of male inmates has
been decreasing in recent years. Currently, the population of female inmates is about 3 times
what it was in 1993.

*

Director, Facilities Department, Ministry of Justice, Japan.

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2.

Offence Types

This graph shows the offence types in 2013. Theft and Stimulants Control Act violations
totaled 80% of all offences committed by female offenders.
3.

Characteristics
Recently, the proportion of elderly inmates is increasing in Japan. Therefore, treatment
and reintegration of such inmates has become a great issue.
B. Women’s Prisons in Japan

There are 77 prisons in Japan nationwide. 10 are women’s prisons. Twenty years ago, weonly had 5 women’s prisons, but to respond to the increasing number of female inmates, wehave increased capacity to accommodate women. In 2013, the number of female inmates was
83% of their total capacity.
C. Female Correctional Officers in Japan
1. Number of Staff
There are 17,466 prison officers throughout Japan, and among them, only 1,419 arefemale, which make up 8% of all prison officers. In Japanese women’s prisons, about 90% ofprison officers are female.
2.

Recruitment
In Japan, all correctional officers start out as national government officials assigned to
the Ministry of Justice. Firstly, newly appointed officers attend a 3-month basic training
course at the Training Institute for Correctional Personnel, which is followed by 9 months of
on-site training.

- 88 -

3.

Promotion/Training
Those who wish to be promoted to a higher rank have opportunities to take the internal
promotion exam. After passing the exam, training for senior officials is provided. The
opportunities for promotion and participation in training programs are provided equally tomale and female officers. Those who are capable and motivated female officers are promoted
to leading positions, such as wardens or policy makers in the Ministry of Justice. However,since the number of female officers is still relatively low, we need to promote further
measures for the capacity building and expansion of job categories and positions of female
officers.
III. CHALLENGES FACING FEMALE CORRECTIONAL OFFICERS IN JAPANA.

Age Composition

About 50% of female correctional officers are in their twenties, and 25% are in theirthirties. This means that the majority of female correctional officers are from younger
generations.
B. Reasons Female Officers Quit Their Jobs Early
Why is the proportion of young female officers disproportionately high in Japan? This isbecause many female correctional officers do not continue their jobs after a few years. The
number of female officers who quit within 3 years after recruitment is two times higher thanthat of male officers.
Why do female officers quit their jobs so early? One of the reasons is that they prioritize
their private lives, such as marriage, child birth or raising children, over pursuing theircareers. However, more than that, the characteristics of working at correctional facilities,
such as long, irregular working hours or the burden of working with difficult inmates, puts alarge amount of stress on female officers. In other words, the job of a correctional officer is
not appealing to young women. The longer one continues to work as a correctional officer,
and the higher one gets promoted to senior positions, the substance and the quality of work
becomes more interesting and important, and to many, worthwhile and meaningful.
In addition, the skill of working with inmates is acquired through experience.
Rehabilitation of offenders is an important duty of the state. This duty cannot be dismissed as- 89 -

menial work which can easily be performed by anyone. Therefore, supporting young andin-experienced officers, and reducing the number of young women who quit, is most crucial
for strengthening the entire correctional system.
IV. EFFORTS TO IMPROVE WOMEN’S PRISON CONDITIONS
A. The “Marguerite Action” Business Model for Women’s Prisons, Female Inmatesand Female Officers
In an effort to implement practical measures for both female officers and inmates, theinitiative called the “Marguerite action” business model was adopted in January 2014. The“Marguerite action” seeks to create a good working environment in women’s prisons,improve the treatment of female inmates, and encourage the long-term employment of female
officers. Therefore, this action includes various measures, such as:
・ Capacity building for female officers,
・ Reducing overcrowding of women prisons,・ Enhancing the entrustment of administration to the private sector,
・ Developing new educational programs and vocational training programs,
・ Supporting measures for reducing repeat offences and smooth reintegration of female
inmates, and so on.
B. Capacity Building for Female Officers in the “Marguerite Action”
The following measures have been implemented in order to improve the working
environment and capacity building for female officers participating in the “Marguerite
action”:
・ Preparation of a new recruitment plan to increase the number of female officers,
・ Securing work-ready officers by promoting the re-employment of female officers
who have resigned, and other mid-career workers,
・ Improvement of training content for senior female officers,
・ Offering more opportunities for promotion into administrative positions to female
officers,
・ Expansion of job categories for female officers, including placement in male prisons,・ Enhancing the opportunity to exchange opinions and information among officers inwomen prisons, and,・ Promoting public relations actively and improving the public image of female
officers.
In addition to these measures, establishing flexible working hours taking into account theneeds of female officers, offering more vacation time as well as reducing overtime, andestablishing support systems for female officers with personal and professional concerns are
essential.

- 90 -

C. The Community Support Model Project for Women’s Prisons

The Community Support Model Project for women’s prisons launched in 2014 at three
women’s prisons in Japan. This project enables young officers to receive support and advice
from local experts such as nurses, midwives, caseworkers, job assistance workers and othercounselors in regards to female inmates’ health conditions, pregnancy matters, family mattersand reintegration into society. This project is assisted by well-known private groups andexperts on women’s welfare and medical care.
Although the project aims to improve the treatment of female inmates according to theirgender-specific needs, there are additional benefits, such as developing cooperative relations
between prisons and local communities and improvement of the knowledge and treatment
skills of young officers. By involving these private groups, female officers come to realize
the importance of work in women’s prisons. As a result, the project brings about a virtuous
cycle to enhance the pride and job satisfaction of female officers. Since it will be difficult toincrease the number of staff immediately, it is necessary to rely on the cooperation andsupport of private groups, such as welfare services, medical services, private companies, andvolunteers.
Recently in Japan, the Prime Minister is strongly promoting active roles for women insociety. In line with this policy, the Ministry of Justice has also commenced various measures
to support female officers. In order to address the increase of female inmates, we have
implemented various measures for the improvement of facilities and accommodations within
women’s prisons. In addition, in order to complement the disproportionate age compositionof female officers, we have fostered the involvement of the private sector and the cooperative
relationship between prisons and local experts.
Furthermore, from fiscal year 2015 to 2018, we are aiming to decrease the turnover rateof female officers by half and improve the working environments of women’s prisons. This
will enable female officers to work with responsibility and pride. In addition, we are planningto implement comprehensive measures such as deploying 200 female officers, taking
practical measures to reduce the burden of female officers’ work, and providing detailed
support systems for young female officers.

- 91 -

V. CONCLUSION
The improvement of the working environments in women’s prisons largely impacts the
improvement of inmate treatment. Furthermore, improving women’s prisons, which are theminority of Japan’s prisons, will gradually impact the Japanese prison system as a whole.
Japan’s Correction Bureau is committed to continuing its efforts to improve the environmentof women’s prisons, to improve the treatment of female inmates and to improve thedevelopment of female correctional officers, through joint efforts by government, individual
specialists and citizens.

- 92 -

PANEL II
PRESENTATIONS
Ms. Alexandra Martins (UNODC)***

Mr. Yvon Dandurand (ICCLR)***

Dr. Zhao Bingzhi (CCLS)***

Dr. Carlos Tiffer (ILANUD)***

Mr. Horace Chacha (Kenya)***

Mr. Christian Ranheim (RWI)***

Mr. Christer Isaksson (Sweden)***

Ms. Valerie Labaux (UNODC)INTRODUCING THE UNITED NATIONS MODEL STRATEGIES AND
PRACTICAL MEASURES ON THE ELIMINATION OF VIOLENCEAGAINST CHILDREN IN THE FIELD OF CRIME PREVENTION AND
CRIMINAL JUSTICE
Alexandra Martins *Violence against children is a widespread phenomenon affecting millions of children allover the world. Although all children have the right to be protected from violence, abuse andexploitation as set out in Article 19 of the Convention on the Rights of the Child (hereafter“CRC”), adopted 25 years ago, many children all over the world still lack the opportunity togrow up in a peaceful and non-violent environment, in which their rights to survival,
development, and well-being are fully respected.
Considerable progress has been achieved in the past decades by a number of Member Statesin preventing and responding to violence against children, but much work still needs to be done.
The challenges in protecting children from violence when in contact with the justice system arebroad and need to be addressed.
As the topic of the paper is “Preventing and Responding to Violence against Children inContact with the Justice system,” this platform will be used to briefly introduce a newinternational normative instrument called the United Nations Model Strategies and Practical
Measures on the Elimination of Violence against Children in the Field of Crime Prevention andCriminal Justice. This international normative instrument, which I will hereafter refer to as the“Model Strategies,” is based on international human rights instruments, such as the CRC, and all
United Nations standards and norms in the field of justice for children.
The paper will be presented in three sections: i) Process leading up to the adoption of the“Model Strategies”; ii) Objectives and scope of the “Model Strategies”, and iii) Content of the“Model Strategies.”
In 2006, the United Nations Study on Violence against Children (hereafter “VAC”)
acknowledged that violence against children is a widespread phenomenon affecting millions ofchildren all over the world. No country is immune to this problem. The study highlighted theparticularly high risk of violence faced by many vulnerable groups of children, includingchildren who are in contact with the justice system as victims, witnesses or alleged offenders. It
was suggested that criminal justice institutions could play a more effective role in preventing andresponding to such violence.

*

Crime Prevention Officer, Justice for Children, Justice Section, United Nations Organization on Drugs and Crime(UNODC).

- 95 -

In 2012, as a follow-up to the World Report on VAC, the Office of the High Commissioner
for Human Rights, UNODC, and the Special Representative of the Secretary-General on
Violence against Children, submitted a report to the Human Rights Council which focused
specifically on violence against children within the juvenile justice system. The report elaborated
the various risk and contributing factors to violence against children who are in contact with thejustice system, and made a number of recommendations to prevent and respond to suchphenomenon. This report caught the attention of the international community and served as thefirst step of a domino leading to the development of a new international normative instrument inthis area.
In 2013, recognising the pressing need to address the issue of violence against children and,in particular, the role of the criminal justice system, in 2013, the General Assembly of the United
Nations requested UNODC to develop a draft set of model strategies and practical measures on
the elimination of violence against children in the field of crime prevention and criminal justice.
UNODC, in close partnership with UNICEF, OHCHR and the SRSG on VAC, along withrepresentatives from a number of NGOs active in this field, prepared the first draft and submitted
it to Member States in a meeting hosted by the Government of Thailand in Bangkok, in February
2014. The draft text was revised by Member States, and approved by three policy-making bodiesof the United Nations: the CCPCJ, the ECOSOC, and the GA. Its final adoption was made in
December 2014.
Approval by the international community of the “Model Strategies” symbolized a strong
recognition of this problem and the Member States’ commitment to take stronger action towards
this unfamiliar yet urgent aspect of violence against children.
Whether a judge, prosecutor, law enforcement officer, or child protection professional, onemust have asked oneself the following questions at least once in his or her career:•••Is the justice system doing everything it can to prevent violence against children?
Is the justice system responding to incidents of violence against children in an effective
and appropriate manner?
Is the justice system dealing with children in contact with the law in a manner which
reduces the risk that they may be further victimised or abused?

Of course, the justice system is not the only system that has responsibilities of protecting
children. Its responsibilities, however, are enormous and its role in the protection of children isabsolutely crucial. Thus, the “Model Strategies” were developed to support a comprehensive,
system-wide, and strategic approach in the field of crime prevention and criminal justice.
They have been developed not only to help States address the need for integrated violence
prevention and child protection strategies, but also to acknowledge the complementary roles of
the justice system on the one hand, and the role of child protection, social welfare, health andeducation sectors on the other, to create a protective environment in preventing and responding
to violence against children.
The aims of the “Model Strategies” are twofold:- 96 -

1) To improve the effectiveness of the criminal justice system in preventing and responding
to violence against children and;2) To protect children from any violence that may result from their contact with that system.
The “Model Strategies” were developed with a view to provide a practical framework to:••••

To identify gaps in existing laws, policies and practices;
To review and design national laws and policies;
To set up institutions and mechanisms aimed to prevent and respond to VAC;
To guide professionals in their day-to-day practice to effectively prevent and respond to
VAC who are in contact with the justice system;

The “Model Strategies” are grouped into three broad categories:
1) General prevention strategies to address violence against children as part of broader childprotection and crime prevention initiatives;
2) Strategies and measures to improve the criminal justice system’s ability to respond tocrimes of violence against children and effectively protect child victims;
3) Strategies and measures to prevent and respond to violence against children in contact
with the justice system.
Under each strategy there are a number of related “practical measures” that are named andlisted rather than fully explained. Some of these measures are formulated in fairly general terms
and will need to be refined, customized, and adapted to national or local circumstances.
Not all strategies will have the same level of priority in the context in which one may apply
them. The seriousness and prevalence of various risk factors will be necessary when setting suchlevel of priority.
Part I consists of three strategies. The first strategy relates to the prohibition, by law, of all
forms of violence against children and the need to specifically criminalize certain serious formsof violence. This is because of the obvious importance of the existence of a sound legal
framework which prohibits violence against children and empowers authorities to respond
appropriately to incidents of violence. It is important to note that the strategy does notnecessarily require the criminalization of all forms of violence. Rather, some forms of violence
should not necessarily be defined as crime, and instead be prohibited through other means.
The second strategy is related to the implementation of comprehensive prevention
programmes. Prevention of violence against children must be identified as a crime prevention
priority, as prevention offers the greatest return in the long term. Hence, criminal justice agencies,
working together with child protection, social welfare, health and education agencies and civil- 97 -

society organizations, all have significant roles to play in developing effective violence
prevention programmes.
Elements under this strategy include:• The need to strengthen the existing child protection system and to help create a protective
environment for children;• The need to adopt measures to address the cultural acceptance or tolerance of VAC;
• The need to foster cooperation between justice and child protection systems;• The need to address specific vulnerabilities of certain groups of children, such as children
working or living on the streets, children with disabilities, children with substance abuseproblems, etc…
The third strategy is related to promoting data collection, research, analysis anddissemination. The “Model Strategies” should be implemented through knowledge-based
measures, programmes and interventions.
The second group of strategies in Part II focuses on how to enhance the ability and capacityof the criminal justice system to respond to violence against children and protect child victims. It
also accentuates the role of the justice system in bringing perpetrators of violence againstchildren to justice, protecting child victims of violence, and working closely together with othersystems (education, welfare, child protection, health). In particular, the crucial importance of
establishing detection and reporting mechanisms is heavily emphasized.
The third group of strategies relates to the measures required to prevent children from being
victimized during their contact with the justice system (including the juvenile justice system).
This is because of the heightened risk of violence faced by children alleged as, accused of, or
recognised as having infringed the penal law. Considering that one important objective of thecriminal justice system is the protection of children’s rights, violence against children within thejustice system is an obvious step backward, and is counterproductive to any efforts ofrehabilitation and reintegration of the child back into the society.
To address the particular relevance for legislators, criminal justice professionals, civilsociety, and academics who work in the area of juvenile justice, Part III of the “Model Strategies”
deals with the prevention of and responses to violence against children alleged as, accused of, or
recognized as having infringed the penal law.
Countless studies have revealed that children within the justice system, in particular thosedeprived of their liberty, are especially vulnerable to violence. The consequences of violence
perpetrated against children when in contact with the justice system cannot be underestimatedand needs thorough investigation and scrutiny. Higher possibility for further and bigger criminal
activities in the future is only one of the many consequences that are overlooked.
Thus, the first strategy under Part 3 aims to reducing the number of children in contact withthe justice system. There are several ways to limit the number of children in the juvenile justicesystem. This may involve avoiding the criminalization and penalization of children. It is quite
common that criminal codes contain provisions criminalizing conduct only when committed by- 98 -

child but not when committed by an adult. Examples are begging, vagrancy, truancy, runaways
and other acts. Also, it is important to note that children with mental health problems andchildren with substance abuse problems are often over-represented in the criminal justice systemand should instead be provided with appropriate care and protection. Another effective way of
reducing the number of children in the justice system is through the use of alternative measures
to judicial proceedings (diversion), which include the application of restorative justice.
The second strategy under Part III relates to preventing VAC associated with law
enforcement and prosecution strategies. Elements under this strategy include ensuring that allarrests are conducted in conformity with the law, to limit the detention of children to situations inwhich these measures are necessary as a last resort, and to promote and implement alternative
measures to detention.
It is well known that children face a significant risk of violence when they are deprived of
their liberty, and the possible sources of violence in institutional settings are numerous. For thisreason, a very important strategy has been drafted, which reflects a provision contained in Article
37(b) of the CRC. This consists of taking various measures to ensure that deprivation of liberty isused only as a measure of last resort and for the shortest appropriate period of time. This may
involve revising sentencing laws, rules, guidelines, and policies. For this strategy to be effective,
however, other non-custodial sentencing options must be available, such as care, guidance,
supervision orders counselling, and probation.
The fourth strategy focuses on the prohibition of torture and other cruel, inhuman ordegrading treatment or punishment, which reflects a provision contained in Art. 37 (a) of the
CRC. In many justice systems, children who have reached puberty are subject to punishments ofextreme violence, including flogging, stoning, and amputation.
The fifth strategy relates to the prevention and responses to VAC in places of detention. As
mentioned before, there is always a higher risk of violence against children who find themselvesin detention. This strategy includes measures aimed to improve the conditions of detention andthe treatment of children deprived of their liberty, as well as the need to adopt clear andtransparent disciplinary policies and procedures. A key element under this strategy is to ensurethat all alleged incidents of violence, including sexual abuse of children in a place of detention,
are immediately reported and independently, promptly, and effectively investigated byappropriate authorities and, when sufficient evidence is found, effectively prosecuted.
The sixth strategy elaborates on the protection of and assistance to child victims of violence
who are in the justice system. A crucial element under this strategy is the establishment ofcomplaint mechanisms that are safe, confidential, effective and easily accessible for child victimsof violence. It is also very important to protect children who report abuse from the risks ofretaliation. Inevitably, in reality, very few children in the criminal justice system are actually in aposition to denounce abusers who are in a position of power and authority over them. This is
why it is so important to create a legal obligation for criminal justice professionals to reportincidents of violence against children.

- 99 -

Finally, but not least, is the strategy to strengthen accountability and oversight mechanisms,
which is deemed as one of the most important actions in child protection. Numerous studies haveshown that violence against children in the justice system frequently remains unpunished. Suchviolence will not be effectively prevented unless strict measures are taken to put an end to thistype of impunity. Any tolerance of violence against children within the justice system must be
challenged by societal measures, such as awareness-raising programmes, education, andeffective prosecution of violent offences committed against children within the justice system.
The last two strategies of Part III deal with the firm responses that should be given to all
incidents of violence against children. The penultimate strategy is based on the crucial
importance of providing children who report abuses and incidents of violence within the justicesystem with immediate protection, support, and counselling. A number of measures are proposedto help detect such incidents, and to enhance the protection and assistance offered to children
who are victims of violence as a result of their involvement with the justice system as alleged orsentenced offenders. A crucial starting point is the establishment of complaint mechanisms forchild victims of violence within the justice system that are safe, confidential, effective and easily
accessible. Such complaint mechanisms should be accompanied, when needed, by counsellingand support services. Existing complaint mechanisms should be thoroughly reviewed and tested.
Once complaint mechanisms are established it is also very important to protect children who
report abuse, specifically taking into account the risks of retaliation. This can be done byadopting and enforcing policies that ensure that those allegedly implicated in violence against or
ill-treatment of children are removed from any position of control or power, whether direct orindirect, over complainants, witnesses, and their families, and those conducting the investigation.
Other practical and procedural measures must be installed to protect children who provide
information or act as witnesses in proceedings related to a case involving violence within thejustice system.
The last strategy of Part III consists of strengthening accountability and oversightmechanisms within the criminal justice system as a whole. It calls for timely and effective
investigation and prosecution of offences involving violence against children within the justicesystem and aims to ensure that all public officials who are found to be responsible for violenceagainst children are held accountable. Measures are included to promote transparency and public
accountability as well as measures to enhance integrity and prevent corruption within the justicesystem.
Preventing and responding to violence against children in contact with the justice systemforms a key component of UNODC’s work in the area of Justice for Children, and the UNODC
has led the project to develop and draft the “Model Strategies” with great hope. With the
adoption of the “Model Strategies” by the General Assembly in December 2014, Member States
can be guided by a powerful instrument to develop and implement the necessary legal and policy
frameworks for preventing and responding to violence against children in the field of crime
prevention and criminal justice.
In order to assist Member States in their implementation, UNODC and UNICEF have jointly
developed a Global Programme on Violence against Children in the Field of Crime Prevention- 100 -

and Criminal Justice, with the aim to strengthen the justice systems of Member States in this area
and to facilitate a coherent response to the challenges of violence against children. As part of theUnited Nations Congress on Crime Prevention and Criminal Justice, it is our common andutmost responsibility to implement this new international normative instrument, breathing life
into the “Model Strategies” to provide stronger and more effective protection for children
involved with the justice system.

- 101 -

THE IMPLEMENTATION OF THE UNITED NATIONS MODELSTRATEGIES AND PRACTICAL MEASURES ON THE ELIMINATION
OF VIOLENCE AGAINST CHILDREN IN THE FIELD OF CRIMEPREVENTION AND CRIMINAL JUSTICE: THE CHECKLIST
Yvon Dandurand*

In order to support Member States in the implementation of the “United Nations Model
Strategies and Practical Measures on the Elimination of Violence against Children in the
Field of Crime Prevention and Criminal Justice", UNODC has developed a “Checklist” to the“Model Strategies”.
It is a tool to help Member States undertake initial steps in assessing the readiness andcapacity of a State’s justice system to protect children who are in contact with the justicesystem from all forms of violence. I will present the checklist briefly and suggest how it may
be used as a basis for strategic planning for the elimination of violence against children.
Given the focus of the present panel on the experience of children in contact with thecriminal justice system, I would also like to refer more specifically in my presentation to Part
III of the Model Strategies, the part that deals with the prevention of violence against children
within the justice system. I will therefore highlight some practical measures that could betaken by Member States to prevent and respond to violence against children who are in
conflict with the law and, in particular, against children deprived of their liberty.
I. THE MODEL STRATEGIESAs was mentioned the Model Strategies include three main parts corresponding to threevery important aspects of any crime prevention and criminal justice strategy to eliminate
violence against children. They are: (1) Implementing broad prevention strategies; (2)Ensuring appropriate and effective criminal justice response to incidents of violence againstchildren; and (3) Eliminating violence during children’s contacts with the justice system.
The Model Strategies use a very broad definition of violence against children, essentiallythe same definition found in the Convention on the Rights of the Child. In total, it includes 17
main strategies and 47 related practical measures.
A. Many Ways to Use the Model Strategies
The Model Strategies can be used to systematically review existing mechanisms andlegislation to protect children against violence and to identify gaps. In fact, the Model
Strategies can be used as a basis for developing a comprehensive plan to prevent and respondto violence against children. The checklist was effectively designed to assist this process.

*School of Criminology and Criminal Justice, University of the Fraser Valley, British Columbia, Canada, andFellow and Senior Associate, International Centre for Criminal Law Reform and Criminal Justice Policy.

- 102 -

If you look at the checklist more closely, you will notice that it consists essentially of anumber of questions that are logically prompted by the different measures included in the
Model Strategies. I am not sure if you can see it clearly, but the screen shows a picture of atypical page of the checklist. This one deals with strategy 1, and two groups of practicalmeasures: one dealing with the formal prohibition of violence, and the other, below, with theprohibition of various harmful practices. On the left-hand side, for each group of measures,
there is a group of questions that the user is meant to try to answer as part of a quick
assessment of the situation in his or her country. On the right-hand side, there is somereference material to put the questions into context and, when relevant, to refer the reader toother resources.
B. How to Use the Checklist
How can one use the checklist? Agencies and actors responsible for the implementationof the Model Strategies can use the Checklist to quickly review their current capacity toprevent and respond to violence against children and to develop a comprehensive strategy
and action plan to improve their response to such violence.
A first step in the implementation of the Model Strategies would usually consists ofmaking a commitment to a strategic approach and identifying focal points with responsibility
for initiating the strategic planning process. A second step involves a process through which
key ministries and organizations that bear a level of responsibility for children’s rights,
welfare and protection are identified together with their respective roles, mandates andresponsibilities. This then leads to systematic efforts to mobilize these agencies and engage
them in a joint process of strategic planning. At a very early stage in the implementation
process, and as a crucial stage in the strategic planning exercise, it will be necessary tosystematically review the current situation and assess the present capacity of the justicesystem to respond to incidents of violence against children. This Checklist offers a quickreference tool to assist that very important part of the implementation process. At a later stage,
the checklist can of course also be used to monitor progress in implementing reforms.
C. Elements of a Good Plan of Action
Based on past experience with similar large-scale justice reform initiatives, it is fair tosay that an effective plan of action should include the following:•

Clear priorities for action•

Well-defined responsibilities for the relevant institutions, agencies and personnel
involved in implementing preventive measures•

Mechanisms for the appropriate coordination of preventive measures among
government agencies and between governmental and non-governmental agencies•

Reliance of evidence-based methods for effectively identifying, mitigating andreducing the risk of violence against children•

Close interdisciplinary cooperation, with the involvement of all relevant agencies,
civil society groups, local and religious leaders and, where relevant, otherstakeholders- 103 -

•Participation of children and families in policies and programmes for the preventionof criminal activities and child victimizationII.

PREVENTING VIOLENCE AGAINST CHILDREN IN THE JUSTICESYSTEM

Now that I have introduced the Checklist, at least in general terms, and stressed theimportance of good planning to ensure that the criminal justice system does all that it can toaddress the problem of violence against children, I would like to focus your attention for a
few minutes on the question of preventing violence against children in contact with thejustice system.
A. Victimization
Studies reveal that children within the justice system, and in particular those deprived of
their liberty, are especially vulnerable to violence. In 2012, the UNODC held a meeting ofexperts on the question, and the many risks of violence faced by children in contact with thejustice system were identified.
Examples of violence against children in the justice system include: violence by staff,
violence by adults or other young detainees in detention institutions, violence during arrest,
interrogation, or in police custody, and violence as a sentence, such as corporal or capital
punishment. The consequences of violence perpetrated against children when in contact withthe justice system cannot be underestimated. It may increase the possibility for further
criminal activity.
Modern psychology and physiology now inform us better than ever about the various
serious impacts of traumatic experiences on the development of children and their future
ability to function normally in society. We better understand the crucial importance ofdeveloping trauma-informed interventions for these children.
B. Protecting Children against Hardship During their Contacts with the Police andDuring the Justice Process
There is a concern obviously for what happens to children in conflict with the law andhow they are treated by law enforcement and the justice system. However, there are also
some significant concerns about how the justice system treats children victims or witnesses ofcrime. Another instrument that has not been mentioned very often so far is the UN Guidelines
on Justice in Matters Involving Child Victims and Witnesses of Crime. As you can see, theGuidelines cover a number of important areas, including:•

The right to be protected against hardship at all stages of the criminal justice process•

The need to consider the best interest of the child•

The need to support and accompany children victims and witnesses throughout theprocess•

The need to ensure that process is fair and expeditious•

Precautions to be taken and the use of child sensitive methods during the investigationand the collection of evidence- 104 -

•The need for procedural reforms, in part to introduce child-sensitive practices•

The importance of protecting against intimidation and retaliation•

The importance of providing information to victims and their parents in a timely
manner

C. Strategies to Protect Children Victims or Witnesses of Crime
There are many strategies that are essentially covered in both the Model Strategies andthe Guiding Principles. They include:•

Providing assistance and support•

Expediting investigation and proceedings•

Ensuring child-sensitive medical examination•

Implementing child-sensitive procedures at the investigative stage

There is most definitely a heightened risk of violence faced by children in conflict withthe law. The Model Strategies emphasize the need to prevent children from becoming
involved in the criminal justice system. They propose a number of measures for mitigating
the risk of violence against children at various stages of their contacts with that system.
In that regard, the Model Strategies emphasize the need to prevent children frombecoming involved in the criminal justice system, and it introduces a number of measures forpreventing the risk of violence against children at various stages of their contacts with thatsystem. It recommends measures to limit the involvement of children in the justice system,
prevent violence associated with law enforcement and prosecution activities, ensure thatdeprivation of liberty is only used as a measure of last resort, and prohibit violent, arbitrary or
inhuman punishment of children. It contains a number of measures to detect, protect andassist children who are victims of violence as a result of their involvement with the justicesystem, including measures to prevent and respond to violence against children in places ofdetention.
Most importantly, the Model Strategies emphasize the crucial importance of establishingaccessible, child-appropriate and safe procedures for children to complain about incidents ofviolence during their arrest or interrogation, while in custody, and at any stage of the criminal
justice process.
Finally, as one would expect, the Model Strategies accord a great deal of importance also
to oversight and accountability measures and their essential role in preventing violenceagainst children within the justice system.
Considering that one important objective of the criminal justice system is the protectionof children’s rights, violence against children within that system thwarts its achievement anddefeats any efforts of rehabilitation and reintegration of these children. It is also a sad thing toobserve that many of the children in conflict with the law were themselves victims of abuse- 105 -

or neglect; in many ways, children in conflict with the law are those very same children
whom the child protection and crime prevention agencies failed to protect in the first place.
I hope that these few remarks were useful and that they will encourage you to familiarize
yourself with the Model Strategies and to use the Checklist as soon as possible to determine
how you can improve the current response of the justice system to violence against children.

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DEALING WITH JUVENILE OFFENDERS: SUCCESSFUL
PRACTICES IN CHINA
Dr. Zhao Bingzhi *Abstract: China has been making efforts to develop and implement a comprehensive
policy stressing the roles of family, school and social organization to deal with juvenile
offenders since the early 1980s by taking specific measures such as establishing special
chambers for juvenile offenses, conducting pre-trial social investigation to individualize
punishment and treatment, providing special measures in interrogating juvenile suspects,
sealing criminal records of juvenile offenders, and offering follow-up assistance andeducation. A number of practices have been proven successful by the continuous decrease in
the number of juvenile offenders in recent years, and some have therefore been adopted into
the new Criminal Procedure Law of the PRC and Amendment VIII to the Criminal Law of
the PRC. Although they have been developed in the Chinese context, these practices might
have reference value to other states too as they are based on fundamental international
documents regarding child rights and juvenile justice.
I.

INTRODUCTION

China saw a rapid increase in juvenile offenders before the year 2008, and therefore took
positive steps to analyze its causes and promote and change social, economic and culturalenvironments that make minors vulnerable to adverse enticements. Long-term efforts havebrought China noticeable achievements, which are worthy of being shared for the purpose of
preventing juvenile offenses and rehabilitating minor offenders. This article will, based on thestatistical data of the China National Bureau of Statistics, make a brief introduction to thedevelopments of juvenile offenses in the past 15 years in China, cite examples to illustrate thereform of juvenile justice in light of existing problems in juvenile legislation and judicial
practice, and on this basis, summarize useful experience of China in dealing with juvenile
offenses as well as Chinese reforms to juvenile criminal laws and procedural laws.
II. THE DEFINITION OF JUVENILE OFFENDER AND ITS INCREASE IN PAST
DECADE
According to the UN Convention on the Rights of the Child adopted in 1989 and the Lawof the People’s Republic of China on the Protection of Minors enacted by the Chinese
legislature in 1991, a minor is a person who is under the age of 18. Meanwhile, according toprovisions of Article 17, the Criminal Law of the People’s Republic of China, where a person
who is over the age of 16 commits a crime, he/she shall be criminally responsible for that;and where a person who is over the age of 14 but under the age of 18 commits a crime, he/sheshall be given a lesser or mitigated penalty. According to these provisions, it can beconcluded that, in China, a juvenile offender (minor offender) is a minor who is over the age*

Professor and Dean of the College for Criminal Law Science and the Law School of Beijing Normal
University, and President of China Society of Criminal Law Science.

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of 14 but under the age of 18 and who is found guilty by the people’s court in a criminal
procedure for reason of committing an act prohibited by the criminal law.
According to the China Statistical Yearbook 2014 of the National Bureau of Statistics, as
shown in Figure 1 below, the number of juvenile offenders under the age of 18 who weretried by Chinese courts across the country first increased and then decreased rapidly in the
15-year period from 1998 to 2013. To be specific, in the decade from 1998 to 2008, it
increased at the rate of 5,000 people or so per year, from more than 33,000 in 1998 to morethan 88,000 in 2008; in the 5 years from 2008 to 2013; however, it decreased at the rate of
6,000 people or so per year, to no more than 56,000 in 2013.
Figure 1 Number of juvenile offenders under 18

Source:Statistical Yearbook 2014

As shown in Figure 2 below, the number of youth offenders in the age bracket of 18-25
exhibited almost the same tendency in the 11-year period from 2002 to 2013. It increased
year by year from 2002 to 2008 from 167,879 in 2002 to 233,170 in 2008 and then decreased
year by year thereafter to 209,622 in 2013.
Figure 2 Number of youth offenders between 18 and 25

Source:Statistical Yearbook 2014

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III. CAUSES OF THE INCREASE AND REFORMS
The increase in the number of juvenile offenders in China is due to quite complicatedsocial and economic causes, such as the lack of education on the part of their parents who are
migrant workers, the influence of bad associations due to early dropout from school, etc.
However, the legislative and judicial reasons are not to be neglected, either. In the early
1980s, juvenile offenders have already caught the public attention across the country, butcorresponding legislation still has the following problems now in the early 21st century.
Firstly, the criminal law of China has only 2 particular provisions for the minor offenders,
namely, an offender under the age of 18 shall be given a lesser or mitigated penalty(Paragraph 2, Article 17) and an offender who is under 18 shall not be sentenced to death. In
other circumstances, the juvenile offenders are subject to the same criminal provisions as theadult offenders are. Secondly, the criminal procedural law of China fails to provide for any
special procedures for minor offenders,. Thirdly, the laws and regulations aimed to protect therights of minors are scattered, hard to operate and, in some areas, still found wanting. For
such legislative reasons, the judicial practice also gives rise to many problems. For example,
imprisonment is given too much, while penal servitude and surveillance, too little; theapplication of fines greatly deviates from the distribution of the offenses to which the penalty
is applicable; probation is used too little and sees a wide regional disparity; supervision ispoor in community corrections and therefore impairs the effect of punishment, etc. For allthese reasons, the effect of criminal punishment is not satisfying, hence the quite high level ofrecidivism.
In view of the abovementioned problems, China began to conduct reforms andexperiments of high relevance, for example, to set up teen courts within the people’s courts.
In fact, the history of teen courts in China dates back to 1984, when the people’s court ofChangning District, Shanghai established the first collegiate bench for criminal cases
involving minors and took the first step of historical importance. So far, all four levels of thepeople’s courts in China have set up special trial organizations for juvenile offenders or had
designated personnel to handle juvenile offenses. Moreover, some grassroots andintermediary people’s courts have, taking into account the reality of their trial work and theirlocal conditions, innovatively established a cross-district/county model where jurisdiction isdesignated and offenders are tried in a centralized manner, in order to optimize andscientifically deploy trial resources for teen courts. By November 2014, 2,253 teen courts,
1,246 collegiate benches, 405 juvenile criminal tribunals and 598 comprehensive tribunals
have been put in place across China, forming a pattern of diversified trial organizations forjuvenile offenders.
The teen courts adopt trial systems and working mechanisms that are dedicated to thecases involving minor offenders, such as roundtable trials, social investigation, sealing therecords of minor offenses, in-trial education, psychological evaluation and intervention,
extended assistance, and protection of minor offenders in appearance and testifying, etc. In
practice, some distinctive trial models have taken shape in various regions, such as thecollegiate bench model created by the people’s court of Changning District, Shanghai, thecomprehensive trial model originated by the people’s court of Tianning District, Changzhou
City, Jiangsu Province, and the designated jurisdiction and centralized trial model launched
by Lianyungang City, Jiangsu Province, etc.
Over the past three decades, the juvenile courts across the country have accumulatively
tried more than 1.5 million minor offenders. Through correction of the teen courts, most of- 109 -

the juvenile offenders have showed repentance and been able to reintegrate into the society as
law-abiding, self-supporting citizens. In addition, a considerable proportion of them havesuccessfully gone off into the universities or vocational schools of various kinds and become
useful people in society. Since 2002, the rate of recidivism among juvenile offenders has
stayed at 2% or so, far lower than that of all offenders.
For another example, Save the Children of the UK and the People’s Government of
Panlong District, Kunming City, Yunnan Province jointly launched a judicial diversion
initiative for juvenile offenders in 2002. According to the principle of “centering on education
while supplementing it with punishment”, that initiative strove to avoid putting minor
offenders in prison in applying both the procedural rules and the substantive laws and to use
non-custodial approaches in the proceedings and the non-imprisonment penalties inpunishment with conditions attached and to the highest extent possible, thus diverting
juvenile offenders from the custodial judicial procedures. In environments such ascommunities, families and schools, the minor offenders are subject to surveillance(probationers), correction (persons who are given non-custodial penalties), and assistance andeducation (persons who are given non-criminal penalties), etc. that help them get back to theright course of life.
The judicial diversion project has scored an eye-catching achievement so far. According
to statistics, the project successfully dealt with more than 700 juvenile offenders in Panlong
District, Kunming City from 2002 to 2006. Of the 53 minor offenders who were followed up
by “appropriate adults”, 2 are now attending colleges and 20 more are continuing their study
in middle schools. It can be said that judicial diversion is not only effective prevention ofminor offenses, but also an effective probe into the perfection of minors’ judicial protection in
China.
The procedures for judicial diversion are detailed as follows:
1. In the stage of investigation, the police shall, before interrogating the minor offenders
for the first time, advise the appropriate adults to appear, find out the truth and provide social
investigation reports and opinions on how to deal with the case. In the case that an offender isreleased on bail, if the offender is not involved in a new criminal act but the original criminal
act indeed constitutes a criminal offense, the police shall shorten the length of proceedings
and as soon as possible refer the case to the prosecutor’s office for review so that the lattercan make a decision to prosecute or not to prosecute the offender in question, or the police
may directly enter into a decision to deregister the case and urge the offender’s parents totighten control and education of the offender. In the case that an offender is under the age ofcriminal responsibility and his/her act is too petty to be criminalized, the police shall release
the offender immediately after giving him/her education and at the same time notify theappropriate adults and the community concerned to educate the offender or help in such
efforts.
2. In the stage of prosecution, where a minor suspect put on bail by the prosecutor’s
office is not involved in any new criminal acts during that period, his/her offense is petty, andhe/she pleads guilty of his/her own accord, the prosecutor’s office may decide not toprosecute him/her, or where the case indeed needs to be referred to the court for trial, theprosecutor’s office may prosecute the offender without taking him/her into custody andadvise the court to give a lesser penalty; where the prosecutor’s office decides not toprosecute the offender, it shall notify the offender’s appropriate adult and community in- 110 -

writing for assistance and education purposes.
3. In the stage of trial, where a minor defendant can or should be exempted from
criminal penalty according to law, the court shall enter into a decision not to give him/her acriminal penalty; where the defendant is already in custody during the proceedings and shows
so much repentance as to plead guilty voluntarily, the court shall put him/her on probation on
conditions attached thereto.
4. In the stage of community supervision, assistance and education, which is particularly
important to divert minor offenders from the judicial process, Panlong District provided
clearly and concretely for the roles and responsibility in community supervision, assistanceand education so that all minor offenders are provided with timely and rigorous community
supervision, assistance and education, whether they are diverted from the police, theprosecutor’s office or the court.
The Swedish Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI)
has also had a long history of cooperating with the prosecutor’s offices in China to promotejuvenile judicial reform. For example, RWI signed a partnership agreement on the theme of“reducing pre-trial detention” with the People’s Procuratorat in Haidian District, Beijing in
2007, with a view to ensuring the rights protection for criminal suspects by decreasing thecases and shortening the length of pre-trial detention and with the reduction of minor suspects
detained as a starting point. In the period of 2011-2013, RWI again entered into cooperation
with the People’s Procuratorat in Haidian District with respect to the juvenile offenders’ trial
procedures under the new criminal law. According to the memorandum of understanding on
cooperation 2014-2016 between RWI and the Department of International Cooperation, theSupreme People’s Procuratorat, the People’s Procuratorat of Haidian District has alreadylaunched the juvenile judicial reform program in partnership with RWI. The program placesemphasis on the implementation of the conditional non-prosecution system and the perfectionof social support systems. All these projects have made important contributions to the reformof the juvenile justice system in China.
IV.

SUCCESSFUL EXPERIENCES AND THEIR CODIFICATION

It can be said that the judicial reforms in practice have achieved a considerably ideal
effect, which finds direct expression in the ongoing decrease in the number of juvenile
offenders since 2008. From a macro perspective, the beneficial experience of China inaddressing the juvenile offenses can be summarized into four points as follows:
1. Maximizing the rights of the teenagers, that is, maximizing the interest of the children,
including giving top priority to the interest of children in making national policies anddealing with concrete children’s affairs, etc;
2. Giving priority to the protection of children’s rights, that is, giving preference to theprotection of children’s rights where legal rights conflict or concurrence arises;
3. Centering on education while supplementing it with punishment, that is, giving thejuvenile offenders the lesser or mitigated penalty or putting them on probation where
possible in an effort to enhance the effect of correction, avoid the negative effect ofpenalties and promote reintegration into society;- 111 -

4. Coordinating efforts of the competent government departments, judicial organs, socialgroups, schools, families, urban residents’ committees and villagers’ committees shallall take part in and have responsibility for the prevention of juvenile offenses and thecorrection of juvenile offenders, with a view to creating a sound social environment
for the growth and correction of minor offenders.
Meanwhile, the legislature shall gradually incorporate the useful practices into thelegislation. For instance, the legislature of China made the following revisions to the
Criminal Law’s Amendment VIII, which was put into effect on May 1, 2012:
1. According to the provisions of Paragraph 1, Article 100 of the Criminal Law of China,“a person who has been given a criminal penalty according to law shall report, andshall not conceal, his/her criminal record at the time of being enlisted into the army orbeing employed.” This is the so-called “obligation of reporting criminal records”. To
the contrary, Amendment VIII added a second paragraph which goes to the effect thata person who is under the age of 18 and is given a penalty lesser than a prison term of
5 years can be exempted from the reporting obligation stated in the preceding
paragraph, that is, a minor who has committed a petty crime is exempted from
reporting his/her criminal record on the occasions aforesaid.
2. Amendment VIII revises the recidivism rules by providing in Article 6 that “where an
offender who has been given imprisonment or more severe penalty again commits acrime that is subject to a penalty of imprisonment or a more severe one within 5 years
after serving the sentence given to him/her for the previous offense or after being
pardoned for the previous offense, he/she shall be deemed to be a recidivist that shallbe given an aggravated penalty, except in the case the offender commits the crime
involuntarily or is under the age of 18 when committing the crime.”
3. With respect to the conditions of probation, Article 72 of the Criminal Law of China
provided, before promulgation of the Amendment VIII, that “where an offender isgiven a sentence of penal servitude or a prison term of no more than 3 years, if, inview of the circumstances of his/her crime and the level of his/her repentance, theapplication of probation to him/her will not result in his/her doing harm to society
again, the offender may be given a probation.” Amendment VIII, furthermore,
provides in Article 81 that “where an offender is given a sentence of penal servitude
or a prison term of no more than 3 years, if he/she meets the following conditions
concurrently, he/she may be given a probation: (1) the circumstances of his/her
offense are relatively minor; (2) he/she shows signs of repentance; (3) he/she will notgenerate risks of recidivism; (4) the application of probation will not have significant
adverse effect on the community in question…and, in particular, if the offender isunder the age of 18, is a pregnant woman or is over the age of 75, he/she shall begiven a probation without conditions attached thereto.” Amendment VIII further
revises Article 76 of the original Criminal Law of China, providing that probationers
shall be subject to community correction.
4. There are still some other useful practices that have been incorporated into the judicial
interpretations, instead of the legislation. For example, with the criminalization ofjuvenile offenders, the Interpretations for Several Issues on the Application of SpecificLaws in Trying Criminal Cases Involving Minors issued by the Supreme People’s- 112 -

Court on December 12, 2005 provides in Article 6 that, where a person who is over
the age of 14 but under the age of 16 occasionally have sex with an underage girl inminor circumstances and without incurring severe consequences, he/she may not be
deemed to have committed a crime; in Article 7 that, where a person who is over theage of 14 but under the age of 16 uses mild violence or threat to exact a small amountof money or property without incurring harm to the victim, he/she may not be deemed
to have committed a crime; and in Article 9 that, where a person who is over the ageof 16 but under the age of 18 attempts or discontinue to commit theft, he/she may not
be deemed to have committed a crime.
5. With respect to the sentencing of minor offenders, Amendment VIII provides in
Article 13 that life imprisonment can be given only to a minor offender who hascommitted an extremely severe crime, and shall in principle not be given to a minor
offender who is more than 14 years old but less than 16 years old. In Article 18,
Amendment VIII provides that, with respect to the commutation and parole of minor
offenders, the criteria may be moderately eased in comparison with those for adultoffenders.
6. The Criminal Procedural Law of the People’s Republic of China as amended in 2012and put into effect on January 1, 2013 provides for the criminal procedures forjuvenile offenders in Chapter I, Volume 5. Firstly, it solidifies and perfects the original
legal provisions concerning minor offenders, such as the compulsory defense
throughout the proceedings, the practice of jailing, managing and educating minor
offenders separately and the in camera trial system, etc.
7. Secondly, it codifies the criminal policies concerning minor offenders, including
mainly the guidelines of “education, reforming and redemption”, the principle ofcentering on education and supplementing it with punishment and the strict
restrictions on the application of custodial measures, etc.
8. And finally, it adds some new content, such as social investigation, participation of
appropriate adults, conditional non-prosecution and sealing of criminal records, etc.
V. CONCLUDING REMARKS
Mr. Liang Qichao, a forerunner of democracy in China, once said that, if the youths areintelligent, affluent and powerful, then the country will be intelligent, affluent and powerfulaccordingly. Youths are indeed the future of a nation. So in dealing with minor offenses, weshall always adhere to the concept of “education, reforming and redemption” and strive tocreate the most favorable conditions for them to express their remorse and reintegrate into
society. That’s the end of my speech. Thank you!
References
1.

Chen, W. (2013). Prosecutorial Reform in the Context of Judicial Reform, Procuratorial
Daily 23 July 2013.

2.

Fan, C. (2011). Criminal Justice Reform and Amendment to the Criminal Procedure Law,
Beijing: China University of Political Science and Law Press.

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3.

Li, F. and Qiu, J. (2013). The Baseline of Leniency: Rational Rethought on Chinese
Juvenile Criminal Justice, Study on Prevetion of Juvenile Offenders, No.4.

4.

Liu, C. (2014). For the Welfare of Children and For the Future of China, People’s Court
Daily 25 November 2014.

5.

Song, Y. (2011). Modes of Juvenile Criminal Justice and Construction of Legal Systems,
People’s Procuratorate, No. 5.

6.

Xu, M. (2007). On Special Procedures of Juvenile Criminal Justice, Beijing: Law Press.

7.

Yao, J. (2004). Juvenile Criminal Law and Criminal Law Reform, Beijing: China
People’s Public Security University Press.

8.

Zhang, J. (2011). Approaches to Juvenile Procuratorial Works, People’s Procuratorate,
No. 23.

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PRÁCTICA DE LA DESJUDICIALIZACIÓN PENAL JUVENIL ENCOSTA RICA †Prof. Dr. Carlos Tiffer *ABSTRACT
La ponencia tiene como objetivo constatar una buena práctica, las formas dedesjudicialización o la adopción de medidas alternativas a la actuación judicial en la justicia
penal juvenil costarricense. Buena práctica inspirada en las reglas y normas del sistema deNaciones Unidas sobre prevención del delito y justicia juvenil. Se inicia explicando ladesjudicialización y diversificación de la reacción penal juvenil como indicadores de una
moderna y adecuada política criminal del Estado Democrático. Se exponen los fundamentos dela desjudicialización inspirados en la Convención de los Derechos del Niño, la Opinión
Consultiva OC 17 del 2002 de la Corte Interamericana de Derechos Humanos y las Reglas deNaciones Unidas sobre Justicia Juvenil. Se presentan los fines de la desjudicialización como lareinserción social y evitar las reincidencias delictivas. Para continuar exponiendo las formas
legislativas de medidas alternas a la judicialización formal previstas en Costa Rica,
exponiéndolas en dos niveles. Un primer nivel que cubre la remisión, el criterio de oportunidad,
la desestimación y el archivo fiscal; y un segundo nivel centrado en la conciliación, la suspensióndel proceso a prueba y la reparación de los daños. Para concluir con la presentación de la prácticadel uso de estas medidas alternas exponiendo datos estadísticos desde el año 2000 hasta el año
2012. Por último se presentan los comentarios finales.
I. LAS FORMAS DE DESJUDICIALIZACIÓN Y DIVERSIFICACIÓN DE LA
REACCIÓN PENAL JUVENIL COMO INDICADORES DE POLÍTICA CRIMINAL
Una de las características del modelo de justicia precisamente es limitar la intervención de lajusticia penal, lo cual se logra a través de la desjudicialización. Ya que la desjudicialización, noslleva a la vigencia de dos principios; la intervención mínima y la subsidiariedad. Si bien debe deentenderse la Justicia Juvenil dentro del marco de la prevención especial positiva, esta política
criminal para estar acorde con los principios del Derecho Penal moderno 1 deben fundamentarseen la idea de la intervención mínima o sea limitar al máximo la intervención del Estado por
medio de la ley penal, de ahí que la política criminal de un Estado con respecto a jóvenes
infractores debería tener pretensiones modestas. Es decir, promover la diversificación de lasreacciones penales, esto identifica a la política criminal de un Estado moderno. Esta
† Artículo basado en la ponencia del autor en el Workshop 1, Panel II, UN Crime Congress, Doha, Qatar, 13 de abril

de 2015.

* ILANUD, Costa Rica.

1 Aunque desde la época de la Escuela de la Defensa Social se abogaba por las estrategias de desestigmatización,

desinstitucionalización y su rechazo al modelo de tratamiento como consecuencia político criminal. Ver Kaiser(Günther). Introducción a la criminología, 7º Edición, Madrid, Editorial Dykinson, 1988, p. 26.

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diversificación nos lleva a la justicia restaurativa, porque estamos proponiendo un modelo dejusticia restaurativa, precisamente como una alternativa a la justicia tradicional, y para que exista
esta alternativa, debe existir la posibilidad de diversificar la reacción penal.
Las razones jurídicas y sociales que se exponen en pro de la desjudicialización son dos
básicamente: Primero, que la desjudicialización es una forma de practicar los principios dehumanidad, de proporcionalidad, de igualdad y de eficiencia que debe buscar el sistema penal.
Segundo, que se debe considerar que todos los sistemas de represión y corrección por medio una
política criminal fuerte y severa resultan insatisfactorios 2 . Esto es precisamente elcuestionamiento que hace la justicia restaurativa, de los modelos de justicia que se centran en
una finalidad puramente retributiva. Máxime tratándose de jóvenes y adolescentes para quienes
la penalización de los conflictos en la mayoría de los casos en vez de ser una solución a losproblemas, por el contrario los aumenta. Esto debido a que los adolescentes se encuentran en una
etapa de formación de su personalidad y la conducta delictiva muchas veces es solo una
manifestación de un período de crisis de juventud y desarmonía con la madurez. La justicia
restaurativa precisamente, busca el equilibro social y la vigencia de este tipo de justicia, ha
adquirido mayor vigencia, en el ámbito de la justicia penal juvenil, no solo por los fines deprevención especial positiva que antes mencionamos, sino por la condición especial de lossujetos destinatarios de estas leyes.
La desjudicialización favorece a todos. Al adolescente por cuanto por este medio se reducen
las posibilidades de estigmatización e institucionalización que significa someterse a un proceso
penal. A la comunidad, ya que por este medio se promueve la participación de los sectoressociales que pueden convertir realmente en efectivo la idea de la resocialización y de lareeducación de los adolescentes, y hacer efectivo los fines de la prevención especial. Tambiénfavorece a la víctima, ya que de una manera más real se puede lograr una forma de reparación delos daños o recuperación de los derechos del ofendido por el delito, es una posibilidad deenfrentar al autor y la víctima que puede tener un gran potencial educativo para el adolescente.
Aquí precisamente, convergen los tres actores principales del modelo de justicia restaurativa queantes mencionamos: el autor, la víctima y la comunidad. Los cuales, deben de buscar formas deacuerdos o conciliaciones, dentro de la justicia ordinaria, que les permita solucionar el conflictoque se encuentra a la base de todo delito.
Por último, la desjudicialización favorece también la reducción de los costos de laadministración de la justicia que siempre serán insuficientes y deficientes para la prestación deun servicio público eficiente y de calidad, porque generalmente los sistemas de administración dejusticia, tienden por razón de los costos a reducir y hasta eliminar los derechos y las garantías
procesales de los jóvenes y adolescentes. Uno de los objetivos de los programas de justicia
restaurativa no es sólo la reconciliación entre el autor y la víctima, sino que también, es reducir
la intervención formal del sistema penal, lo que conlleva evidentemente a la reducción de sus
costos. De ahí que, para la vigencia de la Justicia Restaurativa, se requiera una política criminal
acorde con los fines de esta justicia. En donde se encuentren presentes las formas dedesjudicialización y de diversificación de la reacción penal.

2 Ibid, p. 52.

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II. FUNDAMENTOS DE LA DESJUDICIALIZACIÓN
La idea de la desjudicialización no solamente está vinculada con la justicia restaurativa, sinoque tiene un rango supranacional. La Convención de los Derechos del Niño, en su artículo 40.3.b
establece:“Los Estados Partes tomarán todas las medidas apropiadas para promover elestablecimiento de leyes, procedimientos, autoridades e instituciones específicas paralos niños de quienes se alegue que han infringido las leyes penales… siempre que sea
apropiado y deseable, la adopción de medidas para tratar a esos niños sin recurrir aprocedimientos judiciales, en el entendimiento de que se respetarán plenamente losderechos humanos y las garantías legales.”También este principio establecido en la Convención de Derechos del Niño, ha sido
reconocido por la jurisprudencia de la Corte Interamericana de Derechos Humanos. En laopinión consultiva OC-17 del 2002, estableció:“Son plenamente admisibles, los medios alternativos de solución de controversias,que permitan la adopción de decisiones equitativas, siempre que se apliquen, sinmenoscabo de los derechos de las personas. Por ello, es precioso que se regule con
especial cuidado la aplicación de estos medios alternativos, en los casos en que sehallan en juego los intereses de los menores de edad”. Párrafo 135.
Estas disposiciones son fruto de una corriente doctrinal, que aboga por la desjudicialización
en la resolución de conflictos, principalmente de índole penal, y se busca la aplicación efectiva
en el derecho penal juvenil, con una orientación restaurativa y menos retributiva. Así, la“filosofía subyacente a la labor de promover alternativas consiste en reducir en la mayor medidaposible el número de niños y adolescentes privados de libertad, y no en ampliar el número deindividuos sujetos a diversas normas de control penal” 3. Es claro que en una gran mayoría decasos la no intervención judicial es la mejor respuesta para jóvenes que se encuentran enconflicto con la ley penal. La desjudicialización es la búsqueda de soluciones por otros medios,diferentes a la tradicional forma de intervención jurídico-penal. Precisamente es aquí en donde
los principios de la justicia restaurativa, como una justicia alternativa, adquieren plena vigencia.
Si no es posible todavía eliminar del todo la intervención penal, sobre todo tomando en
cuenta las condiciones económicas, sociales y políticas de los países de Centroamérica, al menos
debemos reducir o minimizar la intervención de los medios de control formal. Para ello se debe
en primer lugar, definir estrategias claras de persecución penal, sobre todo en el caso delMinisterio Público. Aunque también es relevante que las autoridades jurisdiccionales ypenitenciarias, se encuentren orientadas dentro de esta filosofía de justicia restaurativa. La nointervención o minimización de los operadores del sistema nos lleva a plantearnos un modelo deJusticia en donde lo protagónico sea la comunidad, la escuela, la familia, las asociaciones, etc.
Este modelo de justicia en una fase de elaboración se refleja claramente no sólo en el artículo

3 Carranza (Elías). “Criminalidad ¿Prevención o promoción?” San José, EUNED, 1994, p. 107.

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mencionado de la Convención de los Derechos del Niño sino en las Reglas Mínimas de lasNaciones Unidas para la Administración de la Justicia de Menores 4:Art. 1.3. Con el objeto de promover el bienestar del menor, a fin de reducir lanecesidad de intervenir, con arreglo a la ley y de someter a tratamiento efectivo,
humano y equitativo al menor que tenga problemas con la ley, se concederá la debida
importancia a la adopción de medidas concretas que permitan movilizar plenamente
todos los recursos disponibles, con inclusión de la familia, los voluntarios y otros
grupos de carácter comunitario, así como las escuelas y otras instituciones de lacomunidad.
Las orientaciones consagradas en el artículo 1º de las Reglas de Beijing se refieren a lapolítica social en su conjunto. Tienen por objeto promover el bienestar del joven, en la mayor
medida posible, lo que permitirá reducir al mínimo el número de casos en que haya de intervenir
el sistema de justicia penal juvenil y a su vez reducirá al mínimo los perjuicios que normalmenteocasiona cualquier tipo de intervención judicial y particularmente la penal. Estas medidas deatención de los jóvenes con fines de prevención del delito constituyen requisitos básicos depolítica pública de juventud.
El destacado aporte de una política social constructiva respecto del joven puede
desempeñarse entre otras cosas en la prevención del delito y la delincuencia juvenil. La justicia
de menores es parte importante de la justicia social (1.4 Beijing) y se requiere perfeccionar lajusticia social, particularmente la destinada a los jóvenes de manera continua para que esté
acorde con la evolución del sistema de justicia juvenil.
En el mismo sentido se pronuncian también las Directrices de las Naciones Unidas para laprevención de la delincuencia juvenil:
Art. 2, Para tener éxito, la prevención de la delincuencia juvenil requiere, por partede toda sociedad, esfuerzos que tiendan a garantizar un desarrollo armónico de losadolescentes, que respete y promueva su personalidad a partir de la primera
infancia. 5
La idea de la desjudicialización nos lleva al tema de la despenalización, es decir, al tema de
reducción de la intervención del Estado en los conflictos penales. Más tratándose de jóvenes yadolescentes en los cuales la penalización de los conflictos en la mayoría de los casos en vez deser una solución a los problemas, por el contrario los aumenta. Esto debido a que losadolescentes se encuentran en una etapa de formación de su personalidad y la conducta delictiva

4 Reglas de las Naciones Unidas para la Administración de Justicia de Menores, (Reglas de Beijing), Aprobadas porla Asamblea General de las Naciones Unidas mediante Resolución Nº 40/33, de 29 de noviembre de 1985, por
recomendación del Octavo congreso de las Naciones Unidas sobre prevención del delito y tratamiento deldelincuente; artículo 17. b) y c).
5 Directrices de las Naciones Unidas para la prevención de la delincuencia juvenil (Directrices de Riad). Aprobadas
por la Asamblea General de las Naciones Unidas mediante Resolución Nº 45/112 por recomendación del Octavo
congreso de las Naciones Unidas sobre prevención del delito y tratamiento del delincuente. Artículo 2.

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muchas veces es solo una manifestación de un período de crisis de juventud y desarmonía con la
madurez.
Por último, como ya se ha mencionado, también la desjudicialización favorece la reducciónde los costos de la administración de la justicia. Por lo que desde un punto de vista económico,
también es importante apoyar la desjudicialización.
Resumiendo algunos argumentos relevantes para apoyar la idea de la desjudicialización afavor de jóvenes y adolescentes que podemos mencionar, son los siguientes:••••

La socialización se produce en la comunidad, y no por medios formales de control comolo son las instancias judiciales.
La justicia penal es cara, selectiva, estigmatizante e inconveniente para jóvenes que seencuentran en proceso de formación.
La judicialización produce un efecto distorsionado en la comunidad, el pensar que eldelito por este medio se elimina, lo cual sabemos que esto no es cierto.
Un argumento ético, ¿por qué responder al delito en forma drástica y violenta, si es
posible y conveniente utilizar otras formas?

Al contrario del derecho penal de adultos tradicional, el modelo de justicia penal juvenil secaracteriza por la acentuación en resolver el menor número de conflictos en un nivel judicial, deahí que las medidas desjudicializadoras forman parte fundamental de él. La diversificación de laintervención penal obliga a que en determinados casos la posible intervención penal sea referida
a otros órganos de control informal por medio de la remisión y la conciliación entre autor yvíctima o bien, la suspensión del proceso a prueba.
Como hemos expuesto anteriormente, los fundamentos para estrategias de desjudicialización,
encuentran su base en la Convención de los Derechos del Niño y las Directrices de Naciones
Unidas, tanto las Reglas para la Administración de Justicia, como para la Prevención de laDelincuencia Juvenil. También resulta relevante como fundamento, la interpretación que alrespecto ha realizado la Corte Interamericana de Derechos Humanos. Lo anterior resulta
relevante ya que, para implementar una justicia más restaurativa en los países de Centroamérica,
independientemente de las limitaciones y obstáculos que se pueden encontrar, en las leyesinternas de cada país, existe un fundamento internacional que perfectamente puede ser utilizado
por defensores, fiscales y jueces, para poner en vigencia estrategias de desjudicialización.
También resulta necesario dejar establecido en este apartado, que la idea de la justicia
restaurativa como una alternativa para la solución de los conflictos, puede perfectamente
realizarse a través de la desjudicialización. Ya que como posteriormente indicaremos, para queestas formas de desjudicialización tengan vigencia, resulta necesario, no sólo la participación delos tres actores fundamentales, victima, infractor y comunidad, sino sobre todo una actitud deresolver el conflicto generado por el delito, mitigando las consecuencias negativas del proceso yde la eventual sanción. Para lo cual se requiere fomentar una cultura de diálogo y de negociación.
Esto último es necesario si se quiere realmente implementar prácticas restaurativas.

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Precisamente esta última cultura de arreglo y solución pacífica de los conflictos, es lo que
hace falta fomentar en países como los centroamericanos. De ahí que la justicia restaurativa,como una alternativa y sobre todo respetando las garantías judiciales, sea una muy buena opción
para esta cultura de diálogo y negociación. En concreto no sólo de política criminal se requierepara implementar la Justicia Restaurativa, sino también de justicia social y una cultura de paz.
III. FINES DE LA DESJUDICIALIZACIÓN PENAL JUVENIL
La Justicia penal tradicional de los adultos, pese a fines declarados como la rehabilitación ola resocialización, está caracterizada más bien por la retribución. El autor debe pagar por elhecho. O en algunos casos el castigo por el castigo, sin tener realmente programas efectivos para
cumplir con esos fines declarados. Lo que convierte la justicia penal actual, principalmente deadultos, en una justicia centralizada en el castigo, principalmente en la pena de prisión. Dicho deotra forma, una justicia penal fundada en la prevención general.
Al establecer un sistema diferente al tradicional de los adultos, cuando es un joven oadolescente el autor del delito, se debe iniciar con la tarea de levantar el velo que imperaba en lossistemas “punitivos” tutelares y aceptar que pese a sus conductas delictivas los adolescentes que
han delinquido, siguen siendo sujetos de derechos y no meros objetos de castigo. Derechos queno sólo involucran las garantías legales para los jóvenes, sino muy particularmente las garantías
sociales, como el derecho a la educación, familia, vivienda, en fin el derecho al desarrollo de su
personalidad en un ambiente sano. Es a partir de este nuevo paradigma, de entender a losadolescentes como sujetos de derechos integrales que se puede entender también ladesjudicialización como una manifestación de un reducido control jurídico penal sobre lasconductas de los jóvenes, o de un control penal formal solo cuando sea necesario. Sólo si
tenemos este postulado presente podremos responder a “el para qué de la desjudicialización”,
cuyas respuestas representan los fines y metas por alcanzar. Dentro de un enfoque en el que está
estrechamente relacionada la política social y la política criminal del Estado.
Los fines de la desjudicialización, los cuales coinciden completamente con los programas dela justicia restaurativa, pueden presentarse en dos grandes niveles: Los fines generales y los fines
específicos. Posteriormente haremos una comparación entre los fines de la justicia restaurativa, aefecto de demostrar la coincidencia de ambos objetivos y la compatibilidad de ambos modelos dejusticia juvenil.
A. Fines Generales• Reducir la afectación social, moral y psicológica que significa el proceso penal
Uno de los objetivos fundamentales de establecer formas de desjudicialización, es fijar yfomentar acciones sociales necesarias que le permitan al joven o adolescente su permanente
desarrollo personal e impedir el alejamiento de su familia, lo cual a su vez contribuye al procesode educación sin la estigmatización que significa el proceso penal y eventualmente una sanción.
Así se debe procurar que el adolescente no se vea afectado social, moral y psicológicamente
con el proceso penal. Se considera inconveniente someter al joven o adolescente a un procesoque, de seguro, le causará problemas de carácter psicológico o social. La crítica de la teoría del- 120 -

etiquetamiento respecto del efecto estigmatizado es una de las justificaciones más frecuentes ycorrectas para implementar la desjudicialización en un programa alternativo o como renuncia
total a la persecución jurídico penal 6.
La desjudicialización también busca evitar la sanción formal y concretamente la imposición
de una sanción privativa de libertad. De ahí que también es una forma de reducir el uso de lasanción privación de libertad lo mismo que el aislamiento y la separación de su familia y losgrupos a los que pertenece el joven.
“La gran ventaja de la desjudicialización frente a las sanciones es que evitan en gran medida ladesintegración y estigmatización del delincuente, reconociéndolo y respetándole al mismo
tiempo su personalidad” 7.
Brindar mayor efectividad de los postulados o principios establecidos en la legislación
Tradicionalmente las legislaciones se caracterizan por normas enunciativas de derechos opostulados teleológicos que se refieren a fines como por ejemplo la reinserción social, la
rehabilitación, el interés superior del niño, etc. Sin embargo, son pocos los casos en los cuales
estos fines se llevan a la práctica. Es decir, las leyes se convierten en leyes enunciativas, dehermosos principios pero que en la práctica no tienen vigencia o aplicación. Es por esto que seconoce una lamentable tradición latinoamericana, de la dicotomía entre lo que la ley dice y loque se hace, es decir entre la teoría y la práctica, sea o judicial o administrativa.
•

Por medio de la desjudicialización y particularmente la remisión a programas de carácter
social y la conciliación, realmente se estaría cumpliendo con los principios rectores de una
protección integral, de la búsqueda de la formación y la reinserción del adolescente en su familia
y en la sociedad. La desjudicialización significa convertir en efectivos los derechos de losjóvenes y los adolescentes.
La desjudicialización vista desde esta perspectiva además es una forma para promover laparticipación de las organizaciones no gubernamentales y la comunidad en los programasorientados a los fines de la protección de los derechos del adolescente, e igualmente desalvaguardar los intereses de las víctimas. Especialmente resulta de relevancia ladesjudicialización, ya que son cada vez más escasos los programas públicos de prevención deldelito. Además, la complejidad social de un joven “tipo” infractor penal requerirá asistencia yayuda que no siempre los programas públicos le pueden dar 8. Es decir, para cumplir con estos

6 Albrecht (Peter - Alexis). “El derecho penal de menores.” Barcelona. PPU, 1990, 587. Traducción al castellano deJuan Bustos Ramírez.

7 Kaiser (Günter). Op. cit. p. 197.

8 Cuando nos referimos a un infractor tipo, estamos indicando el que coincide con el perfil social elaborado por elsuscrito y que tienen las siguientes características: Sexo masculino, mayor de 15 y menor de 18 años. Resideprimordialmente en las zonas marginales urbanas. Retraso escolar de 4 años o más. Trabaja en actividades que norequieren calificación laboral. Contribuye al sostenimiento del grupo familiar. El padre o la madre sondesempleados o subempleados. Proviene de una familia que es incompleta o desintegrada con ausencia del padre.
Conviven el mayor tiempo fuera de su núcleo familiar, con grupos igualitarios. Presenta adicción a drogas livianas yfuertes. Muestra problemas de socialización o integración con grupos diferentes al que pertenece. Estos factores
pueden provenir de los criterios de selección de las instancias de control formal penal.

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fines se requiere de la participación efectiva de la comunidad. Que es precisamente uno de losactores principales de la justicia restaurativa.
Reducir los costos del aparato judicial y administrativo
Es por todos conocido, y pareciera que no requeriría mayor explicación que el
funcionamiento de la administración de la justicia en todos los países es cada vez más costosos,
además que la justicia, y en particular la justicia juvenil, no siempre es una prioridad en el orden
de gasto de los gobiernos 9. Estos costos están relacionados con el aparato policial, las fiscalías,
las defensas públicas, la judicatura y el sistema penitenciario. Además de los gastos en el
personal de apoyo, tanto administrativo como profesional y los gastos operacionales de todo elsistema de justicia penal. Siempre resulta oportuno hacerse la siguiente pregunta: ¿Sí se están
utilizando correctamente los recursos públicos? La respuesta a esta interrogante debería estar
orientada en los efectos, es decir, si estos recursos económicos públicos están produciendo losefectos deseados, apartar a los adolescentes del delito y evitar las reincidencias. Sabemos quelamentablemente no es así. De ahí que, si los recursos son limitados y se utilizan mal, es decir,
no logrando los efectos deseados, lo más conveniente es que el Estado redefina su estrategia para
utilizar correctamente los recursos públicos.
•

Con la desjudicialización y la utilización de mecanismos como la remisión y laconciliación, se busca reducir los costos de la administración de la justicia, por medio deiniciativas públicas y privadas que, con toda seguridad, tendrán más éxito con los jóvenes, que lajusticia tradicional. Consiste también en promover por medio de la desjudicialización, una
justicia más participativa, que involucre a la comunidad en la búsqueda de las soluciones deldelito.
Otro argumento importante para favorecer la desjudicialización es el siguiente: Es conocido
también que la mayoría de delitos que cometen los adolescentes son los delitos de bagatela,como por ejemplo delitos contra la propiedad, hurtos, faltas, lesiones leves. En una segunda
categoría se ubicarían los delitos de una mediana peligrosidad (delitos con penas menores de 3 o
5 años) y son menos frecuentes los delitos graves, como los sexuales, violentos, o contra la vida.
Esta mayoría de delitos generalmente ínfimos no son razón suficiente para poner a funcionar
todo el costoso aparato de la administración de justicia, atendiendo al aforismo “De minimis non
curat pretor” (“Los jueces no conocen de las cosas pequeñas”). Es decir, aplicar correctamente
la ley penal sólo para los casos que realmente lo ameritan y no para casos insignificantes. De ahí
que deberíamos aplicar medidas desjudicializadoras o dejarlas como posibles en principio en
todos los delitos de bagatela. Además contar con la intervención de otras instancias formales (porejemplo con instrucciones de conducta) para los delitos de mediana peligrosidad. Y solo dejar elproceso formal para los delitos graves, por las exigencias instrumentales y simbólicas respecto
9 Por ejemplo, en Costa Rica solo para iniciar el primer año de aplicación de la Ley de Justicia Penal Juvenil (1996),
el Poder Judicial solicitó al Ministerio de Hacienda la suma de 720 millones de colones; igualmente el Ministerio deJusticia gastó la suma de 110 millones de colones para acondicionar las instalaciones del llamado Centro de
Detención Juvenil San José. Estos dos datos nos reflejan que a nivel judicial y administrativo al Estado
costarricense en el primer año de vigencia de la ley ha gastado la suma de 830 millones de colones ($3.400.000.ºº) y
probablemente quizá más que esa suma de dinero, ya que se requiere una investigación específica sobre los costos
de la Justicia Juvenil para determinar realmente cuantos son sus verdaderos costos. Sobre todo en 15 años devigencia que lleva esta ley en Costa Rica.

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del sistema que tienen que ser puestas en consonancia con los controles estatales socialmenteorganizados.
Es decir, tomando en cuenta también esta realidad del delito, en la gran mayoría de las
infracciones cometidas por los adolescentes, delitos contra la propiedad, es posible implementar
programas de reparación que fomenten una justicia más restaurativa y que tendrá mejores efectosde reinserción social en los jóvenes. Lo que desde luego implicaría también, menores costos parala administración de justicia.
Involucrar a la comunidad en las soluciones de la delincuencia juvenil
La idea generalizada que tiene la comunidad de los jóvenes delincuentes, resulta casi
siempre negativa. La opinión pública se orienta con la idea de reprimir con penas severas a estos
grupos. Para fundamentar estas posiciones tan radicales, se esgrimen argumentos simplistas yprejuicios, que tratan de demostrar la creciente inseguridad ciudadana y altas tasas decriminalidad. Por ejemplo se argumenta que porcentualmente la criminalidad aumenta año a año,
y que los delitos de bagatela se transforman en delitos graves 10 . Como responsables de este“aumento” de criminalidad e inseguridad generalmente se les atribuye a los jóvenes,
principalmente de las zonas urbanas marginales.
•

Sin embargo, estos datos deben de manejarse con mucha cautela, pueden tener efectos
distorsionadores y alarmista infundados. En realidad no hay que fijarse sólo en el aumento de lastasas porcentuales de delincuentes. Sino también en lo que eso significa, con relación al aumentode la población del país, con relación a la implementación de políticas internas y externas, asícomo tomar en cuenta los profundos cambios sociales, los periodos de crisis económicas, lasguerras, y los eventos naturales, entre otros 11. Además no resulta cierto en muchos casos, que
los jóvenes cometan más delitos, o delitos más graves que los adultos. Por el contrario, losporcentajes de la comisión de delitos por lo menos en Costa Rica, en relación a los adultos, en
muchos casos no supera el 10% y, si efectivamente hay un aumento del delito, lo más probablees que todos los sectores y grupos etarios en una sociedad, contribuyan a ese aumento y noespecíficamente las personas menores de edad.
No se pueden interpretar los aumentos estadísticos al margen de muchos otros factores,
como por ejemplo las cifras negras de la delincuencia, los estudios de reincidencia, la relación
entre el delito y pobreza, lo mismo que la relación droga y delito 12.
Podríamos resumir diciendo que, pese a que deben de existir comunidades o sociedades mástolerantes que otras, la mayoría proponen soluciones tradicionales al problema de la delincuencia
en general y en particular a la delincuencia juvenil. Esta respuesta tradicional se concreta en laidea de endurecer el sistema penal y esto significa: aumentar e incluso militarizar a la policía,
aumentar y endurecer las penas y aumentar el número de personas detenidas 13 , junto con ladisminución de las garantías judiciales, acompañadas de políticas criminales como la reducción
10 Albrecht (Peter - Alexis). Op. Cit. pp. 21–22.
11 Ibid. p. 23.
12 Ibid. p. 30.

13 González (Daniel).

“Delincuencia Juvenil y Seguridad Ciudadana”. En: Ciencias Penales. Revista de laAsociación de Ciencias Penales de Costa Rica. San José, Nº 13, año 9, julio 1997, p. 112.

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de la edad de la responsabilidad penal, toques de queda y prisión preventiva automática paradelitos graves.
Estas respuestas tradicionales y negativas de las comunidades, producto de una distorsióndel fenómeno delictivo, podrían reducirse y hasta eliminarse con una desjudicialización con
intervención comunal. Que les permita a las comunidades reconocer que la mayoría de jóvenes
delincuentes son recuperables, capaces de cumplir tareas o trabajos de utilidad pública en
beneficio de todos. Además también sería una forma de educar a la población en los derechos delos jóvenes delincuentes y aumentar la conciencia solidaria necesaria en toda comunidad.
Con la Convención de Naciones Unidas sobre Derechos del Niño se pone en evidencia,
tanto que la condición material de la infancia resulta directamente dependiente de su condición
jurídica, cuanto el hecho que la ley es demasiado importante como para que no sea preocupaciónde la sociedad 14. La participación de la comunidad resulta fundamental en cualquier programa dejusticia restaurativa. Sin embargo también hay que reconocer, que dicha participación es uno delos aspectos más complejos y difíciles para la vigencia de la justicia restaurativa. También es
posible señalar experiencias positivas de participación comunal y local, como el caso de laprovincia de Cartago en Costa Rica y el programa de suspensión del proceso a prueba, que es un
ejemplo claro de responsabilidad comunitaria 15.
• Reducir la discriminación que produce el sistema penal
Si bien es cierto la investigación criminológica no ha demostrado, que exista una directa
conexión de causas entre las condiciones de marginalidad social y delincuencia, lo cierto es quelas condiciones sociales influyen en el pronóstico delictivo. También es cierto que la mayoría dela clientela de la delincuencia juvenil registrada e institucionalizada, pertenece a los grupossociales económicamente débiles de la sociedad.
Lo anterior confirma la idea de que el sistema penal es discriminatorio y especialmente paralos jóvenes. Esto debido a que con las ideas de “protección y asistencia” de modelos de justicia
juvenil como el tutelar, las desigualdades producidas por el sistema de control formal seránsiempre mayores, al nivel de judicializar solo a los grupos de niños y jóvenes pobres. A pesar dela superación del modelo tutelar a nivel legislativo, siempre los sectores socialmenteestigmatizados serán los objetos del control formal. Lo que forma parte de otro importantefenómeno que es el proceso de criminalización, que tan solo menciono en este trabajo.
De ahí que la desjudicialización ayude a reducir la discriminación o trato desigual delsistema de justicia, además disminuye el fenómeno de la criminalización de sectores socialmente
14 García Méndez (Emilio). “Legislaciones Infanto - Juveniles en América Latina”. En: La niñez y la adolescencia
en conflicto con la ley penal. El nuevo derecho penal juvenil. Un derecho para la libertad y la responsabilidad. San
Salvador, CEE /ILANUD /UNICEF /PNUD /PRODERE Edinfodoc /Cooperazione Italiana /Ministerio de Justicia
de El Salvador. Editorial Hombres de Maíz, 1995, p. 37.
15 Ver sobre experiencias prácticas sobre justicia restaurativa en Costa Rica, en Arias Madrigal, Doris. 2006.
“Reflexiones teóricas y prácticas sobre la reparación del daño y la justicia restaurativa”. En: “Justicia Restaurativa
en Costa Rica: Acercamientos Teóricos y Prácticos.” Primer Congreso de Justicia Restaurativa. San José. Comisión
Nacional para el Mejoramiento de la Administración de Justicia. pp. 164-185.

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marginados. Aunque también debería de cuestionarse, si la desjudicialización con intervención
social, no aumentaría las redes de control formal no judicial de los sectores más pobres de lasociedad. Por lo que la desjudicialización de los problemas legales de los jóvenes con o sinintervención, debería ser de tal forma que no se convierta en una ampliación de las redes de loscontroles sociales y produzca precisamente los que queremos evitar, la estigmatización ynegación de oportunidades para los jóvenes. En todo caso, aún reconociendo que las formas dedesjudicialización podrían ser también una forma de control social, evidentemente se trata de uncontrol reducido y con menores efectos dañinos, que el control jurídico-penal.
En todo caso, hay que decir que actualmente, el sistema penal y muy particularmente lassanciones, se aplican de manera restrictiva porque se limitan a determinados grupos dedelincuentes o al ámbito de determinados delitos. Por lo tanto debería promoverse undesplazamiento del control formal penal, por medidas desjudicializadoras, (con intervención osin ella) especialmente para casos leves 16.
Se podría considerar como criterio paralelo a todos los expuestos, que la desjudicialización
consiste en rescatar y dar plena vigencia al principio de humanidad, o mejor dicho en cuanto al
respeto y garantía de los derechos humanos de los jóvenes. Así se puede afirmar como lo hace
Kaiser, por ejemplo “que la desjudicialización es superior en humanidad, y en efectividad en
relación con las penas” 17. Es decir, frente a los dos controles formales, resulta más beneficiosopara los adolescentes, el control social que puede ejercerse a través de la desjudicialización.
B. Fines Específicos
La desjudicialización también cumple con los fines especiales de prevención que desde mi
punto de vista son los más importantes en un sistema de justicia juvenil. Sin pretender agotar
estos fines, ni tampoco que el orden aquí expuesto signifique una importancia jerárquica, vamos
a presentar a manera de ejemplo algunos de estos fines de prevención especial, que se cumplen
por medio de la desjudicialización. Lo cual no lleva a las finalidades u objetivos de losprogramas de justicia restaurativa.
Conservar al máximo posible el ritmo normal diario, de estudio, de trabajo y el entornosocial del joven
Este fin buscado con la desjudicialización consiste en que el adolescente conserve, si lo tiene,
su ritmo diario normal de estudio, de trabajo y el entorno social, pese a encontrarse sujeto a unproceso penal o pese el haber sido acusado de infringir una ley penal. Los órganos depersecución penal deberían en todo caso cuestionarse si es conveniente para el cumplimiento defines educativos, ejercer la acusación penal. O si por el contrario sería más conveniente remitir al
joven a programas educativos, que no afecten su vida cotidiana, esto en especial para la mayoría
de delitos, cometidos por los jóvenes, que, como observamos, son de bagatela.
•

En primer lugar la desjudicialización procura tener un efecto directo en la persona deladolescente, de tal forma que la reacción institucional no sea igual de violenta, o más violenta
que la misma conducta delictiva. Pero además busca reducir al máximo la intervención delsistema penal mediante sanciones de ejecución ambulatorias, que a la vez tienen la positiva
16 Kaiser (Günter). Op. cit. p. 198.
17 Ibid. p. 194.

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consecuencia de que en muchos casos, el joven no será sustraído de la supervisión de sus padreso responsables, ni de su comunidad, ni de la vida regular que llevaba antes de la comisión deldelito. Se cumplen mucho mejor los objetivos educativos del sistema de justicia juvenil, en eltanto no se requiera de la institucionalización que pudiera significar la imposición de una sanción
formal.
Permitirle al joven una comprensión de su conducta delictiva
En los viejos modelos sobre legislación de menores (doctrina de la situación irregular) los
jóvenes o adolescentes no eran considerados responsables, por el contrario se trataba desustraerlos del proceso penal, por la idea que eran penalmente irresponsables, ya que
teóricamente no podían cometer delitos. Sólo se les consideraba objeto de protección.
•

Con la Convención de Naciones Unidas sobre los Derechos del Niño, se establece que sí esposible la atribución de una responsabilidad penal atenuada en el caso que los jóvenes cometan
una infracción tipificada por la ley como delito 18.
Para la realización de este fin se debe presumir “iuris tantum”, que los jóvenes poseen lacapacidad de comprender los actos delictivos, son personas con derechos pero también con
responsabilidades cuando afectan los derechos de otros. Actualmente sería muy difícil sostenerque los jóvenes tienen una incapacidad generalizada, o una falta de capacidad para comprenderla ilicitud del hecho 19. Como consecuencia de estos postulados, los modelos de justicia penal
juvenil integran en sus normas los principios de responsabilidad, tipicidad y culpabilidad.
Sin embargo, eso no significa que se les pueda someter a la jurisdicción penal de adultos,
puesto que aún se encuentran en proceso de desarrollo y formación de la personalidad. Y además
están excluidos de todo sistema penal los niños cuya edad es menor al límite de imputabilidad
penal, pues se presume que, estos niños no tienen capacidad para infringir las leyes penales 20.
Junto con el fin represivo del derecho penal juvenil (la justicia juvenil no pierde su carácter
de derecho penal), se debe procurar el fin pedagógico, es decir que el joven comprenda su
conducta delictiva. Esto tiene importancia dentro de un modelo de responsabilidad, para que eljoven fortalezca también el respeto por los derechos humanos y las libertades fundamentales deterceros. La desjudicialización con intervención, como podría ser la conciliación, la reparaciónde daños a la víctima, el enfrentamiento entre autor y víctima, son sin lugar a duda medios
18 Convención sobre los Derechos del Niño. Aprobada por Costa Rica por la Ley Nº 7184, de 18 de julio de 1990.

Publicada en La Gaceta Nº 149 de 9 de agosto de 1990, artículo 40 inciso 1: Los Estados parte reconocen el Derecho
de todo niño de quien se alegue que ha infringido leyes penales, o a quien se acuse o declare culpable de haber
infringido esas leyes a ser tratado de manera acorde con el fomento de sus sentido de la dignidad y el valor, que
fortalezca el derecho del niño por los derechos humanos y las libertades fundamentales de terceros, y en la que setenga en cuenta la edad del niño y la importancia de promover la reintegración del niño y de que este asuma una
función constructiva en la sociedad.
19 Sin que lo anterior signifique que en un caso particular, al menor de edad no se le pueda aplicar las atenuaciones
por trastornos mentales transitorios o permanentes como a los mayores de edad. Tiffer Sotomayor (Carlos). “Ley deJusticia Penal Juvenil. Comentada y concordada, con exposición de motivos del proyecto de ley e instrumentos
internacionales.” Editorial Jurídica Continental. 2011.
20 Convención sobre los Derechos del Niño. Aprobada por Costa Rica por la Ley Nº 7184, de 18 de julio de 1990.
Publicada en La Gaceta Nº 149 de 9 de agosto de 1990., artículo 40 inciso 3º.

- 126 -

mucho más eficaces para lograr que el joven comprenda la ilicitud de su conducta y la afectaciónde derechos de terceros. Además que debe buscarse como objetivo central, que el adolescente
continúe una vida futura sin la comisión de delitos.
Entender la delincuencia juvenil como un “episodio de juventud”
Hay que considerar que opiniones calificadas 21 informan que los adolescentes y los jóvenes
atraviesan por una etapa de inmadurez, en la cual el realizar algunas conductas prohibidas
estimula la definición de su personalidad y marca el paso a la edad adulta, “el delito en losjóvenes entre los 12 y 18 años es una conducta normal debido a un periodo de crisis de juventudy desarmonía con la madurez, ya que se encuentran en una fase transitoria y con perturbaciones
de adaptación. Además, la delincuencia juvenil no es una manifestación sólo de las clasessociales más pobres, ni de los sujetos estigmatizados socialmente” 22.
•

Habría que revisar críticamente la conducta de la generación actual de adolescentes para
observar que esta conducta delictiva de los jóvenes no tiene grandes diferencias en cuanto a losadolescentes de los años noventa, ochenta, setenta o sesenta. ¿O es que los jóvenes de lageneración actual son más proclives al delito que los de las generaciones pasadas? Si bien es
cierto hay algunas particularidades en cada generación, la adolescencia se caracteriza por ser
siempre un período de adaptación, que con mucha facilidad puede llevarnos hacia laestigmatización de los grupos de adolescentes como jóvenes problema y de ahí es muy fácil
llegar a la idea de que éstos jóvenes son delincuentes. Lo que realmente se diferencia, son lasformas de comisión del delito y los contextos socioculturales que a cada generación lecorresponde vivir. Adaptación que, precisamente es parte del proceso de desarrollo en que seencuentran los adolescentes y que la mayoría de ellos supera normalmente y sin entrar en
conflicto con la ley penal.
Lo anterior nos debería de llevar a la conclusión de que muchos de los que actualmentesomos adultos, también hemos pasado por un período de adaptación y que solo en algunos casos
podemos hablar de “crisis” en la adolescencia, y esto no significó un obstáculo para que lamayoría se integrara socialmente. Sin necesidad de que la adolescencia hubiera significado elinicio de una carrera delictiva, esto debería justificar que la reacción y la intervención judicial
sea la menos posible, ya que los delitos (por lo menos la gran mayoría) son productos de lo que
podríamos denominar trance de juventud. Además de este carácter episódico y de trance en eldesarrollo de la personalidad, por el que atraviesan los jóvenes, no hay que dejar de mencionarque en el caso centroamericano, se presentan particularidades muy importantes, tales como
conflictos armados, guerras civiles, gobiernos dictatoriales y autoritarios, una historia dediscriminación para sectores sociales como indígenas y afrocaribeños. Por lo que actualmente,estas sociedades de la mayoría de los países centroamericanos, se encuentran inmersas encontextos de alta violencia y delitos graves, con problemas de corrupción pública y privada, yuna criminalidad vinculada a las actividades del narcotráfico. Todo esto hace que, a parte de lacrisis individual por la que pueden atravesar los adolescentes, se le agregue un fenómeno decrisis social.
21 Kaiser (Günther). Op. cit. pp. 190, Dünkel, Frieder (2010), Ostendorf, Heribert (2011).

22 Tiffer Sotomayor (Carlos). “Prevención y delincuencia juvenil”. En: La Nación. Domingo 28 de septiembre de1997, p. 15.

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Por medio de la desjudicialización y la intervención mínima se posibilita la idea que laparticipación de un adolescente en un hecho delictivo sea sólo un episodio en el desarrollocompleto de sus vidas.
IV. FORMAS LEGISLATIVAS DE LA DESJUDICIALIZACIÓN PENAL JUVENIL ENCOSTA RICA
Las formas de desjudicialización previstas en la legislación costarricense se pueden dividir
en dos niveles:• Primer nivel:
A. Remisión
B. Archivos fiscales
C. Desestimaciones
D. Criterio de oportunidad•

Segundo nivel:
A. Conciliaciones
B. Suspensión del proceso a prueba
C. Reparación integral del daño
D. Ejecución condicional
V. PRÁCTICA DE LA DESJUDICIALIZACIÓN EN COSTA RICA 23

23 Crédito: Imagen tomada de Google.

- 128 -

- 129 -

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

PORCENTAJERELACIÓN
NIÑOS/ADULTOS(7.5%)

12.25912.193

9.81% 10.10% 10.38% 9.17%

11.703

8.13%

11.494

6.94%

9.953

6,90%

9.863

6.30%

9.921

6.37%

11.951

6.35%

15.585

6.70%

16.7187.24%

16.962

6.90%

10.91610.837

2002

TOTAL
NIÑOS
(160.355)

2001

110.363 115.757 118.034 132.900 141.294 143.413 142.791 157.438 187.543 245.158 249.203 234.041 158.121

2000

TOTAL
ADULTOS
(2.136.056)

AÑO

5.1. Delitos denunciados en el Ministerio Público 2000-2012 en Costa Rica

- 130 -10.83711.70312.25912.193

11.494

9.953

9.863

566

508

TotalesAbsolutos

128

155

147

149

189

101

148

2009

662

5.4. Archivos Fiscales 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007
2008

657

2009

11.951

494

673

2008

9.921

486

TotalesAbsolutos

5.3. Remisiones 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007

TOTAL

5.2. Cantidad de adolescentes denunciados en materia penal juvenil 2000-2012 en Costa Rica
Año
2000
2001
2002
2003
2004
2005
2006
2007
2008

267

2010

517

2010

15.58520092011

16.962

298

2011

454

2011

16.718

2010

28

2012

451

2012

10.9162012

- 131 -

5352

5224

5307

5362

5247

7072

10034

2009

11334

2010

10935

2011

3045

2006

5931

2007

7367

2008

2009

2010

TotalesAbsolutos

118

137

54

62

41

10

39

61

2010

2520

2005

5.7. Sobreseimientos provisionales 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007
2008
2009

4832

2004

4025

4106

2003

4280

TotalesAbsolutos

Año

24

2011

3147

2011

5.6. Sobreseimientos definitivos 2003-2012 en procesos contra adolescentes en Costa Rica (*criterios de oportunidad incluidos)

TotalesAbsolutos

5.5. Desestimaciones 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007
2008

55

2012

4397

2012

6774

2012

- 132 -

808

834

769

TotalesAbsolutos

315

363

459

560

495

673

379

537

2010

786

5.9. Suspensión del Proceso a Prueba 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007
2008
2009

713

2010

236

547

2009

279

TotalesAbsolutos

5.8. Conciliaciones 2003-2012 en procesos contra adolescentes en Costa Rica
Año
2003
2004
2005
2006
2007
2008

713

2011

331

2011

544

2012

440

2012

- 133 -Sentenciados
360
450
363
442
273 <
525
678
602
644
532
554
465
578
670 >
592

Año

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

Sanción
impuesta

302

337 >

290

202

184 <

231

236

252

309

280

303

262

226

297

246

Condenatoria

51.01

50.29

50.17

43.44

33.21

43.42

36.6

41.8

45.6

53.3

64.1

59.3

62.3

66.0

68.3

%

Tipo de sentencia

Menores condenados

5.10. Frecuencia de adolescentes sentenciados entre el año 1998-2012 en Costa Rica

290

333

288

263

370

301

408

350

369

245

170

180

137

153

114

Absolutoria

48.99

49.71

49.83

56.56

66.78

56.57

63.3

58.1

54.4

46.7

35.9

40.7

37.7

34.0

31.7

%

- 134 -

28
1
1
56
10

30

4

0

53

6

246

TOTAL

297

3

23

19

2

136

39

61

71<

1999

1998

Reparación de daños
Orden de orientación ysupervisión
Internamiento
domiciliario
Internamiento en tiempo
libreInternamiento en
centro especializado
Internamiento con
ejecución condicional

Libertad asistida
Prestación de servicio ala comunidad

AÑO
Amonestación yadvertencia

226

1

40

0

0

24

0

28

102

31

2000

262

8

48

0

3

14

0

27

126

36

2001

5.11. Práctica sancionatoria en Costa Rica (1998-2012)

303

6

68

0

0

30

0

17

157

25

2002

280

2

74

5

3

38

3

17

119

19

2003

309

4

48

3

1

25

1

22

179

26

2004

252

1

34

1

0

35

1

8

146

26

2005

236

0

25 <

5

0

22

0

12

149

23

2006

231

2

33

1

1

12

1

5

133

43

2007

184

2

50

-

1

8

-

2

103

18

2008

202

4

54

-

-

8

-

-

110

26

2009

290

-

88

-

-

13

5

4

151

29

2010

337

6

99

-

1

16

2

2

189 >

22

2011

302

12

129 >

-

-

11

-

2

135

13

2012

VI. COMENTARIOS FINALES
Una intervención judicial excesiva, afecta el proceso de desarrollo y muy probablemente
influye en las reincidencias delictivas. Para que la desjudicialización sea una práctica en lossistemas de justicia juvenil, se requiere de una concepción de un Estado Democrático que
promueva la incorporación familiar y social de los adolescentes, no su exclusión. También
los sujetos procesales que intervienen, fiscales, jueces y defensores, deben incorporar underecho penal mínimo y subsidiario. Además, se requiere un compromiso interinstitucional
público y privado, con la participación de la comunidad. La desjudicialización favorece lareducción de la sanción privativa de libertad y consecuentemente la disminución deadolescentes privados de libertad.
De la estadística presentada, se observa que el porcentaje de delitos cometidos por los
niños en comparación con los adultos es de un promedio de 7.5% y que contrario a lo que laopinión pública cree, por lo menos del periodo 2000-2012 las denuncias presentadas contra
personas menores de edad han disminuido. También encontramos que la práctica de la
desjudicialización tiene plena vigencia, ya que se utilizan formas de desjudicialización comola remisión, los archivos fiscales, las desestimaciones y sobreseimientos desde un inicio delprimer contacto de los adolescentes con el sistema de justicia. El promedio de uso de laremisión en el periodo estudiado fue de 546,8 casos, mientas que los archivos fiscales fue de161 casos. Importante señalar es que la desestimación es la forma de desjudicialización que
más se ocupa con un promedio de 7.264,1 casos y los sobreseimientos definitivos fueron unpromedio de 4.365 casos, mientras que los sobreseimientos provisionales fueron un promediode 60,1 casos. También las formas de desjudicialización denominadas alternativas al juicio,como por ejemplo la conciliación en el periodo estudiado se utilizó en un promedio de 602,2
casos. Mientras que la suspensión del proceso a prueba se utilizó en un promedio de 503,8
casos. En Costa Rica falta vincular estas medidas desjudicializadoras con programas deprevención del delito y reinserción social específico para adolescentes, con el objetivo dereducir las reincidencias delictivas.
Con respecto a la práctica sancionatoria, se observa que en el periodo estudiado la
sanción impuesta a personas menores de edad en su mayoría consiste en la libertad asistida,mientras que la sanción más drástica de internamiento en centros especializados no superó
del año 1998 al 2009 el número de 100 casos, mientras que se observa una tendencia deaumento a partir del año 2010, 2011 y 2012. El principal problema de Costa Rica seencuentra en el ámbito de ejecución o cumplimiento de la sanción, que es precisamente en
donde debe materializarse los fines socioeducativos de las sanciones. Ese es el principal
desafío del país.

VII. BIBLIOGRAFÍA
Albrecht, Peter - Alexis, El Derecho Penal de Menores. Traducción por Bustos Ramírez, Juan,
Barcelona, Promociones y Publicaciones Universitarias S.A., 1990.
Arias Madrigal, Doris. “Reflexiones Teóricas y Prácticas sobre la Reparación del Daño y laJusticia Restaurativa”, en: Bernal Acevedo, Fabiola. y Castillo Vargas, Sara., Justicia
restaurativa en Costa Rica: Acercamientos teóricos y prácticas. I Congreso de Justicia- 135 -

Restaurativa. San José, Comisión Nacional para el Mejoramiento de laAdministración de Justicia, 2006.
Carranza, Elías, Criminalidad ¿Prevención o promoción?, San José, EUNED, 1994.
Costa Rica, Convención sobre los Derechos del Niño, Ley Nº 7184, de 18 de julio de 1990,
Publicada en La Gaceta Nº 149 de 9 de agosto de 1990.
Dünkel, Frieder, Grzywa, Joanna, Horsfield, Philip / Pruin, Ineke (Eds.) Juvenile Justice
System in Europe. Current Situation and Reform Developments, Vol. 1, 2, 3, 4,
Alemania, Forum Verlag Godesberg, 2010.
García Méndez, Emilio, “Legislaciones Infanto - Juveniles en América Latina”, En: La niñez
y la adolescencia en conflicto con la ley penal. El nuevo derecho penal juvenil. Un
derecho para la libertad y la responsabilidad, 1995.
González Álvarez, Daniel, “El principio de oportunidad en el ejercicio de la acción penal”
En: Revista de Ciencias Penales, Nº 7, 1993.
Kaiser, Günther, Introducción a la Criminología, 7º Edición, Madrid, Editorial Dykinson,
1988.
Naciones Unidas. Reglas de las Naciones Unidas para la Administración de Justicia deMenores (Reglas De Beijing), Aprobadas por la Asamblea General de las Naciones
Unidas mediante Resolución Nº 40/33, de 29 de noviembre de 1985.
Naciones Unidas. Directrices de las Naciones Unidas para la Prevención de la Delincuencia
Juvenil (Directrices de Riad), Aprobadas por la Asamblea General de las Naciones
Unidas mediante Resolución Nº 45/112 del 14 de diciembre de 1990.
Ostendorf, Heribert, Jugendstrafrecht, 6º Auflage, Nomos Verlag, 2011.
Tiffer Sotomayor, Carlos. Ley de Justicia Penal Juvenil. Comentada y Concordada con
exposición de motivos del proyecto de ley, San José, Editorial Jurídica Continental,
2011.
Tiffer Sotomayor, Carlos; Llobet Rodríguez, Javier, Dünkel, Frieder. Derecho Penal Juvenil.
Segunda Edición. San José, ILANUD/DAAD, Editorial Jurídica Continental, 2014.

- 136 -

TREATMENT AND SOCIAL REINTEGRATION OF OFFENDERS:
CASE STUDY OF SHIKUSA BORSTAL INSTITUTION
Horace Chacha *I.

BACKGROUND

Shikusa Borstal Institution is a Youth Corrective Training Centre that caters for boys inconflict with the law between the ages of 15-17 years. This institution was established in 1963 by
an Act of Parliament (Cap 92 Laws of Kenya). There are only two such institutions in Kenya—
Shikusa and Shimo La Tewa Borstal. The institution is under the Prisons Department and draws
its mandate from the Constitution of Kenya 2010, cap 92, the Children’s Act 2001, the Probation
Act cap 62 and cap 90 Laws of Kenya, United Nations Standard Minimum Rules for theTreatment of Prisoners (UN-SMR), the Rules on the Protection of Juveniles Deprived of their
Liberty (RPJDL), and the African Charter on the Rights and Welfare of the Child (ACRWC).
Boys are committed for sentences of 3 years’ training and rehabilitation through children’s
courts in consultation with the case probation officers who also plan the after-care programme.
Through and aftercare guidelines are formulated for the reintegration of boys.
Statistics• Capacity 225 boys•

Average population 340•

132 Members•

Range of crimes:•

Theft related 50%>, Sexual related 20%<•

Assaults <10%, Drugs 5%>, Others 15>•

Average annual admissions 260•

Average annual discharges 240

Key stakeholders• Criminal justice agencies (Probation department, Judiciary, Police)•*

Children department and social services

Chief Superintendent in Charge of the Shikusa Borstal Institution, Kenyan Prisons Service, Kenya.

- 137 -

•

Non-Governmental Organizations (R.W.I)•

Community•

Offenders.

Causes of Crime in relation to family
Family Information Breakdown
S/NO

FAMILY TYPENUMBER

Percentage%

1

Divorced/Separated

108

35.3%

2.

Nuclear

142

46.4%

4.

Orphan

40

13.1%

5

Polygamous

16

5.2%

306

100%

Total

- 138 -

family set up

Divorced/Separated/Single
familyNuclearOrphans
Polygamous

Juvenile offending has a number of underlying characteristics, such as poverty, education
disadvantage, child abuse, lack of family support and drug/alcohol problems. Those who offend
tend to be marginalized with regard to their families, their community and/or society in general.
Efforts to prevent offending must involve engaging with young people at all levels.
It is very difficult to know which risks actually cause young offenders to be involved incrime, and of course, this varies between individuals unless one is influenced by protective
factors. The assumption was that most young offenders that offended came from broken or
dysfunctional families, but we realized that approximately 46% come from the nuclear family(Both parents are alive).
It’s true that presence of multiple risk factors increases the likelihood of someone
committing an offence; the extent to which those risk factors can be said to cause the offending
cannot only be determined by the family background. But at the population level, the best
information we can produce is a study of risk factors for offending, and an understanding thatthe more risk factors an individual possesses, the more likely they are to commit offences.
II. REHABILITATION PROGRAMS
The rehabilitation of boys admitted into the institution starts at the very beginning of theadmission process right from the reception board to discharge.
A. Composition of Reception Board• Superintendent in-Charge of the institution• Technical personnel• Welfare officer• Spiritual leaders- 139 -

••

Human Rights Officer
Documentation officers

The process begins from admission of young offenders in custody up to and including
community re-integration. At first the reception board was not adequately addressing offenderneeds, so we started one to ensure that on admission the young offender is introduced to andwelcomed to the Borstal environment. At this stage his expectations are addressed, fears areallayed, and treatment and the opportunities available for training are considered. Both spiritualand social counselling to stabilize the inmate in the new environment commence at this point, theinmate is introduced to his rights, obligations, the disciplinary requirements and procedures, thecomplaints mechanisms available and authorities both internal and external and the rules of theinstitution, his management plan is developed with a view to identifying the most suitablerehabilitation program for placement and start of the reintegration process.
B. Assessment and Classification
Assessment facilitates accommodation and allocation programs for young offenders. Where
applicable, specific risk tools are also used to measure the extent of substance abuse, violenceand sexual offence. Currently most of our resources target young offenders with moderate risks
and needs who are less likely to re-offend unless intensive rehabilitation is given.
The rehabilitation regime comprises several intervention mechanisms that are employed toprovide purposeful and corrective measures or activities for young offenders. These measureschallenge prisoners’ offending behaviour, providing them with basic education to tackle
illiteracy, empowering them with knowledge, and work skills for support and sustainability once
they are released from the institution.
C. Literacy Education
This is offered to enhance and accelerate the literacy levels such as literacy and numericalcourses before placement in various courses.
D. Vocational Training
This is offered to young offenders where various forms of vocational apprenticeship such as
upholstery, carpentry, tailoring, metal work, polishing and masonry among others. We havebegun assessment of these courses, and we developed new courses to be in line with othermarket oriented trades such as barber shop, car wash and shoe shining.
E. Formal Education
We have class 7 and 8 and form one and two; this is to give prisoners who want to pursue
education the opportunity to do so. A number of prisoners are registered yearly for different
levels of national examinations, KCPE and KCSE. The curriculum for formal education is thesame used by mainstream schools and colleges. The examination is accredited by the national
government just like that outside of the prison set up.
Boys who attend secondary education in Kenya are aged 13-15 years. Taking considerationof the fact that there was no established system in place, we started secondary education to caterfor boys who fall in the age category. The system of education is the same as the one used in themainstream schools. Most of the young offenders who are discharged from the institution(approximately 66%) transit back smoothly to the society. Formal education is significantly- 140 -

contributing to prisoners’ rehabilitation and creating an enabling environment for theircommunity resettlement. Computer literacy classes are also offered to boys interested inInformation and Communication Technology.
F. Psychosocial Programs
We offer counselling services to target specific behaviours. These are strategies to prevent
and address the underlying problems. We also provide support to those with mental healthproblems and provide addiction and counselling programmes for those with alcohol or drug
problems. Specialized treatment programs are offered to target needs in:•Pro-social thinking•

Anger and emotional management•

Substance abuse treatment•

Managing and overcoming violence•

Sexual offending treatment

G. Recreation Facilities and Services
We have a wide range of recreational facilities and services of particular interest to young
people, and we have made it easily accessible. In addition, the boys are involved in designingand running of these programs.
H. Sports and Positive Entertainment
Sport as a co-curricular activity is undertaken in the institution. Boys take part in indoor
and outdoor sporting activities. To date many activities/sporting programmes have increased
tremendously. Some of the activities are volleyball, football basketball, handball, athletics andtug of war.
Boys are encouraged to take part in daily exercises and at least take part in one sport. Interhouse competition is done weekly and crowned by end of quarter completion where individuals
and teams are awarded. Boys are also involved in inter-primary competitions with othermainstream schools; they also play friendly matches with the local youth groups, polytechnics
and churches.
I.

Importance of Sports to the Borstal Boys
• It makes participants mentally, physically and socially healthy.
•

It enhances chances of boy’s placement to best performing schools in academic andsports in the region and nationally.

•

It results in professional utilization of the boy’s talent in the future, e.g., some boys are
employed by premier league clubs.

•

It inculcates adherence to rules and regulations governing a given sport which directlytranslates to real life.

- 141 -J.

Music Festival
Music is part of our extra-curricular activities that is meant to nurture boys’ talents as well as
inculcate competitiveness and teamwork. This helps boys in the reintegration process upon
release. The Institution choir participated in the inter-primary schools which included
mainstream schools from the Zonal level to the national music festivals held on 3rd August 2014
at Kenya School of Government, Mombasa county.
K. Importance of Music Festival to Borstal Boys
• It helps boys to discover their talents and making temporary improvement on the same.
•

It leads to purposeful interaction between Borstal boys, music participants and otherprimary school pupils•

It helps them manage their leisure time prudently by composing, practising andrehearsing of songs.

•

It exposes boy’s creative talents and abilities to the outside world, hence opening up
sponsorship opportunities from different organizations, e.g, Faraja trust.

•

It enhances academic exchange programmes during residential music events.

•

It is a form of entertainment to participants, the entire Borstal community, surrounding
community, thus creating cohesive social interaction.

•

It creates opportunities for the boys to give back to the community by participating
during public holidays and graduation ceremonies.

L. Significance of Music to the Participants• Helps improve health and behavioural outcomes of those who participated by providing
social experiences as well as addressing problematic attitudes and perceptions.
•Music interventions are a means of building resilience and supporting well-being andpreventing delinquency.

•

Helps boys promote identity development through life skills acquisition which is an
essential component to a peaceful co-existence in the society upon their release; hence
very few reoffend as compared to non-music participants.

M. President’s Award
It’s an award for young people to help them develop psychological, intellectual and physicalactivities. Boys are involved in social responsibility by engaging in volunteer activities to help
build communities; this is done to encourage contact with the outside world and also to
encourage good discipline while in the institution.
The President’s Award Kenya (P.A.K) is an exciting self-development programme available
to all adolescents transitioning into adulthood; the participants are usually of the ages between
14-25 years.

- 142 -

The programme is open to all young persons who join it voluntarily and offer their service
and skill voluntarily for the benefit of humanity. They also undertake a lot of expeditions andadventurous journeys as a requirement for them to develop resilience and endurance as theywork as a team. Residential projects undertaken by the participants enable them to contribute
their service and skills for the benefit of unfamiliar persons who need that kind of assistance.
It enhances lifelong communication skills, problem solving, decision making, critical andcreative thinking, negotiation and presentation skills as participants take part in challenging
activities in their expeditions and residential projects with other participants drawn from varied
backgrounds and levels.

N. The Impact of Award and Transition to the Mainstream Schools and Reoffending
We have found that boys who are involved in the President’s Award Programme are moreengaged in both community and church activities and report significantly less serious
delinquency as well as problems of drinking and risky sexual behaviour; they seem to minimize
risky behaviours at home or in school.
The program helped deter delinquency by reducing unstructured time, providing incentive toconform and creating avenues for attachment to pro-social peers and adults. Most of the time
available is focused on school programs. President’s Award participants transition to secondary
and tertiary institutions as follows:- 143 -

President’s Award Transition Rate Tabulation 2011-2014
YEAR
LEVEL
P.A
TRANSITIONPOPULATION
2011

2012

2013

2014

TRANSITIONRATE

BRONZE

56

53

95%

SILVER

-

-

-

GOLD

-

-

-

BRONZE

71

67

94%

SILVER

36

33

92%

GOLD

7 (primary)

6 (secondary)86%

BRONZE

71

67

94%

SILVER

36

32

89%

GOLD

6 (primary)

6 (secondary)

100%

BRONZE

69

65

94%

SILVER

48

44

92%

GOLD

10 (primary)

9 (secondary)90%

O. Interpretation
From the above tabulation it is evident that P.A-K holders and participants do transition at ahigher rate cumulatively of about 92% from primary to secondary school. Those in secondary
schools within the region report back to the institution to finish other levels (programme
continuation).

- 144 -

Comparison of PA-Award participant’s transition rate with the transition rate of
Non-P.A boys
YEAR
BORSTAL BOYS
CASE
TRANSITION RATEPOPULATION

2012

2013

2014

P.A-Holders

56

40

71%

NON-PA

160

51

32%

P.A-holders

113

95

84%

Non-P.A

210

70

33%

P.A-Holders

125

86

69%

Non-P.A

170

58

36%

III. ANALYSISThe transition rate for pupils in Kenya’s primary schools to secondary schools stands at 74%
according to a UNDAF-UNICEF Report. The orderly and disciplined self-routine by theparticipants is transmitted into their area of study leading to marked academic improvement andhigh achievement by Borstal boys on the national examination and therefore guaranteed
continuation of their studies when they are released. Over 98% of alumni who were in primaryeducation furthered their education and are currently in good high schools. The P.A-K Borstal
boy’s transition rate cumulatively for three years is 75% as compared with the transition rate of
non-P.A Borstal boys which stands at 34% and also the mainstream schools with a rate of 74%.
Borstal P.A participants depict a 40% higher margin of continuing with their educational andother training programmes than non-P.A Borstal boys.
A. Reintegration Processes
We have strengthened family and community-based support by putting in place measures
to provide families with the opportunity to learn about child development and child care,- 145 -

promote parent-child relationships, make parents aware of young people and encourage theirinvolvement in family and community-based activities.
B. Visitation
Mentoring and linking families with appropriate support is important in helping families tocope with children’s risky behaviour as well as promote the favourable development of the child,secure his best interest and ensure views are taken into account. We ensure parents visit the boy
several times and also come and pick up their son during release to promote child-parent
relationship
C. Open Day/Parents’ Day
The institution organizes open days and parents’ day for family visits to enable young
offenders to meet with family members and establish family relationships; parents monitor theirchildren’s performance as well as address some of their urgent needs; Facilitate and promoteprisoners’ family contact and relationships during the incarceration of the child since mostoffenders offended against their parents and close relatives; Strengthens support system as young
offender’s parents have an opportunity to advise their children as well as give them
psychological and emotional support for moral and social upbringing during absence of parents;
Promotes acceptability of parent by nuclear family and community at large which consequently
leads to smooth reintegration of offenders and the community as well as reduces stigmatization;
Enables young offenders to monitor their children’s performance in school and provides
guidance on career related issues to them where this may become necessary.
D. Communication
We facilitate boys making phone calls immediately when they are admitted to the institution
to inform the parents and relatives that the boy arrived safely. Furthermore, we make calls on a
weekly basis to ensure that the boys maintain their family contacts and initiate the reconciliation
process. In addition we also allow the offenders to call the victims as part of reconciliation.
E. Discharge
Law governing the institution provides for a board of visitors. This board is mandated toreview cases of boys, with the intention of offering early discharge from the institution to serve
the remaining period in the community. The board meets four times in a year and considers casesof boys who have stayed in the institution for more than 12 months. The board getsrecommendations from the institution’s officers, probation officers, the community, families and,most importantly, the victims are consulted and their fears and roles in reintegration are
addressed. Upon early release the boys are placed under the supervision of probation officers.
Before discharge boys are taken through pre-release counselling and life skills training. In
addition, depending on their needs, provisions are made for help in continuance of formal
education and vocational skills gained. The government provides school fees and tools fordischarged boys in order to ensure successful completion of rehabilitation and to prevent
reoffending.

- 146 -

IV. RECOMMENDATIONS•Divert boys from the institutions through use of non custodial rehabilitation (Restorative
justice)•

Capacity enhancement and building of Institution staff in best practices in juvenile
offenders management•

More resources to be provided for reintegration and aftercare services•

Open young-person prisons to cater for boys who attain the age of 18 while at theinstitution•

Enhance the use of modern communication methods in maintaining family contact(video links, video conferencing)•

Review and amendment of laws dealing with juvenile offenders to conform to UNRPJ
and international standards on treatment of offenders (Revised Cap 92 will be in placeby September 2015)
V. CONCLUSION

Shikusa Borstal Institution was established to shield juvenile offenders from contamination
and abuse by adult offenders. Together with other criminal justice agencies and non-state actors
it helps in crime prevention, community safety and social reintegration through various programs
offered to offenders. New crime trends like cybercrime, terrorism and the increase in sexual
offenders will pose unique challenges to the institution but will add more linkages, cooperation
with international partners and additional resources earmarked for the institution by thegovernment. As a result, these challenges will be faced with optimism and confidence.

- 147 -

KEY ISSUES ON TREATMENT, REHABILITATION AND
SOCIAL REINTEGRATION OF JUVENILE OFFENDERS AS
IDENTIFIED IN AN RWI STUDY IN THE ASEAN COUNTRIES
Christian Ranheim*

I.

INTRODUCTION

Combined, the 10 member states of the Association of South East Asian nations(ASEAN) comprise 3.3% of this planets entire land area. Its citizens, however, make up
almost 10% of humanity. Home to more than 600 million people — more than 100 million
more than the EU — it is a young population. Almost 30% are between 5 and 19 years old.
The combined high number of youth and a relatively high percentage of youth unemployment
in the region have by many been seen as a formula for increased unrest, violence and juvenile
crime. 1
After having worked with juvenile justice related capacity building in Asia for several
years, the Raoul Wallenberg Institute for Human Rights and Humanitarian Law wanted todelve deeper into the effects of the youth bulge in ASEAN member states thus contributing to
the limited regional based juvenile justice research. Some of the questions we had were:Is there really a sharp increase in juvenile delinquency in ASEAN countries as reported bynews media? How do the governments respond to juvenile delinquency? Is juvenile crime aticking bomb towards social unrest and instability in South East Asia? How are the juveniles
in conflict with the law treated and rehabilitated? Are there common trends in the region?
Through commissioning of a baseline report on the state of juvenile justice in ASEAN
countries, we wanted to find the answer to some of these questions. The study is freshly
printed, and I am happy to be able to present the results of the study for the first time here
today.
The report has been drafted by 10 independent experts with responsibility for each of theASEAN member states. Thus, it is pertinent to point out that this is neither an official
ASEAN report nor a report drafted or endorsed by any member state. Relevant ASEAN
bodies and state representatives have, however, been consulted and have been supportive ofour research.
Each researcher drafted a narrative report and collected statistics loosely based upon the
UNICEF and UNODC Juvenile Justice Indicators. 2*

Head, Indonesia Office, Jakarta, Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI).
ILO: Global Employment Trends for Youth 2013: A generation at risk
http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_212423.pdf
2
www.unodc.org/pdf/criminal_justice/Manual_for_the_Measurement_of_Juvenile_Justice_Indicators.
1- 148 -

II. FINDINGSThis now brings us to the findings of the report, and I would like to highlight five key
conclusions made.
A. What Are the Facts?
Nearly all researchers conducting the country studies for this report stated that it had
been difficult to obtain reliable and up-to-date statistical data on the situation of children in
conflict with the law. Furthermore, there is no set list of indicators applied for juvenile justicereporting within ASEAN, which makes it difficult to compare figures across the region.
Access to data and streamlining of indicators clearly need to improve to ensure transparency
and possibilities for future research.
B. Juveniles in the Region Are Mostly Law Abiding
The fear of an increasing number of juveniles in conflict with the law in ASEAN
countries has sparked concerns throughout the region. Until today, it has been difficult toverify whether the concerns are justified. Our study confirms that crime is on the rise. The
number of juveniles brought into formal contact with the criminal justice system, however,remains surprisingly low: we estimate that approximately 70 000 juveniles are formallycharged with an offence each year in ASEAN member states. Comparatively, this number is
far lower than, for example, the USA — in which numbers from 2010 show that a staggering
1,4 million children were charged annually. 3 There is a lack of complete EU statistics, but ina study conducted by the European Commission in 2014, 8 out of the 28 member states
reported 134 000 children charged with a criminal offence. 4
When assessing the figure, it is, however, important to keep in mind that juvenile crime
traditionally is heavily underreported. 5 Cases of minor crime are often dealt with locally,
which may be even more common in Asia where many tend to live in tightly knit
communities where crimes are more likely to be resolved without contact with the formal
criminal justice system.
C. Those Who Are Not Law Abiding Mostly Commit Less Serious Crimes
In line with international research, crimes committed by youth in the ASEAN region aremostly within the category of theft. The highest percentage we recorded was in thePhilippines with 68% and Singapore with 63%. After theft, figures of other crimes vary quiteconsiderably. It does, however, seem common that violent property crime and drug related
crimes are high on the statistics. In particular Thailand reports extremely high percentages ofdrug related crimes (45.51%).
For those countries that provide gender relevant statistics, it is obvious that maledelinquency is much higher than female. The Indonesian juvenile prison population in
January 2015 consisted of 2% females, which we believe is indicative also for other countries.

3

In comparison, the population of the USA is only half that of ASEAN member states. “Juvenile Offenders andVictims: 2014 National Report”, National Center for Juvenile Justice p.151.
4“Summary of contextual overviews on children’s involvement in criminal judicial proceedings in the 28
Member States of the European Union”, European Commission 2014, p.4. The report summary finds that in 8
out of the 28 members states of the EU alone, the number of children charged was 134,477.
5
Finkelhor and Omrod “Factors in the Underreporting of Crimes Against Juveniles”, Child Maltreatment, Sage
Journals, August 2001 6: 219-229.

- 149 -

D. The Legal Framework Is Improving — Implementation Is the New Challenge
The country reports indicate that all countries within the region have recently installed,
or are in the process of installing, a distinct legislative framework for juvenile justice. This iscompatible with international standards and a very positive development.
7 out of 10 states have legally recognised diversion procedures. The remaining 3 states
are in the process of drafting such a framework — some in cooperation with UNICEF.
The actual implementation of juvenile diversion appears to be a more complex issue.
Some of our researchers reported a very high application of either diversion or alternative
measures. As an example, police in Brunei estimated that 90% of cases reported to the justicesystem are solved without a judicial proceeding. The Philippines reported that 39% of allreported cases were diverted, while Thailand, on the other hand, had a very low percentage ofuse of official diversion.
Does the study specify how those going through diversion or alternative measures aretreated? Not in detail or in figures, although the narrative reports can give us some guidance.
A common observation is that diversion is not used to its fullest potential for several reasons:-

Lack of formal programs-

Lack of funding-

Lack of competence and knowledge-

Lack of facilities

Institutional arrangements for implementation of diversion differ throughout ASEAN.
While some countries apply traditionally based procedures such as mediation in village
councils, others maintain strict control over the mediation process.
If one looks at figures again, our study shows that while approximately 70 000 juveniles
are charged with a criminal offence annually, an estimated 16 000 children are deprived of
their liberty after having received a criminal sentence at any given time within the region.
Again, to our knowledge, this is the first time such figures have been presented for the
ASEAN region. In the USA, the figure of juveniles deprived of liberty was around 70 000
according to a report from 2010, while 21 out of 28 countries in the EU in 2012 reported that
8700 juveniles were detained. 6
E. Rights Denied?
Juveniles in conflict with the law are especially vulnerable in facing a large, formal
justice system comprised of adults. International instruments thus recognise the importance ofproviding legal or other professional counsel to represent the interest of the child at all phasesof the proceedings. Disappointingly, this appears to be one of the weakest parts of thejuvenile justice systems in the region. Although most national laws afford some form of legal
representation, this is for several countries not implemented in practise. Some report that it isdue to the lack of lawyers. As examples, the Lao Bar Association had in 2013 around 150
6“Juvenile Offenders and Victims: 2014 National Report”, National Center for Juvenile Justice, p. 188,
“Summary of contextual overviews on children’s involvement in criminal judicial proceedings in the 28
Member States of the European Union”, European Commission 2014.

- 150 -

members while Cambodia had around 800. While this may be amended by training ofparalegals or use of other professionals, our researchers reports that such programmes lackfunding and that representatives thus are either not available or do not fulfil the requiredcompetence to work with juveniles.
III. CONCLUSIONSASEAN countries are diverse in terms of population, geography, social development andculture. This is reflected in the findings of the report, and one should thus be careful whendrawing conclusions. Some trends do, however, appear general: On a positive note – all
ASEAN member states have, or will soon have, specialised legislation on juvenile justice.
Furthermore, the number of juveniles in conflict with the law in the region as a wholeremains remarkably low.
While most countries have regulations outlining diversion processes, these are notalways used to its fullest potential due to a number of factors, and prisons are still being used
to a much higher extent that required. The situation for detained children is not conducive tosecure full rehabilitation, and incarceration together with adults is still common in several
ASEAN countries.
IV. RECOMMENDATIONS
We believe that increased regional cooperation within ASEAN and bilaterally between
states would be imperative to strengthen standard setting and sharing of best practises. The
main recommendations of the RWI study are to:– Work towards a set of ASEAN Guidelines on the promotion and protection ofjuvenile justice that are compatible with the CRC and other international juvenile
justice standards;– Develop an ASEAN system for collecting and publicly reporting statistics onjuvenile justice based on recognised UNODC and UNICEF indicators;– Strengthen regional forums for juvenile justice in order to share best practices;– Support regional juvenile justice ‘think-tanks’ and strengthen cooperation onjuvenile justice related research and education, and– Create a regional monitoring and evaluation mechanism based on international
juvenile justice standards.

- 151 -

Treatment of female juvenile offenders in
SwedenChrister Isaksson
Office for International Affairs
Swedish Prison and Probation Service

International perspective
•
•
•
•
•
•
•

•

Great variations as to when a person is responsible for his offending
Great variations in the alternatives for handling/helping juvenile offenders
In many countries very young boys and girls are put in prison
In some countries there are several agencies, kinds of institutions, to takecare of young offenders – in other countries not so many
In most countries far more young men then girls are offending
In many countries this means that there are more alternatives for handlingboys than girls
In many countries the stigma attached to offending, to having been put into
institutions, is different for girls – harsher, more restricting – e g sheltersneededIn Sweden comparatively few are treated within the prison system but inspecial institutions for young offenders with much more staff and specialists
available- 152 -Government Assignment about
young offenders
2013-2016”The Prison and probation service shall conduct a
special effort during the execution of young clientssentence, taking measures designed to prevent
recurrence of criminal offences”

150 million skr.

Young offenders• Age of criminal responsibility 15 years• Persons under 18 rarely receive custodial
sentences – special legislation, special institutions• Young offender is less than 21 years old whenentering remand, prison or non custodial care
• (max until the age of 24)- 153 -

Young offenders•

Every day there are close to 2,000 young people in prison andprobation service. About 180 of them are women.

The young offenders• The majority have been subject to previous social
interventions• 70% have some sort of addiction problems.
• 53% live in metropolis• 86 % Swedish nationals• 70 % live with their parents(Source: Client mapping in 2013)- 154 -

The female young offender• Often a background of abuse. Physical or sexualor harassment in general• Many see themselves as “the inferior sex”
• Many female offenders have been subjected toprostitution• Drug abuse

The young offenders - the crimes• 60% of young people are convicted of violent
crimes, the most common is robbery.
• 35% are convicted of drug-related crime, andnearly as many for acquisitive.
• Average penalty if custodial sanction 10 months,
if non custodial sanction 1 year.

- 155 -

The young female offenders – thecrimes• Most common crimes are drug related crimes• Second most common is theft of some kind
• In third place comes violent crimes – although
among older women there is a tendency, not very
prominent, towards more violent crimes

Reactions to drug abuse andoffending in the Swedish society• In Sweden there are 7 institutions, SIS, for giving
treatment and care for offenders of the age 15-17,
56 places.
• In 2014, 40 boys were placed in these institutions,only one girl• Some girls with an offending behavior are placedin psychiatric care instead of any of the other kindsof institutions. Reason for this may be drug abuse,self harming behavior or – of course – otherpsychiatric problems- 156 -

What works according to science?
• The principle of Risk -high risk of recurrence – many efforts• No difference mandatory or voluntary
Multimodal operations• Therapeutic treatment of social problem solving and anger
control• Professional mentors• Education• Efforts related to work
• ADHD investigation and treatment• Drug treatment

Early efforts• Early investigation of – risk, needs andsusceptibility• Motivate to treatment early• Study early• Specialist departments for young- 157 -

Efforts in Prison• Small specialized departments for 100 young
offenders – today only about 10 young girls in
prison• Special cognitive treatment programs• ADHD-investigation• Cooperation with other authorities like employment
agency or social services• The female prisoners are relatively few whichmeans less institutions for them, often far awayfrom home

Efforts in probation service• Specialized probation officers• More treatment programs• Intensified probation - The lay probation officer
and/or Professional Mentor or coach?
• Network?
• Cooperation with other authorities like employment
agency or social services
Employment agency or healthcare located withprobation service- 158 -

Conclusions• Female juveniles slightly different picture than formen – more abused, sexual components, low self
esteem• More empirical data on male juveniles – adjust
treatment programs to match• Fewer females – fewer places for good treatment– adjust!
• Early and broad approach to treatment is vital• Other alternatives than imprisonment for juveniles
is always preferrable• Postponing entry into prison gives better
prognosis, is more humane and cost effective- 159 -

THE UN STANDARD MINIMUM RULES FOR THE TREATMENT OF
PRISONERS– AN UPDATED BLUEPRINT FOR PRISON MANAGEMENT IN THE 21ST CENTURY –Valerie Labaux *I.

WHY AND HOW WAS THE REVIEW PROCESS OF THE SMRS INITIATED?

The Standard Minimum Rules for the Treatment of Prisoners (1955) 1 constitute theuniversally acknowledged minimum standards for the management of prison facilities and thetreatment of prisoners, and have been of tremendous value and influence in the developmentof prison laws, policies and practices in Member States all over the world. In recognition of
the advances in international law and correctional science since 1955, however, the General
Assembly decided, in 2011, to establish an open-ended intergovernmental Expert Group toreview and possibly revise the SMRs. Civil society and relevant United Nations bodies wereequally invited to contribute to the process.
II. HOW DID THE REVIEW PROCESS OF THE SMRS PROCEED?
In the course of three meetings (2012-14) closely accompanied by the UN Office on
Drugs and Crime (UNODC), the intergovernmental Expert Group, made progress in
identifying thematic areas and specific rules for revision, while closely adhering to the overall
parameters of the revision process determined by the General Assembly: (i) Any changes tothe rules should not lower any of the existing standards but should improve them so as topromote safety, security and human conditions for prisoners; and (ii) The revision process
should maintain the existing scope of application of the SMRs.
At its 4th meeting held in Cape Town, South Africa, in March 2015, the Expert Groupreached consensus on all of the rules opened for revision. In May 2015, the Commission on
Crime Prevention and Criminal Justice (CCPCJ) endorsed the revised rules and submitted theentire set of the revised SMRs for approval by the Economic and Social Council (ECOSOC)and subsequent adoption by the General Assembly as the “UN Standard Minimum Rules for
the Treatment of Prisoners”.
III. WHY ARE THE RULES TO BE KNOWN AS THE NELSON MANDELA RULES?
The 4th meeting of the Expert Group recommended the revised SMRs to be also known
as the Nelson Mandela Rules in order to honour the legacy of the late President of South*1

Chief, Justice Section, United Nations Office on Drugs and Crime (UNODC).
As adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders
in 1955 and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957
and 2076 (LXII) of 13 May 1977.

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Africa, Nelson Rolihlahla Mandela, who spent 27 years in prison in the course of his struggle
for global human rights, equality, democracy and the promotion of a culture of peace. Nelson
Mandela International Day (18 July) was further recommended to be also utilised to promote
humane conditions of imprisonment, raise awareness about prisoners’ being a continuous partof society and value the work of prison staff as a social service of particular importance.
IV. WHICH AREAS OF THE STANDARD MINIMUM RULES HAVE BEEN
REVISED (OVERVIEW)?
After a careful analysis of the advances in international law, correctional science and bestpractices since 1955, the Expert Group opted for targeted revisions of the Standard Minimum
Rules in the nine thematic areas as listed below. Altogether, around 35% of the rules havebeen revised and/or relocated.
V. WHICH AREAS OF THE STANDARD MINIMUM RULES HAVE BEEN
REVISED (HIGHLIGHTS)?
A. Prisoners’ Inherent Dignity and Value as Human Beings§ refer to Rules 1 to 5 of the UN SMRs
Part I, which is applicable to all categories of prisoners, now includes an extended set offive “Basic Principles”, which outline the overall spirit under which the rules should be read.
Some of these principles have been relocated, in amended form, from Part II.A, which isreserved for sentenced prisoners. Other fundamental principles have been added in reflectionof advances in international law. These include, in particular, an obligation to: treat all prisoners with the respect due to their inherent dignity and value as humanbeings; prohibit and protect prisoners from torture and other forms of ill-treatment; and to ensure the safety and security of prisoners, staff, service providers and visitors at all
times.
B. Vulnerable Groups of Prisoners§ refer to Rules 2(2), 5, 39(3) and 109-110 of the UN SMRs
The impartial application and the prohibition of discrimination based on race, colour, sex,
language, religion, political or other opinion, national or social origin, property and birth
included in the old version of the SMRs have been expanded to include “any other status”.
Importantly, putting into practice the principle of non-discrimination has been interpreted toinclude an active obligation to: take account of the individual needs of prisoners, in particular the most vulnerable
categories;- 161 -

 protect and promote the rights of prisoners with special needs; and to ensure that prisoners with physical, mental, or other disabilities have full and effective
access to prison life on an equitable basis, and are treated in line with their healthconditions.
C. Medical and Health Services§ refer to Rules 24-27, 29-35 of the UN SMRs
The revised rules emphasise that the provision of health care for prisoners is a State
responsibility, and add significant detail to the overall principles, scope and composition ofhealth-care services in prisons. Duties and prohibitions of health-care professionals areenhanced in line with the principle that their relationship with prisoners is governed by thesame ethical and professional standards as those applicable to patients in the community.
More specifically, these include: ensuring the same standards of health care that are available in the community andproviding access to necessary health-care services to prisoners free of charge without
discrimination;
evaluating, promoting, protecting and improving the physical and mental health ofprisoners, including prisoners with special health-care needs;

 adhering to the principles of clinical independence, medical confidentiality, informed
consent in the doctor-patient relationship and continuity of treatment and care (incl. forHIV, tuberculosis, other infectious diseases and drug dependence);
 an absolute prohibition of health-care professionals from engaging in torture or otherforms of ill-treatment, and an obligation to document and report cases of which they may
become aware.
D. Restrictions, Discipline and Sanctions§ refer to Rules 36-39, 42-53 of the UN SMRs
Explicit reference is made to the principle that no use of restriction or disciplinary
punishment may amount to torture or other forms of ill-treatment, and that all general living
conditions continue to apply to prisoners subjected to disciplinary sanctions. New provisions
further define and restrict the use of solitary confinement as well as the use of instruments ofrestraint, regulate searches of prisoners and cells, and clarify the role of health-care
professionals in the context of disciplinary proceedings. In particular, the revised rules:
 define (prolonged) solitary confinement as the confinement of prisoners for 22 hours ormore a day without meaningful human contact (for more than 15 consecutive days), andrestrict the use of solitary confinement as a measure of last resort to be used only in
exceptional circumstances;- 162 -

 prohibit indefinite or prolonged solitary confinement, the placement of a prisoner in adark or constantly lit cell, the reduction of a prisoner’s diet or drinking water as well as
the use of instruments of restraint which are inherently degrading or painful, such as
chains or irons; provide detailed guidance on searches of prisoners and cells as well as on the legitimate
use of instruments of restraint in line with the need to ensure security and safety in theprison as well as the respect for the inherent human dignity of prisoners;
 confirm that health-care professionals should pay particular attention to involuntarily
separated prisoners, but exclude their involvement in the actual imposition of
disciplinary sanctions;
 encourage prison administrations to use, to the extent possible, conflict prevention,
mediation or other alternative dispute resolution mechanisms to prevent or resolve
conflicts.
E. Investigation of Deaths and Torture in Custody§ refer to Rules 6-10, 68-72 of the UN SMRs
Independent investigations are now foreseen in all cases of custodial death as well as inother situations of serious concern. For transparency and accountability purposes, theinformation to be registered for all prisoners has been expanded, as have been the
notifications which the prison administration must give to prisoners or outside parties in farreaching situations. More specifically, the revised rules:
 specify information to be entered in the file management system upon admission of
every prisoner and in the course of imprisonment, and clarify that these shall be kept
confidential; detail the right of prisoners or outside parties (family or designated contact persons) to be
notified about imprisonment, transfer to another institution, serious illness, injury or
death;
 require any custodial death, disappearance or serious injury of a prisoner to be reported
to a competent authority independent of the prison administration mandated to conduct
prompt, impartial and effective investigations into the circumstances and causes of suchcases;
 require similar procedures whenever an act of torture or other ill-treatment may havebeen committed in prison, irrespective of whether a formal complaint has been received.
F. Access to Legal Representation§ refer to Rules 41, 54-55, 58-61, 119-120 of the UN SMRs
The right to be visited by and consult with a legal advisor which was restricted to untried
prisoners and for the sole purpose of their defence in the original SMRs, has been extended to- 163 -

all prisoners and to any legal matters in the revised rules. A qualified right of prisoners tohave access to legal advice has further been established in case of disciplinary proceedings.
Finally, a new rule provides guidance on entry and search procedures applicable to visitors.
Accordingly, prison administrations are required to: inform prisoners, upon admission, about authorized methods of seeking access to legal
advice, including through legal aid schemes;
 provide adequate opportunity, time and facilities to all prisoners to be visited by andcommunicate with a legal advisor of their own choice, or to a legal aid provider, on any
legal matter without delay, interception or censorship and in full confidentiality; grant prisoners the right to defend themselves in person or through legal assistance when
the interests of justice so require, particularly in cases involving serious disciplinary
charges;
 abstain from search and entry procedures for visitors which are degrading or in any way
less protective than those outlined for searches of prisoners and cells.
G. Complaints and Inspections§ refer to Rules 54-57, 83-85 of the UN SMRs
The revised rules strengthen the right of prisoners or their legal advisors to safely submit
requests or complaints regarding their treatment, all of which shall be promptly dealt with by
the prison administration and replied to without delay. An important advance has beenachieved in the field of monitoring and inspections in the form of a two-fold system ofregular internal and external inspections of prisons and penal services. More specifically, thenew provisions:
 extend the right to file complaints to a prisoner’s relatives or any other person who has
knowledge of the case when a prisoner or his or her legal advisor are not able to do so; require the implementation of safeguards to ensure that requests and complaints can besubmitted in a safe and, if so requested, confidential manner, without any risk ofretaliation, intimidation or other negative consequences; establish a twofold system for regular inspections consisting of internal or administrative
inspections conducted by the central prison administration and external inspections
conducted by a body independent of the prison administration.
 grant prison inspectors key entitlements to effectively assume their tasks, including
access to prison(er) records, unannounced visits at their own initiative as well as privateand fully confidential interviews with prisoners and prison staff.

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H. Terminology§ updated throughout the UN SMRs
The revised content of the SMRs also replaced outdated terminology, which was nolonger acceptable in light of recent advances in international law, and to ensure the consistentuse of terminology throughout the document. In particular, revisions under this thematic area
focused on: updating health-related terminology; rendering the revised rules a gender-sensitive document.
I.

Staff Training§ refer to Rules 75-76 of the UN SMRs

The revised rules provide detailed guidance on tailored staff training to be delivered bothupon admission as well as in-service with a view to give all prison staff the ability and means
to carry out their complex duties in a professional manner. Prison staff who are assigned
specialised functions should benefit from training with a corresponding focus. Induction
training should include theoretical and practical tests for admission into the prison service,and should cover the following subjects, at a minimum: relevant national legislation, regulations and policies as well as international or regional
instruments which are to guide the work and interaction of prison staff with prisoners; overall rights and duties of prison staff in the exercise of their functions, including
respect for the human dignity of prisoners and the prohibition of torture or other forms of
ill-treatment; security and safety, including dynamic security as well as the use of force andinstruments of restraint, with due consideration of preventive and defusing techniques;and first aid, addressing the psychological needs of prisoners as well as social care andassistance.
VI. WHAT IS THE ROLE OF THE UNODC IN PROMOTING THE APPLICATION
OF THE NELSON MANDELA RULES?
Within the UN system, the UNODC is the custodian of the international standards andnorms in crime prevention and criminal justice, including the UN SMRs, and has therefore
acted as Secretariat throughout the SMR review process. Building on its mandate to assist
Member States, upon request, to apply these standards and norms in practice, the UNODC
has built extensive experience in providing technical guidance and implementing assistanceprogrammes in the field of prison reform. More recently, the UNODC has developed astrategic approach to address global prison challenges, which envisages an enhanced- 165 -

engagement in (i) reducing the scope of imprisonment; (ii) improving prison conditions andprison management; and (iii) supporting the social reintegration of offenders upon release. 2
Given the above, the UNODC is ideally placed to assist Member States in applying theMandela Rules in practice. Accordingly, it has been requested to ensure broad disseminationof the Mandela Rules, to design guidance materials and to provide technical assistance andadvisory services to Member States in the field of penal reform, in order to develop or
strengthen penitentiary legislation, procedures, policies and practices in line with the Rules.

2

http://www.unodc.org/unodc/en/justice-and-prison-reform/tools.html?ref=menuside.

- 166 -

WORKSHOP REPORTREPORT OF COMMITTEE I: WORKSHOP I
Role of the United Nations standards and norms in crime prevention andcriminal justice in support of effective, fair, humane and accountable criminal
justice systems: experiences and lessons learned in meeting the unique needs ofwomen and children, in particular the treatment and social reintegration of
offenders
Proceedings
1. At its 1st meeting, on 12 April 2015, the Thirteenth Congress elected by acclamation
Roberto Rafael Campa Cifrián (Mexico) as Chair of Committee I. At its 1st meeting, on
13 April 2015, Committee I elected by acclamation Mark Rutgers van der Loeff(Netherlands) as Vice-Chair and Jeanne Mrad (Lebanon) as Rapporteur.
2. At its 1st to 3rd meetings, on 13 and 14 April 2015, Committee I held a general
discussion on agenda item 3, entitled “Successes and challenges in implementing
comprehensive crime prevention and criminal justice policies and strategies to promote
the rule of law at the national and international levels, and to support sustainable
development”. For its consideration of the item, the Committee had before it thefollowing documents:(a) Background paper on workshop 1, on the role of the United Nations standards andnorms in crime prevention and criminal justice in support of effective, fair, humane
and accountable criminal justice systems: experiences and lessons learned inmeeting the unique needs of women and children, in particular the treatment andsocial reintegration of offenders (A/CONF.222/10);(b) Discussion guide (A/CONF.222/PM.1);(c) Reports of the regional preparatory meetings for the Thirteenth Congress(A/CONF.222/RPM.1/1, A/CONF.222/RPM.2/1, A/CONF.222/RPM.3/1 and
A/CONF.222/RPM.4/1).
3. The workshop was moderated by Yvon Dandurand, fellow and senior associate at theInternational Centre for Criminal Law Reform and Criminal Justice Policy. Keynote
speeches were delivered by Princess Bajrakitiyabha Mahidol of Thailand, and by Marta
Santos Pais, Special Representative of the Secretary-General on Violence against
Children, via recorded video message. Presentations were made by the following
panellists: Haitham Shibli, Penal Reform International; Kittipong Kittayarak, Thailand
Institute of Justice; Maria Noel Rodriguez, United Nations Office on Drugs and Crime(UNODC); Uju Agomoh, Prisoners Rehabilitation and Welfare Action of Nigeria; Kelly- 167 -

Blanchette, Mental Health Branch, Correctional Service Canada; Sandra Fernández,
Regional Penitentiary Academy, Office of the Attorney General of the Dominican
Republic; Sara Robinson, National Probation Service of the United Kingdom; Masako
Natori, Ministry of Justice of Japan; Alexandra Martins, UNODC; Zhao Bingzhi,
Beijing Normal University; Carlos Tiffer, Latin American Institute for the Prevention of
Crime and the Treatment of Offenders; Horace Chacha, Shikusa Borstal Institution,
Kenyan Prisons Service; Christian Ranheim, Raoul Wallenberg Institute of Human
Rights and Humanitarian Law; and Mohammed Hassan Al Sarra, Naif Arab University
for Security Sciences.
4. The 1st and 3rd meetings, on 13 and 14 April, were chaired by Roberto RafaelCampa Cifrián (Mexico), and the 2nd meeting, on 13 April, was chaired by Mark
Rutgers van der Loeff (Netherlands).
5. At the 1st meeting, introductory remarks were made by a representative of theSecretariat, the Director of the Raoul Wallenberg Institute of Human Rights andHumanitarian Law and the Director of the United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Offenders.
6. At the 2nd meeting, statements were made by the representatives of the United States,
Azerbaijan, Canada, Saudi Arabia, Switzerland, Thailand, Turkey, Paraguay, Pakistan,
Indonesia and South Africa. Statements were also made by the observers for Quaker
United Nations Office and Penal Reform International, as well as by two individual
experts.
7. At the 3rd meeting, statements were made by the representatives of Slovenia, Canada,
Thailand, the United States, Mauritania and Spain. The observer for the European
Union also made a statement.
General discussion
8. The keynote speaker, opening the panel discussion on “Women: treatment ofoffenders, rehabilitation and social reintegration”, recalled the various United Nations
standards and norms developed through the years, particularly those related to thetreatment of prisoners, and recent international developments in promoting thefundamental rights of women prisoners, including the adoption of the United Nations
Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules). Reference was made to the current status of theimplementation of those standards at the national level, and it was noted that the statusof implementation varied from one country to another. The importance of fair, humane
and gender-sensitive treatment for the rehabilitation of women prisoners and offenders
for their successful reintegration into the community was also highlighted.
9. The first panellist presented the results of surveys undertaken by Penal Reform
International in a number of countries on the characteristics of women prisoners andwomen offenders and the impact of imprisonment on women. Reference was made to aseries of technical assistance tools developed to assist countries in implementing an
integrated approach to meet the needs of women offenders and prisoners. The second- 168 -

panellist illustrated the impact of imprisonment on incarcerated mothers and theirchildren and presented the experience of Thailand in enhancing mother-child relations,medical care and living conditions for pregnant women, nursing mothers, women withchildren in prison and foreign women prisoners. He emphasized the need for developing
gender-sensitive national laws and policies and promoting human-rights-based
correctional practices, as well as for ensuring support from the public for penal policies
related to women prisoners and women offenders. The panel then heard about the
progress made in Latin America in implementing the Bangkok Rules. Examples ofgender-sensitive policies and practices from different countries in that region were
provided. The fourth panelist analysed the situation of women in prison or pretrial
detention in Africa, highlighting practical measures to improve the treatment andprotection of women prisoners in developing countries. In the fifth presentation,
experiences from the federal correctional system of Canada in the treatment of women
prisoners and offenders were presented, including gender-responsive and tailoredpolicies and programmes based on gender-specific assessments, gender-responsive
staffing models and redesigned prison infrastructure, as well as correctional and social
programming and mental health treatment for women. The prison management modelof the Dominican Republic was then presented, in particular its special programmes forthe treatment of women prisoners and for the preparation for the reintegration of women
prisoners into society. The panel also heard about experiences from the probation
services of England and Wales in the supervision of women offenders in the community,
where a number of gender-sensitive and women-specific offender management andsocial reintegration services were available, based on a multiagency approach. The final
presentation illustrated the situation of women offenders, women’s prisons and female
prison officers in Japan, along with measures taken to address the increased number offemale inmates, secure the stable employment of female prison officers, build theircapacity and improve their working environment.
10. During the discussion, several speakers reflected on the situation of women in
prisons in different parts of the world and the challenges they faced in that regard, anddetailed their respective national experiences in dealing with women prisoners andoffenders. It was recognized that the number of women in prisons was increasing at ahigher rate than the population of male prisoners was. The unique situation of older
women in prisons, as well as of prisoners with disabilities, was highlighted. It was notedthat women were in prison mostly for offences related to drug trafficking and minor
offences and that many had a history of victimization, especially violence. In that regard,a project developed by the European Institute for Crime Prevention and Control,
affiliated with the United Nations, addressing women in prison who had experienced
childhood, intimate partner or other forms of physical and sexual violence, wasmentioned. Participants listed challenges related to women in prison and, in that respect,
mention was made of the difficulties of women with children in maintaining
relationships with their children, which increased their suffering and had a major impact
on the children. Participants agreed women, and emphasized that a holistic approach
was needed, combined with a strategy that involved all relevant stakeholders, including
communities. Participants shared best practices and agreed that gender-specificrehabilitation and reintegration programmes had a greater impact on women, and thatsuch programmes needed to be evidence-based and adjusted to the specific needs of- 169 -

women, based on assessment and ongoing data collection. Others highlighted theimportance of the transparency and openness of prisons, combined with monitoring toensure that rights were respected. Success stories could be shared on how the use of themedia could be beneficial with regard to changing the stigma still faced by women
prisoners.
11. The panel on “Children: treatment of offenders, rehabilitation and social
reintegration” was opened by the Special Representative of the Secretary-General on
Violence against Children, who delivered a keynote speech via video link. She recalled
the most relevant standards and norms related to children in conflict with the law andnoted how there was still a serious governance gap between the normative frameworks
that such instruments provided and their implementation. She also referred to thesituation of children living in violent contexts, children with mental health problems
deprived of their liberty and girls deprived of their liberty, underlining the importanceof the recently adopted United Nations Model Strategies and Practical Measures on the
Elimination of Violence against Children in the Field of Crime Prevention and Criminal
Justice 1 in protecting the rights of such children.
12. The first presentation focused on the provisions contained in the Model Strategies
and Practical Measures and the work of UNODC to support the implementation of thatnew instrument, including the joint UNODC-UNICEF Global Programme on Violenceagainst Children in the Field of Crime Prevention and Criminal Justice. Recent activities
to assist countries in implementing the Model Strategies and Practical Measures, and inparticular the UNODC checklist to facilitate assessments and measures to bring justicesystems into compliance with the new legal instrument, were the focus of the second
presentation. The panel then heard about the initiatives undertaken by China in dealing
with children in conflict with the law, which stressed the role of family, school andsocial organizations and the reforming of relevant laws, policies and practices based oninternational instruments and standards. The focus of the fourth presentation was on
good practices concerning alternatives to judicial proceedings from the Costa Rican
juvenile justice system, including remission, plea bargains, dismissals and the closing ofcase files, reconciliation processes, suspension of proceedings and redress for damages.
The fifth panellist illustrated the experiences of Kenya in dealing with children in
conflict with the law, in particular the Shikusa Borstal Institution, which provided
programmes to ensure that offenders were prepared for a crime-free life upon releaseand to allow their smooth reintegration into the community. During the panel, thefindings of a recent baseline study on juvenile justice systems conducted by the Raoul
Wallenberg Institute of Human Rights and Humanitarian Law in the Association ofSoutheast Asian Nations region were shared. The study identified common trends, bestpractices and main challenges throughout the region regarding treatment, rehabilitationand social reintegration of juvenile offenders. The seventh presentation focused on theexperience of Saudi Arabia with regard to the rehabilitation and social reintegration ofchildren in conflict with the law into the community, analysing the risk factors forchildren coming into conflict with the law and then presenting an overview of thedifferent mechanisms available to the community for care and rehabilitation. The final
1

General Assembly resolution 69/194.

- 170 -

presentation, focusing on the treatment of young female offenders, illustrated thephilosophy of the Swedish prison system of using prison as a last resort for that type ofoffender, an approach that was one of the most effective measures for facilitating
rehabilitation and social reintegration.
13. A representative of the Secretariat provided an update on the revision of thestandard minimum rules for the treatment of prisoners that had been mandated by theGeneral Assembly in 2010.
14. During the discussion, there was broad agreement among participants on the highvalue of the United Nations Model Strategies and Practical Measures on the Eliminationof Violence against Children in the Field of Crime Prevention and Criminal Justice as a
powerful tool for Member States to protect the rights of children in contact with thejustice system and to effectively prevent and respond to incidents of violence. One
speaker commended UNODC for having developed, with the United Nations Children’s
Fund (UNICEF), a global programme on violence against children in the field of crime
prevention and criminal justice, and encouraged Member States to provide funding.
Delegates referred to progress achieved to date by national Governments in promoting
the rights of children in contact with the law and protecting them from violence. Several
speakers expressed support for the outcome of the revision process of the United
Nations Standard Minimum Rules for the Treatment of Prisoners, which had been
finalized by the Intergovernmental Expert Group Meeting at its fourth meeting, held inCape Town, South Africa, in March 2015, and recommended the revised set of Rulesfor endorsement by the Commission on Crime Prevention and Criminal Justice at its
twenty-fourth session.
Conclusions
15. The conclusions of the discussions, as summarized by the moderator on behalfof the Chair, are as follows:(a) Member States should adopt or amend legislation, policies and measures for women
offenders and children in conflict with the law in line with relevant United Nations
standards and norms and provide adequate funding for their implementation;(b) Member States are invited to mainstream a gender perspective into criminal justicesystems with programmes that take into account the histories of women offenders,
including victimization history and related mental health issues;(c) Member States are encouraged to review relevant national legislation, policies,
procedures and practices to effectively prevent and respond to violence againstchildren who are alleged offenders or victims or witnesses of crime;(d) To improve the effectiveness of the criminal justice system in preventing andresponding to serious forms of violence against children, the complementary rolesof the justice system and the child protection, social welfare, health and education
sectors should be recognized;- 171 -

(e) Member States should promote the use of alternative measures to judicial
proceedings both for women and children. The principle that deprivation of libertyof children should only be used only as a measure of last resort and for the shortest
appropriate period of time should be respected. Likewise, whenever possible, theuse of pretrial detention for children should be avoided;(f) Member States should develop gender-specific health care within prisons, taking
into account sexually transmitted diseases; mental health-care needs, including riskof suicide and self-harm; pregnancies and related reproductive health issues; theexistence of drug dependency; and sexual abuse and other forms of violence;(g) Proper measures should be in place to address the specific needs of children
deprived of their liberty, in particular as relates to health-care services and hygiene;(h) Member States are invited to develop and implement trauma-informed programmes
and interventions for women prisoners and children in conflict with the law;(i) Member States should minimize the use of imprisonment for pregnant women andmothers with young children. If imprisonment is unavoidable, services such as
nurseries, mother-child units, nursing care and formal education for the children of
women prisoners should be provided, and cooperation with relevant organizations,
including non-governmental organizations, the private sector and the community,
should be encouraged;(j) UNODC, in cooperation with UNICEF and the Office of the United Nations HighCommissioner for Human Rights (OHCHR), is invited to develop guidance forcountries on how to determine and interpret the best interests of the children ofincarcerated mothers;(k) Member States should develop gender-specific rehabilitation and reintegration
treatment programmes, both in institutions and in the community, including during
the aftercare phase, taking into account the special treatment needs of women, suchas substance abuse, lack of adequate education, and victimization history;(l) Member States should provide support, programmes and services for children
deprived of their liberty prior to and after release in order to promote theirrehabilitation and reintegration into the community;(m) Rehabilitation and reintegration programmes for women prisoners and children
deprived of their liberty should be implemented in coordination with relevant
non-governmental organizations, the private sector and the community;(n) Member States should develop policy guidance on how to deal with women
offenders from minority groups, including foreign nationals and indigenous women;(o) Member States should strengthen the use of evidenced-based research in theimplementation of strategies related to women offenders and children in conflict- 172 -

with the law. In particular, Member States are encouraged to incorporate gendervariables into their criminal justice statistics and develop case management
databases with gender-specific data. Furthermore, they are invited to develop asystem for collecting and reporting juvenile justice data and statistics, in particularon the status of children deprived of their liberty, and to contribute to theundertaking of an in-depth global study on children deprived of liberty, in line with
General Assembly resolution 69/157;(p) Member States should raise awareness of and disseminate relevant international
instruments and standards and norms, including the Bangkok Rules and the Model
Strategies and Practical Measures, to all relevant criminal justice officials,
non-governmental organizations and the community;(q) In view of the importance of public support and participation in the development ofpenal policies, strategies and programmes related to women prisoners and children
in conflict with the law, efforts should be made to ensure such support andparticipation;(r) Member States are encouraged to strengthen their training and capacity-building
activities for criminal justice personnel based on relevant international instruments
and standards and norms;(s) Member States should design effective national strategies for the promotion of
female corrections officers to leadership and managerial roles in the treatment of
women offenders;(t) Member States should promote the sharing of good practices in the treatment andsocial reintegration of women offenders and children in conflict with the law at theregional and international levels;(u) UNODC should continue providing assistance and support to countries, uponrequest, to implement the Bangkok Rules and the Model Strategies and Practical
Measures. Member States are invited to make full use of the tools developed by
UNODC;(v) Member States are encouraged to provide financial and other resources to strengthen
the technical assistance capacity of UNODC to address the needs of women
prisoners and offenders, as well as to protect all children who are in contact with thejustice system from violence, including through the implementation of the
UNODC-UNICEF Global Programme on Violence against Children in the Field of
Crime Prevention and Criminal Justice;(w) The Commission on Crime Prevention and Criminal Justice is invited to endorse therevision of the Standard Minimum Rules for the Treatment of Prisoners, inaccordance with existing mandates, with a view towards the final adoption of therevised set of rules by the General Assembly.

- 173 -

ANNEX

List of Participants (Moderators, Speakers and Panellists)

*

*

*

Photographs

List of Participants (Moderators, Speakers and Panellists)
Workshop Moderator
Prof. Yvon Dandurand

Fellow and Senior AssociateInternational Centre for Criminal Law
Reform and Criminal Justice Policy(ICCLR)
Vancouver, Canada

Opening Remarks
Ms. Claudia Baroni

United Nations Office on Drugs andCrime (UNODC)
Vienna, Austria

Mr. Morten Kjaerum

Director
Raoul Wallenberg Institute of Human
Rights and Humanitarian Law (RWI)
Lund, Sweden

Mr. Terutoshi YAMASHITA

Director
United Nations Asia and Far East
Institute for the Prevention of Crime andthe Treatment of Offenders (UNAFEI)Tokyo, JapanPANEL I
Keynote Speech
HRH Princess Bajrakitiyabha Mahidol

Ambassador
Extraordinary
andPlenipotentiary of the Kingdom ofThailand to the Republic of Austria

CanadaDr. Kelley Blanchette

Director General
Mental Health Branch
Correctional Service Canada

Dominican Republic
Ms. Sandra Fernandez

Academic Director
Regional Penitentiary Academy
Office of the Attorney General of the
Dominican RepublicJapan
Ms. Masako Natori

Director of Facilities Division
Ministry of JusticeTokyo, Japan- 177 -

Nigeria
Dr. Uju Agomoh

Executive Director
Prisoners Rehabilitation and Welfare
Action (PRAWA)
Enugu, Nigeria

ThailandDr. Kittipong Kittayarak

Executive Director
Thailand Institute of Justice
Bangkok, Thailand

United Kingdom
Ms. Sara Robinson

Deputy Director
National Probation Service
United Kingdom

PRI
Mr. Haitham Shibli

Research and Communication Manager
Penal Reform International (PRI)

UNODC-ROPAN
Ms. Maria Noel Rodriguez

Prison Reform Team Coordinator
Regional Programme Office in Panama(ROPAN)
United Nations Office on Drugs andCrime (UNODC)PANEL II
Keynote Speech
Dr. Marta Santos Pais

Special Representative of the United
Nations Secretary-General on Violenceagainst Children

Kenya
Mr. Horace Chacha

Chief Superintendent in Charge
Shikusa Borstal Institution
Kenyan Prisons Service

SwedenMr. Christer Isaksson

Director
Office for International Affairs
Swedish Prison and Probation Service- 178 -

CCLS
Prof. Zhao Bingzhi

Dean of the Law School and College for
Criminal Law Sciences
Beijing Normal University
Beijing, Peoples’ Republic of China

ILANUD
Dr. Carlos Tiffer

Criminal Law Consultant
Latin American Institute for thePrevention of Crime and the Treatmentof Offenders (ILANUD)San Jose, Costa Rica

NAUSS
Dr. Mohammed Hassan Al Sarra

Dean of Training College
Naif Arab University for Security
Studies (NAUSS)
Riyadh, Kingdom of Saudi Arabia

RWI
Mr. Christian Ranheim

Head of Office
Indonesia Country OfficeRaoul Wallenberg Institute of Human
Rights and Humanitarian Law (RWI)
Jakarta, Indonesia

UNODC
Ms. Valerie Lebeaux

Chief
Justice Section
United Nations Office on Drugs andCrime (UNODC)

Ms. Alexandra Martins

Crime Prevention Officer
Justice for Children, Justice Section
Division for Operations
United Nations Office on Drugs andCrime (UNODC)- 179 -

PHOTOGRAPHSThe Congress Workshop

Opening remarks by the UNODC- 181 -

Panellists of the Congress Workshop

Presentation by a Workshop Panellist- 182 -