REPORTS OF THE COURSEGROUP 1ENSURING DUE PROCESS IN THE JUVENILE JUSTICE SYSTEM AND
THE APPROPRIATE ADJUDICATION OR DISPOSITION OF JUVENILES
Chairperson
Co-Chairpersons

Mr. Kapila Mudantha Waidyaratne
Mr. Masaomi Nakazawa
Mr. William Antonio Parodi Pugliese
Mr. Joseph Makwakwa
Mr. Thanh Quang Chu
Mr. Augustin Esperanza Senot
Mr. Hisami Katsuda(Sri Lanka)(Japan)(Panama)(Zimbabwe)(Vietnam)(Philippines)(Japan)Visiting Experts

Judge O’Driscoll
Dr. Robert Hoge

(New Zealand)(Canada)Advisers

Deputy Director Takeshi Seto
Prof. Kayo Ishihara
Prof. Jun Oshino
Prof. Shintaro Naito(UNAFEI)(UNAFEI)(UNAFEI)(UNAFEI)

Rapporteur
Co-Rapporteurs

I. INTRODUCTION
Group 1 agreed to discuss the following agenda:(1) Current situation and challenges in regard to the legal framework of arrest, detention, transfer
between related agencies, prosecution and trial.
(2) Current situation and challenges in regard to (i) information gathering (legal investigations and socialinquiry) of offences and/or the background of delinquency; (ii) information sharing; and (iii) cooperation amongst stakeholders.
(3) Assessment of the degree of risk of reoffending and the factors important for the rehabilitation ofeach juvenile (i.e. their needs) before disposition.
(4) Measures for ensuring the appropriate adjudication or disposition of juveniles, including theintroduction of diversion programmes.
(5) Adjudication or disposition considering the restitution or minimization of damage to the victim and/orcommunity and effective measures to restore the damage caused by juvenile offenders.
The discussions of the group were mainly centred on ensuring due process in the juvenile justice systemand the appropriate adjudication or disposition of juveniles through considering the current situation andchallenges facing member countries. The group agreed that some member countries are already adhering tothe United Nations standards, norms and guidelines.

II. CURRENT SITUATION AND CHALLENGES
The group discussed the following topics and agreed that they posed great challenges in ensuring due
process in the juvenile justice system.

A. Arrest and Detention
The group observed that member countries had laws in place that provide for the arrest of offenders but
noted that certain countries did not have specific separate laws dealing with the arrest of juveniles as
distinct from adults. A further challenge was the issue of detention before a juvenile can be brought to court.
In some countries, where such laws exist, in certain circumstances or cases, they are not specificallyfollowed by the courts and law enforcement agencies. Where the law provides that a juvenile must be
detained for a minimum period of time, the juvenile is not brought to court in a timely manner. This can arise
due to practical and individual reasons. Probation reports are not thorough or detailed and are not submitted
on time. In certain instances, presiding officers consider the gravity of the offence more than the basic
requirements of rehabilitating and reintegrating the juvenile into society.

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B. Trial
Zimbabwe and Vietnam have fragmented legal provisions on juvenile justice such as the right to be
represented by a parent or guardian when police record a caution and during trial. However, there are nospecific courts to deal with juvenile offenders and insufficient facilities for their detention.
While educative measures are very effective for juvenile offenders, in Japan there is a social movement
which criticizes the Family Court as being too lenient on juveniles and which calls for severe punishment.
This is mostly attributed to the fact that there is a lack of awareness of the gains of the juvenile justicesystem.
In respect of the right to a speedy trial, the group agreed that justice delayed is justice denied. In certain
circumstances, there is an inordinate delay before juvenile cases are disposed of and this causes actual
prejudice in that a juvenile, due to the delay, is dealt with as an adult when matter is tried (Sri Lanka,Zimbabwe). Japan has strict time limitations for detention not only in the investigation stage (arrest andreferral to Family Court must occur within a maximum of 23 days) but also in the juvenile hearing stage (theFamily Court has to make a final disposition, usually within four weeks, but up to a maximum of eightweeks). These limits are provided for by law.
In relation to the right to legal representation, in some countries, it is available only at the juvenile’sexpense. The result is that most juvenile cases are disposed without them being properly represented bylegal counsel. In Zimbabwe, legal representation is only provided by the State in indictable cases. In Panama,
offices of public defenders of adolescents provide legal representation for juveniles. In Japan, an attendant(lawyer) will be appointed by the State for detained juveniles in felony cases by the 2007 amendment of theJuvenile Law.

C. Probation Officers and their Assessment
All participants explained the situations of probation officers in their respective countries. In Sri Lanka,probation officers are required to have a background in sociology. Japanese participants found it interestingthat while in some countries probation officers do not have a background in juvenile psychology, in Japanthey are expected to be specialists in psychology, sociology, and education.
In Vietnam the law does not provide for probation officers. Instead, police officers make an assessment
during their investigations and send the information to the prosecutors who in turn place this information
before the judge. The judge will proceed to deliver his or her judgment after considering this assessment.
In Japan, the law provides for the juvenile classification home officer and the Family Court probation
officer to carry out assessment of juvenile offenders. Family Court judges must consider two aspects of thematter before them: the criminal facts of the case and the necessity for educative measures. The judge gives
serious consideration to the report by the family court probation officer in his or her assessment of the riskof reoffending. The underlying principle is that since juveniles act out of immaturity, and because of theirhigh placidity, they may be corrected. The great challenge lies in educating citizens to understand the allimportant role played by probation officers in juvenile justice.
A Japanese participant stated that in Japan, a challenge exists in the quality of probation officers. It isbelieved that the quality is not low. However, information gathering is a vital yet difficult task. Therefore, in
his opinion, there is still room for Japanese family court probation officers to improve their ability.
The Zimbabwean position is that probation officers, who fall under the Department of Social Welfare in
the Ministry of Labour and Social Welfare, are called upon by the police and the courts to carry out
assessments of juvenile offenders. The police make such a request in all cases involving juveniles below theage of 14 years. The assessments are passed to the Attorney General in order for him or her to decide
whether or not to prosecute a juvenile offender. If a docket is referred to the Attorney General without thisreport, it will be returned to the police to enable them to obtain the report. The courts request probation
officers to provide an assessment report on the risk of recidivism and rehabilitation before passing sentence.
Probation officers are professionals and presiding officers are accordingly guided by their recommendations
in passing sentence.

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In Sri Lanka, supervising police officers and probation officers assist judges in assessing the risk of reoffending by juveniles in minor cases. Since probation officers play a vital role in delivering juvenile justice,they must be given adequate time and resources to enable them to come up with comprehensive reports.
Regarding rehabilitation, the chairperson’s personal opinion was that Family Group Conferencing (FGC) ofNew Zealand and the Family Court of Japan were good models in minor cases. FGC allows the offender andthe victim to come face to face and has a provision for restorative justice. As for serious offences, Sri Lanka
is bound by national and international laws in such dispositions. Judges should consider probation officers’
reports even in serious offences and mostly pass rehabilitative sentences.

D. Diversion
The group wanted to come up with a working definition of this word and adopted the international bestpractice of diversion as the channelling of juveniles away from the formal court system into reintegrative
programmes. If a juvenile acknowledges responsibility for his or her wrongdoing, he or she can be ‘diverted’
to such a programme, thereby avoiding the stigmatizing effects of the criminal justice system. It gives
juveniles a chance to avoid a criminal record, while at the same time aiming to teach them to takeresponsibility for their actions and to avoid getting into trouble again.
In Vietnam there are provisions in both criminal and administrative procedures in which courts play nopart. In the administrative procedure, the police take the juvenile to the local government or authority for it
to take appropriate measures to send the juvenile to a training school. Alternatively, the police can send thecase to a prosecutor who may also decide to refer the matter to the local authority for the juvenile to receivetreatment.
In Panama, other than in cases of murder, rape, kidnapping, terrorism and drug trafficking, a judge ofadolescents deals with issues of diversion. A judge of adolescents can prescribe social or educative measures
for a juvenile offender in non-serious cases. A prosecutor can also dispose of the case in his or her office andmay choose not to send it to a judge of adolescents where the victim has been compensated and in cases
where there is no threat to society.
In the Philippines, there are various programmes in place which provide for diversion of children in
conflict with the law such as the Barangay Court (village court system), police, prosecutors and lastly, thecourts. Decision makers are guided by the juvenile law. Diversion is allowed in minor cases where thepossible penalty for the offence is less than six years. Some other factors include such things as the natureand consequence of the offence and circumstances of the child. The disposition must be made withconsideration for the best interests of the child.
Current laws in Zimbabwe do not specifically provide for diversion of juvenile offenders. However, there
is provision for prosecutors to decline prosecution in trivial cases using the de minimis non curat lex
principle (the law does not concern itself with trivialities). The problems or challenges with this system arethat it has no provision for the juvenile offender to take responsibility for what he or she has done; thus, theoffender is not sent for corrective and/or rehabilitative treatment. The diversion programme proposed by theNational Committee on Community Service has provision for the victim and offender to meet under victim
offender mediation (VOM) and Family Group Conferencing (FGC). This will provide a platform for the victim
to be heard.
The Family Court in Japan can be seen as special model of diversion (more than 70% of all juvenile cases
are dismissed without any disposition). In the Family Court procedure, victims can request the Court to hear
their opinion. However, in some cases, it is difficult for the Court to fully reflect the victim’s voice in its
disposition.
Sri Lanka at present does not have a specific diversion programme. However, the present law enables aJuvenile Court judge to proceed with protective measures and diversion in cases of a minor nature. Even
though a juvenile offender is brought before a court, a formal hearing does not take place because
magistrates are empowered and it is within their jurisdiction to act in appropriate cases resulting indiversion.

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III. RECOMMENDATIONS FOR IMPROVING AND
STRENGTHENING JUVENILE JUSTICE SYSTEMSWith regard to the topics, the participants agreed that the following recommendations could be necessary
for improving and strengthening juvenile justice systems:
1.
2.
3.
4.
5.
6.
7.
8.

A special court system competent to deal with juvenile offenders is necessary. The Family Court inJapan, and also the model of the Criminal Child Court in South Africa as proposed in the Child Justice
Bill, or the model of the Barangay Court in the Philippines are considered good models;The formulation of (or improvement an existing) fundamental framework on arrest, detention,prosecution and trial, applicable to juvenile offenders and based on United Nations standards, norms
and guidelines, must be taken into account;
Judges must have proper information in the form of comprehensive reports to enable them to makeappropriate decisions;
Probation officers, as specialists of human sciences such as psychology, sociology and education,
should be involved in the process of decision-making. Their reports and recommendations shouldhave significant bearing on the final dispositions of cases;
The involvement of volunteer probation officers, volunteer social workers, etc. as community
support resources in dealing with juvenile offenders should be encouraged;
The competent authorities, in their determination, should, as a rule, give priority to the juvenile
offender rather than the offence;
Restorative justice, where the victim meets the juvenile offender to understand why the latter
committed the offence and for possible compensation to be agreed upon, should be encouraged;
Many participants emphasized the importance of recording, properly and methodically, statistics onjuvenile offenders.

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