REPORTS OF THE COURSEGROUP 1ISSUES AND METHODS OF CRIMINAL INVESTIGATION,PROSECUTION AND JUDICIAL PROCEDURES FORSERIOUS AND VIOLENT JUVENILE OFFENDERS

Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members
Visiting Expert
Advisers

Mr. Hideaki Gunji
Ms. Gonna Satayathum
Mr. Marcelo Cesário
Mr. Fernando Rivero
Mr. Al-Smadi
Ms. Naoko Naito
Mr. Kotaro Nakamura
Dr. Robert Hoge
Prof. Shintaro Naito
Prof. Junichiro Otani
Prof. Jun Oshino
Prof. Haruhiko Higuchi(Japan)(Thailand)(Brazil)(Uruguay)(Jordan)(Japan)(Japan)(Canada)UNAFEIUNAFEIUNAFEIUNAFEI

I. INTRODUCTION
Group 1 started its discussion on 2 June 2008, and elected, by consensus, Mr. Al Smadi as its
Chairperson and Mr. Gunji as its Co-Chairperson. Mr. Cesário was elected as Rapporteur and Mr. Rivero as
Co-Rapporteur. Soon after the first meeting of the group, Mr. Al Smadi unfortunately had to leave UNAFEI
and return to Jordan unexpectedly, so Mr. Guniji assumed the position of Chairperson and Ms. Satayathum
became Co-Chairperson.
The group, which was assigned to discuss “Issues and methods of criminal investigation, prosecution,and judicial procedures for serious and violent juvenile offenders”, agreed to conduct its discussion inaccordance with the following issues: 1) investigation; and 2) the judicial system.
Besides this, the group divided each issue into the following sub-topics:
1.	Investigation:
A. Interview
B. A rrest and Detention
C. Social Environment/Technical Assessment
D. Report.
2.	Judicial System
A. C
 ourt Procedure in Juvenile Justice System
B. I nvolvement of Victims
C. Disposition for Juveniles.

II. INVESTIGATION
A. Interview and Violent Cases
Regarding this specific point in the investigation procedure, paying particular attention to serious andviolent cases committed by juveniles, the group discussed different methods of interviewing the juvenile
offender. The Chairman asked the participants, principally those who are police chiefs, to relate their own
experiences.
Mr. Rivero spoke of the extremely difficult conditions during the interview; sometimes the juveniles
can be very unstable and, sometimes, a little aggressive. Mr. Rivero also remarked on the juveniles’
vulnerability and noted the difference between three types of interview for an investigation, which are: theprimary interview by the police, trying to establish the relationship between the crime and the suspect; thesecond interview, by the prosecutor or judicial officers, searching for the details of the offence; and the third

174

139TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

interview, for technical assessment.
Mr. Cesário told of his experience in Brazil, where there are specialized police stations for investigationof juvenile offenders, completely separate from those places for adults. He also told the participants about
the importance of the presence of the juvenile offender’s parents during the interview.
On this specific point, Dr. Robert D. Hoge, whose honoured us with his presence during this discussion,
said that, from the point of view of psychology, the value or benefit of the presence of the parents during theinterview of the juvenile offender will vary, case-by-case, and that it is very difficult to form a general rule on
this issue.
Still on the matter of interviews, Mr. Nakamura recalled that the initial interview by the publicprosecutor is mainly for judging the necessity of detention, not for fact-finding.
Whether the atmosphere where the interview will take place is formal or not it is much more a questionof “interview techniques” than related to the interview itself, which implies that formal environments could
vary according to each case.
After all of these topics were discussed, the group agreed that there are two specific points about
interview of juvenile offenders, including but not limited to serious and violent juvenile offenders, that must
be considered: the place where the interview is to be held and the presence or not of the parents of thejuvenile offender during his or her interview.

B. Arrest/Detention
Recognizing the existence of serious and violent crime committed by juvenile offenders, our discussionof the topic above began with a brief explanation by Mr. Nakamura of the Japanese system for arrest anddetention, at the invitation of the Chairperson, Mr. Al Smadi.
According to Mr. Nakamura, a judge’s approval is always required for the detention of a juvenile. Besides
this, he emphasized that the measure of depriving the juvenile of freedom is more necessary if there is anaccomplice, in order to avoid communication between the two and, therefore, the destruction of evidence.
Mr. Nakamura ended by saying that it would be better to research the necessity of arrest of the juvenile
before the enforcement of the measure itself, and concluded that the main objective of the investigation in
Japan is “to find the truth,” and that there is no exception in matters of serious and violent juvenile crime.
Mr. Rivero gave a brief explanation of the arrest and detention system of a juvenile in Uruguay.
Mr. Cesário emphasized that the factors that imply the need to take the juvenile into custody must be of
two different orders: “social needs” (or “social claims”) and “juvenile protection”, which form an equation tobe solved by the judge regarding the balance of those two factors.
Ms. Satayathum told us that in Thailand, in most cases, the juvenile will be released, except when the
alleged offence is very serious.
On the other hand, Mr. Gunji asked us to focus on the factors that really imply the necessity of taking ajuvenile into custody and to think about the factors that should be considered in order to detain a juvenile.
At this specific point, Mr. Cesário said that the factors need to reflect the aims of the investigation, andproposed that “preservation of the evidence” and “preservation of the integrity of the juvenile” should be
the priority factors.
Mr. Nakamura said that we should not put factors into a priority order, but should analyse them all.
Besides this, he added that the detention place for juvenile should be separate from those places assigned
for adults.
Finally, Mr. Al Smadi pointed out that during the arrest minimum force should be used, including
handcuffs, unless extremely necessary, and properly justified.

175

RESOURCE MATERIAL SERIES No.78

By the end of the discussion of this topic, the group agreed that the most important point about arrestand detention in the investigation is consideration of what factors lead to the requirement to detain thejuvenile.

C. Social Environment
First of all, and in order to better delimit such a vague issue, the group decided that it is paramount todefine what constitutes “social environment”.
At this point, the Chairman, Mr. Gunji, suggested that the “Countermeasures to protect the privacy of
the family and of the juvenile” could be a topic, and asked us to talk about our experience in each country.
In that way, Mr. Rivero said that it is necessary to prescribe guidelines concerning information gathered
through investigation.
We also introduced the topics of regulation and the present situation of the reports of juvenile cases by
the press in each respective country.
After some members of the group gave accounts of their own experiences, the following issues wereconsidered most important when talking about social environment: preservation of the privacy of the family
and of the juvenile and the importance of maintaining information gained through investigation.

D. Report
Regarding the report of the investigation, Mr. Rivero introduced the theme by giving us a brief overview
of the rules in Uruguay.
After this, Mr. Al Smadi pointed out that we should discuss if recommendation has to be assigned or notin the final report of the investigation, besides asking “who has the right of drop the case”?
On the other hand, the group has not achieved any consensus about the inclusion of the recommendationin the final report, as well as about the competent authority to allow the case to be dropped, as thepeculiarities of each country demand different treatment on this specific point.
At the conclusion of discussion of this topic, the group has accorded that every case has to be reported
and sent to the competent authority, no matter what authority this is.

III. JUDICIAL SYSTEM
A. Court Procedure in the Juvenile Justice System
First of all, the group decided to draft a comparative table of the situation in the four countries whose
participants make up the group:
Principle

JAPAN
Protection

THAILAND
Rehabilitation(philosophy, idea)
Age of criminal

BRAZIL
Full protection and

URUGUAY
Protection andrehabilitation

rehabilitation

14 to 19

10 to 18

12 to 17

13 to 17

Family Court

Juvenile and Family

Juvenile Court

Family Court(protective) or

Court

responsibility(Juvenile)
Type of Court

176(protective) andDistrict Court

Adolescent Court(criminal)(criminal)

139TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

Persons Present

For the Family

1. Judge

1. Judge

1. Judge

Court:

2. Public Prosecutor

2. Public Prosecutor

2. Public Prosecutor

1. Judge

3. Probation Officer

3. Public Defender

3. Public Defender

2. Lawyer Attendant

4. Parents

4. Parents

4. Parents

3. Probation Officer

5. Legal Adviser of

5. Probation Officer

4. Parents

defendant

5. Persons approvedby judge who canbe helpful forrehabilitation
For the District
Court:
1. Judge
2. Prosecutor
3. Defence Counsel
Maximum

18 or above: death

Punishment

penaltyin an educational

14 to 17: life sentence

establishment

Duration of

23 days + 8 weeks

Life sentence

60 days

3 years of internment 5 years of internment

45 days

60 daysdetention before
final disposition

Each participant spoke about his or her own judicial system, briefly explaining the procedure, in order tocompare different systems.
This topic - Court Procedure in the Juvenile Justice System - was divided into two main sub-topics,
which are: 1) the role of parents; and 2) special consideration during the justice procedure.
Regarding the role of parents during the juvenile justice procedure, Ms. Naito told us that in Japan, theparents of the juvenile have the right to attend the hearing in the Family Court. In some cases however, thepresence of the parents can be prejudicial for the juvenile, and so the Family Court, in those cases, can ask
the parents to leave and can hold hearings for the juvenile and the parents separately. On the other hand, inthe District Court the parents do not have the right to be a part of the proceedings, but as the trial is open to
public, they can observe the trial.
Ms. Satayathum explained that in Thailand the presence of the juvenile’s parents is required during allprocedures.
Mr. Rivero said that in Uruguay the presence of the juvenile’s parents is also required during the trial,
but that there is no sanction for those who don’t appear, just advice.
Still on this topic, Mr. Cesário said that Brazil is just like Uruguay and Thailand, meaning that thepresence of the juvenile’s parents is always required, but if they don’t appear the hearing will not be
postponed, but an ad hoc legal representative for the act will be pointed by the judge.
The method of using social inquiry reports was one of the special considerations during justice systemprocedures that the group discussed. On this specific topic, Ms. Naito explained that in Japan the social
inquiry report is basically prepared by the Family Court probation officer and the official of the Juvenile
Classification Home (JCH). The first is dedicated to social data and the recommendation for disposition;
the second attends to psychological aspects such as IQ tests and behavioural tendencies, besides giving
recommendations for the appropriate treatment.

177

RESOURCE MATERIAL SERIES No.78

In Thailand, according to Ms. Satayathum, the social inquiry report is basically prepared by the probation
officer and its aim is to advise the most effective treatment.
According to Mr. Rivero, in Uruguay this report is made by the forensic office and also looks torecommend the best treatment.
Finally, Mr. Cesário pointed out that Brazil a specialized section of the Juvenile Court, staffed by social
welfare and psychology specialists, do make a social inquiry report, with the same objective of the of Thai
reports.
Aspects like, inter alia, who has access to the reports, the possibility of taking or making copies, andthe stage of proceedings when the report is read by the judge were also included in the discussion of social
inquiry reports.

B. Involvement of Victims
Our discussion of this issue began with a request by our Chairperson to each participant to explain his or
her own experience of (or country’s policy on) the involvement of victims during juvenile criminal justiceprocedure.
After a brief explanation by each member, two issues were identified as important when discussing the
involvement of victims: the effect on the juvenile and the effect on the final decision.
On this topic, according to Ms. Naito, it is possible to make the juvenile think about the seriousnessof his or her conduct by letting him or her know about the feelings of the victim. On the other hand, thepresence of the victim during the hearing could make the juvenile feel uncomfortable when talking about thefacts, leading to the juvenile not expressing his or her real feelings.
The group also discussed the convenience or otherwise of the full involvement of the victim in the trial.
The extent of the involvement of the victim in the hearing/trial, including contact with the juvenile, wasdiscussed exhaustively, in order to ascertain the advantages or disadvantages of this kind of procedure. In
spite of the differences between the countries, the group accorded that in juvenile criminal justice procedure
the feelings of the victims should be considered, giving them at least the opportunity of being heard.

C. Disposition for Juvenile Offenders (Including Serious and Violent Juvenile Crime)
The group’s main worry regarding this topic was to discuss which measures are the most appropriate
for the juvenile offenders to be disposed by the judge according to the main objectives of focusing on thejuvenile, resocialization and rehabilitation. In this way, each member briefly exposed the legal measuresexisting in his or her own country, making possible the following table.

Japan

Main Types of Disposition for Juvenile Of fenders

Ter m of Incarceration

1. Protective Measures

Indeterminate(i) Probation(ii) Juvenile Training School
ThailandCriminal Punishment(i) Office of the Obser vation and Protection Center

Determinate(ii) Probation
Brazil

1. Protective Measures
2. Socio-educational Measures

Indeterminate

Ur uguay

1. Socio-educational Measures(i) Educational ProgrammeIndeterminate(ii) Community Work
2. Criminal Punishment

178139TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

During discussions on this issue, it emerged that it is important to have some flexibility in dispositions
for juveniles, in order that the length of their sentences not always be fixed, but that there is somediscretion accorded to the authorities to evaluate the best moment to release the juvenile, according to his
or her development during the imposed treatment period.
Another point discussed was related to the competent authority to release the juvenile after theenforcement of the treatment imposed or after the juvenile has reached an acceptable level of re-habilitation.
Recalling that the main theme of the Course is “Profiles and Effective Treatments of Serious and Violent
Juvenile Offenders”, Ms. Naito explained that in Japan there is a provision in the Juvenile Law that, inprinciple, serious cases in which a juvenile intentionally acted causing the victim’s death should be sent to
the public prosecutor, meaning that a criminal sentence should be imposed by the Criminal Court, when thejuvenile is 16 or over.
According to the participants from countries other than Japan, there is no similar provision in theircountries to restrict a judge’s discretion regarding disposition.
According to Mr. Cesário, in Brazil, by the occasion of the final disposition, the juvenile judge has thediscretion to choose between any of the socio-educational measures, but once “internment in an educational
establishment” has been chosen, a minimum of six months has to be observed, with the obligation ofre-examining the juvenile’s development and condition every six months. Besides this, in Brazil there is no
criminal punishment for juveniles, including serious and violent juvenile offenders.
Regarding criminal punishment and socio-educational measures, it is important that these issues be
discussed separately, taking into consideration that they are completely different and have different naturesand characteristics.

IV. CONCLUSIONS
After nine sessions of work and discussion, the Group has agreed on the following terms:

A. Investigation
1.	The interview of the juvenile offender should be conducted in a separate and reserved room, in order
to avoid putting the juvenile in contact with other juveniles, the victim, witnesses, and people ingeneral, and also to protect the privacy of the juvenile.
2.	Specialized training for those who deal with and interview juvenile offenders is desirable.
3.	Regarding the presence of the parents of the juvenile during the interview, the juvenile’s wish should
be respected regarding whether he or she will feel more or less comfortable, with due consideration
for what would be most effective for the investigation.
4.	The period of detention of a juvenile offender shall be as short as possible, even though theappropriate period of time cannot be specified because of the special needs of each country.
5.	The factors that must be considered preponderant when deciding upon the detention of a juvenile
can be summarized as “preservation of the evidence” and “protection of the juvenile”. These factors
reflect the balance that must be struck between the “claims of society” and “the preservation of therights of the juvenile” by those who make requests in these matters as well as those who ultimately
make decisions regarding detention.
6.	When deciding upon the detention of a juvenile during the investigation, the judge or the proper
authority must focus more on the juvenile him or herself than on the crime as a fact by itself, notforgetting the seriousness and the gravity of the crime.
7.	The perspectives of behavioural analysis and psychological conditions should be respected in theinvestigation of the juvenile case.

179

RESOURCE MATERIAL SERIES No.78

8.	It is vital to protect the privacy of the juvenile offender as well as that of his or her family, byprotecting the secrecy of the investigation as much as possible and by imposing limits on media
reports of juvenile crime.
9.	In every case, the results of a formal investigation must be reported, and the report shall contain asmuch information and evidence as possible in it.

B. Judicial System
1.	The goal of juvenile judicial system should be the rehabilitation and resocialization of the juvenile
offender, not punishment;
2.	During the juvenile procedure, the role of parents is always important, considering two main factors:
protection of the juvenile and the duties of parents and family as an institution;
3.	The social inquiry report, with sufficient information and analysis, such as family and educational
background, in addition to psychological aspects of the juvenile, is an essential document to give
support to the final disposition on the ground that each juvenile shall be considered as an individual in
his or her own particular circumstances;
4.	All those who handle information about juvenile offenders must be careful to keep it safe andconfidential in order to protect the privacy of the juvenile and his or her family, avoiding any kind of
unnecessary exposure;
5.	In the juvenile procedure, the feelings of the victims should be considered, giving them at least theopportunity of being heard by the court;
6.	The disposition for the juvenile shall not be too harsh regarding the period of time, but should givethe competent authority some discretion or flexibility to evaluate the best moment to release thejuvenile offender, taking into consideration two main factors: the minimum as well as the sufficientperiod necessary for rehabilitation of the juvenile.

180