The Committee on Social Affairs, Health and Sustainable Development chose to focus its report entirely on the issue of the treatment of juvenile delinquency, thus regrettably excluding from its scope key issues raised in the underlying motions.
The approach of the lead committee, which consists in promoting a minimalistic approach – advocating “diversion” away from any reaction of the law-enforcement authorities at all, to the largest extent possible, and if that is not possible, to minimise any unavoidable sanctions, is too one-sided. It fails to differentiate sufficiently between non-violent crime and violent crime and between different age groups, and neglects the rights of the victims.
When children are irresponsible, they must be acquitted, and when their responsibility is reduced, their sentences must be reduced accordingly, by comparison with a sentence handed down to an adult having committed the same offence. The difficulty lies in determining the degree of responsibility of a given juvenile offender. This is a matter for the judge, who must be assisted by competent experts and properly trained to come to his or her own assessment, in the light of all the circumstances of the individual case. This is not a subject-matter that avails itself to political generalisations.
In the view of the Committee on Legal Affairs and Human Rights, the draft resolution thus requires some amendments aimed at somewhat redressing the balance between the interests of the juvenile delinquents and their victims and to provide some clarifications from a legal point of view.
In paragraph 6.4, after the words “the shortest possible period of time”, insert the words “and that it is still in keeping with the seriousness of the crime and its consequences for the victim and with the degree of culpability of the young offender”.
Replace paragraph 6.4.1 with the following paragraph:
“ensuring that the execution of any custodial sentence is adapted to the young offender’s age. In particular, juveniles in detention must be kept separate from older offenders at all times and, even within special detention facilities for juveniles, younger inmates must be effectively protected from all forms of abuse by older inmates;”
Replace paragraph 6.4.3 with the following paragraph:
“abolishing life imprisonment for any crimes committed by persons under the age of 18 at the time of the crime;”
In paragraph 6.5, at the end of the sentence, add the words “in appropriate cases”.
Replace paragra ph 6.6 with the following paragraph:
“refrain from penalising children for their participation in offences designed to protect them, such as running away from home;”
The proposed addition is a clarification and a reminder of the fact that “children” under 21 (or even 25) sometimes commit very serious crimes with harsh consequences for the victims where it would be unacceptable to focus exclusively on the best interests of the juvenile offender.
I agree that a minimum age for any criminal responsibility of at least 14 years must be set (as indicated in paragraph 6.2). But when a juvenile has passed this threshold, all types of criminal sanctions, including custodial ones, must be available to judges. In their sentencing decision, judges must take into account all elements of the individual case, including the seriousness of the crime, its consequences for the victim, and the degree of culpability of the young offender. Also, paragraph 6.4.1 as it stands would even exclude any educational measures involving some degree of deprivation of a juvenile’s liberty, such as assigning him or her to a reformatory or a children’s home, when the family cannot cope with his or her education.
This said, the execution of any necessary custodial sentence – which I agree must be a last resort – must be adapted to the young offender’s age, as it is spelt out in the new formulation I propose. I am somewhat surprised that this requirement is missing in the draft resolution as it stands.
The term used in the original text (“children”) is legally imprecise. It is not clear whether this shall also include young offenders at or near the age of 21 or even 25 years, who can still be covered by juvenile criminal law. In my view, for young offenders over 18, it would be inappropriate to categorically exclude the possibility of any type of life sentence.
The question whether a life sentence must be reviewed in light of the development of the delinquent’s personality in prison, and if so, after how many years, is not specific to young offenders. But chances are that for younger offenders, the likelihood is greater that their personality develops earlier in such a way that parole can be considered.
Diversion programmes, designed to avoid any criminal sanction and even any criminal court proceedings, are only appropriate for less serious crimes. Violent crimes, especially those having caused death or serious or permanent bodily harm, or rapes, should not be dealt with by diversion programmes, but by appropriate penal sanctions taking into account all aspects of the case, including of course the young offender’s degree of culpability.
The term used in the original text (“status offences”) is too wide as it includes not only offences linked to the offender being “under age”, but also others, such as laws existing in some States in the United States of America which prohibit convicted criminals from owning firearms.