Author- Syed Moosvi Raza Kazmi
All children are born innocent but due to improper care or guidance and due to poor social and external environment his or her mind corrupts becomes prone to crime. It is the responsibility of the state and the community and parents to ensure that the child is physically strong, socially active and mentally fit, empowered and does something that benefits the country rather than the criminal.
Children who are involved in crime or any other form of criminal activity must be disciplined by the State rather than punished because each country has a child justice law. Juvenile is considered an underage child specified in the law of the land and under those years cannot be considered an adult. Different countries have different age limits for children.
According to the CRC “The International States will seek to promote the establishment of laws, procedures, authorities and institutions that deal specifically with children who are accused of such, such as, or suspected of violating the penal code”
Article 40 lists the rights of all children who are suspected to be or are suspected of violating the penal code. It, therefore, includes treatment from the time the allegations are made, by investigation, arrests, fines, or any period before trial, during trial and sentencing. The article necessitates countries to encourage a method that separates child justice from juveniles in a positive way, rather than punishing them. It sets out a list of juvenile delinquents and requires states to specify the lowest age for criminal offences, to allow disciplinary action against juveniles who may violate the penal code not having to go to court.
Apart from the safeguard of Article 40, Article 37 prohibits the capital punishment and imprisonment without parole and emphasizes that any limitation on freedom should be taken as the last measure, if nothing works and in the short term appropriate. Section 39 seeks measures to encourage physical and mental replenishment and reunification of juvenile victims.
United Nations Rules and Guidelines on Juvenile justice
The Committee on the Rights of the Child (CRC) is a committee of 18 experts (self-reliant) that observe the execution of the Convention on the Rights of the Child by its State parties. The Committee on the Rights of the Child recommends the United Nations’ regulations and standards on juvenile protection such as the provision of appropriate standards.
This may apply to the management of juvenile prey or witnesses of wrongdoings within the justice system. The standards suggest that they can also be implicated to “informal and general justice systems such as restorative justice and non-criminal justice systems including, but not limited to, custody, divorce, adoption, child protection, mental health, nationality, immigration and refugee law”.
Prevention: Committee endorses the Riyadh guidelines; policies such as this shall bring about integration and unification of all juveniles, particularly in the household, peer group, school, job, community, and workplace training. The Committee reaffirms the State’s commitment to endorse parents and households and to evolve communal privileges and programs.
Possible interventions in the judiciary: Countries are mandated under section 40 (3) to endorse measures that do not include the judicial process, to ensure that legal protection and human rights are given full respect (General Comment lays down requisites, involving that a juvenile has availability to legal counselling, of admitting that you are facing a charge and allowing for deviations freely). The Committee says diversion should be applicable, but will not be restricted to, every underage and primary offenders. Diversion shuns discrimination and has a positive effect on children and social security, and it is less expensive.
Interventions without judicial proceedings: States are obligated under Article 40(3) to endorse procedures that don’t include legal process, making sure that human rights and legal defence is totally regarded. The General Comment lays down requisites, involving that the juvenile has availability to legal counselling and is not compelled to confess blame for the wrongdoing and without hindrances give consent to the diversion. The Committee asserts that diversion shall be applicable to, but won’t be restricted to, all under-age and first-time accused. Diversion shuns branding and has positive results for juveniles and public wellbeing, and in addition being economical.
Interventions involving court proceedings: When a case has gone to court, the standards of the relevant case must be applied. There shall be a list of communicative and tutorial means provided and especially the use of the freedom limit should only be used as a last option and in the short term deems fit. Public prosecutors or other public officials should continue to consider possible choices than court but always ensure that human rights are considered and have legal protections. The law should give the court/judge many different options than institutional wellbeing and lack of liberty. The need to protect the welfare and better stakes of the child and to advance its reunification must go beyond further consideration.
Age restrictions: Article 40 (3) interpreted by the community as mandating International members to set the lowest age for criminal offences (MACR) where children cannot be prosecuted in a disciplinary proceeding. As considered by the Committee that the lowest age of 12 years is not generally accepted worldwide. Countries are demanded earnestly to increase their respective MACR to more than 12 years and not to reduce their age. There should be no exception to the MACR. The effectiveness of the system of juvenile justice must exceed 18. The Committee emphasizes, just like other common views, the significance of universal birth registration.
Right to a fair trial: Article 40 (2) lays down guarantees intended to provide a fair proceeding. The Committee argues that these are minimal by-laws and that the General Opinion gives in-depth guidance on every issue. Subject to article 40 (2) (b) (vii), the Committee highlights the duty to safeguard the privacy of the minor kid all along the child justice process, to ensure that no information that was published may lead to the confirmation of identity of the child. Children’s details should be completely kept secured and shouldn’t be used in adult process.
Deprivation: The Committee repeats its sole duty to use the deprivation in accordance with the law, as the last option and for a reasonable period. It highlights the need to supress the use of pre-trial detention and highlights the review of any such arrests, perhaps every two weeks. Juveniles detained before the trial must be brought to court within thirty days. The General Comment examines in depth the necessary levels of inclusion for all children who have been deprived of their liberty, using the United Nations Convention on the Rights of the Child.
Awareness: Countries should continue or support, including children, education campaigns and more to promote the responsibility to build a rights-based approach to children who discord with the law, demanding effective and efficient participation of members of parliament, non-government organisations and media houses. The Committee is anxious about the prejudicial treatment and inappropriate language of juveniles in discord with the law and the false representation or misapprehension of the reasons of child abuse.
The recommendations of the committee to the State Parties are:
(a) To increase the lowest age for criminal activity to a globally accepted standard,
(b) Continuous growth in the quality and accessibility of special courts for juveniles, police, judges, and prosecutors through formal staff practice,
(c) Providing adequate human, financial and technological resources to children’s courts at the district level,
(d) Strengthening the part of local bodies, particularly in relation to small offences,
(e) To give appropriate legal assistance, to juveniles both suspects and victims, in advance of legal process,
(f) Provide guidance in this regard by the standards on Justice in the Matters of Victims of Child Abuse and Criminal Witnesses,
(g) Improving training programs at the appropriate international level for all professionals involved in the child justice system,
(h) Ensuring that detention and detention of offenders are returned as the last option,
(i) Provide technical help and other assistance from the United Nations Interagency Panel on Juvenile Justice.
The Convention addresses the needs and rights of children. Legislative conditions should work in the advantage and well-being of the child. The Convention also requires the signatory states to segregate the legal portrayal of the juvenile in any legal dispute relating to its care and demands for the juveniles’ opinion to be heard in cases like these.
It emphasizes the importance of diversification and that the United States has a wide range of resources available such as concern, adjuration and administrative instructions, advice, testing, parental concern, teaching programs and other type of care options. In addition to that it also focuses on the need for fulfilment of human rights and the safeguarding of the law required by any diversion process.
Article. 40.3 ↑
United Nations Convention on the rights of the child. ↑
Decision 2005/20 of the Economic and Social Council ↑