8.1 Background information for teachers: Integration, not criminalisation

Thomas Hammarberg, Commissioner for Human Rights, Council of Europe

In most European countries, teenagers are not dominant in the overall crime statistics. Also, juvenile crime rates remain more or less stable from year to year across our continent.

This does not mean that the problem is insignificant. A worrying trend reported from several countries is that some crimes committed by young offenders have become more violent or otherwise more serious. This is a warning signal in itself. (…).

There are two different trends for the moment in Europe. One is to reduce the age of criminal responsibility and to lock up more children at younger ages. The other trend is – in the spirit of the UN Convention on the Rights of the Child – to avoid criminalisation and to seek family-based or other social alternatives to imprisonment.

I am going to argue for the second approach. In that I am supported not only by the UN Convention but also by the European Network of Children’s Ombudspersons. In a statement [in] 2003 no less than 21 national ombudspersons stressed that children in conflict with the law are first and foremost children who still have human rights.

They proposed that the age of criminal responsibility should not be lowered but raised – with the aim of progressively reaching 18 – and that innovative systems of responding to juvenile offenders below that age should be tried with a genuine focus on their education, reintegration and rehabilitation.

The Convention of the Rights of the Child – ratified by all European states – asks governments to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. The treaty does not spell out at which precise age the line should be drawn. However, the Committee monitoring the implementation of the Convention has expressed concern about the low age in several countries. In most European states, children are held criminally responsible between 12 and 15 or 16, but there are also examples of age limits as low as seven, eight and 10.

Though the message of the Convention on the Rights of the Child is that criminalisation of children should be avoided, this does not mean that young offenders should be treated as if they have no responsibility. On the contrary, it is important that young offenders are held responsible for their actions and, for instance, take part in repairing the damage that they have caused.

The question is what kind of mechanism should replace the ordinary criminal justice system in such cases. The procedures should recognise the damage to the victims and it should make the young offender understand that the deed was not acceptable. Such a separate juvenile mechanism should aim at recognition of guilt and sanctions which rehabilitate.

It is in the sanction process that we find the difference to an ordinary criminal procedure. In juvenile justice there should be no retribution. The intention is to establish responsibility and, at the same time, to promote reintegration. The young offender should learn the lesson and never repeat the wrongdoing.

This is not easy in reality. It requires innovative and effective community sanctions. In principle, the offender’s parents or other legal guardian should be involved, unless this is deemed counter-productive for the rehabilitation of the child. Whatever the process, there should be a possibility for the child to challenge the accusations and even appeal.

An interesting procedure for “settlements” has been introduced in Slovenia. There, a case of an accused juvenile can be referred to a mediator if this is agreed by the prosecutor, the victim and the accused. The mediator then seeks to reach a settlement which would be satisfactory to both the victim and the accused and a trial can thereby be avoided.

One aspect should be further stressed: the importance of a prompt response to the wrongdoing. Delayed procedures – which [are] a problem in several European countries today – are particularly unfortunate when it comes to young offenders whose bad actions should be seen as a cry for immediate help. (…)

Thomas Hammarberg, Commissioner for Human Rights, Council of Europe, excerpt from “The human rights dimension of juvenile justice”, a presentation given at the Conference of Prosecutors General of Europe, Moscow, 5-6 July 2006. Source: http://www.coe.int/t/commissioner/