September 10, 2006
Juvenile Justice Reform in
Developing nations depend upon
international standards and treaties to develop their own political
systems. As a developing nation,
The international standards over
simplify the challenges of a functioning juvenile justice system.
The United Nations (UN) treaties and resolutions primarily provide the basic standards for reform in the area of children’s rights. In its human rights efforts, the UN has specifically recognized children as a group in need of special protection. The 1948 Universal Declaration of Human Rights proclaimed that children are in entitled to special care and assistance. In 1959, the UN General Assembly adopted the Declaration of the Rights of Children, which recognized that, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection." The General Assembly has also adopted other various resolutions that recommend various rules and standards for the protection of children’s rights.
Then in 1989, in order to ensure that countries
recognize and protect children’s human rights, the UN adopted and opened for
signature and ratification the Convention on the Rights of the Child (CRC). Whereby, ratifying countries are legally
obligated to enforce the CRC’s provisions.
Since then, every UN member country, besides the
The CRC promotes four key principles: (1) non-discrimination, (2) devotion to the best interest of the child, (3) the right to life, survival and development, and (4) respect for the views of the child. To ensure these key principles the, CRC sets standards in education, healthcare, social services, and legal rights. These legal rights include the rights of children who have broken the law. These rights are the basis on which states should build juvenile justice systems.
The UN instruments take a restorative view towards children who have committed offences. Because of their age, children are not viewed as being as culpable as adults. Social and welfare services are viewed not only as protective measures for children, but also as preventive measures for keeping children from coming into conflict with the law. The justice system should not be used to monitor the social welfare of the country. Once the child has committed an offence, the standards call for specific procedure to address the needs of children in conflict with the law. The CRC states:
State Parties recognize the right of every child alleged as accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and the fundamental freedoms of others and which takes into account the child’s age and desirability of promoting the child’s’ reintegration and the child’s assuming a constructive role in society.
The goal is not to punish the child, but to emphasize the well being of the child and to respond to the offence in manner that is proportional to the offence and the circumstances surrounding the offence. Juvenile justice systems should consider the needs of the juvenile, protect the juvenile’s basic rights, and respect the needs of the society.
According to international standards, children should not be put through the same legal process as adults who have committed crimes. States should create a specialized juvenile justice system in order to ensure that the child’s interests are taken into account. The CRC requires states to establish laws, procedures, and institutions that specifically deal with children in conflict with the law. At a minimum, if a separate legal system is not created, training about juvenile justice should be given to the police, lawyers, social workers, and judges who may deal with children in the legal process. Having a specialized system and training will ensure the protection of the well being of the child and a proportional response. Juvenile justice systems should consider the needs of the juvenile, protect the juvenile’s basic rights, and respect the needs of the society.
One of the goals of having specialized institutions and training for those who deal with children is to avoid stigmatizing the child. By stigmatizing the child as a criminal or a delinquent, the child is much more likely to become a repeat offender. Instead the child is considered to be in conflict with the law, rather than a juvenile delinquent. By focusing on positive aspects and teaching the child to respect the rights of others, he is more likely to become a productive member of society rather than a perpetual offender and an adult criminal. In order to avoid the stigmatization, the privacy of a child is respected at all stages of the proceedings.
Another goal of the justice system is to ensure that the response is always proportional to the offence and the circumstances surrounding the child’s offence. For children, this goes beyond punishment in relation to the gravity of the offence. It also requires that the personal circumstances of the juvenile are taken into account as possible motivations for the child’s offense. Therefore, the social status, family situation, education level, and other factors should be considered by the juvenile justice system when responding to an offence committed by a child. Also, the child’s response and willingness to make amends for his offense should be a mitigating factor. By considering these other personal factors, the juvenile justice system can respond in a manner that promotes the best interest of the child, often resulting in the development of innovative responses, outside of the formal juvenile justice system. Such a response highlights the focus on restorative rather than retributive justice in the international standards.
A proportional reaction still must still not infringe the juvenile’s basic rights, even if done with the aim to help him.
The CRC defines a child as anyone under the age of eighteen. The CRC also requires nations to establish an age of criminal responsibility, where any child below a certain age may not be held criminally liable for any offense committed. The CRC does not define the age of criminal responsibility, but leaves it to the member states to determine. International standards require that juvenile justice systems respect juvenile offenders’ basic due process rights. Juveniles should be presumed innocent until proven guilty, be promptly presented with the charges against them, be informed of their right to legal counsel.  In addition, the juvenile’s parents will also be immediately informed of the charges against him. The juvenile is also entitled to appeal any decisions regarding his case, both procedurally and substantively. Pre-trial detention of a juvenile should be as short as possible and always separate from adults.
Juveniles are also entitled to a fair hearing before an impartial authority or judiciary, unless such a hearing is not found to be in the best interest of the child. The juvenile has a right to legal counsel. Also, the juvenile has the right to express his views during the trial. All proceedings should be explained to the child in a language he understands. A child is also entitled to the right to privacy throughout the entire proceedings. In general, the CRC recommends that formal judicial proceedings should be avoided when dealing with juvenile offenders, as long as the juvenile’s human rights and legal safeguards are respected.
While juveniles should only be
placed in closed institutions as a matter of last resort, the United Nations
Rules for the Protection of Juveniles Deprived of their
These rules require that the juvenile justice system consider the child’s best interest and respect the child’s due process rights. By considering the child’s best interest, the court must take on a protective role for the child. Operating in the child’s best interest, while safeguarding the child’s due process rights, creates an inherent conflict in the roles that the court must play. For example, the CRC requires that states provide juveniles with an impartial judicial proceeding, but the CRC also encourages diverting the child from formal judicial proceedings when it is in the child’s best interest. The formal judicial proceeding may stigmatize the child as a criminal, so the best interest of the child may require avoiding the proceedings in order to avoid stigmatization. This diversion from formal court procedure strips the child of his right to a fair trial. These objectives of protecting the child’s best interest and his due process rights often have different outcomes. Promoting one interest will automatically subvert the other. The international standards do not address this conflict, but expect the juvenile justice system to function in both capacities. This expectation demonstrates the idealism found within the international standards.
While the international standards require legal safe guards for children in court, the CRC also encourages diverting children from formal judicial proceedings and institutionalization. Instead of the formal judicial proceedings, the case against the child may be dismissed or redirected to a community support service. This diversion may occur at any time during the judicial process. The police and prosecutor may decide not to proceed with the case to court. The judge may also make the decision during the trial or as part of sentencing. Diversion creates flexibility in the juvenile justice system that helps to ensure that the response is proportional to the offence and to avoid stigmatizing the child as a criminal.
The child must agree to the diversion process in order for the case to be removed from the traditional legal process. The underlying assumption in granting the court the power to make decisions in the child’s best interest is that the child lacks the capacity to make the decision for himself. Therefore, granting the child the power to reject the diversion does not really solve the conflict between the court acting in the child’s best interest and respect for his due process rights.
One of the purposes for diversion is that parents, schools, or community authorities may be better equipped to respond to the child’s offence, especially for non-serious offenses, but can be an option for even more serious offenses. The better equipped the social services and programs are, the better they are able to deal with diverting children who have committed more serious offenses. In order facilitate the diversion of juveniles, the state should provide community programs which may aid in guiding the child, supervising the child, and providing restitution and compensation for the victim. Diversion leads to finding alternative remedies besides a closed institution.
Placing a child in a closed institution should only occur for the most serious offenses and as a last resort for the shortest possible amount of time. In order for institutionalization to be a last resort, alternatives remedies are needed to address the juvenile’s offence. Providing alternative remedies to institutionalizing the child helps to avoid stigmatizing the child as a criminal and to ensure a proportional response. Alternatives need to be specifically suited to the individual child and his offense. Standard examples of alternatives include court supervision of the child, probation, community service, financial penalties, and counseling. The court may also order changes in the child’s family or educational situation.
For the international standards to work there must be a real choice of alternative remedies other than placing the child in a closed institution. Many countries do not have other alternatives to closed institutions. They lack the resources and the infrastructure to provide alternative remedies. Both legislative and institutional change is often needed to make alternative remedies a viable option for child offenders.
The United Nation Convention on the Rights of the Child requires all signatory countries to implement the rights enumerated in the treaty. Article 4 of the CRC states:
State Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures into the maximum extent of the available resources and, where needed, within the framework of international co-operation.
The CRC also requires signatory countries to submit reports on the status of implementing the treaty. The reports should contain information on the measures taken by the state and on the actual effect on children. The countries also need to report any difficulties faced in fulfilling their obligations under the treaty. Many developing countries have very limited resources to allocate to the implementation of the treaty. Thus, while the CRC is the most widely ratified human rights treaty, many of its provision are not enforced throughout the world.
The UN has developed guidelines for implementing the provisions of the CRC. In the area of juvenile justice, the United Nations Economic and Social Counsel adopted the resolution entitled, Guidelines for Action on Children in the Criminal Justice System. The Guidelines for Action provides for the UN and other international organizations to assist countries in developing specialized juvenile justice systems. The guidelines promote cooperation between the international agencies, local governments, NGOs, professional groups, and civil society. The Guidelines for Action recommend that the international agencies assist the developing countries in the following capacities:
(a) Assistance in legal reform;
(b) Strengthening the national capacities and infrastructures;
(c) Training programmes for police and other law enforcement officials, judges, magistrates, prosecutors, lawyers, administrators, prison officers and other professionals working in situations where children are deprived of their liberty, health personnel, social workers, peacekeepers and other professionals concerned with juvenile justice;
(d) Preparation of training manuals;
(e) Preparation of information and education material to inform children about their rights in juvenile justice;
(f) Assistance with the development of information and management systems.
In accordance with these provisions, United Nations Office
of Drugs and Crime (UNODC) is currently sponsoring a project in
examination of the reform process reveals the obstacles in implementing the
international standards in a developing country, such as
Jordon does not have a specialized
juvenile justice system, separate from the adult penal system. Having specialized courts is a primary
requirement of the international standards.
The juvenile justice legislation does recommend a few specific procedures to be used during the arrest and detention of juveniles, but it is far from being a comprehensive juvenile procedure. Police officers are not supposed to handcuff juveniles during arrest, unless the situation requires force. Police are not to detain the child for more than forty-eight hours without charging him with a crime or releasing him. The police are required to notify the parents after the child is arrested. The law protects children’s privacy by banning the publishing of child offender’s names.
The juvenile law does not specifically provide for other due process rights. The penal code in general does recognize a person’s innocence until proven guilty. Other than these few provisions, children receive most of the same legal procedure as adults. There are no provisions within the law to keep children separate from adults while they are being detained. The law does not provide for diversion the police officers and the prosecutors with the option to divert the child from the formal judicial process, as the international standards require.
The law grants the judge the supreme authority over the juvenile’s case. The judge has the ability to consult with social workers, police, medical experts, psychologists, and other interested parties in order to make a decision about the juvenile’s case. Judges also have the responsibility to visit the closed institutions once every three months. The supervisors of the juvenile institutions have the power to transfer a child who is being unruly. While judges have the greatest amount of authority in the juvenile system, they do not have the express authority to divert the child from the formal judicial proceedings. In order to comply with the international standards, the law needs to grant judges the ability to remove the child’s case from the court and institute alternative remedies. Without such measures, the juvenile justice system will not be able to act in the best interest of the child.
Recognizing that children are less culpable than adults, the law establishes less harsh remedies than the adult penal code does. The law recommends that juveniles receive a sentence for one third of the time that an adult would receive for the same crime. Juveniles are sent to institutions separate from adults. The law also forbids sentencing a child to death or to hard labor. The law does not specifically provide for any other alternative punishments beyond the reduced sentencing guidelines. International standards require that children only be placed in closed institutions as a matter of last resort and for the shortest possible amount of time. The law should explicitly provide for alternative solutions other than placing the child in an institution. Flexibility in remedies is needed in order to ensure that the response is proportional to each child’s crime and individual circumstances.
In order to comply with
As provided for in the Guidelines
for Action on Children in the Criminal Justice System, the UN is providing support
for reforming the juvenile justice system in
The Jordanian government also reports to be committed to complying with international standards of juvenile justice. The Jordanian government submitted a status report to the Committee on the Rights of the Child in March of 2006. The report states that there is “high level of political determination and a clear commitment to children’s rights on the part of successive Jordanian Governments, and the translation of that commitment into many practical applications.” As part of the progress, the report mentions the creation of the National Centre for Human Rights in 2002. As part of its mandate, the National Centre monitors and evaluates progress made in implementing the CRC.
current efforts appear to be positive steps towards reforming the juvenile
justice system in
Despite the efforts to reform the
laws and institutions in
The report blames the political
situation in the region for causing an economic burden on
In its report, the
The Jordanian government has the
basic appearance of functioning as constitutional monarchy. The Jordanian constitution provides for three
branches of government and provides people with basic liberties and legal
rights provided for in the Universal Declaration of Human Rights. In practice,
The unwillingness of the various
institutions to cooperate with one another will prevent any meaningful reform
from occurring in
Even if the legislative and
institutional reform were to succeed,
Wasta will likely influence the juvenile
justice system, no matter what reform has occurred on paper. Children with families who have connections
with the police will likely be released.
As long as Jordanian society operates in this fashion, real reform
cannot take place. Imposing international
standards will not change the values within the country. Until
The international standards on
juvenile justice are overly idealistic in both the substance of the content and
means of implementing them in developing countries. The substance of the standards requires that
juvenile justice systems operate to protect the child’s best interest and the
child’s due process rights. These two
objectives often result in opposite outcomes, and the international standards
fail to address this conflict. In
addition, reforming the laws in developing countries to meet these standards
requires more than a change of institutions and laws. In the case of
 The Universal Declaration of Human Rights § 25 (Dec. 10, 1948), http://www.un.org/Overview/rights.html.
 Declaration of the Rights of the Child (Nov. 20, 1959), http://www.unhchr.ch/html/menu3/b/25.htm.
 Convention on the Rights of the Child (Nov. 20, 1990), http://www.unhchr.ch/html/menu3/b/k2crc.htm.
 UNICEF’s Mission Statement, http://www.unicef.org/about/who/index_mission.html.
 UNICEF, Children Have Rights, http://www.unicef.org/why/why_rights.html.
 Convention on the Rights of the Child, supra n. 3, at § 40(1).
 United Nations Stand Minimum Rules for the
Administration of Juvenile Justice, The
 Convention on the Rights of the Child, supra n. 3, at § 40(3).
language is especially interesting, because delinquent was originally used in
 Convention on the Rights of the Child, supra n. 3, at § 40(2)(vii).
 Convention on the Rights of the Child, supra n. 3, at § 1.
 The United Nations Rules for the Protection
of Juveniles Deprived of their
 Convention on the Rights of the Child, supra n. 5, at § 37.
 Convention on the Rights of the Child, supra n. 3, at § 37.
 Convention on the Rights of the Child, supra n. 3, at § Article 4.
 Guidelines for Action on Children in the Criminal Justice System (July 21, 1997), http://www.ohchr.org/english/law/system.htm.
 Hashemite Kingdom of Jordan, Penal Code, law No. 52 of 2002
 Hashemite Kingdom of Jordan, Penal Code, law No. 52 of 2002.
 Hashemite Kingdom of Jordan, Penal Code, law No. 52 of 2002.