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"Child-Friendly Justice: the
legal and judicial systems as regards children and youth" European Economic and
Social Committee Hearing on "Children First" |
Ârussels, 06/25/2002 |
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Speech by Anna Karamanou,
Member of European Parliament, Chairperson of the Committee on Women's
Rights and Equal Opportunities of the European Parliament |
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In the 21st century in a European
Union, which claims to be a champion and defender of the social and economic
prosperity of its peoples, initiatives must be directed primarily to ensuring
respect for the physical and psychological integrity of persons and
particularly of children who are the thread linking the present and the future
of mankind.
The EU Charter of Fundamental
Rights, following the adoption of the United Nations Convention on the Rights
of the Child in 1989, was proclaimed at the European Council at Nice on 7
December 2000 and in particular Article 24 thereof was a breakthrough for
children's rights in the EU, since it dictates that in all actions relating to
children, the child's best interests must be the primary consideration.
Moreover, the existence of
phenomena which crush the most innocent and susceptible members of society
namely children, such as sexual exploitation and child pornography led the European Union to take measures,
given the inability of Member States to combat these phenomena effectively.
In my capacity as a Member of the
Citizens Freedoms and Rights Committee of the European Parliament, I drafted
the report on combating sexual exploitation of children and child pornography,
which was a proposal for a framework decision from the European Commission. The
content of this report constitutes a fair example of Child Friendly (or
Unfriendly) Justice and its practical implications.
In most Member States, child victims
do not have to appear in person at the trial and victim is treated sensitively
with due regards for his age and education. Nevertheless, it is absolutely
essential that the evidence can be taken by video-link or by their statements
taken (if necessary) in the presence of the prosecuting authorities and the
legal representatives of the accused person. Thus, children are protected from
media attention and aggressive practices during proceedings such as multiple
statements.
Another issue is the law enforcement
authorities that are not staffed by specialised personnel, who are able to
treat traumatised children in an appropriate manner. It has been shown that
very often, where judicial investigations are conducted by specialised
officials, the psychological pressure on the victim is reduced.
Members of diplomatic missions
must also receive clear instructions on how to deal with such incidents and
about the legal provisions which must be implemented. Previous cases show that
many embassies give appropriate support to victims both by counselling and by
assistance through interpretation and transport to the victim’s land of origin.
However, there have also been cases in which embassy staff have helped the
offender escape from extraterritorial jurisdiction.
There was also this question of definition of the
word "child", where there were raised many objections. Article 1 of
the UN Convention on the Rights of the Child states that the word
"child" must be used in the broader sense of the term and include any
person below eighteen years of age. Many people have argued that we have to
take account the age of consent to engage in sexual relations which in many
Member states is lower than the eighteen. However, what this particular
Commission's proposal is dealing with is combating sexual exploitation of
children and child pornography which has nothing to do with sexual activity.
As regards to the protection of
the victim, legal provisions in the Member States do not include an obligation
for a compensation award to the victim or they do not provide clear criteria
concerning the means of awarding compensation (for example, how compensation is
awarded to minors, by what means, up to what amount and to what end), and
frequently mechanisms to monitor the implementation of decisions in this area
are lacking. In many cases detailed information about the rights of children is
lacking and it is up to the child’s counsel to submit an application for
compensation. Another important issue is protection for the child-victim after
the trial which is a matter left to the discretion of the Member States.
Effective procedures should be created and social programmes set up to provide
the necessary psychological and counselling assistance to children and their
parents or guardians in line with the UN Convention on the Rights of the Child.
Moreover, in a number of Member States (Sweden, the Netherlands,
France and Germany) extraterritorial jurisdiction applies only to a certain
number of forms of the crime of sexual exploitation of children. Most Member
States require the crime to be penalised both in the country in which
extraterritoriality will apply and in the country in which the crime is
committed (criterion of double criminality). Finally, the majority of Member
States (Belgium, France, Germany, the Netherlands and Sweden) ban the
extradition of their nationals or impose substantial restrictions on such a
measure. The legal traditions of the Member States must not constitute an
obstacle to addressing this kind of phenomena which must be dealt with due
sensitivity.
The report has been adopted by the
European Parliament on 14 June 2001 and since then, its final adoption is still
pending in the Council.
Let me now broad the discussion
and address the issue of Children Friendly Justice from a different
perspective, involving this time juvenile offenders and not victims.
The 1980s marked a transitional
period for the juvenile system. Although rehabilitation of juvenile offenders
was still an important goal, juvenile justice policy began to emphasize
punishment and public safety. A number of events contributed to this shift,
demographic, economic, technological, social and cultural changes led to more
migration, a more dual society, increasing urbanisation, including less social
control, other forms of socialisation, a lower degree of tolerance for deviancy
and a sort of "moral panic" on crime and delinquency. Juvenile
delinquency changed in type and volume. As a result of this shift, in the 1980s
and 1990s, public opinion and governments were inclined towards an increased
punishment-orientation to delinquency.
From the late eighties, these
evolutions are reflected in several changes in the formal regulations of
juvenile justice. We do not know where this evolution is going to bring us.
Some fear that on the longer term the juvenile justice system will be
abolished, as it is proposed in the USA by several people. I am convinced that
this will not be the case, but, nevertheless, we have to look for a totally new
way of dealing with juvenile offenders.
Struggling with the Justice and
Welfare Balance
All European countries have tried
to construct a kind of synthesis or compromise between two basic principles:
The question is whether an ideal
system can be found to combine the advantages of the welfare-approach with the
legal rules that are necessary in a democratic constitutional state.
Nowadays, a new model of reacting
against offences seems to be emerging, based on experiments with so called
"alternative sanctions", especially victim-offender mediation and
community service.
The growing confidence in such
practices is leading to a scientific and social tendency that is typified as
"restorative justice". We expect the coming years to be characterised
by a growing body of experiments and research in the field of restorative
justice, in order to test the limits of this approach. It is probably the only
way to avoid a return to a simplistic punitive model.
A specific development:
offences committed by ethnic minorities
Many countries (Germany, The
Netherlands, Belgium, Italy, Denmark) refer to the fact that young people from
ethnic minorities are overrepresented in registered crime. The fact that not
all types of ethnic minorities are equally overrepresented indicates that there
is more at hand than just being ethnically different. It seems that juveniles
of certain ethnic minorities really commit more crimes than their counterparts
from other ethnic groups. The question is how to interpret the observation.
There is no doubt that the rates
of juvenile crime in sub-populations have to do with poverty and social
exclusion (but this is not the only factor). There is no doubt either that some
ethnic minorities are poorer and more socially excluded. Besides the
socio-economic basis for social exclusion, belonging to an ethnic minority may
be a reinforcing factor in the exclusionary process. The awareness of lower
opportunities for social integration may enhance a disengagement with regard to
the dominant society and a withdrawal into a sub-cultural that in turn
decreases the chances for integration.
For this reason solutions are
becoming urgent. European societies will have to find a way for mutually
respectful coexistence and integration of several ethnic groups into one
society, in order to avoid the massive racial problems that the United States
are confronted with.
Children Policy Consideration
The special status of children is
based primarily on three policy considerations, namely:
The special needs of children who,
by reason of their age and level of maturity, need the care and guidance of
others in order to develop into healthy, responsible adults; the substantial
vulnerabilities of children to persons older and in many ways more powerful;
and the actual or presumed incapacity of children to perform certain legal acts
in daily life.
Considering that the penal system
should have as a primary consideration the protection and promotion of
children's rights, Member States should:
-undertake or continue particular
efforts for the prevention of juvenile maladjustment and delinquency,
-preview of child-sensitive
facilities such as telephone helplines, shelters and administrative procedures
to prevent violations of the rights of the child,
-create further child-specific
offences in the penal law, such as child homicide, child pornography,
trafficking of children,
-improve protection for children
from those who might re-offend,
-facilitate children’s testimony
and providing for assistance for child witnesses, as well as issues relating to
age, including age of consent,
-implement measures in respect of
minors preferably in their natural environment,
-encourage arrangements for all
the persons concerned at various stages of the proceedings (police, counsel,
prosecutors, judges, social workers) to receive specialised training on the law
relating to minors,
-promote and encourage comparative
research in the field of juvenile justice between Member States, so as to
provide a basis for policy in this area.
All these efforts can be helpful,
but one must not forget that it is essential that we continually re-examine
the situation, to search for ways to improve the justice system to give our
children and young people the protection they need and deserve.