United Nations Standard Minimum Rules for the Administration of Juvenile Justice Beijing Rules Defence for Children

International

Introduction Geraldine Van Bueren and Anne-Marie Tootell Faculty of Laws, Queen Mary and Westfield College, University of London, England THE BACKGROUND TO THE BEIJING RULES The Beijing Rules, adopted by the United Nations in 1985, provide guidance to States for the protection of children's rights and respect for their needs in the development of separate and specialised systems of juvenile justice. Limited provisions concerning juvenile justice may be located in regional human rights treaties and in the International Covenant on Civil and Political Rights 1966. Similarly, the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted in 1955, set out certain basic requirements for all prisoners but do not address specific issues in relation to young offenders. The Beijing Rules were the first international legal instrument to comprehensively detail norms for the administration of juvenile justice with a child rights and development oriented approach. They were a direct response to a call made by the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders which convened in 1980. The Rules operate within the framework of two other sets of rules governing juvenile justice, both adopted in 1990: The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules). These three sets of rules can be seen as guidance for a three stage process: firstly, social policies to be applied to prevent and protect young people from offending (the Riyadh Guidelines); secondly, establishing a progressive justice system for young persons in conflict with the law (the Beijing Rules); and finally, safeguarding fundamental rights and establishing measures for social re-integration of young people once deprived ot their liberty, whether in prison or other institutions (the JDL Rules). Although the Beijing Rules predate the UN Convention on the Rights of the Child 1989, several of the fundamental principles have been incorporated into that Convention and they are expressly referred to in its Preamble. STATUS OF THE RULES IN INTERNATIONAL LAW The Rules are recommendatory and non-binding per se. Certain of the principles enunciated within the Rules, however, have been encompassed in provisions of the Convention on the Rights of the Child, a global treaty which is binding on all States Parties. The Beijing Rules do not prevent the application of the United Nations Standard Minimum Rules for the Treatment of Prisoners adopted in 1955. Those rules should be extended to juveniles in detention pending adjudication and in institutions and applied in such a way as to meet the particular needs of juveniles. The commentary specifically states that the Rules should also be interpreted and implemented in the light of other existing and emerging human rights texts, without prejudice to any provision of wider application which may be contained therein. FORMAT OF THE BEIJING RULES The Rules are divided into six parts and are accompanied by a commentary expanding upon and explaining each individual rule. These six parts are: 1. 2. 3. 4. 5. 6. General Principles; Investigation and Prosecution; Adjudication and Disposition; Non-Institutional Treatment; Institutional Treatment; and Research, Planning, Policy Formulation and Evaluation.

DEFINITIONS USED IN THE RULES *Juvenile

A juvenile is defined as a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult. Thus the Rules look to the nature of the punishment of the offence rather than the offender in determining who is a juvenile. The later JDL Rules amend the definition of juvenile to any person under the age of 18, which is consistent with the definition of a child given at Article 1 of the Convention on the Rights of the Child. *Offence An offence is any behaviour that is punishable by law under the States respective legal systems. *Juvenile Offender This is a child or young person who is alleged to have committed or has been found to have committed an offence. *Application of the Rules The Rules also apply to juveniles who may be punished for any specific behaviour not punishable if committed by an adult, "status offences", (e.g. truancy), juveniles in welfare and care proceedings and young adult offenders. FUNDAMENTAL PRINCIPLES 1.The fair and humane treatment of juveniles in conflict with the law. In particular, the aims of juvenile justice should be two-fold: the promotion of the well-being of the juvenile and a proportionate reaction by the authorities to the nature of the offender as well as to the offence. 2.The use of diversion from formal hearings to appropriate community programmes where the consent of the juvenile is encouraged. 3.Where diversion is not appropriate, detention of the juvenile should be used as a measure of last resort, for the shortest period of time possible and separate from adult detention. 4.Proceedings before any authority should be conducted in the best interests of the juvenile and in the manner which allows him/her to participate and to express himself/herself freely. 5.Deprivation of liberty should only be imposed after careful consideration for a minimum period and only for serious offences. 6.Capital and corporal punishment should be abolished for any crime. 7.Institutionalisation of juveniles should only be resorted to after consideration of alternative disposition measures. 8.Both personnel and police officers dealing with juvenile cases should benefit from continued specialised training. 9.Whilst undergoing institutional treatment, appropriate educational services and care should be made available to assist juveniles in their return to society. 10.Release should be considered both on apprehension and at the earliest possible occasion thereafter. AGE OF CRIMINAL RESPONSIBILITY Where States set the age at which criminal responsibility commences, that age should not be set at too low a level and should reflect emotional, mental and intellectual maturity. The commentary encourages States to agree on a reasonable lowest age limit which would be applicable internationally. AIMS OF JUVENILE JUSTICE The juvenile justice system should emphasise the well-being of the juvenile and ensure that the reaction of the authorities is proportionate to the circumstances of the offender as well as the offence. SCOPE OF DISCRETION In view of the varying special needs of juveniles, discretion may be exercised at all stages of proceedings by persons specially qualified and trained to do so. Those exercising discretion should be accountable for their decisions.

RIGHTS OF JUVENILES The presumption of innocence is applicable to all juveniles. Further procedural safeguards should be guaranteed: the right to be notified of the charges, the right to remain silent, the right to legal representation, the right to the presence of a parent or guardian, the right to call and cross-examine witnesses and the right of appeal. These provisions represent the minimum elements for a fair and just trial and should be read in conjunction with the provisions governing penal proceedings in both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. PROTECTION OF PRIVACY The juvenile's right to privacy should be respected at all stages of the proceedings and in particular the identity of the juvenile offender should not be published. This is consistent with international and regional human rights treaties concerning the privacy of juvenile proceedings. INITIAL CONTACT Parent or guardians of an apprehended juvenile should be notified immediately, or as soon as possible, and a judge or other competent official should consider the possibility of release of the juvenile without delay. Law enforcement agencies should behave in a way appropriate to the legal status and the promotion of the well-being of the juvenile and the avoidance of harm to him/her. DIVERSION The Commentary highlights the benefit of diversion, such as the lack of stigma where there is conviction and sentence, and states that in some cases, such as non-serious offences, no intervention at all may be the optimal response, especially where there has already been some response by family or school or other informal social control institutions. The police, prosecution or other agencies dealing with juvenile cases may at their discretion and without recourse to formal hearings dispose of cases in accordance with the criteria laid down in the respective legal systems and the principles contained in the Rules. Diversion may be to community programmes such as temporary supervision and guidance, restitution and compensation of victims. A pre-condition to diversion will be the free consent of the juvenile or his/her parents or guardians reviewable by a competent authority on application. SPECIALISATION WITHIN THE POLICE Police officers involved with juveniles or the prevention of juvenile crime should receive specialised training. In large cities special police units should be established for this purpose. DETENTION PENDING TRIAL Many of the United Nations rules concerning juveniles under arrest or awaiting trial reiterate provisions found in global and regional human rights treaties. The main thrust of the Rules in this area is that pre-trial detention should only be used after considering alternative measures such as close supervision, placement with a family or in an educational setting or home. However, once in detention, juveniles should be kept in a separate institution from adults or in a separate part of an institution also holding adults and only for the shortest possible period. While in custody juveniles should receive all social, educational, vocational, psychological, medical and physical care taking into account their age, gender and personality. ADJUDICATION AND DISPOSITION The Rules emphasise several fundamental principles: the principle of proportionality, minimal use of deprivation of liberty and the wellbeing of the juvenile. Where a juvenile offender has not been diverted and has proceeded to a formal trial, the proceedings should be conducive to the best interests of the juvenile and conducted in an atmosphere which allows the juvenile to participate and express himself/herself freely. The juvenile should have the right to legal representation and to apply for free legal aid where such a system exists. The parents or the guardian should be entitled to participate in the proceedings. The competent authority should be empowered to either compel them to appear or to exclude them from the proceedings where this is necessary in the interests of the juvenile. Prior to sentencing the background and circumstances in which the juvenile is living, or the conditions under which the offence has been committed, should be the subject of a social inquiry report in order to facilitate the adjudication of the case. Both capital and corporal punishment are specifically prohibited for any crime reiterating binding treaty standards.

In a case * decided before the Inter-American Commission on Human Rights in 1967, it was proposed by the commission that a norm of international customary law establishing 18 to be the minimum age limit for the imposition of the death penalty was emerging. The implications of this decision, albeit non-binding, indicate that a State which pursues a policy of judicial execution of children may now be in breach of international law even where it has not ratified the relevant treaties. Various disposition measures Alternatives to institutionalisation of the juvenile are proposed under the Rules. The orders include: various care orders, probation, community service orders, compensation to the victim or financial penalties, group counselling and foster care or other educational establishments. The Rules do not advocate the separation of the juvenile form his/her parents unless the circumstances make this necessary. Least possible use of institutionalisation The guiding principle under the rules is that the placement of a juvenile in an institution should always be a disposition of last resort. Where, however, the juvenile is so place it should always be for a minimum period. The commentary favours the establishment of open institutional of an educational nature rather than incarceration. Avoidance of unnecessary delay Each case should be handled expeditiously without any unnecessary delay. The rationale behind the reiteration of this principle relates to the particular characteristic of a child whose ability to relate procedure to disposition deteriorates over time. Records Records of juvenile offenders should be strictly confidential, only accessible to persons directly concerned with the disposition of the case or some other duly authorised person, Where the juvenile is subsequently the subject of adult proceedings his previous records may not be used. Need for professionalism and training All personnel involved in juvenile justice should receive regular training in the form of professional education, in-service training, refresher courses and other appropriate modes of instruction, Women and minority groups should be fairly represented in juvenile justice personnel. Provision of needed assistance and mobilisation of volunteers and other community services The Rules steps the importance of rehabilitation of the juvenile. To that end they require necessary assistance in the form of education, employment or accommodation to be given to the juvenile during the proceedings an call upon volunteers, voluntary organisations, local institutions and other community resources to assist in that process. This notion of rehabilitation has subsequently been replaced with the more recent concept of non-institutional re-integration of the juvenile into society to fulfil a constructive role, in both the JDL Rules and the Convention on the Rights of the Child. Objective of institutional treatment The end aim of institutionalisation is to assist juveniles to assume socially constructive and productive roles in society. Whilst in institutions all juveniles should receive social, educational, vocational, psychological, medical and physical assistance. Particular reference is made to the needs and problems of young female offenders who should receive no less care and assistance than their male counterparts. Inter-ministerial and interdepartmental cooperation is encouraged for the purpose of providing adequate academic or vocational training to institutionalised juveniles in order that they do not leave the institution at an educational disadvantage. Frequent and early recourse to conditional release Conditional release from an institution should be used to the greatest possible extent and at the earliest possible time. Juveniles released conditionally from an institution should be assisted and supervised by the appropriate authority and fully supported by the community. The commentary states that offenders who initially have been deemed dangerous may be conditionally released where the is feasible.

Semi-institutional arrangements Semi-institutional arrangements such ad educational homes and daytime training centres should be established to assist juveniles in their reintegration into society. Research as a basis for planning, policy formation and evaluation The Rules recognise the importance of keeping abreast with the changing problems and causes of juvenile delinquency as well as the varying particular needs of juveniles in custody. Research should therefore be organised and promoted both as a basis for effective planning and policy formation and for regular evaluation of the juvenile justice system with a view to future improvement and reform. The commentary suggests the utilisation of independent persons and bodies and the views of juveniles themselves in carrying out such research. Use of the rules The Rules should be applied to juvenile offenders impartially, without distinction of any kind, for example, as to race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status. Each state should establish legislative provisions specifically applicable to juvenile offenders and institutions entrusted with juvenile justice. These provisions should be designed to meet the needs of juvenile offenders whilst protecting their basic rights and meeting the needs of society. The Beijing Rules should be implemented thoroughly and fairly within these provisions.