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Friday 16th of November 2018

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Manual for EU Member States: How to ensure the rights of children in conflict with the law?


Defence for Children International (DCI) - Belgium

Abstract

The EU directive (EU) 2016/800 of the European Parliament and of the Council of the European Union of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings is a valuable tool. It endorses and develops relevant European and international standards and principles, in particular: Non-retroactive juvenile justice; the right to be heard; the right to effective participation in the proceedings; prompt and direct legal assistance; free assistance of an interpreter; full respect for privacy. These are not merely criminal but constitutional guarantees. The directive (EU) 2016/800 is important and significant for in that it proposes a common European model for fair trials for children in conflict with the law.

If we are to take children’s rights “seriously”, it is obligatory for the EU Member States to transpose and implement the directives. In this respect, the interest and the added value of this excellent handbook are to provide guidance to Member States to fulfil their legal obligations, including some recommendations to address common shortcomings and obstacles.

Juvenile justice must answer to the demands of fundamental rights, and be appropriate to the children’s needs and proportionate both to the circumstances and the offence. Yet, it is necessary to go further because rights are a necessary but insufficient condition. Historically, we can observe that, very often, it is youth justice that has paved the way towards new horizons. Today, should the “best interests” of a child in conflict with the law suffer the unavoidable negative effects of the punitive and repressive answer against which human rights are supposed to offer protection? But where exactly does this strange need to punish come from in our society? As a “heritage of modernity”, we have integrated the punitive reasoning as if it was obvious, we have put the idea of punishment on such a pedestal that it is now difficult for us to see beyond it. A genuine child-friendly justice should offer something else.

We must urgently find other ways to settle conflicts in order to prevent children from entering the vicious spiral of penal intervention. It is not only about having a better criminal justice; we must above all have something better, something more humane and more intelligent. We have known this “something” for a long time: it is refusing detention and using the other measures that exist, wanting the reinsertion of children to enable them to participate in the social life as it is, favouring education for all and offering future prospects to children in conflict with the law. As Adolphe Prins wrote over a century ago, children in conflict with the law do not respect property or life for neither life nor property have real value to them. Today, I think that the return to repression, in its most severe forms, as if it offered an answer to the idea of justice, is not only a regression but also an illusion. This is a dead-end that will contribute to violence instead of appeasing it. We are all responsible, individually and collectively, for the consequences it will have on future generations.

Scope

Europe

Year Language

2018 English

Category Type

Grey Literature Guide

Keywords

Judicial, Judiciary, Juridical, Justice, Juvenile, Law, Legislation, Minors, Penal, Public policies

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