UNICEF guidance note for CEE/CIS on responses to children who have infringed the law but are under the minimum age for prosecution as a juvenile offender

1. UNICEF Guidance Note
for CEE/CIS
On responses to children who have infringed
the law but are under the minimum age
for prosecution as a juvenile offender

3. UNICEF GUIDANCE NOTE FOR CEE/CIS
On responses to children who have infringed the law
but are under the minimum age for prosecution as a
juvenile offender
This Guidance Note issued by the UNICEF Regional Office for CEE/CIS
(Central and Eastern Europe and the Commonwealth of Independent
States) is primarily designed to assist UNICEF offices in the region in
dealing with policy and practice issues regarding juvenile justice.
The guidance is founded on relevant international standards and principles
and builds on the Critical Mass exercise of the CEE/CIS Regional Office.
March 2010

4. UNICEF Regional Office for Central and Eastern Europe and
The Commonwealth of Independent States (CEE/CIS)
March 2010
Cover photo:
UNICEF Kyrgyzstan/2008/Alimjan Jorobaev

5. Background
Under the Convention on the Rights of the Child (Article 40.3[a]), States Parties
must seek to promote “the establishment of a minimum age below which children
shall be presumed not to have the capacity to infringe the penal law.” This age,
often known as the ‘minimum age of criminal responsibility’ (MACR)1, is referred
to in the present document as the ‘minimum age for prosecution as a juvenile
(offender)’ or, more concisely, the ‘minimum age’ or ‘minimum age for
prosecution’. All countries in the CEE/CIS region have set such a minimum age –
in many cases, two distinct minimum ages for prosecution have been established to
deal with offences of a greater or lesser severity.
The most appropriate age below which a child may not be prosecuted – even
before a special juvenile court – is one of the most controversial and high profile
issues debated in the context of juvenile justice policy. The minimum age
stipulated varies from 6 to 16 worldwide, and the criteria upon which the minimum
age is decided are equally diverse and disputable.
Unfortunately, the debate over minimum age has invariably overshadowed a far
more significant policy issue, namely the appropriate responses envisaged for a
child aged 8, 10, 12, 14 or 16 who is alleged or shown to have committed an
offence or crime, regardless of the minimum age set for prosecution as a juvenile
offender in the country in question.
The Convention on the Rights of the Child and, in particular, the Beijing Rules set
out standards and measures that may be considered for child offenders above the
minimum age in force who are dealt with by the justice system. Neither
instrument, however, provides much, if any, practical guidance or discussion
around requirements in regard to children below that age who come into conflict
with the law (hereafter called ‘underage offenders’2).
Symptomatically, in its General Comment on juvenile justice, the Committee on
the Rights of the Child goes no further than to propose: “For these children special
protective measures can be taken if necessary in their best interest”,3 requesting
that States Parties “inform the Committee in their reports in specific detail how
children below the MACR set in their laws are treated when they are recognized as
having infringed the penal law, or are alleged as or accused of having done so, and
1
For example, in the commentary of Rule 14.1 of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules; 1985) and the Committee on the Rights of the Child
General Comment No. 10: Children’s Rights in Juvenile Justice (2007). This term, and the acronym
MACR, is retained in the present document in quoted texts.
2
The term ‘offender’ is appropriate because the children concerned have, or are alleged to have,
infringed the law, even though they cannot be prosecuted for the infringement.
3
Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice,
CRC/C/GC/10, 9 February 2007, para. 31.
3

6. what kinds of legal safeguards are in place to ensure that their treatment is as fair
and just as that of children at or above the MACR.”4
The present document seeks to underline the importance of paying greater
attention to the treatment of underage offenders, and also to provide justification
for, and guidance on, advocacy by UNICEF CEE/CIS offices on behalf of
underage offenders.
Causes of concern
In a significant number of cases worldwide, the ways in which underage children
are dealt with do not correspond to their status, needs or international norms.
Contrary to conventional wisdom, no correlation exists between the minimum age
set by a country for prosecution as a juvenile and that country’s compliance with
the spirit and letter of international juvenile justice standards as a whole. Certain
countries have a very low minimum age but in practice adopt a non-punitive
approach, for example, by making real efforts to use deprivation of liberty only as
a last resort. At the other end of the spectrum, some countries with a relatively
high minimum age5 – as is the case for most CEE/CIS region countries – make
quite frequent use of ‘protective custody’ and other detention measures for
underage offenders imposed by non-judicial bodies.
Thus, according to the most comprehensive global study on juvenile justice to
date, the way that countries handle underage offenders “may be predominantly
retributive or punitive in orientation, such that their nominal MACRs cannot
reasonably be accepted at face value.” Furthermore, “there are indications that
[these problems] are particularly salient among countries with historic Soviet law
influences.”6
The same study goes on to state: “in many of these cases, countries follow
administrative procedures, without full due process rights … Commissions on
Minors, Commissions on Minors’ Affairs, and similar authorities may order the
deprivation of liberty of such children, in special correction schools, special
education institutions, and re-education institutions, etc.”7
At the same time, there exists in some countries the widely held view that society
has few or no grounds for intervening proactively in cases involving an underage
4
Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile Justice,
CRC/C/GC/10, 9 February 2007, para. 33.
5
The Committee on the Rights of the Child has suggested that 12 years is the lowest internationally
acceptable minimum age.
6
Cipriani, Don, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global
Perspective, Ashgate Publishing, Farnham, 2009, p. 261.
7
Ibid., p. 264.
4

7. offender, since the child concerned is not ‘responsible’ for his or her infringement
of the law. As a result, the response to minor offences by a child varies from
resigned recognition of the inability to act to dismissal with an admonition or
police caution, neither of which takes account of or addresses the child’s situation
and potential need for assistance.
According to Cipriani, “The most common outcome worldwide seems to be no
systematic response at all to such children.”8 This is despite the results of a study
conducted in the United States of America, which found: “children who begin to
commit delinquent acts between the ages of 7 and 12 are two to three times as
likely to become serious, violent and chronic offenders versus children who begin
to offend at older ages.”9
In sum, the major negative consequences for a child offender below the minimum
age for prosecution as a juvenile can include lack of systematic response; no
access to due process or an equivalent guarantee; and removal from parental care
and transfer to a residential facility for a potentially lengthy period of time on the
basis of a purely administrative decision (this may constitute arbitrary detention
and may not be subject to regular review).
Finally, it must be noted that underage children invariably come into contact with
law enforcement officials at the time of offending, and special attention must be
paid to the treatment of children in such circumstances.
Principles to be observed
1. Responsibilities for dealing with underage children from the moment of
apprehension must be clearly established, known and accepted by all
concerned. Ideally, this will involve developing criteria and a transparent
oversight procedure for the transfer process applied by police; and
establishing legally binding cooperation between the police and social services
sector, whereby the latter takes immediate responsibility for underage children
who come into contact with law enforcement officials.
2. Any law enforcement official, not just specially trained youth police, may
come into contact with underage children who have infringed the law. All
law enforcement officials must therefore be trained in how to deal with
children on apprehension and fully informed of the procedures to follow for
the transfer of responsibility.
8
Cipriani, Don, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global
Perspective, Ashgate Publishing, Farnham, 2009, p. 269.
9
Ibid., p.274, citing Loeber, Rolf, et al. ‘Child Delinquency: Early Intervention and Prevention’, Child
Delinquency Bulletin Series, US Department of Justice, Office of Juvenile Justice and Delinquency
Prevention, Washington DC, May 2003.
5

8. 3. Systematic consideration must be given to the most appropriate response
by the social services sector to each and every case. Inaction in the face of
behaviour that infringes the law is never useful to the child.
4. The response must be constructive. While prompted by the child’s
transgression of the law, the response should not be conceived as a
punishment but rather as an opportunity to help the child understand the
unacceptable nature of his or her behaviour and its consequences. The
response should also address those issues that will help the child to refrain
from similar acts in the future and must be proportionate and individualized.
If the child’s family situation is unknown or gives cause for concern, or if the
nature and circumstances of the child’s behaviour suggest that special
measures may be required, determination of the response should be based
upon a social enquiry report. This must take account of the motivation for
committing the offence and the familial and social circumstances of the child
as well as his or her particular characteristics and needs. In such cases, the
enquiry should be carried out expeditiously by the social services sector and
appropriate interim support measures put in place pending its outcome.
5. The range of appropriate responses includes family support; the offer of
appropriate treatment for substance abuse in the family or serious behavioural
problems exhibited by the child; enhancement of parenting skills; structured
recreational and cultural activities; supplementary educational tutoring; day
centres; life skills courses; individual or family group counselling; mediation;
and mentoring.
6. The decision-making process must respect the human rights of the child
concerned and, in particular, must provide the child a full opportunity to be
heard and to contest any or all of the allegations in regard to his/her
behaviour. Among other things, the process should involve exchanges
between the child and specially prepared persons in a child-friendly setting,
and interviews of his/her primary caregivers, teachers, etc. All reasonable
efforts should be made to verify the grounds for any allegations that the child
denies.
7. If the child and/or the parents refuse to cooperate with, or give consent
to, duly decided support measures directed towards them or requiring their
involvement, the grounds for and feasibility of the measures should be
reviewed and, if appropriate, modified by the decision-making body. The
competent authority may consider measures that are more constraining if
these are deemed necessary to protect the best interests and other rights of the
child.
8. The response must take full account of Convention on the Rights of the
Child obligations to enable the child to be brought up by his or her parents
as far as possible (Article 7) and to ensure that deprivation of liberty is used
6

9. only a last resort and for the shortest appropriate period of time (Article 37).
Deprivation of liberty occurs when a child is placed in any kind of facility,
including for educational or protective purposes, from which he or she is not
allowed to leave at will (Havana Rules).
9. Any decision involving measures that deprive the child of his or her
liberty must be open to appeal before a court. Nota bene, the involvement
of the court in such instances is, of course, to determine only the admissibility
of the decision and in no way negates the child’s immunity from prosecution.
10. Schemes (e.g., life skills courses, mediation) and placements (e.g., foster
care, residential placements) for underage offenders should, in principle,
be conceived and implemented specifically for this group. In particular,
such schemes should in no way be designed or perceived as punitive in
nature. Consequently, they should not be run by juvenile justice bodies or
involve programmes or accommodation used by offenders above the
minimum age for prosecution.
11. Special care should be taken when considering the participation in a
scheme by, or placement of, an underage offender alongside children
who are in need of care and protection but have not contravened the law.
No hard and fast rule can be applied here: decisions must be made on a case-
by-case basis and should consider the best interests and needs of all children
involved.
12. Many underage offenders, while no less in need of care and protection than
abused or neglected children, may need such care to be provided in a
specialized setting that reflects their particular experience, even trauma. For
example, those underage offenders who have been used instrumentally in
criminal activities, involved with older groups or gangs, or committed violent
acts. Equally, many underage offenders can be suitably cared for in the
company of children who have not exhibited, or been induced into,
behaviour that infringes the law.
13. Any placement made, whatever the setting, must be subject to regular
review in regard to its continuing necessity and suitability, in compliance
with Convention on the Rights of the Child (Article 25).
14. Decisions and reviews should involve consultation with the child and his or
her family as well as with all professionals who possess direct knowledge of
the child, including teachers, doctors and social workers.
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10. UNICEF positions
One of the five key child protection goals stated in the UNICEF Medium Term
Strategic Plan 2006–2009 is: “Children and families identified as vulnerable are
reached by key community and government services aimed at reducing their
marginalization.” Clearly the commission of offences by underage children is an
indicator of potential vulnerability and must be addressed by the social services
sector as a component of targeted (secondary) prevention.
In addition to defending and promoting the application of the principles set out
above, UNICEF’s approach to the development of appropriate responses to
underage children includes the following positions:
a) UNICEF should resist any moves to lower the minimum age for
prosecution in the CEE/CIS region, in accordance with the stance already
adopted by the Committee on the Rights of the Child.10 The Committee also
recommends abolishing the two-tier minimum age system (for serious and
lesser offences) currently adopted by many CEE/CIS countries. This should
not, however, mean that the lower of the two ages is automatically applied to
serious and lesser offences alike. Furthermore, major adjustments are required
in most countries for the juvenile justice system to cater appropriately to the
needs of younger children.
b) Although the Committee on the Rights of the Child promotes the raising of
the minimum age for prosecution wherever possible, UNICEF should only
support initiatives to do so in the CEE/CIS region once full consideration has
been given to the likely ramifications and effectiveness of such a change from
a children’s rights perspective. As noted earlier in the background to the
present guidance note, the priority issue is to ensure that responses are
appropriate for child offenders, whether they are above or below the minimum
age in force. Raising the minimum age does not of itself guarantee increased
respect for children’s rights; indeed it may even create conditions where
certain such rights are jeopardized.
c) UNICEF will encourage and support in-depth reviews of current decision-
making procedures in regard to underage children with a view to ensuring,
among other things, that the child is able to exercise fully his or her right to be
heard during proceedings and that the alleged behaviour prompting those
proceedings is corroborated by the facts.
10
Committee on the Rights of the Child General Comment No. 10: Children’s Rights in Juvenile
Justice, CRC/C/GC/10, 9 February 2007, para. 33.
8

11. d) UNICEF will also encourage and support in-depth reviews of the extent to
which the various possible responses to underage offenders are currently
adopted (see non-exhaustive listing in the principles above). As far as is
possible, the reviews should also establish the degree to which the outcomes
of such responses have been shown to be positive for the children concerned,
particularly when compared to the results of ‘educational’ and other measures
involving deprivation of liberty. It is hoped that these reviews would provide
the basis upon which to advocate for the preponderant use of community-
based measures, which fully involve the family and enable the child to remain
in, or return to, the normal school setting.
e) Consequently, and in the framework of a general effort to bring about
progressive deinstitutionalization of care and other services for children,
UNICEF will encourage and support initiatives that seek to transform
selected residential facilities for underage offenders into day centres and
child-focused service units, where the facility in question is suitably located
(i.e., accessible) and can provide an appropriate environment for the purposes
of its new role.
f) In those exceptional cases where a placement involving deprivation of liberty
is deemed necessary, UNICEF advocates for a clear, constructive and
individualized treatment programme to be established for the child.
Specialized multidisciplinary teams with a high staff to child ratio must
implement the programme, whilst at the same time maintaining the child’s
maximum possible contact with the family and wider community.
g) Securing systematic, appropriate and effective responses for each underage
child in conflict with the law requires additional financial and human
investment that will produce returns in the medium term. UNICEF urges
governments to make available the resources that will enable law enforcement
agencies and the social services sector to establish specialist teams responsible
for developing for every child concerned an individual response plan that
takes into account his or her specific needs and circumstances.
h) In addition, UNICEF urges that formal procedures be agreed to establish
cooperation between law enforcement agencies and the social services
sector in dealing with underage children, to enable their respective mandates
and responsibilities to be better understood and implemented.
i) UNICEF believes that a number of constructive techniques developed
within the juvenile justice system, such as mediation and family group
counselling, may also be appropriate in confronting the issues that underlie
offences committed by certain underage children. UNICEF proposes that
social services agencies establish in the first instance pilot schemes inspired
by (but separate from) such justice sector techniques, for selected children
9

12. whose age and situation make them suited to such a response. The outcomes
should be monitored and assessed both during and following the intervention
to determine its effectiveness and serve as the basis for any adjustments
required.
10

13. Checklist of main issues to be addressed
ISSUE STATUS ACTION REQUIRED
Minimum age for prosecution set at an
internationally acceptable level
Existence of moves to lower or raise this
age
Existence of different minimum ages for
serious and lesser offences
Existence of moves to set a single
minimum age for all offences
Existence of a protocol for the transfer of
underage offenders from the police to the
social services sector
Inclusion of children’s rights and child-
sensitive responses in the training syllabi
of all law enforcement personnel
Existence of a recognized and systematic
procedure in the social services sector by
which to evaluate the appropriate
response to each underage offender
Procedure in place to determine the need
for a social enquiry report in each case
Availability of trained personnel to prepare
social enquiry reports expeditiously
Existence of a range of community-based
support and treatment measures specially
tailored to underage offenders and their
families
System in place to monitor and evaluate
effectiveness of responses, both in
individual cases and overall
Existence of a child-friendly decision-
making process conducted by qualified
specialists
Full protections in place to ensure that the
process respects the human rights of
underage offenders
Procedure in place to ensure that any
decision involving placement in a
residential facility (deprivation of liberty)
can be appealed before a court
Existence of a mechanism to ensure the
regular review of the necessity and
suitability of any residential placement in
consultation with the underage offender
and his or her family
Existence of a policy to reduce recourse to
residential placements
Existence of a policy to transform
residential facilities into non-residential
service units
11

14. 12

16. UNICEF
Regional Office for CEE/CIS
Palais des Nations
CH 1211 Geneva 10
Switzerland
www.unicef.org/ceecis
© The United Nations Children’s Fund (UNICEF)