Rap, S. & Weijers, I. (2014) The Effective Youth Court. Juvenile Justice Procedures in Europe
Abstract
This book is purpose-made for professionals and academics working in the field of juvenile justice to inform them about a new interdisciplinary perspective .The book explores the way juvenile defendants are involved in the courtroom. The leading idea of the book is that a combination of two perspectives is required to be able to react legally correct and adequately to youth delinquency. Knowledge of the legal framework that has been developed in the past decades in the area of human rights, particularly the procedural rights of the child, has to be enriched with social scientific insights in the development and treatment of the child.
First, the book develops a normative framework for the application of the right to be heard in the youth court. Then it offers a comparative analysis of the actual practice of participation of juvenile defendants in Europe. In total 50 youth courts have been visited, involving more than 3000 cases of juvenile defendants. Finally, best practices in the youth court procedure are designated regarding the actual participation of juvenile defendants.
... Before describing the method and results of our study, we will give a brief description of the Dutch situation in the context of that of other European countries. 2 It is not our intention to give an exhaustive comparison of juvenile justice systems (see Matthews et al., 2018;Pruin and Dünkel, 2015;Rap and Weijers, 2014;Weijers, 2017). Our international comparison is limited to the special treatment of young adults in the criminal (juvenile) law system. ...
... Second, there are countries in which young adults are eligible for the mitigation of punitive sentences, such as in most Scandinavian countries (Finland, Sweden and Denmark). Third, there are countries where no special sanctioning of young adults in criminal law exists, such as Spain (Dünkel and Pruin, 2012;Pruin and Dünkel, 2015) or England and Wales (Rap and Weijers, 2014). However, England and Wales do form a special group on their own. ...
... Supervision by probation services can be ordered in conjunction with suspended sentences. The duration and content of the sanctions that young adults can receive, however, may differ from that of minors in these countries (see, for example, Pruin and Dünkel, 2015;Rap and Weijers, 2014). ...
Since 2014 it has been possible to apply juvenile criminal law to young adults aged from 18 up to and including 22 years old in the Netherlands. This policy change is referred to as the Adolescent Criminal Law (ACL). According to the theory behind ACL, providing special treatment within the juvenile justice system to young adults during their transition into adulthood could reduce recidivism. In order to determine the relevance and impact of ACL regarding the application of juvenile sanctions to young adults, in this study a ‘Recently Introduced Policy instrument’ (RIPI) evaluation was conducted. The results suggest that applying juvenile justice sanctions to young adults could offer opportunities to cut short criminal careers and reduce crime amongst young adults. In addition, we found that the proportion of juvenile sanctions applied to young adults has increased despite the overall crime drop amongst young adults. Implications of our findings are discussed.
... As previously outlined (Saunders et al., 2020), Australia, the United Kingdom, the United States, Canada, New Zealand, Ireland, and Western European jurisdictions have specialist child and youth courts, often with a dual functionality -a criminal division and a family division -the latter dealing with child protection/dependency/welfare matters (Liefaard and Kilkelly, 2018;Muncie, 2011;Sheehan and Borowski, 2013). Children (also referred to interchangeably as juveniles and young people) are generally stated to be below the age of 18 and above the age of criminal responsibility at the date of charges and will mainly appear in the criminal division of these specialist youth courts, though there are exceptions in some jurisdictions, notably Scotland and Ireland, where children above the age of 16 are tried in adult courts (Rap and Weijers, 2014). However, there are also increasing instances in many jurisdictions where children are being tried in adult courts, either because it is mandatory under specific legislation; the 'waiver to adult courts' exists (Kilkelly et al., 2023: 116-117); or where children have committed particular crimes and, due to the nature of that crime and/ or its level of seriousness, will be transferred to adult courts (Lynch, 2018). ...
This article presents findings from a scoping review of qualitative grey literature regarding children’s and families’ perspectives and understanding of Children’s Court criminal processes in which they are participants. Many children and families had difficulty understanding court proceedings, particularly formal and legal language, and fully appreciating the significant implications of decisions for their future lives. Professional support was often inconsistent and unreliable. One area where positive processes were experienced was in alternative courts, especially Indigenous courts. The findings support previous research and international law that recommends greater involvement of children and families in court processes to achieve fairer and better outcomes.
While there is a direct link between children’s rights—to education, to health and to protection from harm—and measures that prevent children coming into conflict with the law, children do not always benefit from such rights protections. Thus, when they come into conflict with the law, they are entitled to specific rights protections that both seek to minimise the harm through diversion and ensure their procedural rights are protected while within the justice system. This chapter proposes that these two rights fall into two categories: ‘Diversion’ rights and ‘Justice’ rights. This chapter will first focus on the literature relating to state efforts to prevent children’s contact with formal justice processes, through both prevention and early intervention efforts, and through diversion efforts in situations where children may otherwise be subject to criminal prosecution. It will then explain the literature related to the procedural rights that children must enjoy when they are in contact with the justice system, drawing attention to the ways in which breaches of children’s rights can occur, and the steps needed to ensure greater protection of children’s rights in this area.KeywordsChildren rightsChildren in conflict with the lawDiversionEarly interventionDue processProcedural rightsPolice
Sažetak
Rukovodeći se naučnim spoznajama da maloljetnici predstavljaju posebnu kategoriju osoba, koje se nalaze u procesu psihofizičkog i socijalnog rasta i razvoja, u savremenom krivičnom pravu postoji opći konzenzus da tu kategorija nedoraslih osoba (učinitelja) treba posebno krivičnopravo tretirati, te u savremenim uporednim krivičnim zakonodavstvima ova kategorija učinitelja uživa specifični (povlašteni) krivičnopravni status u odnosu na punoljetne učinitelje krivičnih djela. Ipak, u pojedinim zakonodavstvima postoje mogućnosti da se i prema maloljetnim učiniteljima primjenjuju pravila općeg krivičnog prava (krivičnog prava za odrasle). S tim u vezi, u pojedinim državama, poput SAD-a, Irske, Kanade, Belgije, Japana, Poljske itd. u kojima primarna nadležnost za procesuiranje maloljetnih učinitelja pripada maloljetničkom krivičnom pravosuđu, koje toj kategoriji učinitelja izriče specifične maloljetničke sankcije, u pojedinim slučajevima postoji mogućnost da se maloljetni učinitelji teških krivičnih djela i određenog (starijeg) uzrasta upute na sud opće nadležnosti (eng. transfer to the adult court, waiver), koji im u tom slučaju izriče sankcije općeg krivičnog prava, odnosno krivičnog prava koje se primjenjuje na punoljetne učinitelje. Slična rješenja susreću se i u holandskom zakonodavstvu. Dodatno, mogućnosti primjene općeg krivičnog prava prema maloljetnim učiniteljima krivičnih djela susreću se i u većini (maloljetničkih) krivičnih zakonodavstava država sa prostora bivše Jugoslavije, gdje postoji mogućnost da se krivični postupak prema maloljetniku koji je učestvovao u izvršenju krivičnog djela zajedno sa punoljetnim licem spoji i provede kao tzv. jedinstveni (spojeni) postupak, koji se u osnovi odvija prema procesnim pravilima općeg krivičnog procesnog prava primjenjivog prema punoljetnim učiniteljima krivičnih djela, odnosno prema odredbama Zakona o krivičnom postupku.
U radu su detaljno analizirani navedeni mehanizmi primjene općeg krivičnog prava prema maloljetnim učiniteljima krivičnih djela u uporednom pravu, te usklađenost istih sa međunarodnim standardima postupanja sa maloljetnicima u sukobu sa zakonom. Došlo se do zaključka da ovakva legislativna rješenja nisu u suglasju sa pravnim standardima artikuliranim od strane Komiteta UN o pravima djeteta, te su s tim u vezi ponuđeni i određeni prijedlozi za izmjene relevantnih zakona pojedinih država (sa prostora bivše SFRJ) u cilju usklađivanja istih sa preporukama Komiteta UN o pravima djeteta.
Ključne riječi: maloljetni učinitelji, upućivanje maloljetnih učinitelja na sud opće nadležnosti (transfer, waiver), maloljetničko pravosuđe
Abstract
Guided by the scientific findings that minors represent a special category of persons who are in the process of psychophysical and social growth and development, in modern criminal law there is a general consensus that this category of minors should be treated separately by criminal law, and in most comparative legislation there are specific rules that governs their criminal legal status, which is different from the status of adult perpetrators of criminal acts. However, in certain legislations there are possibilities to apply the rules of general criminal law (criminal law for adults) to juvenile offenders. In this regard, in certain countries, such as the USA, Ireland, Canada, Belgium, Japan, Poland, etc., where the primary jurisdiction for prosecuting juvenile offenders belongs to the juvenile criminal justice system, which imposes specific juvenile sanctions on this category of offenders, in individual cases there is a possibility that juvenile perpetrators of serious crimes, as well as those of a certain (older) age, are referred to the court of general jurisdiction (eng. transfer to the adult court, waiver), which in that case imposes on them the sanctions of general criminal law, i.e. criminal law that applies to adult perpetrators. Similar solutions are found in Dutch legislation. In addition, the possibilities of applying general criminal law to minor perpetrators of criminal offenses are found in most (juvenile) criminal legislation of the countries of the former Yugoslavia, where there is a possibility that the criminal proceedings against a minor who participated in the commission of a criminal offense together with an adult person can be combined and carried out as a single (so-called combined) procedure, which basically takes place according to the procedural rules of the general criminal procedural law applicable to adult perpetrators of criminal acts, i.e. according to the provisions of the Criminal Procedure Act.
The paper analyzes in detail the aforementioned mechanisms of application of general criminal law towards minor perpetrators of criminal offenses in comparative law, and their compliance with international standards for dealing with minors in conflict with the law. It was concluded that such legislative solutions are not in accordance with the legal standards articulated by the UN Committee on the Rights of the Child, and in this regard certain proposals were offered for changes to the relevant laws of individual states (from the area of the former SFRY) with the aim of harmonizing them with recommendations of the UN Committee on the Rights of the Child.
Key words: juvenile offenders, referral of juvenile offenders to a court of general jurisdiction (transfer, waiver), juvenile justice
There is a growing awareness, in the United States and Europe, that emerging adults – those ages 18–25 – are a developmentally distinct group worth special treatment at the hands of the justice system. Four US states have proposed raising the age of their juvenile courts’ jurisdiction beyond age 18 within the last year, while four out of five European countries have special laws affecting emerging adults. Three European nations – Croatia, Germany, and the Netherlands – allow youth over age 18 to be sanctioned in the same manner as younger youth in the juvenile justice system, including the possibility of being housed in juvenile facilities. In March 2018, the Columbia University Justice Lab sponsored an educational delegation of 20 elected and appointed officials, legal system stakeholders, service providers, and advocates to Germany to learn more about the German approach to emerging adults. In advance of that delegation, the authors in this article examined the law and practice regarding court-involved emerging adults in Croatia, Germany, and the Netherlands to glean potential lessons for US policy-makers considering a developmentally distinct approach to emerging adults in their justice systems.
This article explores how the idea of procedural justice can help us to rethink juvenile justice and research children’s rights in Europe differently. To frame the following argument, we will question four implications of the procedural justice perspective: 1) the need to implement rights and not just proclaim them, 2) the need to investigate a ‘double perspective’ on children’s rights implying both juvenile justice professionals and children in conflict with the law, 3) the child’s right to effectively participate and be involved in the process and 4) the idea that age matters in the judicial reaction to crime. The resulting conclusions and discussions revolve around the scientific consequences and challenges we must face when we take procedural justice perspective seriously.
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