Does Europe need more rights for young offenders?

I recently received a request from Femke De Backer, a lawyer at Ghent University in Belgium in which he is carrying out research on the desirability of an European Union policy (and in particular of EU minimum standards) on juvenile delinquency and juvenile justice, since this is what the European Economic and Social Committee and the European Parliament have called for. He said in part in his message to me:

"I am currently examining the desirability of a EU policy on juvenile delinquency and juvenile justice. I noticed that you were at the Second European Conference organized by the IJJO in October last year, and I am very interested in your personal opinion on this subject." unquote

What follows, is my response to his three questions but first, an overview.

Europe is to some degree, not unlike the United States in that their methods of treating juvenile delinquency and justice are diverse because each country and state has its own definition of juvenile delinquency, based on different factors. For some countries and states, the concept covers behavior by minors that corresponds to one of the types described in their legislation or criminal code. In other countries and states, where the juvenile justice system is based on an educational or welfare model, the range of acts that are pursued under the justice system when committed by minors is extended to include acts which, if committed by an adult, would only be liable to proceedings through administrative or civil channels, or would not even lead to prosecution.

In Canada, a juvenile delinquent (young offender) under the age of twelve cannot be prosecuted for any crime, no matter how serious. This is not to mean however, that such a minor would not receive treatment. He or she might even be removed from his or her home and transferred to a group home. In Canada, a young offender who is fourteen years or older can be transferred to an adult court if the offence he or she has committed is serious enough and warrants such a transfer and a youth who is sixteen years of age when he committed the crime and has been found guilty of first-degree murder for example, can only be sentenced to a maximum term of imprisonment in close custody for six years for that crime. (something than many citizens in Canada don’t agree with)

The United States is the only country to punish juveniles so severely on a routine basis. Amnesty International has counted 2,225 child offenders locked up for life across 42 American states. Some American states permit the imposition of a life sentence without parole to offenders as young as ten. The youngest offenders actually serving such a sentence were thirteen when they were sentenced to life. Roughly one-sixth of those locked up for life committed their offences when they were under the age of sixteen. Almost 60 per cent were given their life sentence for their first offence. In the rest of the world, they found only a dozen other cases, restricted to three countries - Israel, South Africa and Tanzania. Sentencing children to life without parole is forbidden under the United Nations' Convention on the Rights of the Child, which has been ratified by every member state except the US and Somalia. Out of 154 countries surveyed in the report, 13 were found to have laws on their books permitting life sentences for minors, but nine of these had never actually imposed one. As an aside, I have to say that it would be unfair to criticize the Americans as a nation for not ratifying the ‘Rights of the Child’ because the United States comprises of 50 states and each state has its own views on the rights of children and it is for this reason that as a nation, they cannot all agree on how the rights of children should apply.

The European Union decided to formulate a policy on juvenile delinquency and justice that would be applicable to all member states. As one can easily surmise, that is no easy task.

There are significant differences between punitive systems, in that some countries have drawn up laws on punishments for young offenders that include a specific punitive system, and others apply the same punishments to minors as adults while providing for certain limited and reduced punishments. In addition to this, there are differences between the ages of juvenile criminal responsibility: although there is greater agreement on the upper age limit (18, although it may be raised to 21 in some countries), the lower age limits vary significantly from age 7 to 16 years of age.

If there is to be a policy that will work in Europe with respect to the punitive systems of its member states, all sentences and the applicable ages to which they apply should be the same everywhere. But that means that all offences should also be the same in every nation in the European Union. That is where the real problem lays. For example, Belgium does not criminalize blasphemy whereas Finland retains a general offense of blasphemy under chapter 17 of its penal code.

This leads me to the first question put to me by Femke De Backer.

“Do you think a European Union policy on juvenile delinquency is desirable and feasible?”

My response to that question is a simple, “Yes, I do.” However, I am not sure that the current EU policy would supercede other policies that are already in play around the world.

There is clearly a widespread perception among European countries that juvenile delinquency is on the rise, and that the offences committed by juveniles are becoming more serious. Under these circumstances, the public is calling for more effective control mechanisms, leading many countries to stiffen their legislation as it relates to their young offenders. This serves to underline the need for coordination and guidance measures in order to facilitate an all-European level of governance of this phenomenon.

Young people in Europe are really no different when it comes to crime, no matter what country they live in, and this fact forces me to ask this rhetorical question; “If young offenders in Europe are no different wherever they live in Europe, does it not follow that there should be one universal European model criminal code in which crimes and punishments are the same everywhere?”

In 1995, I addressed the Ninth United Nations Congress on the Prevention of Crime and Treatment of Offenders held in Cairo. My speech dealt with my proposal to create of an‘International Criminal Code to Expedite Extradition Procedures’. It was not my intention to change the laws of the nations but instead to create an international criminal code in which the laws of each nation could relate to. For example, the US state of Georgia had an offence that was worded as ‘hit and run’ whereas the province of Ontario in Canada has an offence of ‘fail to remain’. When Ontario tried to extradite a citizen of Georgia for a crime he committed in Ontario, they were unsuccessful because of the differences of the wording of the similar offence in Georgia. When the wording of Georgia’s similar offence had been eventually changed to that which was similar to Ontario, the man was extradited to Ontario to face trial. Unfortunately, by that time, (20 years later) there weren’t any witnesses to the crime that could be found and the accused man walked free.

If the European Union wishes to share the same ideas as to how young offenders should be sentenced, it should at least have similar ideas as to the crimes these young offenders commit.

Femke De Backer second question was;

"What could be the strength of such a EU policy, and in particular of EU minimum standards, in comparison with the UN and Council of Europe rules?"

Any policy that advocates protecting, re-educating and reintegrating young offenders back into society, with a view to preventing recidivist behavior, has good strengths. But how does it compare with the ‘United Nations Standard Minimum Rules on the Administration of Juvenile Justice’ and the European Council’s ‘Convention for the Protection of Human Rights and Fundamental Freedoms’?

The European Council’s ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ are splendid Rules of conduct as they relate to human rights and freedoms that should be enjoyed by all people in Europe, be they young people or adults. However, these Rules don’t fully address the problems of young offenders and their protections.

This is why a bill of rights was created for young offenders by the United Nations. I would be remiss however if I didn’t admit that I am a bit bias in favour of the ‘United Nations Standard Minimum Rules on the Administration of Juvenile Justice’ that which incidentally is also referred to as the ‘Beijing Rules’, as I am the father of those Rules. When those Rules were finally brought before the United Nations General Assembly in November 2005 for ratification a month after I addressed 129 countries at a conference held in Milan about my own views of the new Rules as they were finally drafted up, almost all the nations in the world voted in favour of those Rules. All of the member states of the European Union at that time ratified these Rules in November 2005.

Those Rules are fairly comprehensive and in my respectful opinion, they address the needs of young offenders from the time of their arrests to the time when they have completed their sentences if they are found guilty. This forces me to ask this rhetorical question. “If these Rules are already in place and the members states of the European Union have already ratified them, then why is it necessary to bring forth new Rules specifically for the European nations.” I will address this question by answering Mr. De Backer’s third question he sent me.

"In your opinion, would the EU be able to adopt binding EU standards without 'lowering' the UN and Council of Europe standards (which have most of the time no binding force)?"

First of all, I am saddened by the fact that some nations around the world feel that the United Nations bill of rights for young offenders (Beijing Rules) are not binding on them and that the European nations also feel that they are not bound by the Council of Europe’s ‘Convention for the Protection of Human Rights and Fundamental Freedoms’. It is true that these conventions do not have binding force upon the nations that ratified them as their existence are simply as a means of guidance to these nations as to how human beings are to be treated and respected.

As an example, when I proposed in my speech, the creation of a United Nations bill of rights for the protection of young offenders while I was speaking at a UN crime conference in Caracas in 1980, it was the American delegation that immediately responded and brought forth a resolution that was to instruct the UN to conduct studies around the world to see if such a bill of rights was necessary. Sadly I later found myself being compelled to speak at international conferences in Bangkok, (2005) Lima (2005) and Brussels (2006) about the horrendous abuses being heaped upon young offenders still going on in some of the American states many years after the Beijing Rules came into existence.

We as a world community cannot expect every nation to follow the advice of the conventions they ratify simply because such conventions (Rules) are not binding as law in each of the nations of the world. This is not to say that they are not a convention to be dismissed out of hand within the nations worldwide.

Let me give you an example. The Supreme Court of Canada (that nation’s highest court) was dealing with a case in the year 2002 in which a young person who was convicted of several crimes subsequently had his name and the list of his offences to which he was convicted sent to his local school board by the court that convicted him. His lawyer rightly complained that this was contrary the United Nations Beijing Rules of which Canada is a signatory. The court said in part;

"I should add that the importance of confidentiality in dealing with youthful offenders is recognized internationally, as set out in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules") adopted by General Assembly Resolution. The court specifically referred to sections 8.1 and 8.2 of those Rules which states,

8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling'

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published."

Of course, the action taken by the lower court was also contrary to the then ‘Young Offenders Act’ which came into being in Canada around the same time that the ‘Beijing Rules’ were ratified by Canada and other nations.

The International Convention on the Rights of the Child was ratified by many nations and Canada ratified it on September 2 of 1990. In its preamble, it says in part:

"Recalling the provisions of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); and the Declaration on the Protection of Women and Children in Emergency and Armed Conflict."

This fact was made clear by the Quebec Court of Appeal (Quebec is a province in Canada) when it dealt with a case before it in 2003. The issue to be determined was, “Do the sentencing provisions violate the guarantee of equality recognized in subsection 15(1) of the Canadian Charter of Rights?” The court stated that it recognized the importance of the Beijing Rules.

It is very rare that the citizens of Canada have to refer to the Beijing Rules for the protection of its young offenders because the laws of Canada are geared for the protection of its citizens, be they adults or young offenders. But if the Beijing Rules must be referred to, the courts will use those Rules to support their findings.

The question that I must finally answer is, ‘Is the European Union’s proposed minimum standards on juvenile delinquency and juvenile justice absolutely necessary?’

I don’t think it is absolutely necessary considering the fact that it may very well be redundant considering what has already been ratified by European nations. I am speaking of the Council of Europe’s ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (1950) the ‘United Nations Standard Minimum Rules for the Administration of Juvenile Justice’ (The Beijing Rules) (1985), the ‘International Convention on the Rights of the Child’ (1990) the United Nations Guidelines for the Prevention of Juvenile Delinquency (‘The Riyadh Guidelines’), (1990), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, (1990) and the Recommendation No R (87) 20 of the Committee of Ministers of the Council of Europe on social reactions to juvenile delinquency. These conventions have brought about a gradual change in the way young offenders are treated in Europe.

Are these conventions not enough? Does the European community feel compelled to add a codicil to these conventions that are already in place?

Admittedly, there are problems existing in the European community that didn’t exist when some of these conventions came about. Factors arising from on-going European integration, such as the removal of border controls and free movement of persons, give further backing to the idea of common rules on the juvenile justice system: young people can move freely between Community countries, not to mention border regions, which extend for thousands of kilometres between the 25 Member States.

This brings me back to my suggestion that perhaps the European Union should have a criminal code that is common to all 25-member nations of the EU. The EU should also create common protection for young offenders so that what is applicable in one nation is equally applicable to another. This would mean that a young offender who commits a crime in a country he or she is not a citizen of, will be treated in the same manner that he or she would be treated if the crime was committed in the young offender’s own country because the crime would be the same no matter where he or she committed it. This would also make it possible to facilitate the return of such a young offender to his or her own country to serve the young offender’s sentence, thereby relieving the country that the crime was committed in, the burden of paying the costs of the young offender’s detention or probation services. It would also make reformation of the young offender more probable if he is or she serving his or her time in an institution where the young offender can communicate with others more readily and in the young offender’s community where probation would achieve better results.

Perhaps this might be what the European Economic and Social Committee and the European Parliament should be looking at rather than simply trying to improve on what is already in existence and readily available to its young offenders in Europe.

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On August 10th, Mr. DeBacker wrote me back after he read my brief and he said in his reply;

Dear Mr. Batchelor,

Many thanks for your interesting response. The arguments I have developed so far are very much in line with your thoughts.

Given the strength of the UN and Council of Europe rules I don't think the EU has to develop its own rules. Moreover, I seriously doubt whether it would be possible to convince the EU Member States to adopt (binding) EU standards in view of the recent repressive trends in certain Member States.

I am now verifying whether it would be desirable and possible to create EU instruments allowing for cooperation between the Member States in the fight against EU-wide juvenile crime.

Please note that this answer is only provisional. I will complete my report on 24 August and it will be discussed in September at the university. If you are interested, I can send you a copy by e-mail when it is finished. (It is written in English)

Kindest regards,

Femke De Backer