CHAPTER-3

JUVENILE JUSTICE SYSTEM IN INTERNATIONAL

The juvenile owing to their early stage of human development require particular care and assistance
with regard to physical, mental and social development and require legal protection in condition of
peace, freedom dignity and security, but the international recognition of the rights of the Juvenile
children came very late. Though some people think that the law has gone too far from time to time,
social scientists pause to ponder over the direction in which their discipline is moving. 1 therefore, the
general Assembly decided on December, 21 1976 to observe the year, 1979 as an International year of
Child (IYC) with following objects:-

a. To provide recognition of the fact advocacy on behalf of children and for enhancing the
awareness of the special need of children on the part of decision makers and the public.
b. To promote recognition of the fact those programmes for children should be an integral part of
economic and social development plans with view achieving, in both the long term and short term,
sustained activities for the benefit of children at the national and international Youth year. As a result of
this growing support, according to Ms. Albenez of UNICEF. Childhood is coming to be widely seen not
as ‘some kind of probation period before becoming an adult’ Instead, she said, “the child emerges as
an individual with dignity who has all the rights of a full human being.

So the international community recognized the right of every child alleged as accused of or recognized
as having infringed the Penal law to be treated in a manner consistent with

1
P.M. Bakshi, “ inaugural adderess”, KLJ 1981 Vol. 7, p.1
the promotion of the child’s sense of dignity and worth, which empress the child’s respect for the
human rights and fundamental freedoms of other which takes into account the child’s age desirability
of promoting the child’s similar with and the child’s assuring a constructive role in the society.2

4.1 United Nations standard minimum Rule for the Administration of

In 1980, the sixth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, meeting in Caracas, Venezuela, set out several basic principles that it felt should be
reflected in set of rule to be developed for the administration of juvenile justice in order to protect the
fundamental human rights of juveniles in trouble with the law. The rules could then serve as a model
for united national Member Stated in the treatment of juvenile offenders. The congress recommended
that the Committee crime Prevention and Control, a standing committee of the Economic and Social
Counsel, be requested to develop such rules.3

During the years that following, the committee formulated the draft rules in collaboration with the
United Nations Social Defense Research Institute, the United Nations regional Institutes and the United
Nations secretariat. they were endorsed, in principle, by regional preparatory meetings for the seventh
United Nations Congress on the Prevention of Crime and the Treatment of offenders, and amended
and agreed upon at an inter regional preparatory Meeting held at Beijing, China, form 14 to 18 May,
1984..

Presented by economic and social council to the seventh congress held at Milan, Italy , in August and
September 1985 the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (Know as “Beijing Rule”) were approved on 6 September 1985 by the seventh congress, which
recommended them to the General Assembly for adoption? The Assembly adopted the rule on 29
November, annexing them to its resolution 40/33.

The rules, adapted to the aims and spirit of juvenile justice system in all parts of the world- i.e.
system within diverse nations setting and legal structure- set out what was

2
Article 40 (1) of Convention on the right of child.
3
https//www.ncjrs.gov.visited on 14-9-2015
accepted to be good general principle and practice in the administration of justice for juvenile. They
represent the minimum conditions which are accepted as suitable by the United Nations for the handling
of juvenile offenders under any system of dealing with such persons. Commentaries accompanying the
text were intended to be read as an essential part of the document, the rules and commentaries are
reproduced below.4

The general Assembly

Bearing in mind the Universal Declaration of Human Rights, the international Covenant on Civil and
political Right and the International Covenant on economic, social and cultural Rights, as well as other
international human rights instrument pertaining to the rights of young persons,

Also bearing in mind that 1985 was designated the International youth year Participation, Development,
peace and that the International community has placed importance on the protection and promotion of
the rights of the young, a witnessed by the significance attached to the declaration of the rights of the
Child,5

Recalling resolution 4 adopted by the sixth United nations Congress on the Prevention of Crime and the
Treatment of Offenders, which called for the development of standard minimum rule for the
administration of juvenile justice and the care of juvenile, which could serve as a model for member
States. Recalling also Economic and social council decision 1984/153 of 25 May 1984, by which the
draft rule were forwarded to the seventh United Nations Congress on the Prevention of Crime and the
Treatment of offence, held at Milan, Italy, from 26 August to 6 September 1985, thought the
Interregional Preparatory meeting, held at Beijing from 14 to 18 May 1984,6

Recognizing that the young, owing to their early stage of human development require particular care an
assistance with regard to physical, mental and social development, and require legal protection in
conditions of peace, freedom, dignity and security, Considering that existing national legislation,
policies and practices may well require review and amendment in view of the standards contained
in the rules, considering further that, although such standard may seem difficult to achieve at present
in view of existing social, economic, cultural, political and legal condition, they are nevertheless
intended to be attainable as a policy minimum,8

4
https//www.ncjrs.gov. visited on 14-9-2015.
5
General Assembly resolution 40/33 adopted on 29 November, 1985.
6
General Assembly Resolution 40/33adopted on 29 November 1985
1. Notes with appreciation the work carries out by the Committee on Crime Prevention and
control, the secretary General, the United Nations Asia and Far Institute for the Preventing of Crime
and the Treatment of offenders and other United nation Institutes in the development of the Standard
minimum rules for the administration of Juvenile justice7 ;
2. Takes note with appreciation of the report of the secretary General on the draft standard
Minimum Rule for the Administration of Juvenile justice.
3. Commends the international preparatory Meeting held at Beijing for having finalized the test of
the rules submitted to the seventh United Nations Congress on the Prevention of Crime and the
treatment of offenders for consideration and final action;
4. Adopts the united Nations Standard Minimum Rules for the Administration of Juvenile Justice
recommended by the seventh congress, constrained in the annex to the present resolution and
approves the recommendation of the seventh congress that the rules should be known as “ the
Beijing Rules”;
5. Invites member state to adapt. Whatever this is necessary, their national legislation, policies and
practices, particularly in training juvenile justice personnel, to the Beijing Rules and to bring the riles
to the attention of relevant authorities and the public in general;
6. Call upon the committee on crime prevention and control to formulate measure for the effective
implementation of the Beijing Rules, with the assistance of the United Nations Institute on then
prevention of crime and the treatment of offenders.
7. Invites member states to inform the secretary – general on the implementation of the Beijing
Rules and to report regularly to the Committee on Crime prevention and control on the result achieved;
8. Request member states and the secretary – General to undertake research and to develop a data
base with respect to effective policies and practices in the

7
General Assembly Resolution, 40/33, Adopted on 29 November, 1985
administration of juvenile justice;

8. Request the secretary - general and invites member state to ensure the widest possible
dissemination of the text of the Beijing Rules in all of the official language of the United Nations,
including the intensification of information activities in the field of juvenile justice;

9. Request the secretary – general and Member states to provide the necessary resources to ensure
the successful implementation of the Beijing Rules;

10. Request the secretary - general and invites member state to provide the necessary resources to
ensure the successful implementation of the Beijing Rule, in particular in the area of recruitment,
training and exchange of personnel, research and evaluation, and the development f new alternative to
institutionalization ;

11. Request the Eight United Nations Congress on the prevention of Crime and the Treatment of
offenders to review the progress made in the im0pementation of the Beijing Rules and of the
recommendations contained in the present resolution, under a separate agenda items on Juvenile
Justice ;

12. Urges all relevant organs of the United Nations system, in particular the regional commissions
and specialized agencies, the United Nations Institutions on the Prevention of Crime and the Treatment
of offenders, other inter government organization and non – governmental organization to collaborate
with the secretariat to take the necessary measures to ensure a concerted and sustained effort, within
their respective fields of technical competence, to implement the principles contained in the Beijing
Rules.8

4.2 United Nations Rules for the Protection of Juvenile Deprived of their Liberty,
1990

These rules are adopted by the General Assembly of the United Nations on the Dec 12, 1990. It intends
to establish the minimum standard for the protection of the Juvenile deprived of their liberty in all
forms, consistent with human rights and fundamental freedoms. Also in ordered to counteract the
detrimental effects of all types of detention

8
General Assembly Resolution 40/33adopted on 29 November 1985.
without discrimination these rules are applied. So that integrity of society fan is preserved. The aim
and the objective of these rules are to provide fair and humane procedure so that the juvenile are not
deprived of their liberty. Some of the rules are mentioned here:-9

Rule 1:- the juvenile Justice system should uphold the rights and safety and promote the physical and
mental well being of Juveniles Imprisonment should be used as a last resort.

Rule 2:- juveniles should only be deprived of their liberty in accordance with the principles and
procedures set forth in these riles and the United Nations standard Minimum Rule for the
administration of Juvenile Justice. Deprivation of the liberty of Juvenile should be as disposition of last
resort and for the minimum necessary period and shocked be limited to exceptional cases.

Rule 16:- the rule should be implemented in the context of the economic social and cultural conditions
prevailing in each member state.

Rule 29:- in all detention facilities juvenile should be separated from adults, unless they are member of
same family.

Rule 30:- open detention facilities for juvenile should be established.

Rule 72:- qualified inspectors or an equivalent duly constituted authority not belonging to the
administration of the facility should be empowered to conduct inspections on a regular basis and
should enjoy full guarantees of independence in the exercise of this function.

Rule 73:- qualified medical officers attached to the inspecting authority or public health service should
participate in the inspection.

Rule 74; - after competing inspection, the inspector should submit a report on findings.

4.3 United Nations Guideline for the prevention of Juvenile

The prevention of juvenile delinquency is an essential part of crime prevention in society and the
successful prevention of juvenile delinquency require effort n the part of the

9
UN General Assembly Resolution 45/113 of December 14, 1990.
entire society to ensure the harmonious development of adolescents with respect for and promotion of
their personality form every childhood because young person’s can develop non criminogenic attitude.
So the General Assembly of the United Nations guidelines for the prevention of Juvenile delinquency,
also known as Riyadh Guidelines, on Dec 14, 1990. According to the present guidelines a child
centered orientation should be pursued for the purpose of the interpretation of the guidelines 10.
Comprehensive prevention plans should be instituted at every level of Gov. and include the following:-
12

(a) Weill defined responsibilities for the qualified agencies, institutions and personnel in
preventive efforts.
(b) Polices, programs a strategies based on prognostic studies to be continuously monitored and
carefully and carefully evaluated in the course implementation.
(c) Methods for effectively reducing the opportunity to commit delinquent act
(d) Close interdisciplinary co- operation among national. State provincial and local governments
with the involvement of the private sector representative citizens of the community to be served and
labor child – care health education, social law enforcement and judicial agencies in taking concerted
action to prevent Juvenile delinquency.
(e) Special personnel at all levels.

In the implementation of these guidelines, in accordance with national legal system, the well being of
young persons from their early childhood should be the focus of any preventive program me. Mass
media should be encouraged to ensure that young persons have access to informative and material form
a diversity of national and international sources and it should be encouraged to portray the positive
contribution of young person’s to society. Mass media and film media should be encouraged to
minimize the level of pornography drugs and violence portrayed and to display violence and
exploitation disfavourably11.

Government agencies should give high property to plans and programmers for youth persons and
should provide sufficient funds and other resources for the effective delivery

10
UN General Assembly Resolution 45/112 of December 14, 1990
11
Riyadh Guidelines, 1990, Rule 9.
of service facilities and staff for adequate medical and mental health care, nutrition, housing and other
relevant services and generally participation in plans and program should be voluntary.

4.4 Optional Protocol to the Convention on the Rights of the child on the
Involvement of Children in Armed Conflict, 2000

The right of children requires special protection and condition of peace and security based on full
respect of the purpose and principles contained in the United Nations Charter and observance of
applicable human rights instrument are indispensable for the full protection of children during armed
conflicts and foreign occupation, therefore, the general Assembly of the United Nations adopted
Optional Protocol to the Convention on the Right of the child on the Involvement of Children in
Armed Conflict on May 16, 2000 as twenty six International conference of the red cross and Red
Crescent in Dec 1995 recommended, inter alia, that parties to conflict should take every feasible step to
ensure that children under the age seek limits on the issue of children in armed conflict and
particular to raise the minimum age limit for recruitment and to limit the actual participation of person’s
less than 18 years in hostilities. It is not possible to discuss the entire Article in detail, few are
mentioned below:

Article Provides that State parties should take all feasible measures to ensure that members of their
armed forces who have not attained the age of 18 years. do no 12
take a direct part in hostilities and State
parties shall ensure that person’s who have not attained the age of 18 years are not compulsory recruited
into their armed forces.14 (Article 2) and (Article 3) provide that State parties should raise national
armed force from that set out in Article 38, paragraph 3 of the Convention on the Rights of the child and
if any state party that permit voluntary recruitment into their national armed forces under the age of 18
shall maintain safeguard to ensure, as a minimum that :

(a) Such recruitment is genuinely voluntary,

12
United Nations General Assembly Resolution 54/84 of May 16, 2000.
(c) Such person’s care fully informed of the duties involved in such military service,
(d) Such person’s provide reliable proof of age prior to acceptance into national military service
and State parties shall have to deposit a binding declaration upon ratification of or accession to this
proposal that sets forth the minimum age at which it will permit voluntary its armed forces.

Article 8 provides that search State party shall have to submit with two years following the entry
into force of the protocol for that State party a report to the Committee on the Right of the child (CRC)
providing comprehensive information on the measures it has taken to implement the provision of the
protocol and CRC may request form State parties’ further information.

4.5 Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child Prostitution and Child Pornography 2000

International traffic of children is increasing for the purpose of the sale, Prostitution and pornography.
The child pornography on the internet and the other emerging technologies are increasing by leaps and
bounds. Children particularly girls are at greater risk of sexual exploitation and the girl’s children
particularly girls are greater risk of sexual exploitation and the girl children are disproportionally
represented among the sexually exploited.

The increasing concern of the international community to these accuses and exploitation led to
adoption by the United Nations, the Optional Protocol to the Convention on the Right of the Child on
the sale of the children, Child Prostitution and child pornography by a resolution on May 16, 2000.13

The protocol provides definition for the offence of sale of children, child prostitution and child
pornography. It sets standards for the treatment of violations under domestic law, including with regard
to offenders, protection of victims and preventive efforts. It also proves a framework for the increased
international cooperation in the areas, in particular for the prosecution of offenders

For the purpose of protocol Sale of children means any at or transaction where a child is transferred by
any person or group of persons to another for remuneration or any other

13
United Nations General Assembly Resolution, 54/84 of May 16, 2000.
consideration, child pornography means of a child engaged in real or simulated explicit sexual activities
for remuneration or any other form consideration and the child pornography means any representation
of the sexual part o a child for primarily sexual purposes.14

Article 3 provides that each State party should ensure that as a minimum the following acts and
activities are fully covered under its criminal or penal law, whether these offences are committed
domestically or transitionally or on an individual or organized basis;

(1) In the context of sale of children, the offering, delivering of accepting by whatever means, a child
for the purpose of sexual exploitation of the child, transfer of organs of the child for profit and
engagement of the child forced labor.
(2) Offering obtaining providing child prostitution.
(3) Producing destruction disseminating importing exporting offering selling or possessing for the
above purpose child pornography.

Article 4 provides that each State party should take such measures as may be necessary to establish
its jurisdiction over the offences referred to in Article 3 paragraph I, when the offence are committed in
its territory of on board a ship of aircraft registered in full state and state party should submit within two
years following the entry into force of the protocol for that state party a report to the Committee on the
measure it has taken to implement the provision of the protocol, Committee on the Right of the Child
(CRC) may request state parties further information. 15Mention should be made that UNICEF may
organize an International Children Conference on May 21, 2002 at Saturday.

It has been stated earlier that Juvenile Justice shall be conceived as an integral part of the national
development process of each country with in a comprehensive framework of social justice for all
juvenile including juveniles who are in conflict with law. The overall development and the well being
of the Juvenile must be primary concern for any procedure framed for juvenile justice. It must be fair
and humane.

14
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and
Child Pornography, 2000, Article 3.
15
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and
Child Pornography, 2000, Article 4.
After briefly discussing the concepts of Juvenile Justice in International law, it is proposed to discuss
in the next chapter –The statutory frame work including the juvenile Justice Act, 1986, the Juvenile
Justice (Care and Protection of Children) Act, 2000 taken issue like Determination of Age of Juveniles,
Bail of Juveniles etc.

4.6 Juvenile Justice System in France

Current French Law on Juvenile Justice has a long story. It originated in the immediate aftermath of
World War II and is still governed by an ordinance of 2 Feb. 1945. In this study we would like to
consider especially the most recent part of this story and to examine whether and to what extent the
French juvenile justice system possibly shows a trend towards becoming more repressive. Its founding
principles- specialized jurisdiction, mitigated criminal responsibility due to age and priority placed on
educational rather than law enforcement measures were indeed at the beginning of the 2000s at the heart
of a virulent debate, with the ministries of Justice and the Interior on opposing sides of the issue.
Although several laws, including one adopted on 9 September 2002, introduced changes that could be
interpreted as a movement towards a more punitive approach to juveniles, the original were
nevertheless officially reaffirmed.16

Global Overview of Delinquency Trends in France

The common discourse in France over the past years holds that juvenile delinquency is on the rise
and that young delinquent ate becoming younger and more violent. A debate has been launched on
this assertion, not so much to discount the statistics themselves as to question whether or not they are
sufficiently well grounded to substantiate the policies they are presumed to legitimize. Although the
limits and biases of statistical approaches are well known, there is also a limit as to how far they can
be questioned.

The Prevention of Delinquent Behaviour

Crime prevention in France is an area closely associated with the general issue of minors. French-style
prevention is known for its primarily social and educational dimension, unlike the notion that
prevention may have in Anglo – American cultures where the

16
Joshine Junger and Scott. H. Decker, International Handbook of Juvenile Justice, 2008, Springer Publication. p.173.
situational component prevails. Crime prevention experienced a renaissance in the early1980s on the
basis of the work done by a commission of mayors of medium and large cities, the now – famous
‘Bonnemaison repot’ (commission des mailes sur la securite, 1982). This report promoted what would
later be termed local public safety policies or partnerships around the authority of the mayor, under the
banner of prevention. While the institutions and part partnerships that were set up following this report
focus on crime prevention in the broad sense of the term, their preferred field of action is juvenile
delinquency. Since that still relates to social forms of prevention.

.
Until the early 1980s, prevention of juvenile delinquency was the almost exclusive domain
of specialized educators who worked in “prevention clubs” in the street in contact with youth, in the
attempt to build an individualized relationship. These prevention clubs, which can still be found, have
been criticized against the background of the increase in juvenile delinquency and the fact that it
starts at ever younger ages. Their workers are seen as ineffective or even guilty of a certain laxness
toward their young protégés. It is also hard for them to find a pace in new partnership arrangements,
particularly when they must they must deal with “repressive” agencies, the police and justice system.17

Police Intervention

Specialized Police

A 1998 parliamentary report on “response to Juvenile Delinquency” (Lazerges & Balduyck, 1998)
highlighted two points: that the police forces did not have a clear vision of the State’s policy on
minors, and that they lacked specialization in dealing with juvenile delinquents. Although “Juvenile
brigades” do indeed exist, they mainly deal with minors who are victims.teh report cited various
explanations for this situation. Some were “negative” choices. Not enough staff available and little
tastes for a specialization that police functionaries do not consider as prestigious. Other arguments
were more “positive” both minors and adult are involved in the same crime, and juvenile delinquency
is becoming diversified making it hard to determine the criteria for such a specialization.

17
Anne Wyvekens, The French Juvenile Justice system, Springer Publication, 2008, p.176
A second report, prepared in 2002, observed that “the juvenile brigades had begun to re- invest effort to
deal with delinquency following the (1998) report of Ms Christine Lazerges and Mrs. Jean Price
Balduyck” (Commission d’enquete sur la delinquency des miners, 2002). The central director for Public
safety districts.teh French Departments also have juvenile brigades. but the small number of police
investigators restricts their work to the most serious cases. And lastly, the gendarmerie has no
specialized service for minors.

The question of police specialization in minors is under study: the movement is taking shape although it
has yet to be thoroughly consolidated.18

Discretionary Power of the Police

The police do not have discretionary power. When a minor is arrested he cannot be held in police
custody without the agreement of the prosecutor’s office (‘parquet’) To avoid police custody, the
prosecutor occasionally asks the police to call the minor back for voluntary questioning. The prosecutor
also has the right to decide whether the minor will be brought before him or not. He can ask the police
to proceed with a “rappel a la loi” where by the police officer informs the minor, with his parents
present, of the sentence he can incur for the charges are not serious, the prosecutor can also impose a
settlement: this is accomplished by means of the judicial police officer. And lastly, in areas that have a
community justice centre (maison de justice et du droit, MJD), the prosecutor can order the minor to
be brought before the prosecutor’s representative.

Minors and Police Custody

In principle, minors under the age of 13 cannot be held in police custody. One exception to this rule
was expanded by the law of 9 September 2002. “on an exceptional basis, a minor of 10-13 years of age
against whom there is serious or concordant evidence that he has committed or attempted to commit a
serious felony or an offence punishable by at least five years imprisonment can for the needs of the
inquiry be held in custody of a judicial police officer with the prior agreement and under the control of a
prosecutor or an examining magistrate specialized in juvenile protection or a juvenile court judge, for a
period determined by the prosecutor, but which cannot exceed twelve hours” this period

18
Josine Junger and Scott. H. Decker, International Handbook of Juvenile Justice, 2008, Springer Publications,
New York, p.178.
can be extended for and addition twelve hours maximum. on an exceptional basis, a mino of 10 -13
years of age against who there is serous or concordant evidence leading to presume that he has
committed or attempted to commit a serious felony or an offence punishable by at least five years
imprisonment can, for the needs of the inquiry, be held in custody of a judicial police officer with the
prior agreement and under the control of a prosecutor or an examining magistrate specialized in juvenile
protection or a juvenile court judge, for a period determined by the prosecutor, and which cannot
exceed twelve hours.19The previous text state “serious and concordant evidence.”Seven years
imprisonment, ten hour in custody.

In all cases, the minor’s parents must be informed at the very onset of the custodial sentence unless
there has been an exception decision by the public prosecutor or examining magistrate. If the minor is
under 16 years of age, he must also be examined by a doctor. As soon as custody begins, the minor can
request to speak to a lawyer of age cannot be extended if the offence is punishable by a sentence of less
than five years imprisonment.

Police custody of minors is under the control of the prosecutor. The exercise of this control can vary
from one court to another. For the example, a court in the Paris suburbs make it mandatory for place a
minor in custody inspection duty for the deputy prosecutor they have to inspect the police register
(indicating names, hours for the custody, times for the breaks meals hearings), the state of the custody
cells, blankets, etc. these inspection have the added effect of enabling the deputy prosecutors’ to get to
know the police investigators better as well as their working condition

Interventions of the Prosecutor

The prosecutor’s role in French juvenile justice has evolved noticeably. In order to fully appreciate this
evolution, which cannot be reduced to replacing education by law enforcement measures, we need to
summaries the structure of juvenile justice and the way it was practiced over many years, French
juvenile court judges have a dual

19
Josine Junger and Scott. H. Decker, International Handbook of Juvenile Justice, 2008, Springer Publications, New
York, p. 179.
competence criminal in the case of a delinquent minor, based on the ordinance of 2 Feb 1945 and civil
when protecting a child in danger, based on article 375 and following of the Civil code15 in both
cases, the measures that the judge may impose are essentially educational: the 1945 ordinance give
priority to the educational measures over criminal sanctions, and affirms the right to education for
delinquent minors. When the juvenile court was first set up at the same time a directorate for
Correctional Educational measures constituted. It is now called Directorate for Judicial Youth
Protection (Direction de la Protection judiciaries de la jeunesse, PJJ). For many year juvenile court
judges tended to open a file for educational assistance rather than the a criminal file whenever possible,
based on the idea that a young delinquent was above all a child in danger. Therefore although the
prosecutor has the legal power to launch criminal proceeding and oblige a minor to appear before a
judge, until recently he actually seldom exercised this rights .As for criminal files due to the queasy
monopoly exercise by juvenile court judges coupled with the projectors, lack of interest in cases
involving minors, their presence as hearing was often more of a formality. The same held for law years
that were considered useless in this protection and guardianship perspective that only saw the interest
of the child.20

The prosecutors’ low profile began to change about ten years ago, when the rise in petty and minor
offences and the growing fear of crime led to a search led to a search for new forms of response
participation by agents other than those solely involved in public order. For their part, this latter group,
especially the prosecutors have also instituted new responses. Nevertheless, the juvenile court judges
are still involved throughout the whole process; they do not merely hand down secession along the lines
of traditional criminal justice.

Prosecutor Specialization

Some courts have a special prosecutor for minors, other do not. This primarily depends on the size
of the prosecutor’s office (for practical reasons a “small” prosecutors’ office with four deputy
prosecutors cannot have a specialist in minors). However, it does not necessarily follow that all large
prosecutor’s offices have a specialized service for minors this depends on the policy they adopt. The
current tendency is for a specialization to

20
https://www. Link.springer.com. visited on 18-08-2022
develop. Juvenile court judges appreciate the prescience of prosecutors’ specialized in dealing with
minors. They see them as privileged and habitual interlocutors who gain experience in working with
minors and also know these youths personally, their background and evolution just like the judges.

Probation

Minors of 13-18years of age can be put on probation under certain conditions. Depending on the case
this is handled by the juvenile court judge, the examining magistrate or the “judge as liberates et de la
detention” – the judge responsible for civil liberties and detention. The law of 9 September 2002
stipulated the obligation of a minor on probation. The law of 9 September 2002 stipulated the obligation
of a minor on probation either to submit to measures of protection, assistance supervision and
education implemented by the Judicial Youth Protection office or a licensed private facilities or and
this is one of the main novelties of this law – to respect the conditions for placement in an educational
centre, in particular a closed educational centre (Centre educatif ferme CEF) and this for a maximum
period of six months, renewable once for another six month.

Pre trial Detention of Minors

In the spirit of legal texts, pre trial detention of minors, just like (or even more so) for their
incarceration, is an exceptional measure. Even the latest amendment to the aw in this aria(the law
of 9 Sep 2002) states this explicitly, this law trial. The first is to broaden existing possibilities to detain
miner before trial. The first is to broaden existing possibilities (pre trial detention serving both to
further the investigation and income cases, to make a point); minors at least 16 years old can
henceforth be placed in per-trial detention if under suspicion for and offence punishable by a prison
term of three years or more (and not only for a serious criminal offence sentence). The second is a new
possibility linked to a recent measure placement in which the term “closed” refer precisely to the fact
that the sanction for failure to respect this obligation (legally tantamount to judicial control) will be
placing the minor in pre trial detention in jail.
Pre – Trial detention of minors is subject to various forms of control;

 By the rules of procedure themselves which limit this detention according to the minors age and
the seriousness of the charge
 By the jail’s incarceration commission for minors by educators of the judicial Youth Protection
office who follow the detained minors and report to the magistrates
 By the lawyers who handle applications for release
 By the judge

As for the involvement of social or education services, per-trial detention is not principally the time
for this work. A social – educational supervision is fore seen through the procedure, through the court’s
educational service (service educative aupres du tribunal, SEAT) and “centers for educational action”
(centers’ action educative, CAE). The SEAT is responsible for providing guidance to juvenile
delinquents under their jurisdiction and proposes educational solutions.

The role of this service is to consult with the minors and their families, ensure the follow- up of
incarcerated minors and perform the measures of liberate surveillee (a special form of probation for
minors) community service, and respiration. The CAE’s are responsible for investigations to assist the
magistrate in his or her decision process. They are also responsible for the education of delinquent
minors or minors in danger who continue to stay in their families. These centers are multidisciplinary;
they work the minor as well as with his social environment and his family. They are also responsible
for implementing restitution measures applied to delinquent minors.

Sentence and Sentencing

French jurisdictions dealing with children are somewhat different from those in other countries. There is
one judge dealing exclusively with children in civil matters and with juvenile delinquents in criminal
matters. The preference of French law is to seek educative solutions rather than to impose prison
sentences or other repressive measures. This is not surprising in civil matters, but it may be so in
criminal matters. This legal way
of dealing with juvenile delinquents has been France's choice for 50 years. In order to reach this goal,
special courts have been established outside the regular penal system and have more resources at their
disposal to understand and intervene with juveniles. The will, clearly affirmed, of a preference given to
educative measures rather than repressive and strictly penal ones, is in line with the historical evolution
of the judicial consideration of juveniles. In the present article, the main principles of the French system
will be described, together with an analysis of juvenile justice proceedings in a sample of French
regions.21

During the sentencing phase of a case, jurisdiction for minors has three different “faces” once the court
has made the necessary investigations (after referral by the prosecutor) the youth court magistrate can
either judge the case in chambers, alone, only handling down educational measures, or he can send the
case to the juvenile court. This is mandatory if the infraction would incur a sentence of seven years or
more imprisonment. The juvenile court is composed of the youth court magistrate (who presides) and
tow assessors (non professional magistrates). This court magistrate (who presides) and two assessors
(non professional magistrates). This court primarily judges offences (delits) committed by minors or
serious offences (crime) committed by minors under 16. It can order educational measures or else a
penalty. Lastly, serious offences committed by minors of 16-18 years of age are tried by the juvenile
assizes court, composed of three professional magistrates (a chief magistrate and two assessors who are
youth court magistrates of the court district) and a jury of citizens. This court can either order
educational measures, or impose fines and prison sentences.

The issue of sanctions is subject to much current debate, after establishing (art.1) that delinquent minors
would be referred to a specialized jurisdiction, the ordinance of 2 Feb 1945 states (art.2) that “the
juvenile court and the juvenile assize court shall hand down, according to the case, the measure of
protection, assistance, supervision and education deemed appropriate.” Until 2002, the article was
retained with one explicit exception to the principle: “ the can nevertheless, when the circumstances
and the personality of the delinquent seem to so require, impose a penal sentence to a minor of over
13 years of age.

21
https://www. Bjc.oxfordjournals.org visited on 12-8-2022
The word sanction did not appear until 2002, in the expression educational sanction. The second part of
art 2 were amended to read: “They can, nevertheless Either impose an educational sanction for minors
aged 10 to 18 , or impose a penalty on minors from age 13 to age 18 taking in to account their
diminished criminal responsibility.

The expression “ educational sanction” is essentially intended to enable the courts to apply a sanction
to minors who have not reached the age of criminal responsibility (13 years) and who until the 2002
amendment escaped all punishment, the education sanctions (art.15-1) now applicable from the age of
10 include confiscating an item belonging to the minor and linked to the infraction, interdiction to
frequent certain place or people (victims or co-authors of the infraction) , the obligation to follow a
civic training course, an assistance measure, and restitution..

Without going into too many details (applicability according to age, accumulation of offences) the
measure that the juvenile jurisdiction can order, in addition to the so- called education sanctions
(applicable until the age of 18) , are judicial protection (protection judciaire), supervision (liberate
survellee), placement (in various type of living units,) fines, community service work (minors of 16-18
years), control by electronic monitoring, a suspended incarceration sentence, and incarceration.

In the case of incarceration (art. 20-2) juvenile judge cannot impose a custodial sentence longer than
half that of the sentence that would be incurred by an adult. And this can only be imposed in
exceptional cases and only on minors over 16 years of age. Minors can only be incarcerated in a
special prison section or in a specialized penal establishment for minors.

In addition to non – residential centers for educational action (centers d’ action educative en milieu
ouvert), the Judicial Youth Protection Office manages various type of residential facilities. The
secure educational centers (centers educations reinforces, CER) are adapted to the treatment of
minors who are delinquent or seriously marginalized, and are in danger of recidivism and
imprisonment” they work on “the danger of
disintegration in an educational perspective.” The objective is to “create through the discovery of a new
way of life outside their normal enrolment the conditions capable of producing a transformation of their
image of the adult world and life in society.” The sessions last form 3 to 6 months, with a group of 5-7
youths. Emergency placement centers (centers de placement immediate, CPI), must be able to cope
with emergency placements (3-4 months) of minors, in particular delinquents. The objective is both to
put them in a situation that “breaks from the environment and lifestyle that led them before the court”
and to enable the services involved to “evaluate the situations.” the guidance objective is thus more
important that the of the final emergency placement. Closed educational centers (centers
educations firms, CEF) are one of the main innovations of the law of 9 Sep 2002. They are addressed
to minors of 13-18 years of age place by judicial decision, either by a supervision order or under a
conditional detention sentence, for a period of 6 months. The term “closed” should not be taken in the
physical sense, as barred windows (such as politicians tend to convey), but refers to the fact that the
placement is in the framework of judicial control and thus entails the threat of incarceration in prison
if the youth attempts to escape from the centre. Eleven centers were operational in Jun 2005.22

Lastly, we should note that since the Perben law of 2002 the juvenile judge can impose sanctions on
parents when summoned by the court; they are fined if they fail to appear.

The French juvenile justice system has undoubtedly been the subject of attempts to make it tougher,
as a way of answering to an increase in youth delinquency and to the consequence of it. Measure like
the creation of closed educational centers seems to go in that direction and has been interrupted in the
prosecutor’s power can by noticed which has given rise to concern about the double risk of more
repressive answer and less protection of civil liberties. Those two examples can be read in another way
, less pessimistic, we would like to suggest as a hypothesis to be confirmed (or not) by the evolution of
practice, that and important part of the intention of the “ Perben Law” was to show that the issue of
juvenile delinquency really was addressed, not only through “soft” measures but also around ideas
like getting some places to get rid of the most harmful

22
Anne Wyvekens, The French Juvenile Justice system, Springer Publications, New York, 2008, p.185
young delinquent, thus the French law indeed has created “closed educational centers,” but they are
not closed with fences, and they are a place where to develop educational measures specific for youth
instead of locking them up in prison with adults. As for the evolution in the prosecutors practice, it
precisely shows that only the observation of what really happens in the field allows qualifying a trend.
French prosecutors’ indeed have got more power with the juvenile justice system. But it was out of a
concern for giving quicker and had as a result the implementation of more various diversion measures
by those prosecutors and the comeback of the lawyer I the juvenile court.

4.7 Juvenile Justice System in Canada

There have been profound changes in Canada’s juvenile justice system during the century that it has
been in existence, most recently when the Youth Criminal Justice Act (YCJA) came into force in April
2003. A major rationale for enacting the statute was to reduce Canada’s high rate of custody for
adolescent offenders, based on the belief that community – based response are more effective for
dealing with most young offenders. The YCJA continues to protect the legal rights of youth, such as
access to counsel.23 This chapter discuses the evolution of Canada’s juvenile justice system over the
past two decades. It considers the policy concerns that led to the enactment of the YCJA and the impact
that the new law is having. The new statute addresses some problems in youth justice that have been
uncovered by empirical research, and is thus to a significant degree, evidence driven. Where
appropriate, we provide Canadian research findings relevant to the specific policy developments.

By way of introduction it should be noted that Canada is a federal country with 10 provinces and 3
territories. It has a population of about 31.6 million, of whom about 8% are between 12 and 18 years,
the age range for jurisdiction under the YCJA in 2003- 2004 about 17% of charges by police were laid
against youth.24 Under Canada’s Constitution the jurisdiction for the enactment of criminal laws,
including those that govern juvenile offenders rests with the federal Parliament. However
responsibility for the enforcement

23
Bala Nicholas and Roberts Julian V., Canada’s Juvenile Justice System, Springer Publications, New York,
2008, p.37
24
Bala Nicholas and Roberts Julian V., Canada’s Juvenile Justice System, Springer Publications, New York,
2008, p.37
of criminal laws and the provision of services for youthful offenders rests with the provinces and
territories, which also have full responsibility for the enactment of new juvenile legislation has involved
the federal government consulting extensively with the provinces and territories before enacting the
new law, and providing some funding support for its implementation .

A Century of change in Canada’s Juvenile Justice System

Canada’s first national juvenile justice law, the Juvenile Delinquents Act (JDA) of 1908 recognized that
children and youths are different form adults and should not be held accountable for violations of the
criminal law in the same fashion as adults.

In 1984, the JDA was replaced by the Young Offenders Act 1984; the JDA was replaced by the
Young Offenders Act (YOA). The introduction of the YOA represented a dramatic change in
Canada’s response to youth offending, moving from a discretionary welfare-oriented regime that in
theory at least, promoted the “best interests” of juvenile offenders. The YOA was in turn replaced by
the YCJA in 2003. While there are significant differences between these two most recent statutes, both
statutes share some important characteristics, emphasizing respect for legal rights and the accountability
of young offenders, albeit not holding youths accountable to the same extent as adult offenders.

The Juvenile Delinquent Act (1908-1984)

The JDA has an explicitly welfare –oriented philosophy and stated that juveniles who violated the law
were not to be treated as “criminal offending” but rather as “misdirected and misguided” children,
“needing aid, encouragement, help an assistance, 35” Since the focus of the child, there was little
concern for legal rights, and during much of the time that the JDA was in force many Juvenile Court
judges did not have legal training. The express legislative concerns about the special needs and
rehabilitation of youth did not, however, necessarily translate in to more lenient treatment, Sentencing
under the JDA could result in light sections for some adolescents, particularly those from “good
home”
with middle-class parents, but it also resulted in an intrusive response to some youthful offenders,
especially juveniles from marginalized background who were often place in custody facilities for much
longer periods than adult who committed the same offences. Adolescent girls were sometimes placed
in custody for the vaguely weeded delinquency of “sexual immorality” Aboriginal juvenile were
place in juvenile correctional facilities in disproportionate numbers.

The JDA provided for indefinite committals to youth custody facilities, based on that some
juvenile needed the benefit of a significant period of time in a structured environment, away from a
corruption situation at home, and that the length of time needed to effect rehabilitation could not be
determined by a curt, but only by correctional officials after the youth spent time in custody. Despite the
rehabilitative aspiration of the JDA, juveniles inevitably felt that they were being punished, and by the
1970s that were growing doubts about the capacity of the juvenile corrections system to rehabilitate
juvenile offenders (shamsie, 1981). Further, all too often these juveniles, who had few legal
protections, were being subjected to physical abuse of sexual exploitation by staff, or intimidation by
other inmates in juvenile facilities.

The Young Offenders Act (1984-2003)

By the mid 1960s the Young Offenders Act was the subject of increasing criticism, but it was not until
1984 that the YOA replaced the Juvenile Delinquent Act. A strong impetus to action was the
constructional entrenchment of the Canadian Charter of Rights and Freedoms in 1982, while the
interprovincial variation allowed by the JDA for such issues as age jurisdiction was inconsistent with
the equal protection of the law guaranteed by
s.15 of the Charter. Under the JDA, there was variation between provinces in both the minimum age of
Juvenile Court jurisdiction (from 7 to 14 years) and in the maximum age (with adult jurisdiction starting
form 16-18 years ) the YOA provided greater recognition of legal rights than the JDA, as well as
establishing a uniform national age jurisdiction of 12 through to the 18th birthday (as of the date of the
offence) development consistent with the emphasis in the Charter on due process of law and equal
treatment under the law.
Children under 12 years of age who commit criminal acts can only be dealt with informally or are
referred to the child welfare authorities if there are concerns about inadequate parental care.

The YOA abolished the indeterminate sentences of the JDA which were premised on providing
involuntary treatment as long as this was consistent with the needs of a delinquent youth. The YOA
used determinate (fixed) custodial dispositions subject to judicially controlled early release, premised
on the notion that holding a youth accountable was the dominant objective of the Act rather than
rehabilitation. The YOA was also a much more detailed piece of legislation than the JDA, regulation
every stage of the youth justice process, including arrest and police questioning, diversion to
alternatives to youth court, access to legal counsel, restrictions on disclosure of information, and the
sentencing process.37 The YOA moved away from the child – welfare philosophy of the previous Act,
abolishing the vague status offence of “sexual immorality” and focusing on federal criminal offences.

Enacting The Youth Criminal Justice Act (1996-2003)

In response to the political pressures to “get tough” on youth crime, amendment were made to YOA in
1992 and 1995 to make it easier to transfer youths charged with murder and other very serious offences
to adult court for trial and sentencing, though these amendments did not silence conservative critics. At
the same time as these “get though” demands were being made; there was an increasing awareness
among governments of the high costs associated with the use of expensive custody facilities. Under the
YOA Canada had a significantly higher rate of use of youth custody than the USA, Britain and
European countries. For example, the overall rate (per 100,000 young people aged 12 - 17) was 1,050
in Canada compared to 795 in the USA (Bala et al. 2002). Other countries were making greater use of
diversion and informal responses for less serious youth offenders, and greater use of community –
Based dispositions for youth sent to court.

In response to the public dissatisfaction with the YOA, in the late 1990s the federal government
embarked on a process of reform of youth justice laws and policies, including consultation with the
provincial government and Parliamentary Committee
hearings. In 1998, the federal Government announced a “strategy” for new approaches to youth crime
that included but was not limited to legislative reform. The federal Liberal government introduced to
Parliament the YCJA in March 1999. The new law was the subject of lengthy parliamentary Committee
hearings, during which it was criticized by conservative responsibility from 12 to 10 years of age. 38 The
YCJA was also criticized by opposition politicians from Quebec, the province that has a more welfare-
oriented approach to youth justice issues and in general more supportive policies for families, who
expressed concern that the new law placed too much emphasis on accountability and would result in
more youths being treated as adult offenders. Some relatively minor amendments were made in the
curse of the course of the Parliament hearings, and the YCJA came into force on 1 April 2003.

The federal youth justice reform strategy was intended to respond to the belief that there had been a
“disturbing decline in public confidence in the youth justice system” in Canada the most prominently
publicized aspect of the strategy was the stated intention “to respond more firmly and effectively to
the small number of the most serious, violent young offenders.39”. But there was also a very important
recognition by the federal government that Canada had made too much use of expensive and often
ineffective court- based response and custody for the majority of young offenders who are not
committing serious violent offences. The federal strategy also called for more use of community
based alternatives to cut and custody and for more resources for crime prevention. The strategy aimed
to achieve the we objectives by changing the law and working with the provincial governments and
various professional groups to change the way in which the youth justice and correction systems
operate, the federal government also committed a further $200 million to provincial alternatives to be
spent over 5 years, principally to increases community – based alternatives and over $30 million for
initiative to prevent youth crime, mainly directed to local groups.

9. Available at http:// www.Justice.gc.ca. visited on 2-7-2015

Preamble and Principles

Under the YCJA, judges are provided with a policy framework for the sentencing of juvenile offenders.
The purpose of this framework is made clear from the Preamble to the YCJA, which states that Canada
should “have a youth criminal justice system that reserves its most serious interventions for the most
serious cases and rescues that over reliance on incarceration for non- violent young persons.” Section 3
of the Act contains a “Declaration of Principle” which makes clear that the criminal justice system for
young offenders “must be separate from that of adults,” with the Act establishing principles and detailed
provisions for the youth justice system.

The Declaration of Principle of the YCJA outline the overall purpose of Canada’s youth justice system,
with s. 3(1) (a) stating that; the youth criminal justice system is intended

(i) Prevent crime by addressing the circumstances underlying a young person’s offending behavior,
(ii) Rehabilitate young persons who commit offences and reintegrate them into society, and
(iii) Ensure that a young person is subject to meaningful consequence for his or her offence in order
to promote the long-term protection of the public.

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