Juvenile Justice Indicators for Europe: How to Measure Juvenile Justice by International Juvenile Justice Observatory

Juvenile Justice Indicators for Europe: How to Measure Juvenile Justice

www.oijj.org

EDIT: International Juvenile Justice Observatory Brussels Headquarters Rue Mercelis, 50 1050 Brussels. Belgium Phone: 00 32 262 988 90 Fax: 00 32 262 988 99 oijj@oijj.org www.oijj.org DESIGN/PRINT: www.integrafmagenta.com © Copyright IJJO 2009

“This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein”.

Juvenile Justice Indicators for Europe: How to Measure Juvenile Justice

Ineke Pruin, Joanna Grzywa, Philip Horsfield University of Greifswald

www.oijj.org

Contents 1.

Introduction and preliminary comments

Methodology

2.1. Defining the main principles of juvenile justice according to the international standards

2.2. Defining the indicators for the different categories of interest and drafting two questionnaires

2.3. Reaching agreements on the indicators and the questionnaire and reviewing the validity of the questionnaires.

Materials

3.1. Unicef â&#x20AC;&#x2122;s juvenile justice indicators 3.2. Comparative research and existing instruments/questionnaires

Descriptive outline of the indicators

4.1. Indicators ascertained in questionnaire 1

4.2. Indicators ascertained in questionnaire 2

Questionnaires on the observance of juvenile justice standards in Europe

5.1. Questionnaire I

5.2. Questionnaire II

Bibliography

163

Introduction and preliminary comments

Juvenile Justice Indicators for Europe

1. Introduction and preliminary comments The IJJO is an international Foundation created in 2003 and based in Brussels. The Observatory is ambitious endeavor that promotes an international and interdisciplinary approach to issues related to juvenile justice, based on UN norms and rules and implemented through its mission and activities. The IJJOâ&#x20AC;&#x2122;s work is inspired by the recommendations of the United Nations and the European Institutions (Council of Europe, European Parliament, European Commission and European Economic and Social Committee) as well as the Fundamental Rights Agency covering Juvenile Justice and Childcare matters. The Observatory aims at developing a permanent, international forum of analysis, information and mutual reflection on legislation, models of intervention and research on a world-wide scale in order to improve the implementation of the right of the child in conflict with the law. Besides, the IJJO promotes the creation of an international network of juvenile justice experts, which add up around 7.000 contacts around the world. The IJJO works closely with the European Institutions, in particular, as an expert with the EESC and the European Parliament and has the Participatory status with the Council of Europe and Special relations with the UNESCO. As an international standard-bearer in the area of the protection of the rights of minors in conflict with the law and youth at-risk, the Observatory promotes, fosters and coordinates researches at the international level. In this context, the IJJO has conceived, in 2009, the JUVENILE JUSTICE WITHOUT FRONTIERS GRANT as a new tool to provide a global framework for measuring and presenting specific information about the situation of children in conflict with the law. The research focuses on the development of specific Juvenile Justice Indicators.Â The idea behind this research is to draw a reliable map of JUVENILE JUSTICE in Europe which will become the scientific basis for reinforcing working tools and procedures among legal professionals regardless on the differences of the justice systems in Europe.

The IJJO Grant has been awarded to Dr. Ineke Pruin (assistant professor at

Introduction and preliminary comments

This Grant is meant to provide a global framework for measuring and presenting specific information about the situation of children in conflict with the law, focusing on the development of specific juvenile justice indicators. Indicators are considered as a key for measuring and presenting specific information about the situation of children in conflict with the law. An agreed set of indicators represents a basic dataset and a comparative and benchmarking tool that offers a starting point for assessment, evaluation and policy development.

the Department of Criminology at the University of Greifswald) because of her exceptional commitment to research in the field of juvenile justice and her efforts in developing innovative strategies for the development of interdisciplinary and international guidelines for the improvement of the situation of minors in conflict with the law. This grant includes a financial support to allow Dr Pruin to develop this research, in collaboration with the IJJO, to draw a reliable map of juvenile justice in order to reinforce work tools and procedures among legal professionals, regardless of the differences between penal systems in Europe. The awarding ceremony took place on December 16th 2009, and was hosted at the Brussels City Hall. The ceremony was part of the European Juvenile Justice Council meeting ‘‘Towards a European common academic approach in juvenile justice”, the First Meeting of the European Juvenile Justice Council- Academic Section, which has gathered the most relevant professors and researchers at EU level to identify new ways of creating a European common academic approach in juvenile justice. This meeting was organised in collaboration with the Parliament of the French Community of Belgium- the French-speaking parliament of Wallonia and Brussels- and the Free University of Brussels. This grant has been developed with the support of the Prevention of and Fight against Crime Programme of the European Commission’s Directorate-General for Justice, Freedom and Security. The International Juvenile Justice Observatory is pleased to reveal herewith the outcome of the research study: “Juvenile Justice Indicators for Europe: How to Measure Juvenile Justice”, carried out by Ineke Pruin, Joanna Grzywa, Philip Horsfield, from the University of Greifswald

Juvenile Justice Indicators for Europe

Systematically measuring and collating data and information on the situation of children in conflict with the law by means of specific indicators is necessary for the following reasons: In the last 10 to 15 years, a number of comparative research studies1 and surveys have been dedicated to examining juvenile justice systems2 in Europe. The results from these studies provide us with a great deal of information on the systems that are in place. For example, the findings of this previous research have brought differences between these systems to light in terms of the theoretical approaches employed3, the age groups that they encompass4, the

1 Shoemaker 1996, Dünkel/van Kalmthout/Schüler-Springorum, Albrecht/Kilchling 2002, Winterdyk 2002, Doob/Tonry 2004, Cavadino/Dignan 2006, Junger-Tas/Decker 2006, Muncie/Goldson 2006, Bailleau/Cartuyvels 2007, Patané 2007, Hartjen 2008, Hazel 2008, Junger-Tas/Dünkel 2009, Cipriani 2009, Dünkel et al. 2010. 2 In this article, the term “juvenile justice” is used in a broad sense and is defined, according to the Council of Europe’s Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, as “the formal component of a wider approach for tackling youth crime. In addition to the youth court, it encompasses official bodies or agencies such as the police, the prosecution service, the legal profession, the probation service and penal institutions. It works closely with related agencies such as health, education, social and welfare services and non-governmental bodies, such as victim and witness support.” More definitions can be found for example in the articles by Doak 2009, p. 19, footnote 2: “all legal provisions and practices (including social and other measures) relevant for treating children in conflict with the law”, or Junger-Tas 2006, p. 506. 3 See for example the typologies by Winterdyk 2002, Cavadino/Dignan 2006, Hartjen 2008. 4 Dünkel 2003, Pruin 2007, Cipriani 2009, Weijers/Grisso 2009, Dünkel/Pruin 2009, Dünkel/Grzywa/Pruin/ elih 2010, Pruin 2010 with further references.

applicable sanctions and measures5 and the underlying philosophies. While in some countries juvenile offenders are treated as “children in trouble and in need of care”, other jurisdictions view them as “criminals” and respond to them in a similar manner to how they would react to adult offending.6 It has not yet been possible to grasp all the facets of these different European approaches to treating/dealing with juvenile offenders. One reason for this can be found in the lack of common terminology: International descriptions of juvenile justice systems are generally authored in English. The attendant problem in this regard is that, in such descriptions, the terminology used is characterised and determined by the juvenile justice system of English-speaking countries, thus limiting the adequacy of using said terminology to describe the state of affairs in other jurisdictions.7 Another reason lies in the differing degrees to which comparable data are available in the countries of Europe. The collection of data on juvenile justice in particular, where it is even collected at all, is often totally deficient,8 which explains the existing gaps in internationally comparative research results on the practices of juvenile justice systems.9 The differences between the juvenile justice systems in Europe are by no means any cause for concern as such. Previous research has shown that the various systems each provide their own individual responses to juvenile offending, and in many cases these responses correspond to the human rights standards on how to deal with young offenders.10 However, data collection is still not the only obstacle that the differences between the systems pose. Rather, they also exacerbate systematic investigations as to whether or not a system is designed and functions in accordance with the European guidelines for dealing with juvenile offenders. There are a number of international standards that are devoted to protecting juvenile offenders (for instance the Convention on the Rights of the Child of 1989, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice of 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty of 1990 etc.).11 These instruments stipulate

5 Dünkel/Pruin 2009, Dünkel/Pruin 2009a, Dünkel/Pruin/Grzywa 2010, with further references. 6 See for example Winterdyk 2002, Cavadino/Dignan 2006, Junger-Tas/Decker 2006, Hartjen 2008, Hazel 2008, Pruin 2010 with further references.

Introduction and preliminary comments

7 Terminology even varies greatly between the various juvenile justice jurisdictions of the UK, so that a special Dictionary of Youth Justice was published by Goldson in 2008. 8 Vgl. GC No. 10 (2007), 98: “The Committee is deeply concerned about the lack of even basic and disaggregated data on, inter alia, the number and nature of offences committed by children, the use and the average duration of pretrial detention, the number of children dealt with by resorting to measures other than judicial proceedings (diversion), the number of convicted children and the nature of the sanctions imposed on them.” Even where data are collated, it usually does not occur uniformly, with recording practices swaying between offender-based and offence-based data, or referring to cut-off dates or one-year time periods (differentiation into “stock” and “flow”), which in turn also vary between calendar years and business years. 9 SPACE (see Aebi/DelGrande 2007) and the European Sourcebooks of Crime and Criminal Justice (see Kilias et al. 2003, Aebi et al. 2006) therefore provide only limited data on juvenile offenders. 10 Cavadino/Dignan 2006, Junger-Tas/Decker 2006, Dünkel/Grzywa/Horsfield/Pruin 2010. 11 See in more detail under 2.1 below. The documents are published and/or commented on by for instance Höynck/ Neubacher/Schüler-Springorum 2001, van Bueren 2006, Belser/Hanson/Hirt 2009.

that countries should provide special, “child friendly” systems of juvenile justice that avoid criminalisation and detention, and which strive to make available alternatives to imprisonment and other “classical” or “conventional” responses to offending. Countries within the territory of Europe have also to regard the Recommendations of the Council of Europe, which can be – due to the comparatively stronger degree of uniformity of systems in Europe – far more concrete and precise than the UN-Rules (for example the Council of Europe’s Recommendations Rec(2003)20 concerning “New ways of dealing with juvenile delinquency and the role of juvenile justice” or Rec(2008)11 concerning “European rules for juvenile offenders subject to sanctions or measures”).12 Looking at previous comparative research, one can infer that, especially since the ratification of the Convention on the Rights of the Child (which prescribes the introduction of procedural safeguards for juvenile offenders), many juvenile justice systems in Europe have undergone major reforms13 in order to (better) accommodate the requirements stemming from the international standards, a development that has not been limited to Eastern European countries. However, there does not yet exist a uniform and standardised instrument for examining whether and to what extent the different juvenile justice standards are regarded both in the law and in practice.14 The result has been that for some countries we only have partial and sketchy knowledge of whether the systems are working as they are supposed to be working. A set of appropriate indicators could help to close these gaps, and also be used to systematically investigate whether the international juvenile justice standards are being met in the countries of Europe. The definition for ‘indicator’ that is employed is this investigation follows that stated by Unicef: “An indicator provides a common way of measuring and presenting information that reveals whether standards are being met”15 On the one hand, this covers the ascertainment of figures and data that indicate the degree to which the standards are being regarded in practice, while also investigating whether provision is even made for the standards in the countries’ legislation on the other. Whether or not a country has implemented the European juvenile justice standards, and if so, to what degree, can only be determined if both theory and practice are studied together.16

Juvenile Justice Indicators for Europe

The objective of the investigation at hand is to identify significant indicators on the basis of which one can establish whether the juvenile justice systems in Europe are working in the manner as is envisaged by the international standards. Furthermore, the presented report aims to determine the means by which these indicators, once identified, can be surveyed. Developing these indicators in a manner that considers the different forms of state interventions and responses to juvenile delinquency that exist across Europe is particularly

12 Resolutions of the Council of Europe can be found under http://www.coe.int/t/cm/adoptedTexts_ en.asp#P43_2297. See also Council of Europe 2009, Commissioner of Human Rights 2009. 13 See for instance the articles published in editors such as Junger-Tas/Decker 2006, Patané 2007, Junger-Tas/ Dünkel 2009 oder Dünkel et al. 2010. 14 UNICEF assumes that, by the CRC’s 20th birthday, only very few countries will have established juvenile justice systems that are “fully compatible with the relevant provisions of the UN Convention”, see Unicef 2009, p. 7. 15 United Nations Office on Drugs and Crimes 2007, p. 2. 16 Unicef therefore differentiates its indicators into “quantitative” and “policy” indicators.

challenging, and entails that the questions with which the respective data are to be obtained become rather complex. On the one hand, the questions need to be formulated rather generically/generally in order to be applicable to all the different system variants in Europe. At the same time, a certain degree of precision and specificity is required so that the yielded data are significant, meaningful and even usable. Indicators can only be determined once, in a prior step, the responses to juvenile delinquency that are even available in a given country have been identified. Then, in a second step, one can review whether the respective standards are being met in theory and practice for the different responses that are available. For instance, if it is intended that an indicator provides information on the ubiquitous application of diversion (see for instance General Comment No. 10 (2007), 24), then it should go further than simply determining the extent to which ‘authorities’ like judges or public prosecutors divert cases. Rather, such an indicator should also consider national particularities like “Juvenile Committees” in Bulgaria and the Baltic States,17 as well as the “Children’s Hearings System” in Scotland18. Similarly, indicators that measure adherence to the standards governing juveniles who are deprived of their liberty should not be limited to ‘conventional’ or ‘classical’ forms of deprivation of liberty in (juvenile) prisons, but rather should also consider other interventions, for instance placement in “Closed Youth Care” in Sweden19, in “St. Patrick’s institutions” in Ireland20 or in a “School for Students with Special Needs” in Bulgaria.21 Therefore, the instruments used to collect the indicator-data need to first ask which responses are even possible in a country, before going on to investigate whether the standards are being adhered to regarding each of the available forms of intervention. One particular obstacle to identifying qualitative indicators as well as to the comparability of such indicators once they have been determined, are the different age groups that are covered by the various juvenile justice systems in Europe.22 Indicators that are intended to be internationally comparable need to be designed so that they take these (differing) age-groups into consideration. Indicators shall only then allow meaningful and significant conclusions to be drawn on whether or not standards are being met in a country if these issues are borne in mind and addressed when drafting the respective instruments. What became apparent in the course of our research is that, due to the complexity of the issue under investigation, if we wish to measure whether and to what extent juvenile justice standards are regarded in the different varieties of juvenile justice systems, a lot of questions need to be asked. Therefore, we decided to consolidate the indicators (and the questions that need to be asked in order to ascertain them) in two questionnaires that – following discussion and

See Kanev et al. 2010, Sootak/Ginter 2010. See Burman et al. 2010. See Haverkamp 2010. See Walsh 2010. See Kanev et al. 2010. Between 8 in Scotland and 18 in Belgium, see for example Cipriani 2009, Dünkel et al. 2010, Pruin 2010).

Introduction and preliminary comments

17 18 19 20 21 22

a decision on international acceptance of the indicators – should appropriately cover central issues and fields of juvenile justice in Europe (see 2. below). In our opinion, such questionnaires could be used regularly to provide up-to-date indicator-data on the state of adherence to international standards in a country. They are designed in a fashion that allows the respective country to conduct a form of self-evaluation, which in turn could have positive adverse effects: Clearly defined indicators that are presented convincingly are suitable for clarifying and quite plainly reminding Member States of the core principles of juvenile justice. In a sense, the mere dissemination of well-developed indicators can induce discussion and debate in a country, and serve to promote the further approximation of juvenile justice systems to the international standards.

Juvenile Justice Indicators for Europe

One comment needs to be made regarding certain indicators that request data in order to examine actual juvenile justice practice. Some of our questions might appear impudent, overconfident or even naive, because they require data to be gathered and disaggregated in a certain manner – a manner that has yet to reach some countries in Europe.23 In order to yield qualitative indicators for the situations faced by juvenile offenders in conflict with the law, we have nonetheless decided to ask the questions in the way that they need to be asked, rather than adapting them to suit the actual reality of data in a country. This choice cannot be solely attributed to the certain degree of idealism that we can afford ourselves as researchers. The more critical factor in this decision is that, in order to monitor adherence to the standards, the data on juvenile offenders need to be recorded precisely and accurately, so that we can even know what happens with juvenile offenders, instead of “losing” them in the system. The standards themselves call for the systematic collection of “disaggregated data relevant to the information on the practice of the administration of juvenile justice, and necessary for the development, implementation and evaluation of policies and programmes aiming at the prevention and effective responses to juvenile delinquency in full accordance with the principles and provisions of the CRC.”24 The indicators give notice of the minimum data that a country needs to record in order for an evaluation of adherence to international standards to be possible.

The indicators in this investigation were drafted with a view to Europe. Limiting the scope of the investigation to Europe is motivated in particular by the existence of special European juvenile justice standards (for instance the elaborate “European Rules for Juvenile Offenders Subject to Sanctions or Measures” (CM/Rec(2008)11)) that differ from (and which simply go further than) worldwide regulations and provisions. Another advantage of limiting the scope of the research at hand to Europe is the higher degree of uniformity that can be observed across the continent’s juvenile justice systems, despite the diversity that one does indeed encounter. For instance, capital punishment has been effectively abolished, and the gap between the different conceptions of what constitutes humane conditions of accommodation is not as wide as is the case on the world stage. Consequently, limiting the research to Europe allows

23 See for example the articles on the sanctions systems of European juvenile justice systems in Dünkel et al. 2010. 24 GC No. 10 (2007), 98, see also CM/Rec(2008)11, 136.1-136.3.

us to enquire much more concretely as to the permutation of the standards than would be possible from a worldwide perspective. However, this limitation to “Europe” does not necessarily refer to Member States of the EU. Instead, the indicators are intended to be applicable in all countries of the Council of Europe, for which the underlying standards are intended and valid. We wish to reemphasize that the aim of our investigation is to identify whether the different juvenile justice systems comply with the stated juvenile justice standards, and to what extent we can compare the different responses to juvenile offending. Our objective does not lie in totally harmonising the systems within Europe. Such an endeavour would be both out of touch with reality25 and (in our opinion) not entirely desirable, for in most sectors of juvenile justice the diversity of the systems is not a disadvantage. Rather, such diversity promotes individually, culturally and historically evolved (national) responses to offending that should not be unified or harmonised at all costs. The central concern should be that these diverse approaches, provisions and responses are in line with the European standards for juvenile justice.26 In closing this section, we wish to clearly emphasize at this point (see also 2.3 below) that the report at hand is intended as a proposal that is open to discussion, rather than as a finished and complete instrument for measuring the implementation of juvenile justice standards in the countries of Europe. Firstly, the indicators identified here are limited to select fields of juvenile justice that appear to be both significant and relevant from our perspective, but which at the same time might appear to be too fragmentary (or too extensive) from a European point of view. Despite being an international research team with various points of view that are fuelled by familiarities to a more justice-oriented system (Germany), a welfareoriented approach (Poland) and neo-liberal tendencies (England),27 we find it to be self-evident that we have nonetheless probably not been able to fully cover all the particularities that can be observed across Europe in the fields of interest that we have selected. Consequently, further discussion and subsequent adaptations are likely to be necessary before the indicators can be utilisable and applicable in practice. As far as our conception goes, the questionnaires with which the indicators are described in this report are to be ascertained, should be discussed in various international boards, committees and/or panels that are composed of as wide an array of researchers and practitioners as possible. The various indicators shall only be adequate for reviewing/surveying the juvenile justice systems in Europe (and thus for contributing to an improvement of the situation of juveniles in conflict with the law) if they are met with Europe-wide agreement.

26 See Dünkel/Grzywa/Pruin/Selih 2010 with further references. 27 Cavadino/Dignan 2006.

Introduction and preliminary comments

25 See Dünkel/Grzywa/Pruin/Selih 2010.

2. Methodology The investigation at hand followed the following steps of action:

2.1. Defining the main principles of juvenile justice according to the international standards The first step was to identify the “benchmarks” that, according to the international standards, define what a good juvenile justice system actually is. The following international instruments were the decisive starting point for our deliberations: • The Convention on the Rights of the Child (1989) (CRC), • General Comment No. 10 (2007): Children’s rights in juvenile justice (GC No. 10 (2007)), • United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985) (Beijing Rules), • The United Nations Guidelines for the Prevention of Juvenile Delinquency (1990) (Riyadh Guidelines), • The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) (“Havana Rules”) • Council of Europe’s Recommendation Rec(2006)2 (European Prison Rules) • Council of Europe’s Recommendation Rec(2003)20 concerning “New ways of dealing with juvenile delinquency and the role of juvenile justice” (CM/Rec(2003)20) and • Council of Europe’s Recommendation Rec(2008)11 concerning “European rules for juvenile offenders subject to sanctions or measures” CM/Rec(2008)11.

Methodology

The biggest challenge on this level lay in defining a number of principles/ standards that we would be able to work with, especially in light of the limitations that a short research period entails. We were thus compelled to restrict our work. The standards that we have chosen to investigate are such that can be seen as being of prominent importance for a juvenile justice system that is based on human rights. In an effort to systematise and simplify the survey, our selection of standards was then classified into the following categories:

• • • • • • • •

Special juvenile justice system Aims of the juvenile justice system Scope of juvenile justice I – Routes into the juvenile justice system Scope of juvenile justice II – Age groups Existence of procedural safeguards for juvenile offenders Diversion Dispositions by the juvenile court/judge after a formal hearing Juveniles deprived of their liberty

In the course of our research, the category “juveniles deprived of their liberty” proved to be particularly extensive (see 4.2. below), so that the following sub-categories within the section “Juveniles deprived of their liberty” were composed: • General data on juvenile offenders in police custody, pre-trial detention, and other forms of deprivation of liberty prior to sentencing • Juvenile offenders in police custody • Pre-trial detention • Data on Children and juveniles in detention after sentencing/conviction • Security measures • Admission, sentence planning • Accommodation (in respect of human dignity) • Supervision by staff • Provision of education, training and leisure time activities • Work • Health • Aggression/ self-inflicted harm/ deaths/ conflicts • Regard for the right to privacy and (religious) self-determination • Disciplinary measures • Complaints and complaint procedures • Staff • Regulations and provisions governing contacts with the outside world • Involvement of parents • Early release provisions • Release preparations • Aftercare • Inspections and monitoring of institutions • Juveniles suffering from mental illness

2.2. Defining the indicators for the different categories of interest and drafting two questionnaires The second step was then to find out how we could measure these main principles by developing certain juvenile justice indicators. This was the main field of the research project. The indicators were developed with a view to keeping them general and generic enough so that they are applicable to the various juvenile justice approaches in Europe, while at the same time retaining sufficient concreteness to allow the degree of adherence to the standards to be identified. In order to allow for the various kinds of interventions and responses that are available in a country, a lot of questions need to be asked. As a general rule, these questions first of all enquire as to the responses and reactions that are in place/available in a given country, before going on to investigate whether (and if yes to what extent) the standards that are applicable to each of these response-alternatives are regarded. In drafting the questions, we also consulted the relevant literature as well as existing instruments (see 3.2 below). Methodology

In a next step, the questions needed to be consolidated into two appropriate

questionnaires. The original goal had been to draft one questionnaire that comprises all categories and issues, an endeavour that was soon proven to be impractical due to the breadth of the category “deprivation of liberty”. Due to the prominence and importance of deprivation of liberty and the large number of standards that govern the issue,28 we decided to draft a separate questionnaire. Questionnaire I aims to measure indicators for the following fields of interest: “Special juvenile justice system”, “Aims of the juvenile justice system”, “Scope of juvenile justice I - Routes into the juvenile justice system”, “Scope of juvenile justice II – Age groups”, “Existence of procedural safeguards for juvenile offenders”, “Diversion” and “Dispositions by the juvenile court/judge after a formal hearing”. The instrument should be completed either by a comprehensively informed national juvenile justice expert, or directly by the country’s Justice Administration. Questionnaire II is dedicated entirely to juveniles who are deprived of their liberty, a particularly important and sensitive issue for which an extensive breadth of international standards and requirements exists. On the one hand, this questionnaire contains questions that aim to determine rather qualitative indicators on the different forms of deprivation of liberty (including f. ex. police custody and pre-trial detention). The lion’s share of questions, however, is devoted to the living conditions in the different kinds of available institutions, and to the number of juveniles who are in these institutions following a conviction. In contrast to the first questionnaire, in parts the second instrument also enquires as to how the individual standards are regarded in the different kinds of institutions. Generally, this instrument should be filled in by either a national juvenile justice expert (preferably with extensive knowledge on the execution of sanctions and/or measures), or directly by the Justice Administration of the country. In either case, further investigation (in the form of queries to individual institutions) might well be necessary.

Methodology

Section 4 below provides an overview of the indicators contained in each section of the questionnaires, and states which international standards an indicator in fact intends to measure. The questionnaires should be supplemented with such a description as a form of instruction-guide before they are deployed for use in the field. The questionnaires (after they have been discussed and validated) could be used regularly in order to continuously evaluate adherence to the international standards. Ideally, they should be published as online-questionnaires. Doing so would allow for a different, more attractive arrangement of questions and instructions, while at the same time allowing more possibilities for disaggregating the data (for instance according to gender, nationality etc.) than would be possible within the spatial limits of the paper version.

�� See 4.2. below. The importance of having regard to human rights standards when depriving persons of their liberty is also addressed and emphasized by the European Parliament: „Das Europäische Parlament fordert daher die Mitgliedstaaten auf, alles Erforderliche zu unternehmen, die Mindestregeln des Europarates in allen Gefängnissen der Mitgliedstaaten rigoros angewendet werden, da die Glaubwürdigkeit der Initiativen der europäischen Union zum Schutze der Menschenrechte in der Welt mit der uneingeschränkten Wahrung dieser Menschenrechte in jedem einzelnen Mitgliedsstaat eng verknüpft ist.“ (see. Probst 1998, p. II).

2.3. Reaching agreements on the indicators and questionnaires, and examining their validity As already emphasized above, the questionnaires and the indicators that they are intended to yield should, for the time being, be regarded purely as suggestions or drafts. Before they can be employed in practice, they need to be piloted and subjected to international scrutiny. With the aim of continuing and developing the conclusions of these research such as the own tool, this objective take part within different main strategies of the 2010 International Juvenile Justice Observatory Activity Plan. In order for the indicators to achieve the aspired-to degree of universal validity, the questionnaires will be presented to and discussed in international boards, panels and committees that are preferably attended by representatives of each country to which the instruments are intended to apply as the European Juvenile Justice Council, space of reflexion, debate and analysis of the field of juvenile justice at European dimension of the European Juvenile justice Observatory, the European branch of the IJJO. Where we do expect the questionnaires to be heavily debated and for changes to be requested and subsequently incorporated. In spite of the international composition and experience of our research team, it is almost inevitable that certain phrasings and wordings will be strongly influenced by the systems and provisions that we are most familiar with, and could thus be inappropriate for the 27 countries which are part of the European Juvenile Justice Council. The ideal situation will be for the indicators to be agreed on the academic section of the Council at a scientific level (integration of European juvenile justice researchers) as well as due to this tool will be a practical tool it also will be discussed between the responsible in charge of juvenile justice by member state, in a governmental level and with experts in the own intervention and application of this too, a non-governmental level. Once the questionnaires have been discussed and approved, they will need to be piloted with a view to determining whether or not they actually measure what they are supposed to measure. Only when such discussion and pre-tests have been completed can the instruments be used in practice.

Methodology

3. Materials Our investigation draws on a range of previous research and studies, without which it would not have been possible to identify indicators that are valid across Europe.

3.1. Unicef ’s Juvenile justice indicators The first source to be mentioned is Unicef ’s set of fifteen juvenile justice core indicators (United Nations Office on Drugs and Crimes 2007). These are categorised into (a) quantitative indicators, and (b) policy indicators, and have provided us with crucial encouragements and suggestions from which to further develop our own. Where it seemed beneficial to do so, the Unicef indicators have been incorporated directly into the questionnaires presented here (and are clearly quoted as such). In the majority of cases we tried to specify the Unicef indicators for the “European market” while refining and restructuring them, however without abandoning their underlying basic notions. Such an approach was motivated by the fact that juvenile justice standards at the European level (for instance the Recommendations of the Council of Europe) are more extensive and numerous than global provisions are. Measuring juvenile justice in Europe should also include the analysis of whether or not these “European” standards are respected. On the other hand we know from our studies that, while the European juvenile justice systems have many differences, they also share a lot of similarities. The diversity within Europe is probably smaller than on a global scale, which makes it easier to develop indicators that are specific to Europe. Furthermore, this allows us to identify indicators that are far more precise and which will consequently deliver more accurate information on whether juvenile justice in Europe works as envisaged by the standards.

3.2. Comparative research and existing instruments/ questionnaires Developing appropriate indicators would not be possible without drawing on previously conducted international comparative research on juvenile justice. In order to be able to ask complex, multi-dimensional questions, it is vital to have at least the theoretical foundations of the different systems in mind. We drew important background information and encouragements from the following sources in particular:

Materials

McCarney (1996), Shoemaker (1996), Dünkel/van Kalmthout/Schüler-Springorum, (1997), Albrecht/Kilchling (2002), Kilkelly/Moore 2002, Morgan/Evans (2002) Winterdyk. (2002), Doob/Tonry (2004), Cavadino/Dignan (2006), Jensen/Jepsen (2006), Junger-Tas/Decker (2006), Muncie/Goldson (2006), Van Bueren, G. (2006), Bailleau/Cartuyvels (2007), Patané (2007), Stańdo-Kawecka (2007), Van Bueren, G. (2007), Hammarberg 2008, Hartjen (2008), Hazel (2008), Kilkelly (2008a), (2008b), Junger-Tas/Dünkel (2009), Cipriani (2009), Commissioner for Human Rights (2009), Council of Europe (2009), Unicef (2009), Dünkel et al. (2010).

Furthermore, drafting the second questionnaire in particular was simplified somewhat by being able to refer to existing instruments. The first such tool to be mentioned is a questionnaire that was sent to the Member States of the Council of Europe on 1 October 2006 in order to receive information on the actual legal situation and statistical data on juveniles subject to non-custodial and custodial sanctions or measures.29 Another questionnaire that has been influential for the drafting of the instruments presented here was developed at the Department of Criminology in Greifswald, and was originally designed to measure living conditions and conditions of imprisonment in different European countries.30

4. Description of the indicators: What are they supposed to measure, and what are the corresponding international standards? 4.1 Indicators ascertained in questionnaire 1 l juvenile justice system 1. Indicators for:

Special juvenile justice system What do we want to measure?

The international standards call for the establishment of an independent juvenile justice system that operates separately from adult criminal justice. The ways in which such a system is implemented in legislation do vary. The existence of independent legal regulations is an important indication that provision is being made for creating such a special system. In some countries the treatment of young offenders is governed by entirely independent laws, while others make

30 Drafted for the Mare Balticum Prison Survey 2001-2004 (investigation of living conditions and conditions of imprisonment for adults in different European countries), and subsequently used in other research projects (see for instance http://www.rsf.uni-greifswald.de/fileadmin/mediapool/lehrstuehle/duenkel/Reader_womeninprison. pdf und http://www.rsf.uni-greifswald.de/fileadmin/mediapool/lehrstuehle/duenkel/LTI_shortreport_en.pdf, last accessed: 10.03.2010).

Descriptive outline of the indicators

ďż˝ďż˝ Council of Europe 2009, p. 109.

special provisions in separate chapters of the general law. Laws that apply only to juvenile offenders are a sign for a clear separation from the adult criminal justice system. Special regulations and provisions that modify (criminal) procedure, and the professional specialisation of parties to that procedure, are further indicators for an independent system of dealing with juvenile offenders. Comments:

The degree to which a juvenile justice system is specialised can be determined using the Unicef -Tool for Indicator 14 (CORE): “Existence of a specialised juvenile justice system”. The more questions in this instrument that are answered with “yes”, the greater the degree of specialisation. Additionally, at the European level it should be possible to identify legislation governing juvenile offenders, as well as which specialised authorities are involved at the various levels and stages of the procedure (see questions 2 and 3). Applicable International Standards

CRC Art. 40 (3) GC No. 10 (2007), 90-95 Beijing Rules Art. 12 (1)

2. Indicators for:

Aims of the juvenile justice system What do we want to measure?

According to international juvenile justice standards, “social integration” and “the prevention of reoffending” should be the paramount aims of juvenile justice. Questions 4 and 5 measure how these objectives are being addressed in national legislation and practice, and whether traditional objectives of criminal justice (such as repression and retribution) are being assigned too much attention (see for instance: GC No. 10 (2007), 10.) Question 5 was inserted as a means of determining whether or not certain aims are only pursued in special circumstances (for example, only having regard to securing “public safety” in cases of severe offending).

Descriptive outline of the indicators

Comments:

The objectives and aims of the juvenile justice system are surveyed in questions 4 and 5. Consideration was given to determining the degree to which different objectives are pursued by providing a five point scale for each objective, ranging from “very relevant” to “not at all relevant”. The criteria according to which such a scale could be weighted are debatable. For instance, an objective could be classed as very important simply because the law accords it primacy. Due to the fact that determining these criteria will require extensive discussion and deliberation, they have not been included as of yet. This decision can be easily remedied at a later point in time once further discussion of the questionnaire has been conducted. Differentiating the responses into “law” and “practice” was also contemplated. The motivation behind this thought was to prevent successful adherence to this standard from being measured solely on the basis of legislative specifications. However, ultimately this idea had to be abandoned

as well, because it would require the additional identification of criteria for measuring how far an objective is being met in practice, a requirement that also merits further prior discussion and deliberation. Applicable International Standards

GC No. 10 (2007), 10. Beijing Rules Art. 4 (1) CM/Rec(2003)20, 1. CM/Rec(2008)11, Rule 2

3. Indicators for:

Scope of juvenile justice I – Routes into the juvenile justice system What do we want to measure?

Plotting out a map of European juvenile justice systems requires a clear definition of the subjects that they are designed to cater for. While some systems only deal with juvenile offenders in a more narrow sense, i. e. persons who have broken penal laws, others have a wider scope of application that also encompasses young people “in trouble” or “in need of care”. Being in “trouble” or in “need of care” are circumstances for which children and juveniles need not necessarily be to blame, but which could for example be due to inappropriate or dysfunctional family environments. Yet other juvenile justice systems tie in with forms of behaviour that are not in violation of criminal law, but which nonetheless go against the rules of regular and orderly cohabitation (for instance “anti-social behaviour” in Bulgaria). Beyond this, some juvenile justice systems also cover so-called status offences – forms of behaviour that can only be exhibited by children and juveniles (like truancy, vagrancy, runaways) and which are only defined as “offences” when “committed” by juveniles. While the standards are clear and explicit in that juveniles who are deprived of liberty for violating criminal laws shall be separated from juveniles who are deprived of liberty for being in “need of care”, they do not go so far as to explicitly require that these two categories of juveniles be treated or dealt with by entirely different systems. However, any interpretations of data need to take into account who can enter the system for what reasons. Therefore, questionnaire 1, questions 6 and 7 are designed to determine which forms of behaviour or which circumstances can lead young people into the criminal justice system. Descriptive outline of the indicators

The juvenile justice standards are in clear opposition to the penalisation of status offences (see GC No. 10 (2007), 8.). Such forms of behaviour should be dealt with via child protection measures, including effective support for parents and/or other caregivers, and measures that address the root causes of this behaviour (see GC No. 10 (2007), 9.). Question 6 therefore asks whether the juvenile justice system knows status offences, and if so, whether or not they are responded to in a repressive manner.

Question 8 gathers information on the number of juveniles who enter the juvenile justice system each year, as well as the reasons for their entry. The data are requested in absolute figures as well as per 100,000 of the total population of the same age group, so that the share of juveniles who come into contact with the juvenile justice system can be calculated. Such figures would be internationally comparable even despite the different age groups covered. Question 8 also intends to survey the number of under 18-year-olds (persons who according to international standards are classed as ‘children’) who come into conflict with the law per 100,000 of the respective population. Abstracting away from concrete age-groups serves to generate a certain degree of comparability, so that one can at least determine what proportion of the child and juvenile population comes into contact with the juvenile justice system. However, when it comes to interpreting the figures, the differing meanings of ‘juvenile justice system’, which are ascertained in the course of the questionnaire, need to be taken into consideration. The primary intention behind gathering these data is not the wish to measure juvenile crime as it occurs in each country per se – that would be an endeavour that could not be performed legitimately and sincerely without attributing extensive prior thought to reporting rates, the respective dark figures etc. Rather, the aim is to determine the risk that children and juveniles run of coming into contact with the juvenile justice system, and the reasons for such contact where it does occur. Furthermore, these data shall serve as a point of reference for issues covered later on in the questionnaire regarding the meaning of different forms of state reaction (for instance whether deprivation of liberty is used as a last resort). Accordingly, we are interested in offender rather than offence-based data, because the goal is to determine the volume of juveniles who come into contact with the system, rather than crime levels. Comments:

Descriptive outline of the indicators

Differentiation from Unicef Indicator 1: Unicef’s Indicator 1 (United Nations Office on Drugs and Crimes (2007), p. 10) bases its calculations of the numbers of “children in conflict with the law” on the number of children arrested during a 12-month period. At the European level, it should be possible to ascertain more detailed information on “children in conflict with the law”. Data on arrested children are considered at a different stage in this study (see questionnaire 2, question 1).

In order to improve the international comparability of the available data, they need to be disaggregated into different age-groups, allowing individual figures to be drawn for example for 14 to 15-year-old or 16 and 17-year-old offenders. Developing an electronic instrument based on the questionnaire could in fact ease such a disaggregation, which should not only be limited to age. Covering other variables such as gender and nationality for example would be beneficial for identifying and measuring the ways in which the juvenile justice system of a country functions. Applicable International Standards

GC No. 10 (2007), 8., 9. Riyadh Guidelines, Art. 56.

4. Indicators for:

Scope of juvenile justice II – Age groups What do we want to measure? The international standards contain provisions on the age groups that are covered by juvenile justice systems. Precisely determining these age-groups is essential for comprehending the system of which they are a part, for interpreting data and for providing a basis for international comparison. Therefore, several questions in the questionnaire are dedicated to this issue. The standards spell out the need for a minimum age of criminal responsibility (MACR) which, according to the respective provisions, should not be “too low” (for example Beijing Rule 4.1). An indication of what is “too low” is given in GC No. 10 (2007), 32, however precise regulations have yet to be drafted. This can be attributed at least partly to the fact that the meaning of the MACR varies between juvenile justice systems. Questions 9-14 are designed to identify what the MACR exactly implies, and to determine other relevant national age thresholds. For instance, in some countries the general age of criminal responsibility can be lowered, for example where a child is accused of a serious offence (Belgium) or certain specified offences (Lithuania). Questionnaire 1, question 10 is dedicated to exploring whether such possibilities are in place, and if so, how often they are applied in practice. An MACR that is otherwise in concordance with international standards in theory, could by means of such a lowering become “too low” in practice. Objections are voiced in GC No. 10 (2007), 34. towards provisions by which the situational lowering of the MACR results in the possibility to apply adult law, practice that would go against the fundamental purposes of juvenile justice. On the other hand, in numerous countries, up to a certain age that lies above the MACR there is the assumption of a reduced ability of discernment (doli incapax). From the perspective of the international standards, such provisions are by all means desirable, because they allow a juvenile’s actual stage and state of development to be better taken into consideration. However, in some countries (for example Germany) existing provisions are not applied in practice. Question 11 aims to establish whether such provisions exist, and where they do, to ascertain the role that they play in practice.

Some countries limit the applicability of special juvenile justice rules to an age

Descriptive outline of the indicators

Another indicator for the meaning of the MACR lies in the provision of further age limits and thresholds that apply to certain sanctions, for instance for imposing fines or terms of detention (or generally for imposing punitive, repressive interventions). Some countries have a relatively low MACR, while at the same time limiting the application of certain sanctions to older juveniles (for example Switzerland, Greece, Northern Ireland). In these cases, one can say that the low MACR serves more as a provider of early intervention opportunities that are preferably of an educational nature. This issue is addressed by question 12, and more closely examined in questions 29 and 41.

under 18 (for example Portugal). The standards, however, envisage that all juvenile offenders up to the age of 18 should be within the remit of the juvenile justice system and the special treatment that results from it. Limiting the use of special juvenile justice provisions to a maximum age that lies below 18 is, from the perspective of the international standards, not actually allowed. In some jurisdictions, juvenile suspects can be transferred from the youth court to adult criminal courts when they are accused of certain offences. This occurs mostly where the committed offence is particularly grave or serious. Interestingly, these would actually be the cases in which the application of special juvenile justice provisions could in fact be at its most desirable, given the degree of stigmatisation that such high-profile cases entail. Question 13 aims to determine whether such provisions are in place, and if yes, what role they play in practice. Due to the precariousness of such transfers, data should be provided that indicate the proportion of convicted juveniles who are sentenced by an adult jurisdiction among all convicted juvenile offenders (13.3.). European standards in particular stipulate that the special legal provisions for juveniles should also be applicable to young adult offenders. Many juvenile justice systems incorporate young adults in some way or another. Question 14 is designed to ascertain the possibilities for young adults to be dealt with under juvenile justice legislation, whether there are even any provisions in place for young adults at all, and where they do exist, what role they play in practice. Comments: The scales used in these questions on the frequency with which certain regulations are applied (from “never” to “always”) allow a quick appraisal of whether the provisions are the exception or the rule, without the need for complicated data collection. Of course, such a scale can have negative effects on the accuracy of the responses provided. It can or should only be used where the questionnaire is completed by persons who are in a position to make such estimations with a certain degree of precision. Where that is the case, the suggested scale is in fact favourable on grounds of international comparability and comprehensibility. Applicable International Standards CRC Art. 40 (3) (a) GC No. 10 (2007), 30.-39. Beijing Rules Art. 4 (1) CM/Rec(2003)20, III 11-12 CM/Rec(2008)11, Rules 4, 17

Descriptive outline of the indicators

5. Indicators for:

Existence of procedural safeguards for juvenile offenders What do we want to measure? As a matter of principle, at all stages of the procedure (including diversionary procedures, see section 6. below) juvenile offenders should be accorded the same procedural safeguards as are accorded to adults. Among such fundamental rights are the right to remain silent, as well as the right to be heard by the police,

the prosecutor and the judge. Also, the child must be given the opportunity to express his/her views freely at all stages of the procedure. Further meaningful procedural safeguards include the prohibition of retroactive juvenile justice, and the presumption of innocence (questions 15 and 16). The juvenile should be informed, in language that s/he understands, of the charges that s/he faces, of the juvenile justice process as such and of the measures that can result from it (questions 17-18). Short deadlines and time limits are of particular relevance in juvenile criminal procedure for preventing unnecessary delays and enabling swift and prompt responses to juvenile offending (see CM/Rec(2003)20, CRC Art. 40 (2) (b) (iii)) and GC No. 10 (2007), 52.; questions 19-20). Throughout the entire procedure, accused juveniles should be entitled by right to legal or other appropriate assistance (CRC Art. 40 (2) (b) (ii)). Such assistance needs to be free of charge so that juveniles can effectively avail themselves of this right (question 21). Juveniles must have the right to lodge with a higher competent, independent and impartial authority or judicial body, an appeal against decisions by which they are found guilty, or which result in the issuance of a diversionary measure. This entitlement should not be limited to more serious offences and/or sentences to imprisonment (principle acc. to CRC Art. 12 (2) and 40 (2) (b) (v)), see, question 22. According to the international standards, a juvenile offender is also entitled to â&#x20AC;&#x153;full respect of privacyâ&#x20AC;? (stemming from CRC Arts. 16 and 40 (2) (b) (vii)). This right is intended to limit as far as possible the stigmatizing effects that the procedure may have on the juvenile offender, and to prevent any (further) hindrance to his/her access to education, vocational training and the labour market. Whether or not the law provides for such or comparable safeguards, and the degree to which they are adhered to in practice, are explored by questions 23 and 24. The degree and forms of parental involvement in the procedure (CM/ Rec(2003)20, 8, and CM/Rec(2008)11, 14) are examined in question 25. Comments: Procedural safeguards apply in all phases and at all stages of the juvenile justice procedure. Accordingly, adherence to the relevant safeguards is also examined in the respective sections on diversion and the issuance of measures and sanctions (see questions 33 and 42). Descriptive outline of the indicators

Applicable International Standards CRC Art. 12; 40 (2) (a); 40 (2) (b) (i)-(vii) GC No. 10 (2007), 12.; 40.-67. Beijing Rules Art. 7 (1), 15 (1), (2) CM/Rec(2008)11, Rules 5, 13

6. Indicators for:

Diversion

What do we want to measure? According to international standards, diversion should play a prominent and special role in juvenile justice. Within Europe, a wide variety of diversionary approaches can be observed. The first questions (questionnaire 1, 26-28) in this section are devoted to identifying the concrete scope of diversion. The more different authorities are involved in decisions on diversion, and the fewer offences and offenders are excluded from its scope of application, the more likely it becomes that diversion is used broadly across the different stages of the procedure. Question 28 is dedicated to determining whether or not there are independent, extrajudicial boards, panels or committees that are competent for making decisions in cases of juveniles who are not dealt with via the “normal” criminal procedure. It is likely that international juvenile justice standards (including the procedural safeguards for which they call) relish little recognition and acceptance in the context of such ‘less formal’ bodies, an issue that thus needs to be examined quite elaborately. The international standards purport the need for a wide spectrum of pre-court alternative (diversionary) measures for juvenile offenders. Question 29 aims to identify these diversionary measures along with who is competent for ordering them. The resulting categorisations will simplify subsequent data retrievals and enhance their degree of international comparability. Questionnaire 1, question 30 shall establish whether the ideal conception of a form of unconditional, conclusive diversion would be conceivable in the country under investigation. The issues of whether or not full compliance with diversionary measures results in full closure of the case, and whether issued diversionary measures are made part of an offender’s criminal record (GC No. 10 (2007), 27.), are investigated in questions 31 and 32. Question 33 is geared towards identifying the standing of central procedural safeguards in the issuance and application of diversionary measures. Questions from section 5 are repeated in the concrete context of diversion, bearing in mind the susceptibility of diversionary procedures to losing sight of these procedural rights and entitlements.

Descriptive outline of the indicators

The principle of proportionality entails that the degrees of guilt and offence severity limit the state reactions that are applicable in a given case. It prevents particularly intensive and long-lasting sanctions from being issued solely on the basis of “educational needs” (see GC No. 10 (2007), 71.). The ambit of the principle of proportionality needs to cover diversionary measures as well.

CM/Rec(2008)11, 3 requires that sanctions and measures be ordered by a court, or at the very least be subject to prompt court confirmation. Question 33 aims to determine whether this applies with regard to the sensitive issue of deprivation of liberty. Question 34 is designed to ascertain, where applicable, the reasons for ordering deprivation of liberty through diversionary procedures. The next set of questions (37 to 39) explores the practical pertinence of

diversion. Calculating Unicef Indicator 10 (question 37) provides an insight into whether or not means of diversion are frequently applied in cases of juvenile offending (as demanded by the international standards). Question 38 is designed to provide a more accurate account of the number of juveniles who, upon entering the juvenile justice system, are dealt with by means of diversion, while at the same time identifying those means. When interpreting these data, it needs to be borne in mind that one juvenile offender can be the recipient of several diversionary measures. Diversionary measures that can entail the issuance of liberty-depriving interventions constitute a particular point of interest. The length of such periods of liberty deprivation, insofar as they are not indeterminate, is investigated in question 39. Responses to breaches of diversionary measures are another issue of importance, and are surveyed in question 40. According to the respective international standards, breaching the requirements of a diversionary measure should not immediately be treated as a criminal offence (CM/Rec(2008)11, 30.1 und 30.2.). Furthermore, non-compliance should never result in automatic defaults to deprivation of liberty (see Council of Europe 2009, p. 47). CM/ Rec(2008)11, 48.4 demands that, where a measure is revoked, the proportion of the measure that has already been served by the juvenile be taken into consideration when deciding on further action. Comments: Collated data shall be offender-based in order to facilitate comparisons with other data. Applicable International Standards CRC, Art. 40(3)(b) GC No. 10 (2007), 22.-27. Beijing Rules, Article 11(1), 11(2) and 11(3) CM/Rec(2008)11, Rules 3, 5, 9, 12, 23.1

7. Indicators for:

Dispositions by the juvenile court/judge after a formal hearing

International standards purport that a wide spectrum of appropriate alternative sanctions be provided for juvenile offenders who are convicted by a judge or court in formal proceedings. The table in question 41 is designed to identify which measures are available to the courts for dealing with convicted juveniles, as well as any minimum and maximum terms for which they can be imposed.

Descriptive outline of the indicators

What do we want to measure? The next section is dedicated to the standards that apply to juvenile offenders who appear before court in a traditional (criminal) procedure, i. e. whose proceedings are not or cannot be closed at an earlier stage.

CM/Rec(2008)11, 3 demands that the measures provided be of a determinate nature, that they be imposed for the minimum period necessary and that their imposition only be based on a legitimate purpose. The principle of proportionality entails that the degrees of guilt and offence severity limit the state reactions that are applicable in a given case. It prevents particularly intensive and long-lasting sanctions from being issued solely on the basis of “educational needs” (see GC No. 10 (2007), 71). Question 42 aims to investigate the applicability of this and other procedural safeguards in the phase of formal court proceedings. Questions 43-45 identify the legal grounds and aims of sanctions through which offenders are deprived of their liberty, and enquire about how adherence to the main principles that govern imprisonment (last resort, minimum intervention) is provided for in the law. The Committee of the Rights of the Child strongly recommends in GC No. 10 (2007), 77 that all forms of life imprisonment be abolished for offences committed by persons under the age of 18. Following the abrogation of capital punishment all across Europe, life imprisonment constitutes the most severe penalty to which a convicted offender can be sentenced. In enforcing life sentences, human rights standards require particular protection. Bearing in mind the overriding objectives of juvenile justice (resocialisation and education), applying life sentences to juveniles without any prospects for early release would be absolutely unthinkable. In this regard, questionnaire 1, question 46 aims to determine whether provision is made for imposing “real” life sentences, and if yes, how many such sentences are passed in practice. Putting this figure in relation to the total number of sentences (surveyed in question 48) can shed some light on the role of life sentences in a country’s sentencing practice. CM/Rec(2003)20, 8 states that community sanctions should also be available to the courts in cases of more serious offending. Whether or not this principle is adhered to in practice is investigated in questionnaire 1, question 47.

Descriptive outline of the indicators

Question 48 goes beyond asking about the mere existence of certain types of measures and sanctions by enquiring about the extent of their application in practice. The table in question 48 also allows the calculation of a ratio of alternative sanctions and court-ordered sentences to deprivation of liberty, thus allowing conclusions to be drawn in terms of whether or not the principles of minimum intervention and using imprisonment as a last resort are being observed.

Due to the relevance of imprisonment from a human rights perspective, the length of sanctions/measures by which offenders are deprived of their liberty is surveyed in question 49, followed by an enquiry about the consequences of breaching alternative sanctions (non-compliance). Comments: According to international human rights standards, corporal punishment as a court-ordered sanction would be absolutely out of the question (for example CRC Art. 37, GC No. 10, 71). We are not aware that such forms of punishment

are still available in Europe, so that a respective question was deemed superfluous. Applicable International Standards CRC Art. 37 (b) GC No. 10 (2007), 28., 29., 70.-77. Beijing Rules Art. 17 (1)-(4), 18 (1)-(2), 19 (1), Riyadh Guidelines Art. 46., CM/Rec(2003)20, Art. 1 CM/Rec(2008)11, Rules 5, 9, 10, 12, 23.1, 30.1., 30.2,

4.2 Indicators ascertained in questionnaire 2 Preliminary remarks

Deprivation of liberty, regardless of which form it takes, constitutes the most severe instrument of justice and is associated with the most negative consequences (since capital punishment has been effectively abolished in Europe). No other state response to offending has a greater curtailing effect on fundamental human rights. Imposing and executing deprivations of liberty runs the risk of violating the most fundamental and meaningful human right –innate and inalienable human dignity. Deprivation of liberty also implies a series of further negative consequences for an individual who is exposed to it, effects that can be detrimental from physical (physical restrictions of freedom; health and medical consequences), psychological (loneliness, depression) and social (alienation from society, stigmatisation) perspectives. The effects of these negative repercussions are even more severe when experienced by juveniles, who are more vulnerable than adults and whose value systems, perceptions of the world, and roles in society are not yet fully developed (but can already be distorted or damaged). Where a young person is deprived of his/her liberty, these processes have to be learned or continued in surroundings that bear little to no resemblance to normal life in freedom. Therefore, jurisdictions should refrain from issuing sanctions that deprive juveniles of their liberty. Where such an approach in inapplicable for whatever reasons, liberty-depriving sanctions should only be ordered as a last resort with the objective of reintegrating them into society. Descriptive outline of the indicators

Where a juvenile is deprived of liberty, the principles of approximation and integration are accorded a much more pivotal role than is the case when adult offenders are imprisoned. Organising the respective institutions accordingly requires a complex variety of measures and rules. Besides providing “acceptable” sanitary and material/structural conditions, the provision of educational, vocational and leisure-time activities, integration into life outside the institution and not least providing well-trained and qualified, “socially mature” staff are

of central importance. The last-mentioned factors significantly influence the development of a juvenile’s system of beliefs and values, as well as with which skills and qualifications s/he can return to freedom once released. “Adolescence is a period marked by a certain reorganisation of the personality, requiring a special effort to reduce the risks of long-term social maladjustment. While in custody, adolescents should be allowed to stay in a fixed place, surrounded by personal objects and in socially favourable groups. The regime applied to them should be based on intensive activity, including socio-educational meetings, sport, education, vocational training, escorted outings and the availability of appropriate optional activities.”31 Placing a child in closed facilities usually implies that his/her family or the State’s prevention efforts have failed. In such cases, placements in institutions or homes can constitute a young person’s last chance of turning his/her life around and becoming an integrated member of society. And, being a “last chance”, deprivation of liberty should accordingly only be applied as a last resort with the sole purpose of reintegration.

Descriptive outline of the indicators

The international rules and standards deal with the principles that govern placements in institutions quite elaborately. Beside the conventions and recommendations that concern the rights of all human beings (including adults) – like the European Convention for Protection of Human Rights and Fundamental Freedoms, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Prison Rules – there exist also a series of international instruments that are dedicated specifically to issues of juvenile justice, and thus also cover depriving children and juveniles of liberty: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), United Nations Rules for the Protection of Juveniles deprived of their Liberty (“Havana Rules”), Convention on the Rights of the Child. These legal acts need to be supplemented with the jurisprudence of the Court of Human Rights as well as documents from the CPT (especially the 9th General Report on the CPT’s activities covering the period from 1 January to 31 December 1998 with its special section “Juveniles Deprived of Their Liberty”).

The topic “Deprivation of Liberty” can be subdivided into two main sections: pre- sentence deprivation of liberty and deprivation of liberty following a conviction. The first section covers the issues of police custody and pre-trial detention, while the second section concerns such measures of deprivation of liberty that are imposed as a sanction by a judicial authority. This latter section also covers such issues as accommodation, hygiene, health and medical care, disciplinary measures and procedures, early release and aftercare. Indicators that intend to investigate/measure such an extensive, sensitive and socially relevant topic need to be worded with the appropriate level of detail and breadth. Nonetheless, evaluating a system that deprives human beings of their liberty with relatively solely on the basis of short questions remains only marginally conceivable. Interpretations of the data yielded from such surveys

31 3rd General Report on the CPT’s activities covering the period 1 January to 31 December 1992, Abs. 67

need to have regard for the overall complexity of a juvenile justice system while always bearing a person’s human rights in mind. Staff with the best possible qualifications and training, good sanitary conditions, the provision of educational and vocational training schemes are but individual variables that bring us one step closer to providing a system of deprivation of liberty in which juveniles are treated with respect for their human rights and which is based on principles of social integration.

I. Detention of juveniles in pre-sentence detention 1. Indicators for:

General data and information on juvenile offenders in police custody, pre-trial detention, and other forms of deprivation of liberty prior to sentencing What do we want to measure? Juveniles detained in police custody or in pre-trial detention are highly vulnerable, especially if such detention is their first experience with deprivation of liberty. The international standards demand that countries provide alternatives to “classical” forms of pre-trial detention for juvenile offenders. Regardless of which particular form such pre-trial measures take, the standards also state the view that any such detention be issued only as a last resort. Question 1 measures the number of juveniles who are subjected to pre-trial or pre-sentence deprivation of liberty in a specific year. The data are itemised according to the different closed residential alternatives available in a country. While in some jurisdictions juvenile offenders are frequently held in police custody and pretrial detention centres, other countries provide special closed residential units in which children are detained while their identity is being ascertained and their case prepared for further proceedings. These alternatives to police custody (1. c.) and pre-trial detention (1 e.) are regarded as being child-friendlier than the measures they were introduced to ‘replace’.

Descriptive outline of the indicators

Since it does occur that such “alternatives” are also frequently applied to children who have not violated criminal laws but who are in “need of care”, question 1 also aims to yield information on the grounds for which juveniles are deprived of their liberty without having been convicted. In addition to the data asked for above (see questionnaire I, question 8) concerning the number of children in conflict with the law, question 1 asks which proportion of the juvenile offenders is sent to pre-sentence detention during a given year. Also, the numbers of juveniles in the different forms of deprivation of liberty need to be made more adequate for international comparisons. The absolute figures are therefore complemented with the respective child detention rate per 100,000 of the overall under-18 population (children as defined by the international standards). Abstracting away from concrete age-groups serves to generate a certain degree of comparability.

Comments: Following the example of the Unicef Indicators and differentiating further (for example according to gender, ethnicity, category of offence etc.) would be a beneficial and sensible approach. While these variables have not been included in the ‘paper’ version of the questionnaire due to space constraints, they could likely be implemented in an electronic version thereof. Unicef Indicators 1 and 3 (“Children in conflict with the law” and “Children in pre-sentence detention”) were not included in their entirety in this questionnaire. The reasons for this move are that the Unicef Indicators do not allow for a differentiation between different closed alternatives to police custody and pretrial detention that are available in some countries. Also, the Unicef indicators do not provide information on the reasons for which juveniles enter the criminal justice system (for violations of criminal laws, for being in need of care etc.). The far-right column in question 1 requests the calculation of Unicef Indicators 1 and 3. Applicable International Standards CM/Rec(2008)11, Rule 9, 10, 108-106 Beijing Rules, Rule 3, 13

2. Indicators for:

Juvenile offenders in police custody What do we want to measure? This section of the survey aims to ascertain whether special provisions are in place for juveniles in police custody, and to what degree these provisions are adhered to. Arresting a juvenile entails that s/he is deprived of his/her liberty. Accordingly, all rules that demand a humane system that functions “in the best interest of the child” and that deprivation of liberty only be imposed as a last resort already apply at this early stage of (criminal) procedure. The statutory maximum period for which a juvenile can be held in police custody is determined in question 2. Instead of gathering complex data, question 3 rather aims to acquire a general impression of whether or not this statutory limit is in fact relevant by asking for an estimation of how frequently it is exceeded in practice.

Descriptive outline of the indicators

Questions 4 and 5 are designed to determine whether a court or the prosecution service have to be informed without delay when a juvenile is held in police custody. In doing so, indication is made as to whether or not holding a juvenile in police custody requires timely confirmation by a judge (see also question 16 below)

The police are usually the first point of contact that a juvenile has with the justice system, and police custody is usually the first form of deprivation of liberty that juveniles experience. Therefore, observing statutory procedural safeguards at this stage of proceedings is eminently important, an issue that is investigated in questions 6 to 8. Allowing the parents or other persons to be present during police questionings and examinations is particularly appropriate and suitable practice for dealing with juveniles (question 9).

The demand that juveniles be separated from adult suspects also applies to persons in police custody. Question 10 examines whether the respective international standards are reflected in national law. Whether or not a juvenile is accorded the right to see a doctor is investigated in question 11. Both the juvenile as well as his/her parents/legal guardian should be entitled to have the arrest or the modalities of custody reviewed by a court. Question 12 determines who is entitled to such complaint procedures. Comments: Naturally, a plethora of further questions comes to mind regarding police custody, questions that would possibly allow the differences between normal police custody and the alternatives to such custody to be pinpointed more precisely. In the context of identifying ‘indicators’, and keeping issues of length and spatial limitations in mind, such questions would most likely go beyond the scope of the survey. Applicable International Standards CM/Rec(2008)11, Rule 9, 10, 13 18, 108-113 Beijing Rules Article 10, 12

3. Indicators for:

Pre-trial detention

What do we want to measure? Pre-trial detention, as a special form of liberty-deprivation, should only be issued as a last resort and only for so long as is absolutely necessary (minimum intervention).

Questions 14 is designed to identify who is in fact competent for ordering pre-trial detention. The international standards demand that, where pre-trial

Descriptive outline of the indicators

The statutory maximum period of time that a juvenile can spend in pre-trial detention is surveyed in question 13. In a second step, this question aims to determine how much time juveniles spend in such detention in practice. Accordingly, the right-hand column of question 13 is designed to measure the amount of time actually spent in pre-trial detention by juveniles who were released from such detention in a certain year. The question also differentiates (see questions 1 e. and f. above) between ‘classical’ forms of pre-trial detention and the closed alternatives to such detention that a country does or does not provide. In doing so, the degree to which a country adheres to its own statutory rules can be determined. Also, the responses provided in question 13 shall give indication as to whether or not pre-trial detention is being issued for the shortest possible periods. Even though it is nearly impossible to determine precisely what would have been the shortest period possible in every individual case, the average figures can nonetheless provide a basis for international debate and discussion on what in fact constitutes the “shortest possible period in pretrial detention”.

detention is ordered by non-judicial authorities, the law require such orders to be immediately confirmed by a judge or court (question 15). Question 16 goes on to investigate the amount of time within which such judicial confirmation has to occur. Such time limits are intended to ensure that the deprivation of a juvenile’s liberty is actually registered by a court, and that an independent authority is competent for deciding whether or not the grounds for detention at this level of proceedings are met. Such time limits can only be deemed effective if a juvenile is to be immediately released from detention when the time-limit is exceeded (question 17). The grounds on which pre-trial detention can be ordered are identified in question 18, which will provide insight into the role and function of pre-trial detention in a country – does such detention serve to protect the public from the suspect, or rather to protect the juvenile from the reasons for which s/he is in “need of care”, or both? Regardless of what grounds pre-trial detention is based on, statutory provisions should be provided that effect a juvenile’s immediate release from detention once these grounds cease to exist (question 19). The international standards demand that the continued existence of the grounds on which the issuance of pre-trial detention was originally based be subject to regular reappraisal. Observance of this demand for regular reappraisals is investigated in question 20, while questions 21-22 goes on to ask whether, instead or in addition, motions can be filed requiring a court to review decisions to impose pre-trial detention.

Descriptive outline of the indicators

Question 24 investigates the existence of residential and non-residential alternatives to pre-trial detention in a country. According to the international standards, every country should in fact provide such alternatives.

In order to determine to what extent the law in the books resembles the law in practice, question 24 asks for an estimation (based on a scale, rather than collecting complicated data) of the role that these alternatives to pre-trial detention play in practice. Questions 25 and 26 are dedicated to gathering information on important modalities of pre-trial detention (visits and accommodation), while the examination of juveniles upon admission to a pretrial institution is investigated in questions 27 and 28. In particular, the central point of focus lies in recording how and when a juvenile enters the institution, and what state/condition s/he was in at the time of admission, so that it can be determined whether his/her condition has improved or worsened in the course of detention. Attention is also drawn to the question of whether the examination upon admission to an institution also covers the drafting of a ‘detention plan’ for the juvenile’s stay that addresses his/her specific needs. Questions 29 and 30 investigate whether a juvenile, while in pre-trial detention or an alternative to such detention, is provided with opportunities to spend his/ her time in a meaningful manner. The closing question of this section (question 31) aims to provide information on the incidence of aggression and self harm in pre-trial detention or alternatives thereto, which are important indicators for

the living conditions in those institutions. Question 31 g. asks for deaths for other reasons like accidents or diseases. Answers are indicators for the security and/or medical care within the institutions. Comments: See the comments on Section 1. Unicef Indicator 4 was not included in its entirety in this questionnaire, the reason being that it does not allow for a differentiation between different closed alternatives to pre-trial detention that are available in some countries (see Section 1 above) As is the case for the indicators on police custody, here too a number of further questions come to mind regarding pre-trial detention, questions that would possibly allow the differences between normal pre-trial detention and the alternatives to such detention to be pinpointed more precisely. In the context of identifying â&#x20AC;&#x2DC;indicatorsâ&#x20AC;&#x2122;, such questions would most likely go beyond the scope of the investigation. Applicable International Standards CRC Art. 40 (2) (b) (iii) CM/Rec(2008)11, Rule 9, 10, 13, 18 108-113 Beijing Rules, Rule 13, 15 Havana Rules, Rule 17, 18 European Prison Rules, Rule 14

II. Detention of juveniles in detention after sentencing 4. Indicators for:

Data on children and juveniles in detention after sentencing What do we want to measure? This section covers the different types of institutions to which juveniles can be sent as a result of a court or other competent authority imposing deprivation of liberty. While some countries provide special juvenile prisons for young offenders, other jurisdictions send sentenced juveniles to welfare institutions or even to adult prisons. To date, juvenile offenders who are committed to mental health institutions or units have received little attention at the international level.

Looking at the number of separate institutions or units in connection with the

Descriptive outline of the indicators

The opening question (question 32) of this section on juveniles in detention after sentencing aims to identify the different institutions that exist, as well as the number of juveniles who are detained in those institutions. Additionally, requesting information on the capacities of these institutions allows us to determine whether they are smaller units that allow more individualised treatment that is better adapted to the needs of the juveniles who are detained there.

size of the country and the overall juvenile population could be an indicator for whether juveniles can be accommodated as close to home as possible (such interpretations would naturally need to be made with caution). Question 32 also requests information on the age range for which the different institutions are applicable, which can serve as an indication for whether or not a certain type of institution is intended only for younger juveniles. Information on potential overcrowding (which often impedes the provision of humane treatment or even excludes such treatment entirely) in certain types of institutions can be drawn from comparing the stated capacities to the levels of occupancy. Question 33 looks more specifically at the share of juveniles who are deprived of their liberty for violations of the criminal law compared to juveniles who have been placed there due to a “need for care”, signs of demoralisation, for anti-social behaviour or status offences. Breaking down the data in this manner provides insight into the grounds on which placements in the institutions are most commonly based. Comments: Unicef Indicator 2 was not included in its entirety in this questionnaire, the reason being that it does not allow for a differentiation between the different forms of deprivation of liberty that are available in some countries. Breaking the data down according to gender, ethnicity, offence categories etc. would of course be desirable, and could possibly be implemented in an electronic form of this questionnaire. Applicable International Standards CM/Rec(2008)11, Rule 1, 7, 10, 19, 53.4, 53.5, 59.1 Havana Rules, Rule 15, 29, 30 European Prison Rules, Rule 11.1, 11.2

5. Indicators for:

Descriptive outline of the indicators

Security measures

What do we want to measure? Question 34 is the first in a long series of questions that aim to determine to what extent the living conditions in the various institutions for deprivation of liberty differ in practice. Just because an institution is listed as being a ‘closed welfare institution’ need not necessarily imply that the living conditions to which juvenile offenders are subjected when detained there differ from the conditions they would be exposed to in a juvenile prison. Questions 34-66 measure to what extent the living conditions, to which juveniles deprived of their liberty are exposed, are in accordance with the respective international standards, as well as how the degrees of adherence to these standards differ between the different kinds of institutions.

To begin with, question 34 focuses on ascertaining the degree of “openness” of an institution by requesting information on the various security measures in place there (walls, patrols, razor wire etc.). Avoiding exorbitant elements of restraint and restriction is an important step towards providing an environment that is suitable and appropriate for children, regardless of the reasons for which they are being detained. Comments: The more security measures and elements of restraint are in place, the less life within such an institution approximates life in freedom. Walls, dogs, razor wire and weapons are likely to contribute to a tense, hostile atmosphere, which in turn can have negative effects on suicide rates, potential for aggression within the institution, mental encumbrances and general health. Institutions that are designed and organized in “the best interest of the child” need to be conducive to a positive institutional climate in which children can develop healthily (both physically and mentally) and learn skills of social interaction. Applicable International Standards CM/Rec(2008)11, Rule 53.2 and 53.3, 56, 90, 92 European Prison Rules, Rule 69

6. Indicators for:

Admission, sentence planning What do we want to measure? Whenever a juvenile is deprived of liberty, the primary goal should lie in preparing him/her to lead a crime-free life in society once released. The chances for achieving this goal increase when the influences exerted while in the institution are individualised to better reflect and more appropriately address the needs of each juvenile. Investigating the juvenile in detail and subsequently planning his/ her stay with respect to the findings of such investigation, immediately upon admission to the institution, forms a crucial element in this regard. The more information is collated at admission, the more likely it is that an appropriate, detailed and individualised sentence plan can be devised. This plan should be oriented to the preparation for early release. Question 35 investigates the provisions and regulations on admission procedures and sentence planning in the different kinds of institutions in which sentenced juveniles can be deprived of their liberty. Comments: Descriptive outline of the indicators

Applicable International Standards Recommendation CM/Rec(2008)11, Rule 79, 62 Havana Rules, Rule 21, 27, 50 Beijing Rules, Rule 6.3 European Prison Rules, Rule 15.1, 52.1

7. Indicators for:

Accommodation

What do we want to measure? a. Placement in single rooms: The international standards demand that juveniles be accommodated in singlerooms/cells, especially during night hours, so long as such practice would not be counterproductive. Whether or not juveniles are allocated to single rooms is examined in question 36, which goes on to enquire as to the criteria that dictate who receives a single-room when such form of placement is not mandatory or cannot be provided for everyone. Question 36 c. closes by asking whether juveniles have any influence on, or say in, who they share their room with. b. Separation from adults Juveniles deprived of their liberty have special needs for treatment, and face different problems and stresses than adult prisoners do. Taking this into account, and in order to protect juveniles from adult prisoners, the different age groups should be separated from each other. “In order to limit the risk of exploitation, special arrangements should be made for living quarters that are suitable for children, for example, by separating them from adults, unless it is considered in the child’s best interests not to do so. This would, for instance, be the case when children are in the company of their parents or other close relatives. In that case, every effort should be made to avoid splitting up the family” (20 years of combating torture: CPT General Report 2008-2009, Abs. 100). Whether or not juveniles and adults are accommodated in separation from each other, is examined in question 37. c. Separation of sentenced offenders from other juveniles In order to the promote individualised treatment of juveniles in institutions, separating sentenced juveniles from those who are accommodated there for showing signs of demoralisation, behaving anti-socially or for being in “need of care” is equally important. Whether or not such separation is practiced, is investigated in question 38. d. Separation of younger and older juveniles

Descriptive outline of the indicators

The same applies when younger and older juveniles are accommodated in the same institution, which is addressed in question 39.

Comments: The responses to this section on accommodation modalities need to be interpreted with caution. Depending on the institution / country in question, being confined to a private cell without (sufficient) access to meaningful activities can have a severe isolating effect. Therefore, the information yielded from the questions in this section should be interpreted in connection with other responses provided in the questionnaire, for instance question 41 below on the number of hours a juvenile can spend outside of his/her cell, or the information provided on educational, vocational and leisure time activities in the institution. Applicable International Standards

Brussels Headquarters Rue Mercelis, 50 1050 Brussels Belgium Phone: 00 32 262 988 90. Fax: 00 32 262 988 99 oijj@oijj.org

â&#x20AC;&#x153;With the support of the Prevention of and Fight against Crime Programme European Commission - Directorate-General Justice, Freedom and Security''