| United Nations | A/RES/40/33 |
General Assembly
Distr. GENERAL
29 November 1985
ORIGINAL:
ENGLISH
A/RES/40/33
29 November 1985
96th plenary meeting
40/33. United Nations Standard Minimum Rules for the Administration
of Juvenile Justice ("The Beijing Rules")
The General Assembly,
Bearing in mind the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, as well as other
international human rights instruments pertaining to the rights of young
persons,
Also bearing in mind that 1985 was designated the International Youth
Year: Participation, Development, Peace and that the international community
has placed importance on the protection and promotion of the rights of the
young, as witnessed by the significance attached to the Declaration of the
Rights of the Child,
Recalling resolution 4 adopted by the Sixth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, held at Caracas from
25 August to 5 September 1980, which called for the development of standard
minimum rules for the administration of juvenile justice and the care of
juveniles, which could serve as a model for Member States,
Recalling also Economic and Social Council decision 1984/153 of
25 May 1984, by which the draft rules were forwarded to the Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders,
through the Interregional Preparatory Meeting, held at Beijing from 14 to
18 May 1984,
Recognizing that the young, owing to their early stage of human
development, require particular care and assistance with regard to physical,
mental and social development, and require legal protection in conditions of
peace, freedom, dignity and security,
Considering that existing national legislation, policies and practices
may well require review and amendment in view of the standards contained in
the rules,
Considering further that, although such standards may seem difficult to
achieve at present in view of existing social, economic, cultural, political
and legal conditions, they are nevertheless intended to be attainable as a
policy minimum,
1. Notes with appreciation the work carried out by the Committee on
Crime Prevention and Control, the Secretary-General, the United Nations Asia
and Far East Institute for the Prevention of Crime and the Treatment of
Offenders and other United Nations institutes in the development of the
Standard Minimum Rules for the Administration of Juvenile Justice;
2. Takes note with appreciation of the report of the Secretary-General
on the draft Standard Minimum Rules for the Administration of Juvenile
Justice;
3. Commends the Interregional Preparatory Meeting held at Beijing for
having finalized the text of the rules submitted to the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders for
consideration and final action;
4. Adopts the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice recommended by the Seventh Congress,
contained in the annex to the present resolution, and approves the
recommendation of the Seventh Congress that the Rules should be known as "the
Beijing Rules";
5. Invites Member States to adapt, wherever this is necessary, their
national legislation, policies and practices, particularly in training
juvenile justice personnel, to the Beijing Rules and to bring the Rules to the
attention of relevant authorities and the public in general;
6. Calls upon the Committee on Crime Prevention and Control to
formulate measures for the effective implementation of the Beijing Rules, with
the assistance of the United Nations institutes on the prevention of crime and
the treatment of offenders;
7. Invites Member States to inform the Secretary-General on the
implementation of the Beijing Rules and to report regularly to the Committee
on Crime Prevention and Control on the results achieved;
8. Requests Member States and the Secretary-General to undertake
research and to develop a data base with respect to effective policies and
practices in the administration of juvenile justice;
9. Requests the Secretary-General and invites Member States to ensure
the widest possible dissemination of the text of the Beijing Rules in all of
the official languages of the United Nations, including the intensification of
information activities in the field of juvenile justice;
10. Requests the Secretary-General to develop pilot projects on the
implementation of the Beijing Rules;
11. Requests the Secretary-General and Member States to provide the
necessary resources to ensure the successful implementation of the Beijing
Rules, in particular in the areas of recruitment, training and exchange of
personnel, research and evaluation, and the development of new alternatives to
institutionalization;
12. Requests the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders to review the progress made in the
implementation of the Beijing Rules and of the recommendations contained in
the present resolution, under a separate agenda item on juvenile justice;
13. Urges all relevant organs of the United Nations system, in
particular the regional commissions and specialized agencies, the United
Nations institutes for the prevention of crime and the treatment of offenders,
other intergovernmental organizations and non-governmental organizations to
collaborate with the Secretariat and to take the necessary measures to ensure
a concerted and sustained effort, within their respective fields of technical
competence, to implement the principles contained in the Beijing Rules.
ANNEX
United Nations Standard Minimum Rules for the Administration
of Juvenile Justice (Beijing Rules)
Part one. General principles
1. Fundamental perspectives
1.1 Member States shall seek, in conformity with their respective
general interests, to further the well-being of the juvenile and her
or his family.
1.2 Member States shall endeavour to develop conditions that will ensure
for the juvenile a meaningful life in the community, which, during
that period in life when she or he is most susceptible to deviant
behaviour, will foster a process of personal development and
education that is as free from crime and delinquency as possible.
1.3 Sufficient attention shall be given to positive measures that
involve the full mobilization of all possible resources, including
the family, volunteers and other community groups, as well as
schools and other community institutions, for the purpose of
promoting the well-being of the juvenile, with a view to reducing
the need for intervention under the law, and of effectively, fairly
and humanely dealing with the juvenile in conflict with the law.
1.4 Juvenile justice shall be conceived as an integral part of the
national development process of each country, within a comprehensive
framework of social justice for all juveniles, thus, at the same
time, contributing to the protection of the young and the
maintenance of a peaceful order in society.
1.5 These Rules shall be implemented in the context of economic, social
and cultural conditions prevailing in each Member State.
1.6 Juvenile justice services shall be systematically developed and
co-ordinated with a view to improving and sustaining the competence
of personnel involved in the services, including their methods,
approaches and attitudes.
Commentary
These broad fundamental perspectives refer to comprehensive social policy
in general and aim at promoting juvenile welfare to the greatest possible
extent, which will minimize the necessity of intervention by the juvenile
justice system, and in turn, will reduce the harm that may be caused by any
intervention. Such care measures for the young, before the onset of
delinquency, are basic policy requisites designed to obviate the need for the
application of the Rules.
Rules 1.1 to 1.3 point to the important role that a constructive social
policy for juveniles will play, inter alia, in the prevention of juvenile
crime and delinquency. Rule 1.4 defines juvenile justice as an integral part
of social justice for juveniles, while rule 1.6 refers to the necessity of
constantly improving juvenile justice, without falling behind the development
of progressive social policy for juveniles in general and bearing in mind the
need for consistent improvement of staff services.
Rule 1.5 seeks to take account of existing conditions in Member States
which would cause the manner of implementation of particular rules necessarily
to be different from the manner adopted in other States.
2. Scope of the Rules and definitions used
2.1 The following Standard Minimum Rules shall be applied to juvenile
offenders impartially, without distinction of any kind, for example
as to race, colour, sex, language, religion, political or other
opinions, national or social origin, property, birth or other
status.
2.2 For purposes of these Rules, the following definitions shall be
applied by Member States in a manner which is compatible with their
respective legal systems and concepts:
(a) A juvenile is a child or young person who, under the respective
legal systems, may be dealt with for an offence in a manner
which is different from an adult;
(b) An offence is any behaviour (act or omission) that is
punishable by law under the respective legal systems;
(c) A juvenile offender is a child or young person who is alleged
to have committed or who has been found to have committed an
offence.
2.3 Efforts shall be made to establish, in each national jurisdiction, a
set of laws, rules and provisions specifically applicable to
juvenile offenders and institutions and bodies entrusted with the
functions of the administration of juvenile justice and designed:
(a) To meet the varying needs of juvenile offenders, while
protecting their basic rights;
(b) To meet the needs of society;
(c) To implement the following rules thoroughly and fairly.
Commentary
The Standard Minimum Rules are deliberately formulated so as to be
applicable within different legal systems and, at the same time, to set some
minimum standards for the handling of juvenile offenders under any definition
of a juvenile and under any system of dealing with juvenile offenders. The
Rules are always to be applied impartially and without distinction of any
kind.
Rule 2.1 therefore stresses the importance of the Rules always being
applied impartially and without distinction of any kind. The rule follows the
formulation of principle 2 of the Declaration of the Rights of the Child.
Rule 2.2 defines "juvenile" and "offence" as the components of the notion
of the "juvenile offender", who is the main subject of these Standard Minimum
Rules (see, however, also rules 3 and 4). It should be noted that age limits
will depend on, and are explicitly made dependent on, each respective legal
system, thus fully respecting the economic, social, political, cultural and
legal systems of Member States. This makes for a wide variety of ages coming
under the definition of "juvenile", ranging from 7 years to 18 years or
above. Such a variety seems inevitable in view of the different national
legal systems and does not diminish the impact of these Standard Minimum
Rules.
Rule 2.3 is addressed to the necessity of specific national legislation
for the optimal implementation of these Standard Minimum Rules, both legally
and practically.
3. Extension of the Rules
3.1 The relevant provisions of the Rules shall be applied not only to
juvenile offenders but also to juveniles who may be proceeded
against for any specific behaviour that would not be punishable if
committed by an adult.
3.2 Efforts shall be made to extend the principles embodied in the Rules
to all juveniles who are dealt with in welfare and care proceedings.
3.3 Efforts shall also be made to extend the principles embodied in the
Rules to young adult offenders.
Commentary
Rule 3 extends the protection afforded by the Standard Minimum Rules for
the Administration of Juvenile Justice to cover:
(a) The so-called "status offences" prescribed in various national legal
systems where the range of behaviour considered to be an offence is wider for
juveniles than it is for adults (for example, truancy, school and family
disobedience, public drunkenness, etc.) (rule 3.1);
(b) Juvenile welfare and care proceedings (rule 3.2);
(c) Proceedings dealing with young adult offenders, depending of course
on each given age limit (rule 3.3).
The extension of the Rules to cover these three areas seems to be
justified. Rule 3.1 provides minimum guarantees in those fields, and rule 3.2
is considered a desirable step in the direction of more fair, equitable and
humane justice for all juveniles in conflict with the law.
4. Age of criminal responsibility
4.1 In those legal systems recognizing the concept of the age of
criminal responsibility for juveniles, the beginning of that age
shall not be fixed at too low an age level, bearing in mind the
facts of emotional, mental and intellectual maturity.
Commentary
The minimum age of criminal responsibility differs widely owing to
history and culture. The modern approach would be to consider whether a child
can live up to the moral and psychological components of criminal
responsibility; that is, whether a child, by virtue of her or his individual
discernment and understanding, can be held responsible for essentially
anti-social behaviour. If the age of criminal responsibility is fixed too low
or if there is no lower age limit at all, the notion of responsibility would
become meaningless. In general, there is a close relationship between the
notion of responsibility for delinquent or criminal behaviour and other social
rights and responsibilities (such as marital status, civil majority, etc.).
Efforts should therefore be made to agree on a reasonable lowest age
limit that is applicable internationally.
5. Aims of juvenile justice
5.1 The juvenile justice system shall emphasize the well-being of the
juvenile and shall ensure that any reaction to juvenile offenders
shall always be in proportion to the circumstances of both the
offenders and the offence.
Commentary
Rule 5 refers to two of the most important objectives of juvenile
justice. The first objective is the promotion of the well-being of the
juvenile. This is the main focus of those legal systems in which juvenile
offenders are dealt with by family courts or administrative authorities, but
the well-being of the juvenile should also be emphasized in legal systems that
follow the criminal court model, thus contributing to the avoidance of merely
punitive sanctions. (See also rule 14.)
The second objective is "the principle of proportionality". This
principle is well-known as an instrument for curbing punitive sanctions,
mostly expressed in terms of just desert in relation to the gravity of the
offence. The response to young offenders should be based on the consideration
not only of the gravity of the offence but also of personal circumstances.
The individual circumstances of the offender (for example social status,
family situation, the harm caused by the offence or other factors affecting
personal circumstances) should influence the proportionality of the reaction
(for example by having regard to the offender's endeavour to indemnify the
victim or to her or his willingness to turn to a wholesome and useful life).
By the same token, reactions aiming to ensure the welfare of the young
offender may go beyond necessity and therefore infringe upon the fundamental
rights of the young individual, as has been observed in some juvenile justice
systems. Here, too, the proportionality of the reaction to the circumstances
of both the offender and the offence, including the victim, should be
safeguarded.
In essence, rule 5 calls for no less and no more than a fair reaction in
any given case of juvenile delinquency and crime. The issues combined in the
rule may help to stimulate development in both regards: new and innovative
types of reactions are as desirable as precautions against any undue widening
of the net of formal social control over juveniles.
6. Scope of discretion
6.1 In view of the varying special needs of juveniles as well as the
variety of measures available, appropriate scope for discretion
shall be allowed at all stages of proceedings and at the different
levels of juvenile justice administration, including investigation,
prosecution, adjudication and the follow-up of dispositions.
6.2 Efforts shall be made, however, to ensure sufficient accountability
at all stages and levels in the exercise of any such discretion.
6.3 Those who exercise discretion shall be specially qualified or
trained to exercise it judiciously and in accordance with their
functions and mandates.
Commentary
Rules 6.1, 6.2 and 6.3 combine several important features of effective,
fair and humane juvenile justice administration: the need to permit the
exercise of discretionary power at all significant levels of processing so
that those who make determinations can take the actions deemed to be most
appropriate in each individual case; and the need to provide checks and
balances in order to curb any abuses of discretionary power and to safeguard
the rights of the young offender. Accountability and professionalism are
instruments best apt to curb broad discretion. Thus, professional
qualifications and expert training are emphasized here as a valuable means of
ensuring the judicious exercise of discretion in matters of juvenile
offenders. (See also rules 1.6 and 2.2.) The formulation of specific
guidelines on the exercise of discretion and the provision of systems
of review, appeal and the like in order to permit scrutiny of decisions and
accountability are emphasized in this context. Such mechanisms are not
specified here, as they do not easily lend themselves to incorporation into
international standard minimum rules, which cannot possibly cover all
differences in justice systems.
7. Rights of juveniles
7.1 Basic procedural safeguards such as the presumption of innocence,
the right to be notified of the charges, the right to remain silent,
the right to counsel, the right to the presence of a parent or
guardian, the right to confront and cross-examine witnesses and the
right to appeal to a higher authority shall be guaranteed at all
stages of proceedings.
Commentary
Rule 7.1 emphasizes some important points that represent essential
elements for a fair and just trial and that are internationally recognized in
existing human rights instruments. (See also rule 14.) The presumption of
innocence, for instance, is also to be found in article 11 of the Universal
Declaration of Human Rights and in article 14, paragraph 2, of the
International Covenant on Civil and Political Rights.
Rules 14 seq. of these Standard Minimum Rules specify issues that are
important for proceedings in juvenile cases, in particular, while rule 7.1
affirms the most basic procedural safeguards in a general way.
8. Protection of privacy
8.1 The juvenile's right to privacy shall be respected at all stages in
order to avoid harm being caused to her or him by undue publicity or
by the process of labelling.
8.2 In principle, no information that may lead to the identification of
a juvenile offender shall be published.
Commentary
Rule 8 stresses the importance of the protection of the juvenile's right
to privacy. Young persons are particularly susceptible to stigmatization.
Criminological research into labelling processes has provided evidence of the
detrimental effects (of different kinds) resulting from the permanent
identification of young persons as "delinquent" or "criminal".
Rule 8 also stresses the importance of protecting the juvenile from the
adverse effects that may result from the publication in the mass media of
information about the case (for example the names of young offenders, alleged
or convicted). The interest of the individual should be protected and upheld,
at least in principle. (The general contents of rule 8 are further specified
in rule 21.)
9. Saving clause
9.1 Nothing in these Rules shall be interpreted as precluding the
application of the Standard Minimum Rules for the Treatment of
Prisoners adopted by the United Nations and other human rights
instruments and standards recognized by the international community
that relate to the care and protection of the young.
Commentary
Rule 9 is meant to avoid any misunderstanding in interpreting and
implementing the present Rules in conformity with principles contained in
relevant existing or emerging international human rights instruments and
standards - such as the Universal Declaration of Human Rights; the
International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights; and the Declaration of
the Rights of the Child and the draft convention on the rights of the child.
It should be understood that the application of the present Rules is without
prejudice to any such international instruments which may contain provisions
of wider application. (See also rule 27.)
Part two. Investigation and prosecution
10. Initial contact
10.1 Upon the apprehension of a juvenile, her or his parents or guardian
shall be immediately notified of such apprehension, and, where such
immediate notification is not possible, the parents or guardian
shall be notified within the shortest possible time thereafter.
10.2 A judge or other competent official or body shall, without delay,
consider the issue of release.
10.3 Contacts between the law enforcement agencies and a juvenile
offender shall be managed in such a way as to respect the legal
status of the juvenile, promote the well-being of the juvenile and
avoid harm to her or him, with due regard to the circumstances of
the case.
Commentary
Rule 10.1 is in principle contained in rule 92 of the Standard Minimum
Rules for the Treatment of Prisoners.
The question of release (rule 10.2) shall be considered without delay by
a judge or other competent official. The latter refers to any person or
institution in the broadest sense of the term, including community boards or
police authorities having power to release an arrested person. (See also the
International Covenant on Civil and Political Rights, article 9, paragraph 3.)
Rule 10.3 deals with some fundamental aspects of the procedures and
behaviour on the part of the police and other law enforcement officials in
cases of juvenile crime. To "avoid harm" admittedly is flexible wording and
covers many features of possible interaction (for example the use of harsh
language, physical violence or exposure to the environment). Involvement in
juvenile justice processes in itself can be "harmful" to juveniles; the term
"avoid harm" should be broadly interpreted, therefore, as doing the least harm
possible to the juvenile in the first instance, as well as any additional or
undue harm. This is especially important in the initial contact with law
enforcement agencies, which might profoundly influence the juvenile's attitude
towards the State and society. Moreover, the success of any further
intervention is largely dependent on such initial contacts. Compassion and
kind firmness are important in these situations.
11. Diversion
11.1 Consideration shall be given, wherever appropriate, to dealing with
juvenile offenders without resorting to formal trial by the
competent authority, referred to in rule 14.1 below.
11.2 The police, the prosecution or other agencies dealing with juvenile
cases shall be empowered to dispose of such cases, at their
discretion, without recourse to formal hearings, in accordance with
the criteria laid down for that purpose in the respective legal
system and also in accordance with the principles contained in these
Rules.
11.3 Any diversion involving referral to appropriate community or other
services shall require the consent of the juvenile, or her or his
parents or guardian, provided that such decision to refer a case
shall be subject to review by a competent authority, upon
application.
11.4 In order to facilitate the discretionary disposition of juvenile
cases, efforts shall be made to provide for community programmes,
such as temporary supervision and guidance, restitution, and
compensation of victims.
Commentary
Diversion, involving removal from criminal justice processing and,
frequently, redirection to community support services, is commonly practised
on a formal and informal basis in many legal systems. This practice serves to
hinder the negative effects of subsequent proceedings in juvenile justice
administration (for example the stigma of conviction and sentence). In many
cases, non-intervention would be the best response. Thus, diversion at the
outset and without referral to alternative (social) services may be the
optimal response. This is especially the case where the offence is of a
non-serious nature and where the family, the school or other informal social
control institutions have already reacted, or are likely to react, in an
appropriate and constructive manner.
As stated in rule 11.2, diversion may be used at any point of
decision-making - by the police, the prosecution or other agencies such as the
courts, tribunals, boards or councils. It may be exercised by one authority
or several or all authorities, according to the rules and policies of the
respective systems and in line with the present Rules. It need not
necessarily be limited to petty cases, thus rendering diversion an important
instrument.
Rule 11.3 stresses the important requirement of securing the consent of
the young offender (or the parent or guardian) to the recommended diversionary
measure(s). (Diversion to community service without such consent would
contradict the Convention concerning the Abolition of Forced Labour.)
However, this consent should not be left unchallengeable, since it might
sometimes be given out of sheer desperation on the part of the juvenile. The
rule underlines that care should be taken to minimize the potential for
coercion and intimidation at all levels in the diversion process. Juveniles
should not feel pressured (for example in order to avoid court appearance) or
be pressured into consenting to diversion programmes. Thus, it is advocated
that provision should be made for an objective appraisal of the
appropriateness of dispositions involving young offenders by a "competent
authority upon application". (The "competent authority" may be different from
that referred to in rule 14.)
Rule 11.4 recommends the provision of viable alternatives to juvenile
justice processing in the form of community-based diversion. Programmes that
involve settlement by victim restitution and those that seek to avoid future
conflict with the law through temporary supervision and guidance are
especially commended. The merits of individual cases would make diversion
appropriate, even when more serious offences have been committed (for example
first offence, the act having been committed under peer pressure etc.).
12. Specialization within the police
12.1 In order to best fulfil their functions, police officers who
frequently or exclusively deal with juveniles or who are primarily
engaged in the prevention of juvenile crime shall be specially
instructed and trained. In large cities, special police units
should be established for that purpose.
Commentary
Rule 12 draws attention to the need for specialized training for all law
enforcement officials who are involved in the administration of juvenile
justice. As police are the first point of contact with the juvenile justice
system, it is most important that they act in an informed and appropriate
manner.
While the relationship between urbanization and crime is clearly complex,
an increase in juvenile crime has been associated with the growth of large
cities, particularly with rapid and unplanned growth. Specialized police
units would therefore be indispensable, not only in the interest of
implementing specific principles contained in the present instrument (such as
rule 1.6) but more generally for improving the prevention and control of
juvenile crime and the handling of juvenile offenders.
13. Detention pending trial
13.1 Detention pending trial shall be used only as a measure of last
resort and for the shortest possible period of time.
13.2 Whenever possible, detention pending trial shall be replaced by
alternative measures, such as close supervision, intensive care or
placement with a family or in an educational setting or home.
13.3 Juveniles under detention pending trial shall be entitled to all
rights and guarantees of the Standard Minimum Rules for the
Treatment of Prisoners adopted by the United Nations.
13.4 Juveniles under detention pending trial shall be kept separate from
adults and shall be detained in a separate institution or in a
separate part of an institution also holding adults.
13.5 While in custody, juveniles shall receive care, protection and all
necessary individual assistance - social, educational, vocational,
psychological, medical and physical - that they may require in view
of their age, sex and personality.
Commentary
The danger to juveniles of "criminal contamination" while in detention
pending trial must not be underestimated. It is therefore important to stress
the need for alternative measures. By doing so, rule 13.1 encourages the
devising of new and innovative measures to avoid such detention in the
interest of the well-being of the juvenile.
Juveniles under detention pending trial are entitled to all the rights
and guarantees of the Standard Minimum Rules for the Treatment of Prisoners as
well as the International Covenant on Civil and Political Rights, especially
article 9 and article 10, paragraphs 2 (b) and 3.
Rule 13.4 does not prevent States from taking other measures against the
negative influences of adult offenders which are at least as effective as the
measures mentioned in the rule.
Different forms of assistance that may become necessary have been
enumerated to draw attention to the broad range of particular needs of young
detainees to be addressed (for example females or males, drug addicts,
alcoholics, mentally ill juveniles, young persons suffering from the trauma of
arrest for example, etc.).
Varying physical and psychological characteristics of young detainees may
warrant classification measures by which some are kept separate while in
detention pending trial, thus contributing to the avoidance of victimization
and rendering more appropriate assistance.
The Sixth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, in its resolution 4 on juvenile justice standards
specified that the Rules, inter alia, should reflect the basic principle that
pre-trial detention should be used only as a last resort, that no minors
should be held in a facility where they are vulnerable to the negative
influences of adult detainees and that account should always be taken of the
needs particular to their stage of development.
Part three. Adjudication and disposition
14. Competent authority to adjudicate
14.1 Where the case of a juvenile offender has not been diverted (under
rule 11), she or he shall be dealt with by the competent authority
(court, tribunal, board, council, etc.) according to the principles
of a fair and just trial.
14.2 The proceedings shall be conducive to the best interests of the
juvenile and shall be conducted in an atmosphere of understanding,
which shall allow the juvenile to participate therein and to express
herself or himself freely.
Commentary
It is difficult to formulate a definition of the competent body or person
that would universally describe an adjudicating authority. "Competent
authority" is meant to include those who preside over courts or tribunals
(composed of a single judge or of several members), including professional and
lay magistrates as well as administrative boards (for example the Scottish and
Scandinavian systems) or other more informal community and conflict resolution
agencies of an adjudicatory nature.
The procedure for dealing with juvenile offenders shall in any case
follow the minimum standards that are applied almost universally for any
criminal defendant under the procedure known as "due process of law". In
accordance with due process, a "fair and just trial" includes such basic
safeguards as the presumption of innocence, the presentation and examination
of witnesses, the common legal defences, the right to remain silent, the right
to have the last word in a hearing, the right to appeal, etc. (See also
rule 7.1).
15. Legal counsel, parents and guardians
15.1 Throughout the proceedings the juvenile shall have the right to be
represented by a legal adviser or to apply for free legal aid where
there is provision for such aid in the country.
15.2 The parents or the guardian shall be entitled to participate in the
proceedings and may be required by the competent authority to attend
them in the interest of the juvenile. They may, however, be denied
participation by the competent authority if there are reasons to
assume that such exclusion is necessary in the interest of the
juvenile.
Commentary
Rule 15.1 uses terminology similar to that found in rule 93 of the
Standard Minimum Rules for the Treatment of Prisoners. Whereas legal counsel
and free legal aid are needed to assure the juvenile legal assistance, the
right of the parents or guardian to participate as stated in rule 15.2 should
be viewed as general psychological and emotional assistance to the juvenile -
a function extending throughout the procedure.
The competent authority's search for an adequate disposition of the case
may profit, in particular, from the co-operation of the legal representatives
of the juvenile (or, for that matter, some other personal assistant who the
juvenile can and does really trust). Such concern can be thwarted if the
presence of parents or guardians at the hearings plays a negative role, for
instance, if they display a hostile attitude towards the juvenile; hence, the
possibility of their exclusion must be provided for.
16. Social inquiry reports
16.1 In all cases except those involving minor offences, before the
competent authority renders a final disposition prior to sentencing,
the background and circumstances in which the juvenile is living or
the conditions under which the offence has been committed shall be
properly investigated so as to facilitate judicious adjudication of
the case by the competent authority.
Commentary
Social inquiry reports (social reports or pre-sentence reports) are an
indispensable aid in most legal proceedings involving juveniles. The
competent authority should be informed of relevant facts about the juvenile,
such as social and family background, school career, educational experiences,
etc. For this purpose, some jurisdictions use special social services or
personnel attached to the court or board. Other personnel, including
probation officers, may serve the same function. The rule therefore requires
that adequate social services should be available to deliver social inquiry
reports of a qualified nature.
17. Guiding principles in adjudication and disposition
17.1 The disposition of the competent authority shall be guided by the
following principles:
(a) The reaction taken shall always be in proportion not only to
the circumstances and the gravity of the offence but also to
the circumstances and the needs of the juvenile as well as to
the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be
imposed only after careful consideration and shall be limited
to the possible minimum;
(c) Deprivation of personal liberty shall not be imposed unless the
juvenile is adjudicated of a serious act involving violence
against another person or of persistence in committing other
serious offences and unless there is no other appropriate
response;
(d) The well-being of the juvenile shall be the guiding factor in
the consideration of her or his case.
17.2 Capital punishment shall not be imposed for any crime committed by
juveniles.
17.3 Juveniles shall not be subject to corporal punishment.
17.4 The competent authority shall have the power to discontinue the
proceedings at any time.
Commentary
The main difficulty in formulating guidelines for the adjudication of
young persons stems from the fact that there are unresolved conflicts of a
philosophical nature, such as the following:
(a) Rehabilitation versus just desert;
(b) Assistance versus repression and punishment;
(c) Reaction according to the singular merits of an individual case
versus reaction according to the protection of society in general;
(d) General deterrence versus individual incapacitation.
The conflict between these approaches is more pronounced in juvenile
cases than in adult cases. With the variety of causes and reactions
characterizing juvenile cases, these alternatives become intricately
interwoven.
It is not the function of Standard Minimum Rules for the Administration
of Juvenile Justice to prescribe which approach is to be followed but rather
to identify one that is most closely in consonance with internationally
accepted principles. Therefore the essential elements as laid down in
rule 17.1, in particular in subparagraphs (a) and (c), are mainly to be
understood as practical guidelines that should ensure a common starting point;
if heeded by the concerned authorities (See also rule 5), they could
contribute considerably to ensuring that the fundamental rights of juvenile
offenders are protected, especially the fundamental rights of personal
development and education.
Rule 17.1 (b) implies that strictly punitive approaches are not
appropriate. Whereas in adult cases, and possibly also in cases of severe
offences by juveniles, just desert and retributive sanctions might be
considered to have some merit, in juvenile cases such considerations should
always be outweighed by the interest of safeguarding the well-being and the
future of the young person.
In line with resolution 8 of the Sixth United Nations Congress, it
encourages the use of alternatives to institutionalization to the maximum
extent possible, bearing in mind the need to respond to the specific
requirements of the young. Thus, full use should be made of the range of
existing alternative sanctions and new alternative sanctions should be
developed, bearing the public safety in mind. Probation should be granted to
the greatest possible extent via suspended sentences, conditional sentences,
board orders and other dispositions.
Rule 17.1 (c) corresponds to one of the guiding principles in
resolution 4 of the Sixth Congress which aims at avoiding incarceration in the
case of juveniles unless there is no other appropriate response that will
protect the public safety.
The provision prohibiting capital punishment in rule 17.2 is in
accordance with article 6, paragraph 5, of the International Covenant on Civil
and Political Rights.
The provision against corporal punishment is in line with article 7 of
the International Covenant on Civil and Political Rights and the Declaration
on the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment as well as the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
and the draft convention on the rights of the child.
The power to discontinue the proceedings at any time (rule 17.4) is a
characteristic inherent in the handling of juvenile offenders as opposed to
adults. At any time, circumstances may become known to the competent
authority which would make a complete cessation of the intervention appear to
be the best disposition of the case.
18. Various disposition measures
18.1 A large variety of disposition measures shall be made available to
the competent authority, allowing for flexibility so as to avoid
institutionalization to the greatest extent possible. Such
measures, some of which may be combined, include:
(a) Care, guidance and supervision orders;
(b) Probation;
(c) Community service orders;
(d) Financial penalties, compensation and restitution;
(e) Intermediate treatment and other treatment orders;
(f) Orders to participate in group counselling and similar
activities;
(g) Orders concerning foster care, living communities or other
educational settings;
(h) Other relevant orders.
18.2 No juvenile shall be removed from parental supervision, whether
partly or entirely, unless the circumstances of her or his case make
this necessary.
Commentary
Rule 18.1 attempts to enumerate some of the important reactions and
sanctions that have been practised and proved successful thus far, in
different legal systems. On the whole they represent promising options that
deserve replication and further development. The rule does not enumerate
staffing requirements because of possible shortages of adequate staff in some
regions; in those regions measures requiring less staff may be tried or
developed.
The examples given in rule 18.1 have in common, above all, a reliance on
and an appeal to the community for the effective implementation of alternative
dispositions. Community-based correction is a traditional measure that has
taken on many aspects. On that basis, relevant authorities should be
encouraged to offer community-based services.
Rule 18.2 points to the importance of the family which, according to
article 10, paragraph 1, of the International Covenant on Economic, Social and
Cultural Rights, is "the natural and fundamental group unit of society".
Within the family, the parents have not only the right but also the
responsibility to care for and supervise their children. Rule 18.2,
therefore, requires that the separation of children from their parents is a
measure of last resort. It may be resorted to only when the facts of the case
clearly warrant this grave step (for example child abuse).
19. Least possible use of institutionalization
19.1 The placement of a juvenile in an institution shall always be a
disposition of last resort and for the minimum necessary period.
Commentary
Progressive criminology advocates the use of non-institutional over
institutional treatment. Little or no difference has been found in terms of
the success of institutionalization as compared to non-institutionalization.
The many adverse influences on an individual that seem unavoidable within any
institutional setting evidently cannot be outbalanced by treatment efforts.
This is especially the case for juveniles, who are vulnerable to negative
influences. Moreover, the negative effects, not only of loss of liberty but
also of separation from the usual social environment, are certainly more acute
for juveniles than for adults because of their early stage of development.
Rule 19 aims at restricting institutionalization in two regards: in
quantity ("last resort") and in time ("minimum necessary period"). Rule 19
reflects one of the basic guiding principles of resolution 4 of the Sixth
United Nations Congress: a juvenile offender should not be incarcerated
unless there is no other appropriate response. The rule, therefore, makes the
appeal that if a juvenile must be institutionalized, the loss of liberty
should be restricted to the least possible degree, with special institutional
arrangements for confinement and bearing in mind the differences in kinds of
offenders, offences and institutions. In fact, priority should be given to
"open" over "closed" institutions. Furthermore, any facility should be of a
correctional or educational rather than of a prison type.
20. Avoidance of unnecessary delay
20.1 Each case shall from the outset be handled expeditiously, without
any unnecessary delay.
Commentary
The speedy conduct of formal procedures in juvenile cases is a paramount
concern. Otherwise whatever good may be achieved by the procedure and the
disposition is at risk. As time passes, the juvenile will find it
increasingly difficult, if not impossible, to relate the procedure and
disposition to the offence, both intellectually and psychologically.
21. Records
21.1 Records of juvenile offenders shall be kept strictly confidential
and closed to third parties. Access to such records shall be
limited to persons directly concerned with the disposition of the
case at hand or other duly authorized persons.
21.2 Records of juvenile offenders shall not be used in adult proceedings
in subsequent cases involving the same offender.
Commentary
The rule attempts to achieve a balance between conflicting interests
connected with records or files: those of the police, prosecution and other
authorities in improving control versus the interests of the juvenile
offender. (See also rule 8.) "Other duly authorized persons" would generally
include, among others, researchers.
22. Need for professionalism and training
22.1 Professional education, in-service training, refresher courses and
other appropriate modes of instruction shall be utilized to
establish and maintain the necessary professional competence of all
personnel dealing with juvenile cases.
22.2 Juvenile justice personnel shall reflect the diversity of juveniles
who come into contact with the juvenile justice system. Efforts
shall be made to ensure the fair representation of women and
minorities in juvenile justice agencies.
Commentary
The authorities competent for disposition may be persons with very
different backgrounds (magistrates in the United Kingdom of Great Britain and
Northern Ireland and in regions influenced by the common law system; legally
trained judges in countries using Roman law and in regions influenced by them;
and elsewhere elected or appointed laymen or jurists, members of
community-based boards etc.). For all these authorities, a minimum training
in law, sociology, psychology, criminology and behavioural sciences would be
required. This is considered as important as the organizational
specialization and independence of the competent authority.
For social workers and probation officers, it might not be feasible to
require professional specialization as a prerequisite for taking over any
function dealing with juvenile offenders. Thus, professional on-the-job
instruction would be minimum qualifications.
Professional qualifications are an essential element in ensuring the
impartial and effective administration of juvenile justice. Accordingly, it
is necessary to improve the recruitment, advancement and professional training
of personnel and to provide them with the necessary means to enable them to
properly fulfil their functions.
All political, social, sexual, racial, religious, cultural or any other
kind of discrimination in the selection, appointment and advancement of
juvenile justice personnel should be avoided in order to achieve impartiality
in the administration of juvenile justice. This was recommended by the Sixth
United Nations Congress. Furthermore, the Sixth Congress called on Member
States to ensure the fair and equal treatment of women as criminal justice
personnel and recommended that special measures should be taken to recruit,
train and facilitate the advancement of female personnel in juvenile justice
administration.
Part four. Non-institutional treatment
23. Effective implementation of disposition
23.1 Appropriate provisions shall be made for the implementation of
orders of the competent authority, as referred to in rule 14.1
above, by that authority itself or by some other authority as
circumstances may require.
23.2 Such provisions shall include the power to modify the orders as the
competent authority may deem necessary from time to time, provided
that such modification shall be determined in accordance with the
principles contained in these Rules.
Commentary
Disposition in juvenile cases, more so than in adult cases, tends to
influence the offender's life for a long period of time. Thus, it is
important that the competent authority or an independent body (parole board,
probation office, youth welfare institutions or others) with qualifications
equal to those of the competent authority that originally disposed of the case
should monitor the implementation of the disposition. In some countries a
juge d'execution des peines has been installed for this purpose.
The composition, powers and functions of the authority must be flexible;
they are described in general terms in rule 23 in order to ensure wide
acceptability.
24. Provision of needed assistance
24.1 Efforts shall be made to provide juveniles, at all stages of the
proceedings, with necessary assistance such as lodging, education or
vocational training, employment or any other assistance, helpful and
practical, in order to facilitate the rehabilitative process.
Commentary
The promotion of the well-being of the juvenile is of paramount
consideration. Thus, rule 24 emphasizes the importance of providing requisite
facilities, services and other necessary assistance as may further the best
interests of the juvenile throughout the rehabilitative process.
25. Mobilization of volunteers and other community services
25.1 Volunteers, voluntary organizations, local institutions and other
community resources shall be called upon to contribute effectively
to the rehabilitation of the juvenile in a community setting and, as
far as possible, within the family unit.
Commentary
This rule reflects the need for a rehabilitative orientation of all work
with juvenile offenders. Co-operation with the community is indispensable if
the directives of the competent authority are to be carried out effectively.
Volunteers and voluntary services, in particular, have proved to be valuable
resources but are at present underutilized. In some instances, the
co-operation of ex-offenders (including ex-addicts) can be of considerable
assistance.
Rule 25 emanates from the principles laid down in rules l.l to l.6 and
follows the relevant provisions of the International Covenant on Civil and
Political Rights.
Part five. Institutional treatment
26. Objectives of institutional treatment
26.1 The objective of training and treatment of juveniles placed in
institutions is to provide care, protection, education and
vocational skills, with a view to assisting them to assume socially
constructive and productive roles in society.
26.2 Juveniles in institutions shall receive care, protection and all
necessary assistance - social, educational, vocational,
psychological, medical and physical - that they may require because
of their age, sex and personality and in the interest of their
wholesome development.
26.3 Juveniles in institutions shall be kept separate from adults and
shall be detained in a separate institution or in a separate part of
an institution also holding adults.
26.4 Young female offenders placed in an institution deserve special
attention as to their personal needs and problems. They shall by no
means receive less care, protection, assistance, treatment and
training than young male offenders. Their fair treatment shall be
ensured.
26.5 In the interest and well-being of the institutionalized juvenile,
the parents or guardians shall have a right of access.
26.6 Inter-ministerial and inter-departmental co-operation shall be
fostered for the purpose of providing adequate academic or, as
appropriate, vocational training to institutionalized juveniles,
with a view to ensuring that they do not leave the institution at an
educational disadvantage.
Commentary
The objectives of institutional treatment as stipulated in rules 26.1 and
26.2 would be acceptable to any system and culture. However, they have not
yet been attained everywhere, and much more has to be done in this respect.
Medical and psychological assistance, in particular, are extremely
important for institutionalized drug addicts, violent and mentally ill young
persons.
The avoidance of negative influences through adult offenders and the
safeguarding of the well-being of juveniles in an institutional setting, as
stipulated in rule 26.3, are in line with one of the basic guiding principles
of the Rules, as set out by the Sixth Congress in its resolution 4. The rule
does not prevent States from taking other measures against the negative
influences of adult offenders, which are at least as effective as the measures
mentioned in the rule. (See also rule 13.4.)
Rule 26.4 addresses the fact that female offenders normally receive less
attention than their male counterparts, as pointed out by the Sixth Congress.
In particular, resolution 9 of the Sixth Congress calls for the fair treatment
of female offenders at every stage of criminal justice processes and for
special attention to their particular problems and needs while in custody.
Moreover, this rule should also be considered in the light of the Caracas
Declaration of the Sixth Congress, which, inter alia, calls for equal
treatment in criminal justice administration, and against the background of
the Declaration on the Elimination of Discrimination against Women and the
Convention on the Elimination of All Forms of Discrimination against Women.
The right of access (rule 26.5) follows from the provisions of rules 7.1,
l0.1, 15.2 and l8.2. Inter-ministerial and inter-departmental co-operation
(rule 26.6) are of particular importance in the interest of generally
enhancing the quality of institutional treatment and training.
27. Application of the Standard Minimum Rules for the Treatment
of Prisoners adopted by the United Nations
27.1 The Standard Minimum Rules for the Treatment of Prisoners and
related recommendations shall be applicable as far as relevant to
the treatment of juvenile offenders in institutions, including those
in detention pending adjudication.
27.2 Efforts shall be made to implement the relevant principles laid down
in the Standard Minimum Rules for the Treatment of Prisoners to the
largest possible extent so as to meet the varying needs of juveniles
specific to their age, sex and personality.
Commentary
The Standard Minimum Rules for the Treatment of Prisoners were among the
first instruments of this kind to be promulgated by the United Nations. It is
generally agreed that they have had a world-wide impact. Although there are
still countries where implementation is more an aspiration than a fact, those
Standard Minimum Rules continue to be an important influence in the humane and
equitable administration of correctional institutions.
Some essential protections covering juvenile offenders in institutions
are contained in the Standard Minimum Rules for the Treatment of Prisoners
(accommodation, architecture, bedding, clothing, complaints and requests,
contact with the outside world, food, medical care, religious service,
separation of ages, staffing, work, etc.) as are provisions concerning
punishment and discipline, and restraint for dangerous offenders. It would
not be appropriate to modify those Standard Minimum Rules according to the
particular characteristics of institutions for juvenile offenders within the
scope of the Standard Minimum Rules for the Administration of Juvenile
Justice.
Rule 27 focuses on the necessary requirements for juveniles in
institutions (rule 27.l) as well as on the varying needs specific to their
age, sex and personality (rule 27.2). Thus, the objectives and content of the
rule interrelates to the relevant provisions of the Standard Minimum Rules for
the Treatment of Prisoners.
28. Frequent and early recourse to conditional release
28.1 Conditional release from an institution shall be used by the
appropriate authority to the greatest possible extent, and shall be
granted at the earliest possible time.
28.2 Juveniles released conditionally from an institution shall be
assisted and supervised by an appropriate authority and shall
receive full support by the community.
Commentary
The power to order conditional release may rest with the competent
authority, as mentioned in rule 14.1, or with some other authority. In view
of this, it is adequate to refer here to the "appropriate" rather than to the
"competent" authority.
Circumstances permitting, conditional release shall be preferred to
serving a full sentence. Upon evidence of satisfactory progress towards
rehabilitation, even offenders who had been deemed dangerous at the time of
their institutionalization can be conditionally released whenever feasible.
Like probation, such release may be conditional on the satisfactory fulfilment
of the requirements specified by the relevant authorities for a period of time
established in the decision, for example relating to "good behaviour" of the
offender, attendance in community programmes, residence in half-way houses,
etc.
In the case of offenders conditionally released from an institution,
assistance and supervision by a probation or other officer (particularly where
probation has not yet been adopted) should be provided and community support
should be encouraged.
29. Semi-institutional arrangements
29.1 Efforts shall be made to provide semi-institutional arrangements,
such as half-way houses, educational homes, day-time training
centres and other such appropriate arrangements that may assist
juveniles in their proper reintegration into society.
Commentary
The importance of care following a period of institutionalization should
not be underestimated. This rule emphasizes the necessity of forming a net of
semi-institutional arrangements.
This rule also emphasizes the need for a diverse range of facilities and
services designed to meet the different needs of young offenders re-entering
the community and to provide guidance and structural support as an important
step towards successful reintegration into society.
Part six. Research, planning, policy formulation and evaluation
30. Research as a basis for planning, policy formulation
and evaluation
30.1 Efforts shall be made to organize and promote necessary research as
a basis for effective planning and policy formulation.
30.2 Efforts shall be made to review and appraise periodically the
trends, problems and causes of juvenile delinquency and crime as
well as the varying particular needs of juveniles in custody.
30.3 Efforts shall be made to establish a regular evaluative research
mechanism built into the system of juvenile justice administration
and to collect and analyse relevant data and information for
appropriate assessment and future improvement and reform of the
administration.
30.4 The delivery of services in juvenile justice administration shall be
systematically planned and implemented as an integral part of
national development efforts.
Commentary
The utilization of research as a basis for an informed juvenile justice
policy is widely acknowledged as an important mechanism for keeping practices
abreast of advances in knowledge and the continuing development and
improvement of the juvenile justice system. The mutual feedback between
research and policy is especially important in juvenile justice. With rapid
and often drastic changes in the life-styles of the young and in the forms and
dimensions of juvenile crime, the societal and justice responses to juvenile
crime and delinquency quickly become outmoded and inadequate.
Rule 30 thus establishes standards for integrating research into the
process of policy formulation and application in juvenile justice
administration. The rule draws particular attention to the need for regular
review and evaluation of existing programmes and measures and for planning
within the broader context of overall development objectives.
A constant appraisal of the needs of juveniles, as well as the trends and
problems of delinquency, is a prerequisite for improving the methods of
formulating appropriate policies and establishing adequate interventions, at
both formal and informal levels. In this context, research by independent
persons and bodies should be facilitated by responsible agencies, and it may
be valuable to obtain and to take into account the views of juveniles
themselves, not only those who come into contact with the system.
The process of planning must particularly emphasize a more effective and
equitable system for the delivery of necessary services. Towards that end,
there should be a comprehensive and regular assessment of the wide-ranging,
particular needs and problems of juveniles and an identification of clear-cut
priorities. In that connection, there should also be a co-ordination in the
use of existing resources, including alternatives and community support that
would be suitable in setting up specific procedures designed to implement and
monitor established programmes.