On 20^th November 2004, the international community will celebrate the 15^th anniversary of the UN Convention on the Rights of the Child (CRC). The CRC is the most highly ratified international human rights treaty in the world. It applies to “every human being below the age of 18 years, unless, under the law applicable to the child, majority is attained earlier”.

One of its outstanding features is the comprehensive nature of its provisions. These are both numerous and detailed and combine civil and political rights, such as the right to liberty; social, economic and cultural rights, including the right to education, the right to an adequate standard of living and health care and the right to play. Many of the CRC’s provisions reflect those of other, more general human rights instruments, but there were also new provisions, which recognised the right to identity and the rights of vulnerable children to special protection. The CRC broke fresh ground by providing child-specific versions of specific rights, like the right to freedom of expression and the right to a fair trial. It also established new standards by codifying for the first time the right of the child to be heard, both in general and, more specifically, in all proceedings that affect the child.

The CRC has a number of guiding principles that must inform the implementation of Convention provisions in all areas. The principles are the principle of non-discrimination (Article 2), the best interests of the child (Article 3) and the child’s right to be heard (Article 12).

These principles are reinforced by several provisions that emphasise the state’s obligation to support parents in their child-rearing duties (Article 18), the importance of contact between parents and children (Article 9), the child’s right to protection from harm (Article 19), and the right of a child who is deprived of a family to alternative care, protection and assistance (Article 20).

In ratifying the Convention Governments commit themselves to a set of non-negotiable and legally-binding minimum standards and obligations in respect of all aspects of children’s lives, from respecting and promoting fundamental principles such as the best interests of the child and the child’s right to be heard, to rights in areas such as standards of living, health, care and protection, play, education, and juvenile justice.

They also make a commitment to recognise and respond to the specific needs of particular groups of children who may suffer discrimination, for example ethnic minorities, children with disabilities, asylum seekers, children in care, children in the justice system.

For anyone interested in protecting or promoting the rights of children the CRC offers one of the most powerful tools available. It works not only in creating a vision for all children but also at the level of practical action to realise children’s rights in everyday situations.

The CRC is binding on all States Parties and their role in promoting the Convention is clearly spelt out. Unfortunately not all States Parties honour their obligations.

Article 43 of the CRC establishes a Committee on the Rights of the Child: “for the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention”.

The CRC, and hence the Committee, carries considerable moral force based on its unanimous approval by the General Assembly in 1990 as well as from the status acquired by being the most universally ratified instrument in international law. And yet, despite its impressive substantive content and high moral force, the CRC has weak enforcement mechanisms. The approach of the Committee on the Rights of the Child to the promotion and protection of children’s rights is advisory and non-adversarial in nature. Its success relies on diplomacy rather than on legal sanction.

Many, probably the majority, of countries which have ratified the CRC, have yet to incorporate it into domestic legislation. Such incorporation, or an acknowledgement that international law overrides domestic law, is essential in order to compel a country to meet its obligations under international treaties. International instruments can safely be ignored in any country where there is no internal enforcement mechanism. Let me give you an example.

In 1998, the European Court of Human Rights found unanimously that the UK law allowing ‘reasonable chastisement’ failed to protect a young English boy from inhuman or degrading punishment at the hands of his stepfather. Four years later, in October 2002, the Committee on the Rights of the Child expressed deep regret that the UK had taken no action arising from that case. In July this year the British Government, ignoring the European Court finding and the advice of the CRC, voted to uphold the right of parents to beat their children.

The CRC is a powerful instrument whose potential is diminished by weak enforcement mechanisms. How can we maximise the Convention’s potential to uphold the rights of children? Is this the role of the courts? I believe that judges and magistrates must be fully involved in the area of protection. The courts can give the Convention teeth.

The CRC is part of an intricate web of various kinds of standards and obligations, which overlap and reinforce each other. The challenge for judges and magistrates is to identify and draw on instruments which are enforceable in their jurisdiction in order to protect the rights of children.

It is not possible in the time available to go through the Convention, Article by Article. Instead I will focus on one area as an example of how the courts can protect children’s rights.

This year is the 10^th Anniversary of the International Year of the Family and the UN has called on States Parties to review the commitments made in 1994. So let me focus on the right of the child to family life.

The rights of the family are protected by the provisions of the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration on Social Progress and Development, the Convention on the Elimination of All Forms of Discrimination against Women, the European Convention on Human Rights and, of course, the CRC itself.

The Preamble to the CRC recognises that the child, for full and harmonious development of his/her personality, should grow up in a family environment and in an atmosphere of happiness and understanding. At first glance there seems little in this sentence that anyone could disagree with and yet there has been much disagreement recently over just what constitutes a “family environment”.

Let me take one example which is creating much controversy and where judges have played a prominent role.

On May 17 this year Massachusetts joined a tiny list of places where same sex couples can marry - the others being Belgium, the Netherlands and the Canadian provinces of Ontario, British Columbia and Quebec. The Yukon has now been added to that list following a Supreme Court decision in July.

The change in Massachusetts came about as a result of majority (4-3) decision of the Supreme Court in November 2003. The decision brought the Court into conflict with the Legislature. The Senate voted in late March (2004) to approve a constitutional amendment that would ban gay marriage and establish civil unions. However, that amendment cannot take effect unless it is approved by another session of the Legislature and then by voters in 2006, so it could not hold up the start of same-sex marriages. More than 900 were celebrated on May 17 alone.

The decision brought the Court into conflict with the American Right also. President Bush criticised the Massachusetts court’s ruling saying:

“The sacred institution of marriage should not be defined by a few activist judges”.

He called on Congress to pass an amendment to the constitution defining and protecting marriage as the union of a man and a woman as husband and wife. Congress rejected his call on July 13 but Bush had already decided to put support for a constitutional amendment banning gay marriage in the forefront of his re-election campaign.

It appeared that President Bush and the legislators in Massachusetts were trying to hold back the tide. Public opinion was shifting across the United States. A Gallop poll released on May 17 (2004) showed that, since December (2003), support for gay marriage grew from 31% to 42%, while the number of those opposed fell from 65% to 55%.

It is worth noting that the territorial government decided not to fight the Yukon Supreme Court’s ruling to allow same sex marriages.

The independence of the judiciary is jealously guarded in most jurisdictions and few judges would wish to get entangled in matters which are truly the concern of the Executive. But the boundaries between Executive and the Judiciary are not always clear cut and judges are often left to interpret the mind of the legislature.

Thorpe LJ, speaking in a case which went before the House of Lords in London, said:

“That system [of family law] must always be sufficiently flexible to accommodate social change. It must be humane and swift to recognise the right to human dignity and the freedom of choice in the individual’s private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of statutory provisions.”

Since our focus here is on the CRC I would like to highlight the difference between protecting children on the one hand (decisions are taken for them) and protecting their rights on the other (the children are involved in the decision-making process).

I noted earlier that the CRC is weak on enforcement and that the challenge facing judges and magistrates is to identify and draw on the strengths of other instruments which are enforceable.

The remainder of my paper will focus on how courts in Europe have used legally binding international instruments, in particular the European Convention on Human Rights (ECHR), to enforce the rights of the child to family life.

Article 8 of the ECHR places an obligation on the state to take all necessary steps to ensure that the rights of parents and children are respected.

Only those interferences that are in accordance with the law and necessary in a democratic society in the interests of the protection of “health or morals” or “the rights and freedoms of others” can be justified.

Fundamentally, in order to avoid a violation of Article 8’s provision, there must be an appropriate balance between the right to have respect for family life and the legitimate aim served by interfering with it.

In its application of this test, the European Court of Human Rights has held consistently that consideration of what is in the best interests of the child is in every case of crucial importance.

Let me give you a brief overview of some key areas where the European Court has ruled in favour of the best interests of the child.

Non-Discrimination: The European Court has played an important role in eliminating the concept of “illegitimacy” or discrimination of children born outside marriage.

The Child’s Right to Be Heard: In T & V v UK the European Court clearly stated that children had to be able to participate and understand the proceedings in which they were involved.

Protection from Abuse: The European Court has begun to use Article 3 ECHR, which prohibits inhuman and degrading treatment or punishment, to vindicate the child’s right to protection from abuse.

Separation - Care Orders: Once removed from the family, Article 20 CRC entitles the child to special protection and alternative care such as fostering and adoption. In addition the European Court has considered how a care arrangement is to be put into place consistent with Article 8 ECHR.

Contact: European Court case law establishes the right to contact to be an implicit part of respect for family life.

As a matter of principle the Court has found that the fundamental nature of the link between a parent and child means that where the family no longer lives together, continued contact between parents and their children is desirable and should in principle remain possible.

There is thus a right of mutual contact guaranteed to parents and children under Article 8, which means that a decision denying or regulating such contact will interfere with family life and require justification by considerations pertaining to the child’s best interests under Article 8.2.

A careful balancing exercise must be undertaken to ensure compatibility with Article 8. Thus, particularly harsh restrictions can only be applied in exceptional circumstances and they will only be justified where they are motivated by an overriding requirement pertaining to the best interests of the child.

The principle of proportionality requires that a decision to deprive parents and children from mutual contact on a permanent basis must be supported by “particularly strong reasons” in order to be compatible with the CRC.

The Right to be Involved: The Court has found that when a child has been separated from a parent, and some measures have been taken in order to create closer contacts between parent and child, the mature child, not the parent, should determine the pace at which the relationship should develop.

The Right to Information: The European Court has indicated its support for the child’s right to know his/her parents as recognised by Article 7 CRC. It has also stressed the importance to the child of family information, and takes the view that the child’s birth certificate must reflect accurately the biological reality, even where it is different from the social position.

Obligation to Enforce Court Orders: The Court stresses the obligation which rests on state authorities to enforce court-ordered contact, to periodically review care orders and to work towards reuniting parents and children.

Conclusion: The European Court has established fundamental principles on the subject of family life that clearly reflect the approach of the CRC. The growing awareness of children’s rights – highlighted by the CRC – has a bearing on the way children’s cases are being argued and decided by the Court. Moreover, in certain areas, the scope of protection offered by the ECHR goes further than that offered by the CRC by providing more detailed guidance and considerable good practice available under the ECHR system.

In defining the right of the child to family life it is important that the inter-relationship of domestic law, the ECHR and the CRC continues to be a fluid and dynamic one.

There will always be areas where good practice can be identified in one system rather than another. In a time when legal information is highly accessible and easily referenced it is vital that those involved in enforcing, applying and monitoring implementation of the standards in children’s rights and family law area remain open to the positive influence which other standards offer.

Such cross-fertilisation of standards and best practice is essential if judges and magistrates are to meet their greatest challenge, namely that of guaranteeing that the protection of children’s rights within the family is truly global.

Willie McCarney, Editor-in-Chief

After a long gestation lasting almost 20 years the new juvenile criminal law was born following a vote held at the Federal Assembly (the Swiss Parliament) on 20 June 2003 in which the first draft law on juvenile justice was adopted. The process had begun back in 1985 when Professor Martin Stettler of the University of Geneva first proposed a new draft law. This was submitted to a committee of experts who worked on it from 1986 until 1993. The draft law then went through the consultation procedure, was sent back to the Federal administration for slight revision and was then submitted to the National Council which presented it to Parliament in 1998. It may seem surprising that a text for which the main parties concerned (juvenile courts, youth welfare services) as well as the major political parties had reached an agreement in principle would have such a laborious delivery. And all the more so in that the parliamentary debate had not brought about much change to the text.

The law is expected to come into force on the first of January 2006. Such a long time-frame seems rather surprising but the reason is that the Cantons, which retain sovereign authority not only regarding judicial procedure and organization but also concerning institutional facilities had requested extra time before the new law was implemented.

It should be recalled that the current legal code had been adopted in 1937 and entered into force in 1942. It had undergone a “face-lift” in 1971 but it needed to be revisited and updated. The law needed to be adapted to the change in the pattern of juvenile delinquency that had taken place in the period 1990-1995, and the significant statistical changes that had ensued. In general it can be said that the new law did not trigger a revolution, and that it had picked up many of the provisions enshrined in the existing legal regime, whilst modernizing and adapting them to current realities.

In the following presentation I would like to show you above all how the pattern of juvenile crime has changed in Switzerland and then briefly highlight the innovative elements of the text.

A. Juvenile Crime Trends in Switzerland

1.1 General Comments

Generally speaking, the situation in Switzerland is characterized by:

· A sharp rise in the number of minors charged and convicted in juvenile court ,

· A shift from “adult” delinquency towards juvenile delinquency,

· A change in the type of offenses committed by minors,

· A drop in the age at which offenses are committed.

1.2 A Rise in the Number of Reported Offenses

Federal statistics on juvenile delinquency have been recorded in a generalized fashion since 1986 and systematically recorded since the “Jusus” system was introduced by the Swiss Federal Statistical Office in 1999. ^[1] Grosso modo, it can be affirmed that the number of convicted minors remained much the same until 1990, that it rose slightly between 1990 and 1995 and that since 1995 the number has risen sharply.

The following table^[2] clearly illustrates this rise between 1990 and 2002. It covers the number of minors convicted in Switzerland.

Year	Convictions
1990	6’803
1991	7’278
1992	7’357
1993	7’930
1994	8’243
1995	7’983
1996	8’900
1997	9’364
1998	10’131
1999	12’238
2000	11’314
2001	12’319
2002	12’854

There has been a sharp rise in Switzerland in the number of convicted minors.

The following table shows the number of minors reported to have committed an offense in the French-speaking cantons. This figure mirrors the change in the actual work-load of juvenile courts, since a certain number of the charges will not lead to convictions and therefore will not be included in the table below as they may lead to a non-suit, refusal to take action, dismissal, acquittal, withdrawal of a complaint, a conciliation arrangement, or withdrawal of the judge.

The breakdown per canton is given in the following table^[3]:

The number of minors reported as offenders in French-speaking Switzerland

	VS	VD	GE	FR	NE	JU
1990	829	*	1’009	1’257	963	238
1991	884	1’921	1’623	1’340	768	216
1992	904	1’706	982	1’188	808	201
1993	874	2’498	998	1’067	679	207
1994	928	2’591	1’154	1’154	797	201
1995	1’016	2’812	1’213	1’061	827	276
1996	1’026	2’648	1’317	1’140	783	237
1997	1’072	2’781	1’428	1’196	878	286
1998	1’097	2’950	1’360	1’421	854	303
1999	1’273	2’903	1’319	1’665	990	329
2000	1’387	3’232	1’630	1’494	1’038	472
2001	1’360	3’495	1’778	1’626	1’200	420
2002	1’399	4’184	*	1’830	1’203	279

*no figures available

It should be noted that in the case of Geneva the figures comprise adolescents only; children (under the age of 15) have been omitted from the table.

With just a cursory glance at these figures it becomes very clear that there has been a sharp rise in the number of juveniles charged with offenses by the juvenile criminal authorities in French-speaking Switzerland. With a more detailed examination we realize that in certain cantons the numbers have almost doubled.

1.3 A Shift from “Adult” Delinquency towards Juvenile Delinquency

For quite a long time most offenses were committed by adults, with an over-representation of young adults (18-25 years old). Now however, although the majority of those brought before the law enforcement authorities are adults, the numbers of juveniles subjected to criminal proceedings is becoming proportionately higher.

Thus, from approximately 15% of all recorded offenses being committed by minors the figures have risen almost one third ^[4], peaking at 44% as seen for the canton of Fribourg in 2001^[5]

1.4 Changes in the Type of Offenses Committed

It is interesting to note that there has been a change in the type of offense committed. The following table^[6] indicates this change:

a) Property offenses

1990 : 4’410 convicted juveniles, or 64.8 %

1995 : 5’083 convicted juveniles, or 63.7 %

1997 : 5’785 convicted juveniles, or 61.0 %

2000 : 5’052 convicted juveniles, or 44.7 %

2002-------- 5’401 convicted juveniles, or 42.0 %

b) Offenses against the physical integrity of the person

1990 : 181 convicted juveniles, or 2.5 %

1995 : 417 convicted juveniles, or 5.1 %

1997 : 653 convicted juveniles, or 7.0 %

2000 : 798 convicted juveniles, or 7.1 %

2002----- 945 convicted juveniles, or 7.4 %

c) Road traffic offenses

1990 : 2’479 convicted juveniles, or 36.4 %

1995 : 3’322 convicted juveniles, or 41.6 %

1997 : 3’393 convicted juveniles, or 36.2 %

2000 : 1’189 convicted juveniles, or 10.5 %

2002----- 1’569 convicted juveniles, or 12.2 %

d) drugs-related offenses

1990 : 767 convicted juveniles, or 11.0 %

1995 : 1’322 convicted juveniles, or 16.6 %

1997 : 1’609 convicted juveniles, or 17.2 %

2000 : 4’461 convicted juveniles, or 39.0 %

2002 5’173 convicted juveniles, or 40.2 %

We also note a rather sharp change in the type of offense committed: property offenses, representing 2/3 juvenile offenses in 1990, has significantly dropped; road traffic offenses have plummeted. On the other hand offenses against the physical integrity of the person have shot up threefold and narcotics offenses fourfold. This clearly underscores that there are fewer cases of property offenses yet more attacks on the highest value of all (that of respect for life) and more acts of self-destruction. The trivialization of consumption of cannabis products partly explains the spectacular increase in the number of narcotics offenders.

1.5 Increasingly Young Offenders

The fourth characteristic of the new data on juvenile delinquency is that offenders are committing their offenses at an increasingly young age. This holds true throughout the Western world. In Switzerland juvenile courts have found themselves in the throes of this trend.

This situation poses additional difficulties since the age of these young offenders often corresponds to a delicate period following the state of latency that precedes adolescence. This is compounded by the educational status of the young delinquents who at times are no longer accepted at normal educational institutions, and have been expelled from them more or less overriding the requirement of compulsory education. The lack of appropriate structures to deal with this type of situation has created enormous difficulties.

A delicate piece of the institutional puzzle needs to be put in place: the offenders’ young age precludes strict penalties; and the behavior of these very young people often exceeds what their families, classes, traditional educational institutions can bear. The conundrum is exacerbated further by the need to ensure minimal school attendance.

B Presentation of the New Law

2.1 A Law Outside of the Swiss Criminal Code

There is no specific law in Switzerland at the present time concerning juvenile offenders; provisions that apply to young offenders are an integral part of the Swiss Criminal Code and are enshrined in articles 82 to 99 of the code. Until the new juvenile criminal law enters into force the provisions applying to juvenile offenders will thus remain in the Swiss criminal code^[7], and be the same as those applying to adults. Nevertheless the Swiss parliament’s intention with the new legislation is to move away from this text and enact a distinct law that applies to juveniles exclusively. This is the new Swiss Federal Statute on Criminal Juvenile Law ( CJL) (abbreviation in French: DPMin).

This is above all a symbolic gesture giving young offenders their own law so as to differentiate clearly between the way adult and juvenile offenders are treated. This endeavor to separate the two requires a provision indicating which rules of the Swiss Criminal Code also apply to juveniles, since most of the general rules contained in it continue to be applicable to juveniles (cf. art. 1 para 2 in CJL/DPMin).

2.2 A Law with an Educational Perspective

Historically, juvenile justice has been kept separate from adult criminal law and its system of retribution in order to highlight the concept of individualized care and attention which focuses on the problems underpinning the commission of offenses so as to avoid recidivism/repeat offenses wherever possible. During the past century throughout the Western world lawmakers have enacted increasingly complex laws which have placed such emphasis on the idea of the underlying causes of crime that the judicial systems have swung back and forth between an interventionist approach aiming to correct and cure known as the “welfare model” and a more procedural and punitive approach linked to the so-called “justice model”. ^[8] This trend was quite apparent in the Anglo-Saxon countries where at the end of the 20^th century there was a shift to increasingly stringent responses which gave priority to the deprivation of liberty^[9].

In the aftermath of the Convention of the Rights of the Child^[10], the major international texts such as the Beijing Rules^[11], the Riyad Guidelines^[12], and the Havana Rules^[13], or the draft law proposed to states by the United Nations Vienna office in charge of crime prevention on juvenile justice to serve as a model for national legislators^[14] do not reveal a choice for one model over another, but repeatedly accentuate the need for clear procedural guarantees for young people in conflict with the law (with the leitmotiv that the juvenile must not be subject to worse treatment than an adult) and on the fact that any deprivation of liberty (pre- and post-trial detention and custody ) should be adopted as a last resort. Emphasis is placed on developing alternative measures and out-of-court procedures^[15].

Swiss lawmakers have not allowed themselves to be swept up by the current trend to favor security as the highest value, thus requiring dissuasive penalties for young delinquents but have clearly articulated their endorsement of the protection principles. This is proclaimed unequivocally in article 2 of the CJL (principles). This means that the Swiss legislators have underscored, in this new type of protective law:

· The need to consider the personal and family circumstances of the child (cf. art 9 CJL);

· The need to provide for protective measures (art. 12-15 CJL)

· The need to give these measures priority over punishment (art 32 CJL)

2.3 A Law with Elements of Restorative Justice

The way youth offenders are treated has evolved and it has been affirmed that there is now a third model ^[16], that of restorative justice which includes the victim in the process and tries to raise awareness in offenders of the impact of their wrongdoing so they can repair the harm and make amends. This does not in our view in fact constitute a third model but is an approach that can be included within the protection system as well as in the system of justice.

The Swiss lawmaker has picked up on this idea of restitution and confrontation with the victim through the introduction of mediation, in articles 8 and 21 para. 3 (CJL). The confrontation between offender and victim follows a procedure used in mediation. The stakeholders reach agreement on symbolic reparation, be it partial or total, so as to complete the mediation during the preparatory inquiry or at the time sentence is passed.

The concept of community service order as seen in article 23 CJL reflects elements of restorative justice, the idea being to find a way of repairing harm that has an educational grounding (active participation in classes) or reintegrating the society in which the law was broken thanks to a symbolic reparation (community work).

2.4 A Law with Punitive Elements

Although the main concern of the new CJL is to provide protection, it is undeniably more stringent than the current law in that it provides for two forms of deprivation of liberty that are significantly harsher:

· Qualified deprivation of liberty for up to four years for juveniles above the age of 16 who have committed grave offenses and who pose a danger to society.

· Institutionalization in closed establishments to prevent self-harm or safeguard the public from serious harm (art 25 para. 2 CJL).

The aforementioned affirmation of the stringency of the new law must be nuanced, however, by the fact that this will depend on the conditions under which the sanctions are implemented. These conditions should be more akin to protective measures than deprivations of liberty in the traditional sense of the term. Institutionalization of a juvenile in a closed establishment must be decided on the basis of objective criteria following medical and psychological examination by an expert.

2.5 Minimal Age of Criminal Responsibility

At the present time juvenile courts in Switzerland are processing child offenders aged 7 to 15 and youth offenders between 15 and 18 years old. The new CJL will only apply to children as of the age of 10, thus raising the threshold for the minimal age for criminal responsibility from 7 to 10 years. This decision has given rise to much discussion, with some holding the view that the ages of 12, 14 or 16 would be better suited. It should be noted that the current threshold is amongst the lowest in the world (with that of Scotland and the Republic of Myanmar) and that arguments in favor of such a young age for criminal responsibility (namely the myth of early detection) disappeared with the mushrooming of youth social welfare services. In the end it was the emergence of serious crimes committed by very young children and the continual drop in the age of young offenders that prompted the choice for the minimal age for criminal responsibility to be set as of the age of 10 (art 3 CJL).

The ceiling for criminal responsibility under juvenile justice remains at 18 years of age as is the case in most countries in the world.

The relatively artificial distinction made between children and young people falls and a sole category remains, that of juveniles. The age limit of 15 years remains for qualified community service orders (art 23 para. 3 CJL), for fines (art 24 CJL) and for the deprivation of liberty (art 25 para.1 CJL), and 16 years for qualified deprivation of liberty (art 25 para. 2 CJL).

2.6 Protective Measures

Swiss legislation has tried to harmonize protective measures enshrined in the Swiss Civil Code with those adopted by the criminal judge. That is why measures qualified in the new law as “protective” - whereas they are “educational” in positive law- are treated similarly to measures under the Swiss Civil Code.

It should be noted that today there is great variety in the types of correctional facilities for juveniles ^[17] but this system -which does not stem from an objective analysis of needs but from a rather discriminatory definition of the attitude or character of the institutionalized juveniles - now disappears in favor of the broader heading “institutionalization”. Now pride of place will be given to needs analysis, monitoring of the juveniles and potential modification of measures through transfer to another institution.

Naturally the idea of institutionalization in closed establishments merits attention, as provided in article 15 para. 2 CJL as mentioned above. The innovative nature of this type of institutionalization will pose certain problems regarding the availability of appropriate establishments, namely in relation to the mental health problems of the young delinquents since such establishments are, at the present time, sadly lacking.

Concerning remaining issues, in the new provisions we find the same ambulatory and institutional measures that exist at the present time and that criminal juvenile law uses extensively and will continue to use.

It should be noted, nonetheless, that Swiss lawmakers have responded to an oft-made request by those dealing with juveniles at risk or juvenile offenders, regarding the exchange of information and collaboration, so as to avoid unnecessary duplication. Article 20 of the CJL will impose comprehensive collaboration between civil authorities and juvenile criminal authorities and will resolve a certain number of situations where these authorities should not only exchange information but will be called upon to make the corresponding decisions.

2.7 Penalties

The new law has taken up sanctions from positive law such as reprimands, fines and work duty, and rejuvenated them. The CJL has above all underscored community service orders as

· A means of making amends to oneself or to society

· A genuine alternative to short periods of deprivation of liberty.

Article 23, para. 2 CJL offers the possibility of fulfilling this service by following a course and not only by doing work. This is reminiscent of other mandatory measures imposed by juvenile courts in Switzerland, regarding road safety courses, health education or sessions for juvenile sexual abusers (the experience of Famille Solidaire , for example^[18]), etc…

But para.3 of the same article also provides for the imposition of community work duty for juveniles who were over the age of 15 at the time of the offense an up to three-month qualified community service order, allowing the judge to assign fixed residence during the work period. This is new and shows the clear will of the legislator to highlight “reparative” and “alternative” aspects, rather than favoring a return to the traditional form of deprivation of liberty. If we set this provision alongside art 24 para. of the CJL and with art 26 of the CJL we see that the juvenile who has been sentenced to a fine or deprivation of liberty for up to a three-month period can request these sentences to be converted into a community service order. That means that in the future community service order is expected to hold a pivotal role in the sentencing of juveniles. It should be recalled that most offenses committed by juveniles are generally relatively minor and that art. 23 CJL should provide a useful settlement framework for them.

The same does not hold true for qualified deprivation of liberty, which should remain the exception. The conditions set by art.25 para. 2 CJL are quite strict:

· The offender must have reached the age of 16 at the time of the offense and

· The offender must have committed an offense punishable under adult law by at least three years of deprivation of liberty (at the present time : murder, manslaughter, aggravated burglary, the taking of hostages, sexual duress, rape, arson), or

· The offender must have committed an offense provided for in articles 122 of Swiss Criminal Code (SCC) serious bodily harm, 140, number 3 SCC aggravated robbery or 184 SCC (deprivation of personal liberty, aggravated abduction and forcible confinement) and shown a particular lack of scruples , especially if the offender’s motives, action or intention has revealed a highly blameworthy state of mind.

We thus understand that this punishment can only be applied to exceptional circumstances that are not the common fare of the justice system. The fact of the matter is that such situations, however, do exist, and it is a sign of change in the new law that an adapted form of punishment has been found which lacks the excessive paternalism that at times it had formerly been criticized for. It certainly represents the price to be paid for the public to accept a “tailor-made” law for young offenders. Not providing for stringent punishment for more serious offenses would be tantamount to a rejection of this comprehensive, remedial and educational form of justice.

The conditions set for implementation of this punishment under article 27 (CJL) (the requirement to have appropriate facilities and to foster integration and training goals) show clearly that we do not seek to have prisons for young people but rather appropriate facilities where the educational, training and integration goals the CJL has set will be attained.

2.8 The Principle of Dualism (Optional)

Current law applies the principle of legal monism, a theory that holds that he who provides treatment cannot mete out punishment at the same time, hence the second principle that punishment should be in proportion to the crime. Thus, at the present time, insofar as a juvenile needs special care, punishment is excluded (except for a minor exception^[19]). This leads to somewhat indefensible situations, namely when juveniles commit offenses in groups and where very different responses are possible for the different offenders, not because of the offenses committed but because of vastly different educational needs.

Whereas the idea that the punishment should fit the crime appears fair (treat first, punish later), this does not rule out punishment for wrongful conduct. The idea is to confront the juvenile with his/her wrongful conduct and possibly with the victim as well, so as to make amends. This is necessary from an educational point of view (gaining awareness, accepting accountability, learning appropriate social behavior) and does not rule out provision of treatment at the same time. It is thus to meet this dual need to treat root causes and punish wrongful behavior that CJL has introduced the possibility of combining protective measures and punitive penalties. This principle of dualism is seen in article 11 (CJL).

Yet this dualism is optional, not compulsory, in the sense that the judge is not obliged to punish a person who has been sentenced by him to a protective measure and that the judge must waive punishment, when the conditions of article 21 (exemption from punishment) of the CJL have been met. Furthermore, under article 32 CJL (combining protective measures with those providing for a deprivation of liberty) the lawmaker has clearly shown his preference for protective measures in situations where, upon enforcement of protective measures a clash arises with sentences calling for deprivation of liberty.

2.9 Rules of Procedure in Substantive Law

So as to harmonize certain basic rules of procedure, the Swiss legislator has incorporated rules of procedure into substantive law. It is true that criminal rules of procedure concerning juveniles in different Swiss cantons greatly differ from each other or at times do not exist at all. In the view of the European Court of Human Rights and major international instruments on juvenile law, it is no longer possible to ignore rules of procedure. That is why CJL addresses the following procedural points:

1) article 6 CJL Pre-trial detention

2) article39, para. 2 CJL In Camera Proceedings

3) article 39, para. 3 CJL Personal Appearance of the Parties

4) article 40 CJL Rights of Defense

5) article 41 CJL Right to Appeal

These rules are important as they address the specificity of the intervention of juvenile criminal law in regard to young delinquents and extremely delicate situations where, far too often, cantonal codes are conspicuously silent or imprecise. The incorporation of this basic corpus of rules of procedure into substantive law is thus to be welcomed even if in terms of a legal rationale this is rather unorthodox. Nonetheless the existence of these basic rules clearly strengthen the juvenile’s position during his trial, protect him against the arbitrary notion of doing something “for the child’s best interests”, so often used as a pretext, while they safeguard the specific objectives of judicial intervention by averting excessive formalism of certain procedures.

The Swiss cantons therefore will have to enact legislation to bring these rules of procedure into force and implement them. In the event such rules already exist, the cantons will have to either add to or amend their provisions on procedure. Later the unified code on juvenile criminal law, expected in 2007/2008 will apply.

2.10 Implementation Issues

In the new law implementation issues have not been sidestepped nor has the buck been passed to the cantons, far from it. Key principles have been articulated both for protective measures (art 16 to 20 CJL) and for penalties (art. 27 to 31 CJL).

Notwithstanding, the major question that arises at this stage of the innovation process is whether the appropriate facilities as provided under CJL, namely, closed establishments, establishments for pre- and post- trial detention and planned mediation bodies or community service orders will be made available to juvenile authorities. It is true that article 48 CJL obliges the cantons to provide for the necessary establishments under articles 15 and 27 CJL within the next ten years. Nonetheless previous experience can lead us to believe that this will remain a dead letter.

Therefore preparatory work must be done for the new law. In our view, above all, an effort must be made by the cantons to reach inter-cantonal agreements. Given the nature and the degree of the demands made by these establishments both in terms of care given and in terms of the number and training of staff, it seems highly unrealistic to assume that each canton will be endowed with each type of institution.

Lastly, it is essential that all services working in the domain of child welfare, be it the civil or criminal authorities, administrative or private services, will be informed of the content of this new law and will be able to carry out its work in a concerted fashion. In this domain as far as possible the different areas of competence of the different stakeholders must be harnessed and unnecessary overlapping avoided. Work with young people and their families should remain based on quality contacts and personal relationships and should strive for minimal adherence to contemplated measures. For that to happen all parties must necessarily collaborate.

Conclusion

The new juvenile criminal law had a long gestation but it appears particularly well adapted to new types of delinquency in Switzerland.

It is not a revolutionary law, but one that maintains its trust in a protective system, yet still includes elements of restorative justice and tightens its line concerning delinquents who commit grave offenses.

It is also a law that is in keeping with international standards and which hopes to see minimal rules of procedure imposed throughout Switzerland. In this regard, it can be said that it is a law that respects children’s rights, and does not adopt a paternalistic stance in regard to the young offender but remains objectively well-intentioned, offering basic procedural guarantees to juveniles and yet desires to treat root causes rather than punish symptoms.

I. Legal Framework

a) Political Constitution of the United States of Mexico

The constitutional foundation of ~~our subject~~Juvenile Justice in Mexico can be found in Article 18, which states, among other things, that, “The Federation and the governments of the States, shall establish special institutions for the treatment of juvenile offenders”.

~~This article is very clear, setting out the esta~~b~~lishment of special institutions, taking this term in its widest sense of "legal institutions".~~

~~In this paragraph, the important thing about bringing up the sentence quoted is the avoi~~d~~ance of confusion concerning the term "instit~~u~~tions", using it to refer to buildings, establis~~h~~ments, etc.~~

~~Institution comes from the Latin word~~ ~~instit~~u~~tionis~~ ~~and as a result of this origin a conside~~r~~able part of its meaning refers to building, o~~r~~ganising, instructing and educating.~~

~~On the subject, there are other various co~~n~~cepts of institution, for example purposes, plans, ways of life and established ideas. These meanings have to a great extent dete~~r~~mined the modern uses of "institution", and in particular the specific meaning of legal instit~~u~~tion, recognising it as a set of legal princ~~i~~ples coming together in an organic whole. Let us remember in this case the institution of ma~~r~~riage and the institution of guardianship.~~

We must not forget that by institutions, the Roman legal experts meant the principles and foundations of the legal profession, and also referred to books on the fundamentals of law as institutions (Institutions of Gaius, Justin~~ian,etc.~~

~~Nowadays we define an institution as follows: an establishment or function of a State, nation or society, therefore requiring both organis~~a~~tion and procedure. All this implies, as a log~~i~~cal consequence, a shared idea and a relatively long-lasting form of society, which presu~~p~~poses, as already stated, an authority and a procedure.~~

~~Therefore, let us now consider that the const~~i~~tutional foundation for the treatment of juv~~enile offenders is clearly established in Article 18 of the Constitution. This is the idea which starts by recognising the importance of this special system, an idea extremely important for a society, its children and all minors.

b) Convention on the Rights of the Child

As regards the Convention on the Rights of the Child, it is worthwhile remembering that for Mexico it is a supreme law since it is an international instrument ratified by the Senate. This Convention thus confers obligations on all federal institutions.

In ~~this document, in~~ the Convention, two articles deal with juvenile offenders, namely .

Article 37~~: States Parties shall ensure that:~~ and Article 40. ~~(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of r~~e~~lease shall be imposed for offences committed by persons below eighteen years of age;~~

~~(b) No child shall be deprived of his or her li~~b~~erty unlawfully or arbitrarily. The arrest, d~~e~~tention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest a~~p~~propriate period of time;~~

~~(c) Every child deprived of liberty shall be treated with humanity and respect for the i~~nherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

~~(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the depriv~~a~~tion of his or her liberty before a court or other competent, independent and impartial autho~~r~~ity, and to a prompt decision on any such a~~c~~tion.~~

~~Article 40 is longer, contains 4 sections and more that 10 subsections, however it esse~~n~~tially sets out the following principles:~~

·~~Presumption of innocence until proven guilty, according to the law.~~

·~~The right to information, legal assistance or other appropriate assistance for d~~e~~fence.~~

·~~The free assistance of an interpreter.~~

·~~Absolute respect for the minor's privacy at all stages of the procedure.~~

·~~The establishment of a minimum age b~~e~~low which it is to be presumed that chi~~l~~dren do not have the capacity to commit crim~~i~~nal offences.~~

·~~The establishment of all appropriate measures to promote the establishment of specific laws, procedures, authorities and institutions for children who have vi~~o~~lated criminal laws.~~

·~~As far as possible, the adoption of mea~~s~~ures to treat these children without resor~~t~~ing to court proceedings, with the unde~~r~~standing that human rights and legal gua~~r~~antees will be fully respected.~~

·~~Measures such as care proceedings, orie~~n~~tation, supervision and assessment o~~r~~ders, probation, transfers to care homes, educ~~a~~tional and professional training pr~~o~~grams, as well as other alternative poss~~i~~bilities to locking young offenders up in instit~~u~~tions.~~

·~~The prompt and expeditious administr~~a~~tion of justice.~~

~~And finally, leaving it to the end due to its i~~m~~portance, t~~ The first article of the Convention, even though it does not specifically refer to juvenile offenders, is also fundamental for our subject, in order to avoid unproductive discussions and flaws in the legal basis. “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”.

These three articles recapture, at a national level, the possibility of establishing a true justice system for juvenile offenders, taking care to include important aspects such as:

· Minimum and maximum age;

· Detention as a last resort and for the shortest period feasible;

· Legal assistance;

· The adoption of measures without resorting to court proceedings;

· Absolute respect for human rights and legal guarantees; and

· Priority given to the best interests of the child.

c) Law for the Treatment of Juvenile Offenders by the Federal District in Common Matters and for the whole Republic in Federal Matters.

This order, which has federal status, is of primary importance, since among its objectives we can highlight:

· Regulation of the function of the state in the protection of the rights of minors.

· Promote and supervise the observation of the rights enshrined in the constitution and relevant international treaties.

· Push forward the integration of juvenile justice into the national justice system by the conclusion of agreements between the federation and state governments.

Thus among the articles of the law, the following points deserve prominence:

Article 10- … shall be applicable in the Federal District in common matters, and in all parts of the Republic in federal matters.

Article 20- … The observance of the rights of children shall be promoted and monitored by the officials responsible, always seeking the correct implementation of relevant legal means and resources, in order to prevent any violation of these rights …

Article 40- … In all areas concerning procedure, orientation, protection and treatment measures, counselling and courts for minors of any federal agency, practices must be adapted to the provisions of the present Law, according to the competency rules fixed by the respective local law.

As can be seen, this matter is fundamental if we wish to achieve the integration of a national system.

II. Minimum and maximum ages regarding juvenile offenders

Currently, this subject has been attracting a great deal of interest and perhaps it has much to do with the known facts concerning very violent situations involving young people aged 16 to 17. It is certain that these behaviours are unfortunate facts, however it is not by means of hasty responses that we must deal with this problem. The central point here is juvenile justice, and we must therefore take that as a starting point.

There are two aspects, which must unavoidably be brought up in this area, the legal aspect on one hand, and the technical aspect on the other. Beginning with the legal aspect, the reason why we should not push for the reduction of the age of criminal responsibility will become obvious. It is an almost impossible premise, except for one hypothesis.

At the end of 1989, the United Nations Or~~ganis~~a~~tion~~ adopted the Convention on the Rights of the Child, an instrument which was submitted for approval to the Senate of the Mexican Republic, then ratified in accordance with the provisions of Article 76 Section I of our country’s Constitution. From that moment on, the Convention acquired the status of supreme law, also in accordance with Article 133 of our Constitution. For this reason, legally the said Convention cannot be contravened without giving rise to a clear violation of the supreme law of the land.

The first article of the Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”, as has already been mentioned.

In Mexico, according to Article 34 of the Constitution, majority is reached at the age of 18, therefore the only option would be to lower the age of majority to 16 or 14 years, or whatever age was deemed necessary to adapt to the desired age of criminal responsibility, with the obvious results that can be expected. At these ages it would already be possible to vote, be elected, get married, etc. and all protection for working minors would be lost. It would be difficult for anyone to agree to that. If the age limit for reaching the age of majority is not changed, legally it is not even possible to enter into a discussion about a reduction of the age of criminal responsibility. For this reason, any opposing comments must be very well thought-out, especially if a lawyer is making them. A member of another profession could take a different approach, but not a lawyer. Currently, 11 states nevertheless have the age of criminal majority fixed at 16 and another at 17, contrary to the Convention. This is due to the fact that their legislation was created before the aforementioned Convention.

On the other hand, raising the subject from a technical point of view is also indispensable. An argument put forward nowadays is that the children of today are not like the children of former times, due to the large amount of information they receive through the advanced media, and because technology has brought about changes in younger generations. Without trying to deny what is a certainty, which can be observed thanks to these so-called advances, we must also remember that human beings are biological, psychological and social creatures, and that all living beings without exception have various stages of evolution. With human beings these are childhood, adolescence, adulthood and old age, stages which were not invented by lawyers, but by doctors, psychologists, sociologists, educational specialists, etc. Every one of these stages in turn represents a degree of evolution and development in the three areas mentioned: physical, psychological and social, as well as a necessary degree of maturity.

Although we may wish to give a lot of information to an 8-year-old girl on the subject of pregnancy, reading her magazines, books, etc. she cannot become pregnant until her body reaches the necessary physical maturity. The same thing happens with various psychological and social phenomena. It is one circumstance to receive information and quite another to reach a given stage of maturity. For this reason, the work done by minors is monitored for example, since they do not have the characteristics of adults, even if they received the same information.

On this point, it is important to keep alive these concepts. This is why the legislator embodied this age in the law, and in cases where the view taken is different, push forward change according to our state of rule of law. In this context, alternatives can be tried, such as intermediate institutions for the treatment of juvenile offenders with certain profiles, within a juvenile system. While such a situation is certainly worrying, it does not have a global impact and can represent a special alternative according to the specific situation.

Moreover, the mere fact of a 16-year-old juvenile committing a crime, with a lowering of the age of criminal majority, would mean imprisonment in a penitentiary, where in the Federal District for example, the average is 8000 people per centre where the capacity is 1200. And where will the juvenile have more opportunity for rehabilitation without contamination by negative influences and for healthy social reintegration?

For in the final analysis, society will receive the juvenile back after a determined period of time, whether he or she has come out from a treatment centre for juveniles (with approximately 400 residents and a capacity of 500), or from a penitentiary with the numbers already mentioned.

The example given is the Federal District, however this is applicable to all parts of the Republic; currently there is overpopulation in adult prisons in all the states. In the juvenile area, no-one is speaking of overpopulation.

All this must be taken into consideration before attempting to raise the question of lowering the age of criminal majority. As can be seen, there are legal, technical and practical aspects in at play which can have considerable adverse effects on society in general.

On the other hand, there also exists the problem of the minimum age. As has already been mentioned, the Convention itself stipulates that it must be set. Currently the situation is as follows.

As can be seen, seven states are in flagrant violation of the Convention and the remaining states have not come to a consensus, necessary both for the well-being of the minor and for the sake of society and the justice system.

6 to 8 years	4 States	12.50%
9 to 11 years	15 States	46.88%
12 to 14 years	6 States	18.75%
Not specified	7 States	21.87%
Total	32 States	100.00%

III Characteristics Proper to a Juvenile Justice System

As previously stated, juvenile justice must also provide protection and guidance, while respecting all the rights of the minor. The term guidance should not be feared, since it means protection, and all the standards have this aim - protection or guidance, whether it is for the juvenile, the family, indigenous people or workers, etc.

It is in this way that, in fact, point 2.3 of the Beijing Rules adds that in every national jurisdiction an attempt should be made to pass a set of laws, standards and provisions applicable specifically to juvenile offenders, as well as to the organisations and institutions charged with the administrative functions of juvenile justice, a set with the aim, among other things of responding to the various needs of minors, while at the same time protecting their basic rights and satisfying the needs of society.

It is interesting to observe what is immediately expressed here in Point 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.”^[20]

In any event, perhaps, it is necessary to reinforce procedures for the exact implementation of a standard in the area of justice of the peace, which guarantees the application of the rule of law, thereby preventing young people from falling into a pattern of crime.

As we can see, the protective spirit of the law reaches as far as antisocial or irregular behaviour, since it is recognised that a close link exists between the pre-offending stage, prevention and understanding in order to find the most appropriate treatment for the individual, as long as such methods, in their foundations and application, respect the rights of minors.

This is the objective of the Rules and legal systems must therefore make an effort to adjust to them with such a principle.

That is to say, as Rafael Sajón notes: “The minimum rules were formulated deliberately in such a way that they are applicable in different legal systems, and at the same time establish several minimum standards for the treatment of juveniles, according to whatever the definition of juveniles may be, and according to whatever the treatment system for juveniles may be.”^[21]

Therefore, a juvenile delinquent or a juvenile offender is not a “miniature criminal”, as in the absurd thinking which was predominant before the emergence of the general concept of minor in the 16^th and 17^th centuries, when children were considered as adults in fragile bodies^[22],, or “miniature adults”. The true spirit of the rules is to create a separate legal environment, independently of the legal system each country has (welfare, criminal, administrative or judicial).

We can sum up, thanks to the foregoing, that international standards have the aim of standardising criteria concerning the legal system considered most productive for minors throughout the world, without proposing a necessarily punitive justice system for them. That is to say, it is the legal systems of each country, independently of their nature or environment, which must adapt to the protective spirit towards minors reflected in international standards. Otherwise, we would be moving in the opposite direction, supposing that only the particular punitive and judicial environment can guarantee the spirit of international guidelines, and further, that these global rules are the foundation of, and justify, such a repressive juvenile justice system. As we have said, it is exactly the opposite: legal systems for juvenile offenders must put more emphasis on prevention and less on punishment, and as far as possible, should avoid catching the juvenile up in the judicial system and favour reconciliation.

So let us say that procedural guarantees for juveniles should guarantee their rights, which in turn should guarantee the protection and guardianship of minors in any legal system: administrative, protective or criminal, according to the following provisions which regulate guarantees such as:

Limits to power regarding detention, torture, incommunicado detention, humane and dignified treatment, legal assistance, the separation of minors from adults, etc.

Or on the other hand the principles of presumption of innocence, being informed about the nature of the accusation, defence, the precise application of the law by the competent authority, etc.

These procedural guarantees are valid for any juvenile justice organisation and the aim of the proceedings will be the welfare of the juvenile, for example the right of children to express their opinions freely in all affairs affecting them, thus giving them the opportunity to be heard in all judicial and administrative proceedings.

According to the rules quoted here, due to the nature of justice systems designed to protect children, and “taking into account the various special needs of minors, as well as the diversity of measures available, a sufficient margin will be created to exercise discretionary powers at the various stages of judgement and at the distinct levels of the administration of juvenile justice, including investigation, trial, sentencing and decisions taken on further measures…”. For this purpose, it is necessary to guarantee the proper competence and the appropriate personnel able and specialised to carry out these tasks.

Also set out are the rights of juveniles at all stages of the process, such as the presumption of innocence, the right to be notified of the accusations, the right to remain silent, the right to advice, the right to confront witnesses and the right to appeal to a higher authority.

Juvenile proceedings tend to take diverse and conciliatory measures, in an attempt to avoid cases from arriving as far as a formal judicial setting. Thus, point 11 of the Rules mentioned provides that other authorities, such as the police, the prosecutor’s office and other organisations which deal with juvenile cases, should be given discretionary power to deal with such cases, without the need for an official hearing. This implies appropriate specialisation of the said authorities.

The Beijing Rules establish that such channelling should be done taking into account the juvenile’s opinion, and that of parents or guardians. The competent authority will make the decision, in an attempt to provide the community with supervision and orientation programs, and restitution and compensation to the victims of delinquency.

“Thus we observe that juvenile law considers as a top priority all matters concerning the protection and safeguarding of the subjective rights of minors, rights which demonstrate the individual interest of the minor”.^[23]

Perhaps confusion has arisen on this issue, through the belief that a desire exists to discriminate socially against minors, arresting them or locking them up in order to remove the social problem. What is certain is that the distinction of minors from adults has always been recognised as important, in order to protect them when they commit acts which, arising out of impetuosity, inexperience or immaturity, can turn out unfavourable to them. This has been shown from the time of Roman law, which had a particular system in the case of children under 7, who were considered as lacking in discernment and totally incapable of working, older children, prepubescents from 7 to 14 years, with a relative inability to discern, and adolescents with the ability to act “sui iuris”, but with a special guardian. This is the distinction which Spanish law retained in its essence and which was later incorporated into the Civil Code. Distinction means recognising the difference between two or more. While discrimination means segregation, and treating someone as inferior, giving reasons of religion, age, sex, etc.

Today the juvenile must always be considered as the subject of rights. Nevertheless, the legal incapacity of a minor (capacity to act), is the basis of the legal protection recognised by the law towards minors, who remain subject to the authority and representation of their parents, and by extension, of a guardian or state bodies.

Therefore it is due to this fact that we call for the intervention of state bodies. The State has an inescapable duty to provide assistance to vulnerable minors, assistance which is no longer limited to actions substituting for those exercising patria potestad, but other complementary actions with the sole aim of directly ensuring the full education and development of minors.

IV Legal Character of the Administration of Juvenile Justice Administration Body

The Convention on the Rights of the Child recognises, as a competent instance to investigate and resolve transgressions against criminal statutes committed by minors, a judicial authority and organisation, according to Article 40, Sections II and IV. In this way, the text of Section III stipulates: that the matter shall be “determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law..”, while Section 5 affirms the right of a minor: “ If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law”.

As for the Beijing Rules, they state that any minors who have violated the criminal law, and for whom it is not appropriate to be diverted from an organ of the administration of justice, should be channelled to the latter, meaning a court, tribunal, committee or council, etc. which will make its decisions according to the principles of impartial and equitable justice (point 14.1 of the Rules).

The provisions invoked regulate the essential environment for the administration of juvenile justice - a special form of justice with a premise of three basic aspects: considering the age of the child, the importance of promoting his or her reintegration and allowing the minor to assume a constructive role in society. This function will be the responsibility of the legal system of each country, which must adapt to the spirit of these principles.

In Mexico, the Supreme Court of Justice of the Nation has already upheld a criterion related to the legal nature of the justice organisation regarding the Federal District:

a) The administration of justice in the Federal District is the responsibility of the Superior Court of Justice and other bodies according to the Law on the Superior Court of Justice of the Federal District, based on, inter alia, the applicable legislation;

b) Among the applicable legislation we find the Law for the Treatment of Juvenile Offenders for the Federal District in Common Matters and for the whole of the Republic in Federal Matters;

c) Auxiliary justice personnel shall intervene in the administration of justice in ways determined by applicable laws;

d) Among those responsible for the administration of juvenile justice in the Federal District are the Juvenile Council, and

e) The Chambers of the Superior Court of Justice in criminal matters. In cases assigned to them for judgement, they will deal with jurisdictional disputes arising in criminal affairs among the judicial authorities of the Superior Court of Justice of the Federal District.

Therefore the administration of justice in the Federal District is also the responsibility of the Juvenile Council, since while it has an auxiliary role, it is one of the judicial authorities of the Superior Court of Justice of the Federal District.

Likewise, the Supreme Court of Justice of the Nation has recognised the jurisdictional nature and the problem-solving capability of the Juvenile Council, which settles the controversies arising out of the application of standards to concrete cases. This can be seen from the following: “proceedings taken against a minor under the responsibility of the Consejero Unitario, formally and materially takes on the appearance of a procedure analogous to those of federal criminal proceedings. Thus, Article 45 of the law on which it is based, stipulates that proceedings must satisfy the requirements set out in the Federal Code of Criminal Procedure. On this basis, also by legal provisions (Articles 51 to 54) in the procedure, a hearing is convened between the different parties; the juvenile accused of an offence, the Commissioner and the Consejero Unitario, whose specific functions are limited by the procedure, since the defence will have the duty to see that the guarantees granted to young offenders are observed during the proceedings. The Commissioner has a substantially similar role to that given to an officer of the Public Prosecutor’s Office in ordinary criminal proceedings, that is to say, plays the part of prosecutor, while the responsibility of finally resolving the case falls to the aforementioned Consejero Unitario; resolution of the case requires adherence to certain standards in the assessment of evidence (Articles 57 and 58), as well as form and content requirements (Article 59).

The juvenile’s defence lawyer, legitimate representatives or guardians, or the Commissioner (article 67) can launch an appeal against what is termed the final resolution of the court of first instance (Article 63). This is an ordinary means of contesting decisions with the objective of possible modification or revocation of the resolutions pronounced by the consejeros unitarios (Article 64). The hearing and resolution must take place in what is defined as the Superior Chamber (Article 72). Identically to the criminal procedures to which accused individuals are subjected, in view of the criminal procedure principle of making good inadequate handling of cases, the court must make up for the injustices suffered, whether the person appealing is the defence lawyer or the minor’s legitimate representatives or guardians (Article 68). From this can be deduced, in contrario sensu, that if the Commissioner, is appealing, the examination of his grounds for disagreement with the court decision must be subject to the principle of strict points of law...

In this way, technically the origin and character of the aforementioned Juvenile Council is reminiscent of Article 4 of the Law for the Treatment of Young Offenders for the Federal District in common matters and for the entire Republic in Federal matters - it is a detached administrative body of the State Secretariat, with the purpose of applying the legal principles and procedural provisions mentioned. However, due to the actual activities it carries out, it takes on an eminently jurisdictional character and thus has a role of interpreting and implementing legal standards oriented towards the resolution of controversies concerning the conduct of juveniles, which may be deemed to be of a delinquent nature. All the foregoing, despite the administrative origin of this body, on revelation of its functions, makes it clear that it is of a jurisdictional nature.

Further, without neglecting to point out the spirit of treatment measures implemented by this Council, which do not have a punitive, but a preventive nature, these measures are rulings of a preventive nature for society and a corrective nature for the subject, and can be adopted for young people aged over 11 but under 18, whose conduct meets that of the theory in the criminal law, from the point of view of the social defence body which condemns the offence. The aim is to preserve society from the danger represented by the offender, to satisfy the injured or offended party, and to prevent delinquents from offending with impunity.

The current Juvenile Law has changed its language, aiming to make it different and divest it of the characteristics of adult criminal trials. In this procedure, set up for juvenile offenders, terms like indictments or sentences are replaced by other terms such as that of initial resolution or final resolution. Infraction is used instead of crime and there are other similar examples. However, despite the differences, we can be led to confuse treatment measures, for example treatment in a secure environment with imprisonment. No doubt from this ~~pint~~ point of view it is difficult to differentiate penalties from treatment methods.

Referring to the foregoing considerations, the state of social danger, as well as security measures, are currently eliciting a great deal of interest, especially for the protection of the life, liberty and security of the community, as long as actions are taken which attempt to reduce the risks and avoid the dangers. In this way, measures must start at home, and given the immaturity of children, continue with compulsory measures, established by society for the urban environment, in the streets, in professional institutions, in addition to measures based on the field of prevention, health, and other measures implemented to preserve the security of individuals and society.

Treatment measures, since they are one type of security measure, have the aim of special prevention, and in the face of the increasing insecurity being felt my by society, no-one questions the necessity of applying orientation, protection or treatment measures to young delinquents.

The divergence of security measures emerges ~~ehen~~ when it is necessary to determine their nature and their relation to penalties. Birkemeyer claims that penalties are simple retribution, while security measures are measures of prevention. On this subject, Garraud maintains that penalties and measures are “each valid in their own ways, since the former are applied as a compensation for the harm done, and the latter are applied to individuals with the aim of education or security.”.^[24]

From the foregoing we can infer the following considerations:

a) The word treatment leads us to the concept used in medicine, since immediately we come to the concept of care and diagnosis to treat an illness, and the provision of therapy, with the aim, when faced with irregular circumstances, of establishing a method capable of regularising and normalising the situation. The treatment seeks to eliminate the negative factors, eradicating the faults which lead the offender to act in an antisocial manner, offering alternatives leading him or her to social adaptation.

b) Penalties mean retribution, an element inadmissible in security measures and subsequently in treatment measures.

c) Penalties are based on criminal responsibility and guilt. Treatment measures applied to young offenders are based on prevention.

d) Treatment measures are founded on the combination of personal conditions on the part of offenders, therefore a maximum duration must be set, since as long as the negative factor persists, the measure continues to be necessary, without surpassing the limit fixed. Penalties on the other hand must be determined beforehand when sentencing, since they are founded on criminal responsibility and are adapted to the individual according to the degree of guilt.

e) Penalties and security measures have one thing in common: penalties, in the final analysis, are intended to bring about the re-adaptation and social reintegration of the delinquent, and treatment measures applied to young offenders have the goal of social adaptation and avoidance of recidivism, since they are special forms of prevention, Article 110 of the Law for the Treatment of Juvenile Offenders states as follows: “By treatment is meant the application of specialised systems or methods with input from various relevant scientific and technical branches and disciplines, on the basis of a diagnosis of the personality, in order to achieve social adaptation of the minor”.

V. The best interests of the child

It is acknowledged that a minor is, above all, a human being in the process of development. Thus, the Convention draws on the Declaration of the Rights of the Child, recognising that: “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” (preamble to the said document).

A minor is therefore seen as a human being in the process of development. Here we must make an extensive interpretation of those concepts. By process we mean a succession of steps, which implies, in the case of minors, consecutive steps of maturing (childhood and adolescence). This process is shown in two spheres: the individual sphere, which implies the integration and maturing of the personality, and the social sphere, a stage at which minors experiment with the society in which they happen to live. Their integration, or lack of integration, determines whether as adults, they will accept or overstep its boundaries.

Maturing of the personality implies special care, both from parents or guardians and from the State and society itself, as required for social maturity - both situations, personality and socialisation, are very closely linked.

On the subject, both the Convention and the Beijing Rules set out with precision the scope of public intervention to guarantee the rights of the child in general, and of juvenile offenders in particular, always keeping in mind the best interests of children.

Here we see in all clarity that the meaning of international juvenile legislation takes a fundamentally protective slant. In this sense, the legal system for minors, including the judicial guarantees given to juvenile offenders by the juvenile justice system, must be formulated and applied according to and by way of this spirit.

Since the Convention on the Rights of the Child entered into force, the individual interests of the child have been understood as the best interests of the child. It must therefore be determined what it consists of, and in relation to what this superiority functions. In no way should this be understood as ignoring the interests of society and of the victims of delinquent acts, but rather as the intention to boost the rights of children, often forgotten by adults, without compromising the corrective and integrating function of legal standards, with a harmonious merging of both legal and technical aspects, among which there is no specific reference to the judicial or executive power, as is set out in various articles of the Convention. This means, in simple terms, to pay attention to the situation of minors.

Due to all this, the concept of the best interests of the child sometimes turns out to be difficult to define, even though it is found in various articles of the Convention on the Rights of the Child. It is therefore important to consider that in order to define the best interests of the child, attention must be paid to the condition of children as subjects of rights, as well as their age and the degree of maturity it implies, and the complementary relationship which exists between individual interests and social interests. It is thus assumed that any public or private action concerning a person aged under 18, that person’s rights shall be respected, in a healthy physical and psychological environment, seeking to ensure his or her full personal development. It is for this reason that “individual and social interests” are mentioned, since only in this way can the fact of living in a community be understood.

These points coincide fundamentally with Principle 2 of the Declaration on the Rights of the Child, which states: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”

The best interests of the child may not be precisely defined, but the meaning is drawn from the concept of total protection.

Nevertheless, it is important not to fall into error: “The best interests of the child and their total protection cannot be used to apply against the child a sanction greater than that corresponding to the offence of which he or she is guilty, on the basis that it is suitable from an educational point of view”.^[25]

VI. Current Situation

In the Mexican Republic there exist formally 157 institutions dealing with the various aspects, processes, treatments and requirements linked to the phenomenon of juvenile offending behaviour.

These institutions dealing with juvenile offenders have various functions and may be jurisdictional, diagnostic or therapeutic, and can be residential or day centres. Some of them deal both with the judicial side and with the diagnosis and/or the treatment of problems within and outside the institution.

For example, in the state of Guanajuatim the institution responsible for juvenile offenders has both a jurisdictional and a diagnostic role, likewise in the state of Morelos.

The opposite happens in the state of Mexico, where there exist 33 institutions, one of which has exclusively judicial functions for serious offences, another of which treats young people in a secure environment, and 31 have a jurisdictional role for less serious offences and measures taken in an open setting. Another case is the state of Tamaulipas, where there are six Juvenile Councils of a jurisdictional nature, in various parts of the state with their respective treatment centres, both internal and external, as well as a state-level organisation for juvenile delinquent affairs co-ordinating them.

Among the federated states with the largest number of centres, can also be found Chihuahua with 16 and the Federal District with 8.

For this reason it is important to know the general picture in this matter and to present some very representative statistics, recognising that the national data presented are those obtained from the National Register of Minors, up until the year 2002. At the end of 2001, the annual national population register of juveniles in the system every month was, on average, 4,428 minors, of which 90.98% were male and the remaining 9.02&% were female.

The states with the highest average numbers of minors entering the system every month, in descending order, were: Baja California, Estado de México, Nuevo León, Chihuahua y and Distrito Federal, with 26.6%, 9.4%, 9.3%, 8.2% and 5.7%, respectively, as opposed to Tlaxcala, Yucatán, Quintana Roo, Durango y and Campeche, whose percentage of juveniles dealt with ranged from 0.2% to 0.5%.

Education levels ranged from incomplete primary education to high school graduation. The most frequent offence was theft, which represented 63.97% on a national level.

Specifically, the statistics observed in the Federal District turn out as follows: 2,694 juvenile offenders entered the system, of whom 91.72% were male and 8.28% were female, and who were mostly aged 16 or 17-. Their educational level was one of incomplete secondary education and their occupation was student. The offensce most frequently occurring was theft, which occupied first place with 72.2%, coming from urban areas.

Analysis of national legislation, as well as the data presented, provides us with information under the headings below.

Under this general vision, the need to pay special attention to this subject is becoming more evident. It is not necessary to send juveniles back into the criminal justice system in order to grant them the guarantees proper to them as subjects of rights. These rights are one of the main manifestations of such attention.

Duration of the measure:

Definite limits	14	43.75%
Limits not defined	18	56.25%

Consider state of risk

Yes	19	59.38%
No	13	40.62%

Provide for intervention in the case of administrative errors:

Yes	21	65.62%
No	11	34.38%

Provide for a social representative (various terms used)

Yes	10	31.25%
No	22	68.75%

Provide for a defence lawyer

Yes	30	93.75%
No	2	6.25%

Provide for means of appeal

Yes	12	37.5%
No	20	62.5%

Instance governing juvenile institutions

Executive Power	31	97%
Judicial Power	1	3%

From the foregoing, we derive several different considerations: The status of minor is significant, or should be so, when considering the offender, based on his or her special conditions, above all due to their importance after analysis of the Convention on the Rights of the Child, an instrument which sets out, point by point, the rights and guarantees which minors enjoy. In addition to this consideration and in an attempt to integrate a national system for young offenders, the following aspects should be taken into account:

Increasing knowledge of the aforementioned Convention, seeking to harmonise its most relevant aspects, such as minimum and maximum ages.

Taking care of minors who find themselves at risk, and those who commit administrative offences, seeking the necessary mechanisms in the Civil Justice system and creating special legislation and institutions to carry out those tasks as appropriate.

Pushing for the creation of legislation which would allow the harmonisation of the justice system for juvenile offenders.

Encourage actions which empower the adoption both of the United Nations Minimum Rules for the Administration of Juvenile Justice and the United Nations Guidelines for the Prevention of Juvenile Delinquency, instruments which make it clear that juvenile justice cannot be regarded as “justice for miniature adults”.

Favouring the signing of collaboration agreements which allow contribution in the areas of prevention and administration of justice, creating federal centres which look after specific profiles of juveniles according to age, whether the young person is a repeat offender, etc.

Encouraging the professionalisation of the personnel involved in juvenile law.

Including, according to the law on which the National Public Security System is based, programs involving juvenile offenders and prevention of child and adolescent delinquency, so that these programs may be considered an intergral part of the projects of the National Council on Public Security.

To conclude, let us quote the Mexican jurist Dr. Sergio García Ramírez, President of the Inter-American Court of Human Rights, “not only is the number of children, adolescents and young people now greater. They are, for a thousand reasons, different; different from the children, adolescents, and young people of yesterday. What is more, they are different from one another. Therefore, there is no one body of young people; there are many different kinds of young people. Thus it is a pluralistic youth which is faced with monumental social tasks and ~~whick~~ which must be heard, strengthened and directed.”^[26].

From March 16^th-18^th, 2004, the Hotel Abou Nawas, in Tunis, was the venue for the third international seminar concerning the rights of the child on Tunisian territory. The seminar was the result of close collaboration between the International Institute for the Rights of the Child (IDE), in Sion, Switzerland, and the Tunisian Association for the Rights of the Child (ATUDE) in Tunis, Tunisia.

This seminar was both the culmination of the commitment made in September 1999 in Tunis itself - publicising and developing the rights of the child in Africa, and the beginning of a new crusade in favour of the rights of the child, meaning the creation of the African collective.

It is worth remembering here the various stages of the IDE-ATUDE partnership during this last period:

September 1999 saw the Tunis seminar on the theme: “Our Children at the Dawn of the 21^st Century”. This first event brought together more than 200 participants from Tunisia and other North African countries (Morocco, Algeria, Mauritania, Libya) and Jordan. It saw the emergence of ATUDE, which began within the confines of the IDE, destined to become the strong link in the African chain of children’s rights. Moreover, it was the trigger for a series of seminars of international scope on African territory.

November 2000 saw a seminar in Tunis on the theme: “The Rights of the Child and Peace”. This second Tunisian meeting allowed the 250 participants from 20 countries to exchange ideas on the blatant inequalities in our world and to urge industrialised countries to assume their responsibilities, not only by declaring the right to live in peace, but also through financial assistance to developing countries with a view to achieving a fairer and more equitable balance. On this occasion, the representatives of ATUDE confirmed the decision of the President of the Tunisian Republic to order the creation of a National Observatory of Children’s Rights, which became reality in 2003 with the nomination of Mrs. Mme Najet Ben Salah to the post of Director of the Monitoring Agency for information, training, documentation and study for the protection of the rights of the child. Finally, the crowning achievement of this seminar was the demonstration that these African seminars will not remain empty words without follow-up and will not be consigned to the filing cabinet of “fine declarations”. In fact, the Ministers of Burkina Faso and Cameroon, present in Tunis, officially offered their services for future seminars planned for 2001 and 2002.

In November 2001, a seminar took place in Yaoundé (Cameroon) with the theme: “Rights of the African Child and the Struggle Against Poverty”. More than 100 people from 17 countries searched for solutions to the endemic problem of poverty. In addition to the drafting of several recommendations, this seminar concluded with the realisation of two concrete actions: the Yaoundé Declaration, or the creation of an African collective for the Rights of the Child, and the recording of an “Ode to Childhood”, a song composed and sung by a local singer during the event.

In March 2003, a seminar was held in Ouagadougou (Burkina Faso) on the theme: “Rights of the Child and Social Exclusion”. This event brought together 150 people representing 23 countries, 21 of which were African, to sketch out new strategies in order to better guarantee the rights of the child in a context more and more marked by exclusion. Practical recommendations and confirmation of the necessity of setting up an African collective for the rights of the child were the highlights of this seminar and were part of the “Ouagadougou Report”, brought and distributed by the Burkina Faso’s representatives at the conclusion of the Tunis seminar. Finally, the firm request made by the participants to set up a training program for African magistrates was received with great satisfaction!

In March 2004, a seminar was held in Tunis on the theme “Instruments for Implementing the Recommendations of the Global Summit for Children”. This third meeting on Tunisian soil therefore permitted the IDE and ATUDE to “complete the circle” and is the subject of this report.

ORGANISATION

With the assistance and support of the Intergovernmental Agency of French-speaking Countries (AIF), of UNICEF (Central and West African Region) and of the International Association of Juvenile and Family Judges and Magistrates (IAYFJM), which was present at all the seminars, notably with the active participation of numerous speakers giving talks, lectures and other contributions, this seminar was a brilliant success, not only regarding the number of participants (more than a hundred), but also the quality of the participants, among whom were several serving Ministers.

The IAYFJM was represented by its President, Dr Willie McCarney, who gave, in excellent French, the opening speech and who made contact with a number of conference participants, as well as by its Treasurer, Michel Lachat, also a founding member of the IDE, who presented the future African Master’s in the Rights of the Child.

The tone of this seminar was of a particularly high level. The content itself was very thorough and the participants intervened very actively and frequently, particularly during time allocated for discussion, which was always prolonged. No more proof was needed of the interest drawn by the subjects of this seminar.

CONTENT

Taking as a starting point the orientations and recommendations of the Global Summit for Children in 1990 and the objectives of the last Extraordinary Session in New-York, in May 2003, devoted exclusively to children, and which had the aim of examining the progress made since the Summit and renewing the world’s commitments in favour of the Rights of the Child, the organisers of the Tunis seminar had the wish to:

study the best ways for African countries to formulate a plan of action which takes into consideration the specific needs of each country;

identify the legal and institutional frameworks allowing each country to benefit from international experiences;

create regional and sub-regional groups to have contact with international organisations and providers of funding in order to carry out their plan of action;

reinforce the African Collective for the Rights of the Child.

This ambitious program took place over two full days and according to the 4 following main axes:

1. General Introduction:

the main recommendations of the Global Summit for Children;

the advantages of an organisation on a regional level;

the main concerns of African countries;

National instruments and the implementation of the UN strategy.

2. Information and co-ordination systems:

the African Collective;

national monitoring agencies;

the network of delegates for children.

3. Financing of actions:

the Global Solidarity Fund;

interest in the creation of an African Solidarity Fund

4. Studies and Research:

The setting up of an African Centre for Study and Research,

the creation of an African prize

the African Master’s in the Rights of the Child.

THE AFRICAN COLLECTIVE

The creation of an African Collective for the Rights of the Child (CADE) was voted for by all the participants, who reviewed the various articles of the Statutes for several hours. This instrument for preserving and promoting the Rights of the Child in Africa is the result of efforts deployed by State bodies and African Non-Governmental Organisations over the last few years. This also represents the realisation of the Declarations of Yaoundé and Ouagadougou. Finally, it is the result of the perfect co-operation between the IDE and ATUDE.

Briefly, the CADE is a non-profit Association which works for the promotion and the protection of the rights of all children (boys and girls). Its headquarters are in Tunis and the first Presidency was granted to Tunisia, the true initiator of this Collective. Quite a number of countries (13) are represented on the Executive Council. The IDE is also present at the Executive Council with a permanent observer who is to participate in debates with a consulting role.

The CADE statutes will be published as soon as they are received.

TRAINING PROGRAM IN JUVENILE JUSTICE

The Tunis seminar also allowed the conclusion of a collaboration agreement between the IDE and the AIF (Intergovernmental Agency of French-speaking countries), initiated in Yaoundé in November 2001 and confirmed in Ouagadougou, in March 2003.

In fact, during these two meetings, several government officials, among whom were two serving Ministers from Western and Central African countries, requested the IDE and the AIF to set up, during 2004, a course in juvenile justice for African magistrates.

Within the context of the Tunis seminar, Mr. Comby and Mr. Lachat, on March 16^th, 2004, met Mr.. Pasteur Nzinahora, Director of Legal and Judicial Cupertino of the AIF, and made the training program official, extending it to all individuals active in the area of children’s rights, applying the interdisciplinary approach practised by the IDE.

Therefore, a training course for a maximum of 5 people from each country and for members of the Judiciary, Prosecutor’s Offices, members of the Bar, the Police, Ministries of Education or from NGOs, will take place in Ouagadougou, Burkina Faso, from Monday, November 29^th, to Friday, December 3^rd, 2004.

CONCLUSION

This “last” seminar under the dual direction of the IDE and ATUDE was particularly rich in content and allowed us to add the finishing touches to numerous joint projects. It reflects, in a tangible manner, all the work put in by members of the IDE and ATUDE. Let us sum up this glowing report by this Malian proverb: “Even if words cannot work the fields, they at least have the merit of finding a solution”.

Let me conclude here by congratulating the Tunisian organisers for the excellent running of this important meeting. The welcome and availability of our Tunisian friends left all the conference participants with a particularly pleasant memory.

Michel Lachat

Fribourg, 05.04.04

^[1] Statistics on criminal convictions of minors in 1999 (Jusus), Swiss Federal Statistical Office, Bern, April 2001

^[2] Statistics on criminal convictions for minors in Switzerland (« Condemnations pénales des mineurs en Suisse »), Swiss Federal Statistical Office, Bern and Neuchatel

^[3] Statistics provided by the <<<juvenile Courts for French-speaking Switzerland

^[4] 2001 statistics from the Cantonal police of Valais, Sion, February 2002 p 27

^[5] 2001 statistics from the Cantonal police of Fribourg

^[8] ZERMATTEN J., Face à l'évolution des droits de l'enfant, quel système judiciaire: système de protection ou système de justice?, in Revue internationale de criminologie et de police technique, n° 2, Geneva, 1994

^[9] Namely in several states in the USA and in England

^[10] Convention of the Rights of the Child, 20 November 1989

^[11] United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 29 November 1985

^[12] United Nations Guidelines for the Prevention of Juvenile Delinquency
(The Riyadh Guidelines)

^[13] United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 14 December 1990

^[14] Draft law on juvenile justice (United Nations – Vienna), September 1997

^[15] Namely art. 37 and 40, Convention on the Rights of the Child

^[16] D'AMOURS O., 100 ans de justice juvénile, IDE (Institute of the Child's Rights), 2002, p. 106-115

^[17] Articles 91, 93 bis 93 Swiss Criminal Code

^[18] Activity Report 2001 of Association Familles Solidaires, Pl. Be-Air 2, 1003, Lausanne

^[20] Comment: Rule 3 widens the scope of the protection granted by the Minimum Rules for the Administration of Juvenile Justice, comprising so-called "status offences" mentioned in various national legal systems, according to which a specific range of behaviours can be considered offences, generally a wider range than in the case of adults (for example, truancy end disobedience in school and within the family, public drunkenness, etc.).

^[21] Sajón Rafael. Derecho de Menores. Editorial Abeledo-Perrot. Buenos Aires, Argentina. 1995. Page. 511.

^[22] Gibbons Don C. Delinquen Behavior. Editorial Prentice-Hall. New Jersey, USA. 1976. Pág. 5.

^[23] Daniel Hugo D´Antonio. Minoridad y Familia. Ed. Delta N°2. Argentina. 1997. Pág. 19.

^[25] TIFFER, Carlos y Javier Llobet. La sanción penal juvenil y sus alternativas en Costa Rica.

Ed. ILANUD, UNICEF Y CE. Costa Rica. 1999 pág. 23.

^[26] García Ramírez, Sergio. Manual de Prisiones. Editorial Porrúa. México, 1994. Pág 669.