Anyone familiar with social history knows that teenagers have been complained about in every era. Today’s moral panic is hooded teenagers, or what the media prefers to call “hoodie-wearing feral yobs who swear and spit their way around the country”. These “street rats” wear hooded tops and baseball caps. They are mainly boys, but girls tag along. They aren’t into serious crime – perhaps graffiti or stealing garden gnomes. The behaviour which causes offence is noisily hanging around street corners, drinking and harassing passers-by, or congregating at the entrance to shopping malls.

Tony Blair tells us that people are “rightly fed up with street corner and shopping centre thugs” and promises to make restoration of respect a priority for his government. He has appointed a “Minister of Anti-Social Behaviour” to make sure this is given priority.

Anti-social behaviour is offensive, but not necessarily offending, behaviour. There is little doubt that it is an urban blight which seriously erodes the quality of life of ordinary citizens in many countries. Anti-social behaviour and low-level crime constitutes a serious nuisance to ordinary members of the community and the State has an obligation to protect society from the rogue behaviour of hoodlums and vandals.

Mr Blair obviously struck a cord with the general public when he introduced Anti-Social Behaviour Orders (ASBOs). 200 ASBOs were awarded in 1999-2000. In 2004, 2,600 ASBOs were made in the first 9 months alone.

A Mori poll, released on June 9 (2005) indicates widespread support for ASBOs amongst the general population. The reason for their popularity is that the Government has made them as easy as possible to obtain and open to as many actors as possible to request. Proceedings are drawn up in such a way as to permit a range of behaviour that is merely disapproved off (even by only very few people) to be brought within their scope. The police, Local Authorities and other empowered actors are under considerable pressure to apply for ASBOs, both from central government and from inconvenienced members of the local community. This pressure applies equally to magistrates to grant them. The ease of obtaining ASBOs is reflected in the fact that of the 3,069 ASBO applications made between 1 April 1999 and 30 June 2004, only 42 were turned down by the courts.

An application for an ASBO can be made to a magistrate by the police, local authorities, housing action trusts and registered social landlords on their own initiative or on the request of members of the local community.

Consideration is currently being given to allowing individuals, or groups of individuals, to apply for ASBOs directly or to bring proceedings for an offence in respect of a breach. This new development is a matter of serious concern. The potential for human rights abuses, vexatious litigation and the wasting of court time is great.

Where the magistrate is satisfied, on the balance of probabilities, that an individual has been engaged in "behaviour which causes or is likely to cause harassment, alarm or distress to one or more people who are not in the same household as the perpetrator"^[2], he may prohibit the behaviour in question or the individual from entering a specified geographical area.

Some ASBOs appear to invite inevitable breach. For example, a 16-year-old has been given an ASBO which bans him from leaving his home for the next two years without being escorted by his mother. This is particularly disturbing as the breach of an order is a criminal offence and the penalty is up to five years in prison.

The latest statistics show that 42% of ASBOs are breached and 55% of breaches lead to a custodial sentence. Mr Alvaro Gil-Robles, European Commissioner For Human Rights, in his report of 8 June 2005 (CommDH(2005)6) comments “It seems to me that detention following the breach of an ASBO drawn up in such a way as to make its breach almost inevitable (such as not entering a demarcated zone near one’s residence), and which was applied on the basis of hearsay evidence in respect of non-criminal behaviour, would almost certainly constitute a violation of Article 5^[3] of the ECHR”.

Civil orders designed to protect an identifiable person or group of persons from clearly specifiable behaviour on the part of another have existed for some time. Restraining orders, for example, preventing a given individual from approaching another, exist to protect victims of domestic violence from further abuse. Civil injunctions may also be sought in most countries against such nuisances as excessive noise or harassment by neighbours. What is so striking, however, about the multiplication of civil orders in the United Kingdom, is the fact that the orders are intended to protect not just specific individuals, but entire communities. This inevitably results in a very broad, and occasionally, excessive range of behaviour falling within their scope as the determination of what constitutes anti-social behaviour becomes conditional on the subjective views of any given collective.

ASBOs blur the boundaries between the civil and criminal justice systems. While the behaviour which attracts an ASBO is non-criminal, breaches are punishable by up to 5 years in prison – an extremely heavy punishment for behaviour that is not recognisably criminal in the first instance.

Despite being a civil order the House of Lords has confirmed that the standard of proof applicable for the determination of anti-social behaviour is the criminal standard of proof – i.e. beyond reasonable doubt. However, the same judgment goes on to say that, as the proceedings are civil for the purposes of domestic law, hearsay evidence is admissible. It appears to me that the use of hearsay evidence in circumstances where conviction has such severe consequences could be in breach of Art 6^[4] of the ECHR.

Before seeking an ASBO many local authorities will draft an “Acceptable Behaviour Contract” (an ABC) and invite a young person to sign it in the presence of his/her parents. While this is a purely voluntary agreement there is concern that undue pressure may be brought to bear on the child to consent to an ABC without full appreciation that a breach of the contract could ultimately lead to a conviction. The child may not be aware that failure to keep to the terms of this voluntary contract may be used in evidence against him in a subsequent application for an ASBO. There is no provision for a legal representative or advocate to be present. There is clearly an evidential issue should failure to keep the contract be used in evidence to potentially incur criminal liability. Again this would appear to be in breach of Art 6.

The Home Office guidelines for the awarding of ASBOs encourage a wide-range of measures to notify local residents of the serving of ASBOs on members of the community, which include the distribution of leaflets containing photos of the young person. A recent court ruling concerning the publicity of ASBOs requested by Brent County Council has recognised that the broad notification of local residents is essential to the ASBO system and would not, as a general rule, violate the right to respect for private and family life guaranteed by Article 8^[5] of the ECHR. None-the-less, the aggressive publication of ASBOs, through, for instance the doorstep distribution of leaflets containing photos and addresses of children subject to ASBOs impacts not only on the child concerned but on the family as a whole. In my view, such indiscriminate naming and shaming could well be a violation of Article 8.

The lifting of reporting restrictions which present child protection issues in England and Wales has the potential within the Northern Ireland context to identify a child to non state players raising particular child protection issues for this jurisdiction. Should paramilitary groups choose to become involved on the basis of information supplied by the courts the potential exists for breaches of Art 2^[6] and Art 3^[7].

Much concern has been expressed in recent years about the activities of paramilitaries in “policing” areas of Northern Ireland where the PSNI (Police Service for Northern Ireland) are not acceptable to the local community. One punishment handed out by paramilitary groups has been the exclusion of children and young persons from areas where they live. The British Government has roundly condemned such activities. And yet we find that Magistrates are empowered under ASBO legislation to do precisely the same thing in England and Wales as well as in Northern Ireland. It is difficult to see how it can be a breach of Art 8 in the first instance but not in the second.

The situation in Northern Ireland is even more fraught because of the segregated nature of our society. If a child is excluded from a particular area the options as to where s/he can reside may lead to his moving to an area a considerable distance from his family which again would interfere with his Art 8 Right to Family Life.

Particular concerns arise in respect of the application of ASBOs to children. ASBOs can be served on children as young as 10 in England and Wales and Northern Ireland, and 12 in Scotland. These orders were intended to deal with seriously and repetitively troublesome youths. They appear to be particularly inappropriate for young children who are causing hassle. Children under 16 can not be detained for breaching ASBOs in Scotland. Gil-Robles recommends that this rule should be applied also in England and Wales and in Northern Ireland.

The United Kingdom has amongst the highest rates of juvenile detention in Western Europe. The number of 15 to 17 years olds detained (in prisons) on 30 June 1995 was 1,675, rising to 2,479 on the same date in 1997. On 31 December 2004 the corresponding figure stood at 2,169. An equivalent pattern obtains for young offenders (between the ages of 18 and 20); on 30 June 1995, 5,872 were detained, rising to 7,684 on the same date in 1997 and standing at 8,073 on the last day of last year.

ASBO breaches have resulted in large numbers of children being detained – 46% of young people received immediate custody upon conviction for breach. The chair of the Youth Justice Board has conceded that the rise in the young offender population in custody in 2004 resulted mainly from breaches of anti-social behaviour orders. Given the high reconviction rates for detained juvenile offenders, a likely outcome is that the detention of juveniles for non-criminal behaviour will lead to more serious offending on release. Art 37 of the CRC makes it clear that the detention of children should be a last resort. Detaining children for activity that is not itself criminal cannot be justified.

The proposed provision of ASBOs on conviction is a disturbing new development as this would represent a double jeopardy. If a child has received a determination in respect of a criminal offence to then impose an ASBO is to doubly punish the child in a criminal court for something that is not a crime, using civil standards of proof, hearsay evidence and professional witnesses.

The excessive use of ASBOs is more likely to exacerbate anti-social behaviour and crime amongst youths than effectively prevent it. Juvenile trouble-makers are too rapidly drawn into the criminal justice system and young offenders too readily placed in detention, when greater attention to alternative forms of supervision and targeted early intervention would more effectively straighten the errant, rehabilitate the convicted and consequently reduce youth crime.

A wide range of alternatives already exists. The adoption of the Crime and Disorder Act and the establishment of the supervisory Youth Justice Board in England and Wales in 1998, underlined the importance of holistically addressing all aspects of juvenile disorder and offending. The creation of Youth Offending Teams, composed of representatives from the police, Probation Service and a wide range of social services, enabled intervention to be targeted towards young offenders more effectively. Social welfare reforms introduced a wide range of programmes intended to address the differing needs of deprived children of different ages for example, ‘Sure Start’, ‘Connections’, the ‘Children’s Fund’, ‘Youth Inclusion Programmes’, ‘Positive Action for Young People’. Priority was also given to reducing the numbers of juveniles and young offenders in detention. A range of alternative community sentences was introduced including Supervision Orders, Community Rehabilitation and Punishment Orders.

Unfortunately, according to Gil-Robles: “these welcome initiatives have been significantly undermined by the introduction of a series of civil orders aimed at reducing urban nuisance, but whose primary effect has been to bring a whole range of persons, predominantly the young, within the scope of the criminal justice system and, often enough, behind bars without necessarily having committed a recognisable criminal offence”.

I do not wish to imply that ASBOs should never be used. I agree with Gil-Robles who suggests that well-drafted orders, prohibiting clearly proven and seriously vexatious behaviour, accompanied by appropriate assistance and supervision may well usefully protect citizens from activity that gravely prejudices their welfare, but which falls outside the scope of effective criminal prosecution. Unfortunately many ASBO’s fail to satisfy these requirements. The problems are not necessarily inherent in ASBOs themselves. Rather they appear to lie in the fact that the State has empowered local residents to take matters into their own hands.

The media has convinced most people that youth crime is rising and that something must be done to combat it. The reality is that youth crime is falling. The number of 10-to-17-year-olds convicted or cautioned fell from 143,600 to 105,700 between 1992 and 2002, a drop of almost 26%. The consequences of introducing ASBOs has been to greatly increase the number of young people in custody at a time when it should have been going down.

In 2001 the Government’s Social Exclusion Unit (SEU) appointed five civil servants to work full time for nine months, trawling through statistics and research, visiting prisons, interviewing experts, talking to officials in government departments, all in search of an answer on how best to reduce reoffending by ex-prisoners. They published their report in July 2002. The SEU found that released prisoners were streaming unchanged out of custody and committing something like 1m offences a year and that these offenders alone were costing at least £11bn a year plus the value of the items stolen or damaged. In summary the SEU’s conclusions were:

a) Prison sentences are not succeeding in turning the majority of offenders away from crime.

b) A prison sentence can - and frequently does - make things worse.

c) The real key to reducing offending is to attack its causes. Homelessness, unemployment, drug and alcohol problems, mental health problems, physical health problems, educational problems - these are the seeds from which crime grows, seeds which are fertilised by the impact of imprisonment.

These conclusions were backed by irresistible evidence, supported by seven different government departments which had been consulted, and delivered direct to the Prime Minister, who duly welcomed them as “a significant contribution to our understanding of what works in combating crime”. This was a chance finally for the criminal justice system to start to make a difference. Unfortunately at that time the Prime Minister was preoccupied dealing with “street corner and shopping centre thugs” and the report was shelved.

We know what works in combating crime. ASBOs are not the answer. The ease of obtaining such orders, the broad range of prohibited behaviour, the publicity surrounding their imposition and the serious consequences of breach all give cause for concern.

ASBOs breach international human rights standards, including the UNCRC, the Beijing Rules, The Riyadh Guidelines and the ECHR. It is questionable whether they ultimately serve to protect the public from persistent unruly behaviour. It is certain that they criminalise young people for behaviour which is not criminal.

The CRC determines, and best practice shows, that custody should only be used as a last resort for juveniles and for the shortest period necessary. The one sure outcome of locking up children is the creation of more adult career criminals.

Willie McCarney, Editor-in-Chief

The aim of this study was to analyse and compare process rights of minors applying the U. N. Convention on the Rights of the Child and Juvenile Justice Law for minors in the (Mexico-USA) Border State of Sonora. Results of this study show that under the State Juvenile Law, minors are submitted to process for committing any antisocial behaviour even when it is not punishable by the state or federal criminal code for minors; they are not accorded the basic procedural safeguards provided for in the Convention; they are not afforded the care or treatment according to the parens patriae principle during the process, sentencing or placement; offences committed by juveniles are investigated, processed and sentenced by the same office any appeal must be filed to this same organ, thus minors are denied the essential elements for a fair and just trial. In brief, these results show that in spite of the U. N. Convention on the Rights of the Child, minor’s rights in this Mexican State are not respected.

Introduction

The development of juvenile justice law in Mexico has consisted in the removal of juveniles from the reaches of criminal law and transferring juvenile transgressions into a distinct jurisdiction. The aim of this reform was to create special tribunals and special laws for juveniles, maintaining them far from the criminal laws, process and penalties applied to adults. Two objectives were considered: juveniles were to be separated from adults so as not to be negatively influenced and juveniles were to be treated differently from that of adults. This “special treatment” was to be based on principles of education and protection^[8].

Juvenile tribunals in Mexico are an institution created under the philosophy of parens patriae, in which the state will act as a parent in charge of protecting the child. Under this principle, taken from civil law, a court was to protect the child’s basic rights to property and liberty, as would a parent^[9]. This principle was transferred to the area of criminal law, and as stated by the Supreme Court^[10], the function of the juvenile courts is to act as a good parent thereby “…substituting the bad parents that were not able to control their own children^[11]”

Under current Mexican constitutional law, “In the United Mexican States every individual will enjoy the rights vested by this constitution^[12]”, thereby making any discrimination based on age unconstitutional. Further it establishes in article 133, that the Constitution, as well as the treaties approved by the Senate, will be supreme law^[13]. Hierarchically, this makes any federal, state or municipal legislation contrary to the constitution or international treaty unconstitutional, thus subject to injunction. The Convention on the Rights of the Child^[14], is a global treaty that is binding on all state parties. Mexico ratified the United Nations Convention on the Rights of the Child in 1990, thus making this treaty part of the “supreme law”, as stated by article 133 of the Mexican Constitution. However, despite the incorporation of these principles to the Convention of the Right of the Child, the issue remains whether juvenile justice legislation in Sonora is in compliance with the U. N. Convention on the Rights of the Child.

Article 18 of the Mexican constitution is the constitutional foundation for juvenile justice, where the Federal and State governments are required to create, regulate and administrate a juvenile justice system, within their respective systems. This article authorizes the government to intervene to provide parental guidance in cases of juvenile disruptive and/or criminal behavior.

Considering the described proceedings, the aim of this study was to analyze and compare process rights of minors applying the U. N. Convention on the Rights of the Child, and Juvenile Justice Law for Minors in the (Mexico-USA) border state of Sonora, comparing formal law to current practice.

Juvenile courts in Sonora, Mexico

Mexico is a Federal Republic and each state has its own laws and judicial institutions to treat juvenile offenses as well as adult criminal offenses^[15]. There are 32 different legislations, corresponding to each state and one for the area encompassing the Federal District of Mexico (Mexico City^[16]). It is applied in each state within the federal court of equity and it grants the local courts or Councils jurisdiction to hear the case where the omission was committed^[17].

In Sonora four articles of the criminal code of 1949 regulated the treatment of juvenile offenders^[18]. It was not until 1984 that the criminal code for the state of Sonora was amended to remove juveniles from the criminal process and the law that creates the Juvenile Tutelary Council (COTUME) and regulates the juvenile justice system was passed^[19]. This Tutelary Council works as a tribunal and is administrative in nature^[20]. Counselors constitute the Council, instead of criminal judges^[21]. The Council includes one President and three Counsellors, which must conduct plenary session in order to emit resolutions with the approval of the majority of the Council^[22]. They meet once a week and resolve all accumulated cases of the week.

Process under the

Sonora Juvenile Justice Law

Competent Authority

In order to understand the mechanism of the COTUME process and who is the competent authority it is necessary to explain how it is organized. This Council is the maximum organ in charge of administering justice to juvenile offenders, handling cases of abused minors and sanctioning those who in any way affect the health, security or care of a minor^[23]. The Council is plenary organ composed of a “President” (Presidente) and three “Tutelary Counselors” (Consejero Tutelar) and a Document Officer (Secretario de Acuerdos^[24]). This organ functions in a judicial nature and among its attributions are^[25] the powers to hear and decide cases presented by a “Instructing Counselors” (Consejero Instructor); to dictate any necessary temporary measures in the proceeding; to modify the legal conditions of the minors who are under Rehabilitative treatment, only when merited by conduct of the minor, and requested by one of the Counselors; to impose the sanctions recognized by the COTUME law and to notify the Agent of the Ministerial Police when there is a case of a crime against a minors or when parental custody must be revoked^[26].

“Tutelary Council” (Consejo Tutelar: The Council is made up of the “Tutelary Counsellors” and the “President”. The Council must vote on the resolution submitted by the “Instructing Counsellor”. This same council is in charge of hearing all appeals.

“President”: It is responsibility of the President to preside, direct and subject to vote all cases presented to this organ (COTUME).

“Tutelary Counsellors”/ “Instructing Counsellor”: On receipt on a case involving a minor one of the three “Tutelary Counsellors” is attributed the position of “Instructing Counsellor”. This counsellor is in charge of conducting the investigation of the charges. They must also submit before “Tutelary Council” a recommendation for resolution of the case. Procedurally, the “Instructing Counsellor” is in charge of investigating the facts of the case, deciding on detention or bail pending the hearing before the Council, deciding whether to charge the minor and/ or what to charge for, and submitting a proposal for treatment (sentencing or resolution) of the minor^[27].

Due Process Rights in Juvenile Courts in Sonora, Mexico in light of the U.N. Convention on the Rights of the Child

The U. N. Convention on the Rights of the Child states that the competent authority in charge of deciding the outcome of the process, must conduct a process in accordance with the basic procedural safeguards in order to guarantee a fair trial.

Article 40 of the U. N. Convention on the Rights of the Child indicates some essential elements for a fair and just trial. These elements are the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority in all the stages of the process.

In 1992^[28], the COTUME Law was reformed and articles were added to include the procedural safeguard established by Convention on the Rights of the Child and the Beijing Rules. One of the inclusions was Article 48 bis and amendment to article 55 of the COTUME law, which establish the procedural safeguards afforded in the Sonora juvenile justice process. According to these amendments the following guarantees are observed during the juvenile process before the COTUME: The presumption of innocence (F. I.); The right to notification of the parent or guardian of the charges (F. II); The right to counsel (F. III); The right to a state appointed attorney when no other counsel has been designated (F. IV); The right to be notified of the charges (F.V:); The right to present witnesses and other evidence (F. VI); The right to confront and cross-examine witnesses (F. VII); The right to have access to all of the information available from files and the investigation pertaining to the charges (F. VIII); Right to appeal the Initial and Final Resolution before the Tutelary Council, which can be exercised by the juveniles attorney or his representative; (article 55); The Tutelary Council can initiate any act, modify, suspend or revoke any resolution or measure imposed at any moment, taking into account the results of the treatment. (article 55).

Due Process Rights

1. The Presumption of Innocence: COTUME law establishes that juveniles have the right to the presumption of innocence until authorities prove their participation in the alleged acts. Presumption of innocence grants citizens general protection from being singled out by the authorities as criminals before their guilt has been established in a court of law. This precept is foreign to the Mexican criminal system. There is no inclusion of this presumption in any of the criminal codes or criminal procedural codes. Only the juvenile justice system states this presumption.

2. The Right to be Notified of the Charges: According to the COTUME Law “Within 24 hours counting from when the juvenile was taken into the custody of the council he or she must be notified in a clear manner, in the presence of his attorney, the name of the person who is accusing the juvenile of the charges; the nature and the cause of the charges; and his right to remain silent, having the opportunity during this notification to render an initial declaration^[29].” These guaranties provide added assurance that the juvenile’s rights are protected, in order to provide juveniles the necessary information to prepare a proper defense.

3. Right to remain silent: COTUME law establishes that minors have the right to remain silent. This basic right tries to avoid self-incrimination of a juvenile subject to process. However, the insertion of the opportunity for an initial declaration by the juvenile could be construed as contradictory to the right to remain silent.

4. The Right to Counsel: Article 48bis states in section III that a juvenile or his legal representatives have the right to designate at their own expense, a licensed attorney at law of their preference, to legally assist the juvenile during process and the ruling of orientation measures as well as institutional and non-institutional protective measures. Furthermore, section IV establishes the right to free legal defense, when the juvenile has not designated an attorney. In this case, an attorney from the State Office for the Protection of Minors and Families (SOPMF) will be assigned to the case. It is the responsibility of the state appointed attorney to legally assist the juvenile once he is in the custody of the COTUME authorities and throughout the different stages in process and during the ruling of orientation measures as well as institutional and non-institutional protective measures. This right should guarantee a lawyer within the 72 hours. Self-representation in the juvenile process is not foreseen in the COTUME law.

5. The Right to the Presence of a Parent or Guardian: UN Convention on the Rights of the Child state that a juvenile has the right to have parents or guardian participate in the proceedings. They may also be required to attend the proceeding in the interest of the juveniles. However, this right can be denied if the competent authority determines that it is not the best interest of the juvenile. Because a juvenile has a right to conditional release and this could be to the home, the presence and cooperation of parents or guardians may help the competent authority determine a disposition not to institutionalize. COTUME law establishes that juveniles have the right to have parents or guardians notified of the juveniles “situation” when their domicile is known. The only other mention of the presence of a parent or guardian is for the notification of the Final Resolution by the Counsel.

6. The Right to Confront and Cross-examine Witnesses: This right allows juveniles to defend themselves by confronting those who claim they have committed a crime. This is important because, as evidenced, cross-examining witnesses could help prove a juvenile’s innocence. COTUME Law states as part of the basic rights the one to cross-examine those who have declared against the juvenile.

7. The Right to Appeal to a Higher Authority: There is a right of appeal but it is applicable to the Initial and Final Resolution, only before the same COTUME Council that issued the same Resolution, not to a separate and higher authority.

Conclusions

The analysis of the COTUME law was two-pronged. The first part of the analysis uncovered several sections of the juvenile justice process that needs to be annulled, amended or included in local legislation. Article 40 of the UN Convention on the Rights of the Child list the following rights, which are included in Mexican COTUME law: the presumption of innocence, the right to be notified of the charges, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross examine witnesses and the right to appeal to a higher authority. These rights should be present in all stages of the proceedings. The right to remain silent is also stated in the COTUME Law. Even though Convention establishes that minors have the right to the presence of parent or guardian, juveniles lack this right during process COTUME Law only requires notification of these if the address of these is known. The right to appeal to a higher authority, in all the stages of the proceeding is not provided by the COTUME law. This law grants the right of appeal of the Initial and the Final Resolution. However, the authority in charge of hearing the appeal is the same authority that determined the first resolution; it is neither a distinct nor higher authority.

In summary, the basic procedural rights included in United Nations Convention for the Rights of the Child are included in the COTUME law. However, this study documents the need for a modification of the law in establishing a higher authority for appealing and mandatory parent notification.

The acceptance of the principals of International Law for Human Rights being universally accepted, the observation of the existing experiences in other countries and the growing national and international consensus against the execution of adolescents finds itself in the foundations used by the United States Supreme Court of Justice, on the 1st of March 2005, when the death penalty for minors under the age of 18 was declared unconstitutional.

With this decision, the United States Supreme Court resolved the appeal of the sentencing of Christopher Simmons, in the judicial case known as Roper versus Simmons.

In September 1993, in the state of Missouri, Christopher Simmons who at the time was 17 years old, committed a robbery which culminated with the murder of a woman. Simmons was found guilty and condemned to death. The execution was fixed for 1st May 2002. His lawyers presented an appeal which eventually reached the United States Supreme Court. Throughout the whole country the execution of adolescents was suspended awaiting the decision of the Supreme Court in the case of Roper versus Simmons.

Finally on the 1st of March the case came up in the Supreme Court, in a majority decision - 5 votes against 4 - the death penalty for persons under the age of 18 was declared unconstitutional as a violation of the 8^th Amendment of the North American Constitution, which states that: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

The Supreme Court stated that the execution of adolescents constitutes a cruel and unusual punishment, seeing as it applies to people who are in a process of development, and therefore, have more vulnerable and impulsive personalities, and in this way have more of a chance of effective rehabilitation.

The Supreme Court based its argument on various documents presented by prestigious professional organizations. The United States Medical Association along with another seven organizations confirmed that the frontal lobes – where the mental function which help to understand the mental processes of other people, control impulses and calculate risks can be found - are the last parts of the brain to mature.

This is the application of the specific right of the adolescent which refers to their differences within a justice system and punishment derived from an adult perspective and with a low level of tolerance.

In this decision, the Supreme Court also supported Comparative International Law where there is a general tendency for the abolition of the death penalty and a decrease in the execution of juveniles. In this way the United States Supreme Court has used the experiences of other countries and cases from overseas to resolve an internal issue. It has applied the principles of the international Human Rights instruments, amongst them the Convention for the Rights of Children.

This decision demonstrates a step forward in the treatment of Human Rights issues, by the North American judicial system, which at the same time re-affirms the validity of an international legal principle, which can later be applied to other cases. This principle shows that beyond the ratification of the international instruments – The United States has not ratified the Convention on the Rights of the Child – the principles of Human Rights are universal and have been accepted by all States making up the international community.

In 2002, The United States Supreme Court also abolished the death penalty for mentally disabled people, based on similar foundations and applying the 8^th amendment of the Constitution, in this way saving the lives of 300 people.

Until this year The United States and Somalia were the only countries that admitted the execution of minors. Since 1990 The United States has been responsible for almost half the known executions of adolescents throughout the world: 19 executions out of a total of 39. Out of the 50 states which make up the United States, 38 still recognize the death penalty, and out of those 19 apply it to minors.

With the decision in the case of Roper versus Simmons, the Supreme Court has saved the lives of 72 minors who were being tried or were awaiting execution dates for crimes they committed when they were 16 or 17.

Even though there are still 3,328 outstanding cases awaiting execution in The United States the decision in the Roper versus Simmons case signified a victory in the struggle for the total abolition of the death penalty.

As well as this, by its decision, the United States Supreme Court has recognized the relevance of International Law in relation to its Internal Law, the existing interdependence between States and the responsibility which all the States have to respect universal principles in the matter of Human Rights.

Trafficking of children for sexual purposes is not new. However it appears to be increasing and acquiring new dimensions in the recent context of globalisation.

Children might have been kidnapped from the Philippines and enslaved in a Bombay brothel. Children could be Thai boys or girls, sold by their parents to a trafficker and taken to a wealthy Japanese client. Or perhaps a child girl is lured from a mall in the Midwest USA to New York by the promise of a modelling career, only to find herself working the streets under the watchful eye of an armed pimp, or children could be moved by procurers along a “pipeline” that runs from Vancouver to the West Coast and then to Honolulu.

Recently studies estimate 10 million children, including 200,000-300,000 in the U.S.A, are sexual exploited every year in the world. In Asia alone, more than one million women are sold into prostitution each year.

In 1997 the United Nations estimated that sexual exploiters and corrupt public authorities engaged in international trafficking in persons extracted US$7 billion in profits from their activities. If these calculations are accurate, trafficking in human beings is now more lucrative than the international trade in illicit weapons.

In some cases, a trafficking agent may promise a girl a good job in another country. When she arrives, her passport is taken, and she is forced to work as a prostitute. Other girls may simply be kidnapped and taken to another country. One reason that foreign females are targeted is that the demand in a country may be greater than the number of domestic women who are willing to be prostitutes. It is also much more difficult for an enslaved girl to escape in a country where the language and area are foreign. Even if she does escape, she cannot return home because of the social stigma and questions of citizenship. Without documentation, she is considered stateless.

The proliferation of sex trafficking is encouraged by the growing demands of the sex industry in both the East and West. For example, Western men pay for “sex tours” in countries where they will be provided with young girls. Unfortunately, the spread of AIDS has not discouraged the sex industry’s growth – instead, it has led traffickers to seek even younger girls, who are more likely to be disease-free. Many of these girls will never escape. Some will die of AIDS and other communicable diseases, some will resort to suicide.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (2000) defines sex trafficking as all acts involved in the recruitment and/or transport, transfer or harbouring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person.

Sex trafficking is accomplished by means of direct or indirect violence or threat of violence, abuse of authority or dominant position, debt-bondage, deception, or other forms of coercion.

Despite the efforts to address prevention, protection and assistance to trafficked children significant inroads into the problem do not appear to have been made.

To date there has been virtually no public health contribution to the efforts to combat sexual exploitation of children. As with other human rights violations of children, the contribution of public health professionals is needed to identify risk factors for child victims at the local, national, and global level so appropriate prevention programs can be implemented; to assist governments and human rights organizations to better estimate the number of children who are sexual exploited; to identify and evaluate rescue and prevention strategies; and develop guidelines for the immediate and long-term care of children who have been prostituted.

Sexual exploitation of children violates the human rights of children and results in significant morbidity and mortality. Many child victims suffer from numerous health problems including infectious diseases, chronic diseases, reproductive health problems, substance abuse, mental illness, and violence. Many girls who become pregnant have high-risk pregnancies and deliveries and their infants often suffer from low birth weight, birth defects, and may be neglected and abused.

In many countries, female children experience discrimination early in life. For many of these girls, there is nowhere to hide from gender bias – it is entwined in their culture and it is reinforced by family structures and behaviours, many girls receive less food than their fathers and brothers. And, when money for education is scarce, it is the male children that are given preference.

Girls take on the stereotypical role of their mother; abused and submissive, relegated to domestic work. The public considers girls and women as sex objects and typifies them as club/bar entertainers, beauty pageant contestants and racy or pornographic film stars.

Society’s gender biases are difficult to combat. They are compounded by problems of extreme poverty, globalisation, aggressive tourism campaigns, negative portrayals of women by mass media, online pornography and chat-rooms. Combined with porous borders and the export of workers, these factors cause women and children to become easy victims of sex trafficking and other forms of sexual exploitation, at home and abroad.

Trafficking and sexual exploitation of women and children gets very low priority in many countries. This makes it difficult for victims to seek legal redress for the violence and abuses committed against them. However, with the sex trafficking of children reaching global proportions, many countries are moving to enact Anti-trafficking laws and are promoting justice and protection for victims.

Universally accepted instruments and conventions provide a strong framework for the anti-trafficking laws. These include the UN Universal Declaration on Human Rights; UN conventions on the Rights of the Child, Protection of Migrant Workers & their Families and the Elimination of all Forms of Discrimination against Women; the Convention against Transnational Organized Crime including its Protocol to Prevent, Suppress & Punish Trafficking in Persons Especially Women & Children; and the Convention about the Worst Forms of Child Labour.

The anti-trafficking law must be a milestone in the promotion of human dignity and protection of persons, particularly women and children, against any threat of violence or exploitation. It must seek to eliminate trafficking, establish institutional mechanisms for the protection and support of trafficked children and provide penalties for violations of this law. The anti-trafficking law must recognize that trafficked children are victims and as such, are not penalized for crimes directly related to any act of trafficking. Thus, a trafficked person’s consent to the intended trafficking is deemed to be irrelevant.

The law also must cover foreigners who are trafficked in a third country. They are entitled to the same protection, assistance and services given to trafficked children and must be allowed to remain in the country for as long as is necessary to prosecute offenders.

‘Trafficking’ is defined as any of the following acts, committed by a person or entity for the purpose of prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage:

a) recruiting, transporting, transferring, harbouring, providing or receiving a person on the pretext of domestic or overseas employment, training or apprenticeship.

b) introducing or matching for a consideration any woman to a foreign national for marriage for the purpose of trading her for prostitution. offering or contracting marriage;

c) undertaking or organizing tours and travel plans;

d) maintaining or hiring a person, and

e) adopting or facilitating adoption.

Any undue recruitment, hiring, adoption or movement of persons and children for removal or sale of organs or, for children, to engage in armed activities at home or abroad also must be considered acts of trafficking.

A person may be held liable under the law for promoting or facilitating trafficking by doing any or a combination of the following acts:

· Knowingly leasing space or building

· Furnishing fictitious certificates to comply government regulatory and pre-departure requirements

· Publishing propaganda materials

· Assisting in the exit and entry of persons from/to the country with fraudulent documents

· Depriving or destroying passports and personal documents to prevent trafficked persons from leaving the country and for obtaining assistance; or

· Knowingly benefiting services from persons held to a condition of involuntary servitude, forced labor or slavery.

Harsher penalties of imprisonment must be inflicted on offenders in special circumstances such as:

· When the trafficked person is a child (aged under 18 years) or an adult unable to care for self

· When adoption is effected under the Inter-country Adoption Law

· When committed by a syndicate (group of three or more persons in conspiracy) or in large scale (against three or more persons)

· When committed by a person exercising parental authority over the victim or by a public officer or employee

· When the trafficked person is recruited to engage in prostitution with military or law enforcement agencies

· When the offender is a member of the military or a law enforcement agency

· when by reason or on occasion of the trafficking, the victim dies, becomes insane, suffers mutilation or is afflicted with human immunodeficiency virus (HIV) or the acquired immune deficiency syndrome (AIDS).

The anti-trafficking law must authorize the courts to order the confiscation and forfeiture of the proceeds and instruments derived from trafficking.

Trafficked children abroad must be repatriated regardless of whether their travel to another country is documented or not. If repatriation will expose the victim to greater risks, the host country must give the victim an extension of residency permit and protection. However, trafficking in persons shall be included among extraditable offences.

Any person with knowledge of trafficking must initiate a complaint in the court where the crime was committed or where the victim resides.

In the case of a child witness there must only be a single interview by a multidisciplinary group of professionals with the interview recorded in audio or videotape. Thus, the child does not suffer the damaging effect of feeling re-victimized through repeated questioning.

Finally, to protect children and rescue them of sexual exploitation, government agencies must have the following strategy in place:

· Programs to prevent trafficking;

· Have funds exclusively for programs to ensure the integral attention, recovery and reintegrate trafficked persons into community;

To make various services available to victims of trafficking, such as emergency shelter or housing, counselling, free legal services, medical or psychological services, livelihood and skills training and educational assistance to trafficked children.

BIBLIOGRAPHY

-ECPAT: A network for children, ECPAT International Bangkok, Thailand, 2003

-Explotación sexual Comercial de Personas Menores de Edad en Centroamérica, Panamá y República Dominicana, Programa Internacional para la Erradicación del Trabajo Infantil, OIT//IPEC, San José, Costa Rica, Enero, 2003

-Cuarto informe sobre la Implementación de la Agenda de Acción como Seguimiento al Congreso Mundial contra la Explotación Sexual Comercial de la niñez, Suecia, 1996

-A Safe World for Children, Ending Abuse, Violence and Exploitation, World Vision, Editec by Melany Gow, USA, 2001

- Mia Pangenberg, Prostituted Youth in New York City: An Overview, ECPAT/USA, New York USA, 2001

-Carniege Council on Ethics and International Affairs, Human Rights Dialogue, Number 3, New York, USA, 2000

-Mia Spangenberg, International Trafficking of Children to New York City for Sexual Purposes, New York, USA, 2002

-ECPAT Newletter No.-45, ECPAT/International, Bangkok, Thailand, October 2003

-ECPAT Newletter No.-42, ECPAT/International, Bangkok, Thailand, January 2003

-Investigation on the Trafficking, Sex Tourism, Pornography and Prostitution of Children in Central America and Mexico, ECPAT/International, Casa Alianza and Audrey Hepburn Children´s Fund, San José, Costa Rica, 2002

-International Organization for Migration, New York, USA, 2003

-Report of the International Labor Organization, Guatemala 2004

-The Stockholm Declaration and Agenda for Action, First World Congress against Commercial Sexual Exploitation of Children, Stockholm, Sweden, July 1996

-The Human Rights Watch Global Report on Women’s Human Rights 1995; Trafficking of Women and Girls into Forced Prostitution and Coerced Marriage

-Report of the Second World Congress against Commercial Sexual Exploitation of Children Report, Yokohama, Japan, December 2001

-Out from the Shadows, Good Practices in working with Sexually Exploited Youth in the Americas, University of Victoria (B.C.), International Institute for Child Rights and Development, Victoria, Canada 2001

-The Convention on the Rights of the Child, New York, USA, 1989.

-UN Convention against Transnational Organized Crime and it’s Protocol “Trafficking in Persons – Especially Women and Children”, United Nations, New York, USA, 2003

-USAID (1999) “Women as Chattel: The emerging Global Market in Trafficking in Gender Matters Quarterly No.-1 Feb.1999.

-UNIFEM 2002 Trafficking in Persons from Gender and Human Rights Perspective in “A comparative Study of Women Trafficked in the Migration Process (India, Philippines, Thailand and the USA

-World Tourism Organization, New York, USA, 2004

DATE FOR YOUR DIARY

THE RIGHT TO EDUCATION

THE SOLUTION TO ALL PROBLEMS OR

A PROBLEM WITHOUT SOLUTION

SION, SWITZERLAND

18-22 October 2005

Location: Institut Universitaire Kurt Bösch (IUKB)

Box 4176, CH-1950 SION 4

Tel: +41-27-205.73.00 – Fax: +41-27-205.73.02

e-mail: ide@iukb.ch; web: www.childsrights.org

Languages: French and English with simultaneous translation

throughout the plenary session.

Contact:

Institut International des Droits de l’Enfant (IDE)

Institut Universitaire Kurt Bösch (IUKB),

Case postale 4176, CH-1950 Sion 4 - Switzerland.

Tel: +41-27-205.73.00 – Fax: +41-27-205.73.02

Email : ide@iukb.ch

16^th Conference of the International Association for Research In Juvenile Criminology (IARJC):

Evolution or Rupture? Juvenile Justice in Question

Paris, France

March 8-11, 2006

Call for contributions to the workshops

(paper and oral presentation of at most 15 minutes in English or French):

Two kinds of topics for proposals are expected:

1. Changes in Juvenile Justice: policies and interventions.

2. Changes in behaviour: youth and family, professionals.

Proposals (maximum 1’500 signs) are to be sent before September 15, 2006 to:

iarjc16@grass.cnrs.fr

For further information, please contact: iarjc16@grass.cnrs.fr

Questionnaire

1) What do you expect from the International Association of Youth and Family Judges and Magistrates?

2) Would you like to go on with a congress every four years only or would you like to have more? (e.g. specialized seminars per region etc )? If so, what?

3) Would you be ready to give some of your time for the organizing of congress in your region (several countries, several neighbouring regions)?

4) Would you like to continue to get the “Chronicle” in hard copy or would an electronic copy be enough?

5) Would you be ready to publish in the “Chronicle” for a given subject?

6) Would you be ready to participate in the administration of the IAMJF (translation, proof-reading, other tasks...)

If so: how many hours per months? Which task?

7) We think of increasing the membership fee to 50/ 60/ 100 FS, would you agree? How much?

8) Have you any idea on increasing the funds for the IAMJF (sponsor)? Would you be ready to look for it?

9) Would you agree to have your name on the list of members of IAMJF which will be published once a year?

There is still time for Association Members to respond to the above questionnaire

if you have not already done so.

Send your response to me at the following email address before 30 September 2005.

Willie McCarney, President: w.mccarney@btconnect.com

Earlier this year the Turkish Government published a new Penal Code which includes a number of provisions aimed at improving the situation of children in conflict with the law together with a Law on Child Protection. The Penal Code introduces the concept of mediation for child offenders; there are penalties for those found guilty of encouraging anyone under 18 to commit a crime; new penalties are introduced for those found guilty of child abuse and an obligation is placed on anyone with knowledge of child abuse to inform the relevant authorities. Victims of crime have ten years from the date of the crime to take action to seek compensation. In the case of sexual abuse the ten years begin when the child reaches his/her 18^th birthday.

While welcoming the progressive clauses Child Rights Lawyers in Turkey believe that separate legislation on Juvenile Justice is required rather that subsuming children’s affairs in the new Penal Code. Dealing with Juvenile Justice in this way does not allow sufficient focus on children.

The lawyers are concerned about a number of issues: the proposed penalties for children are too severe; the courts are offered no opportunities for diversion and there are no alternatives to custody. Furthermore there is no proposed change in procedural law which means that long delays before trial will continue.

Thus, while continuing to press for a Juvenile Justice Bill the lawyers are calling for changes to Art 3 of the Penal Code, which deals with proportional penalties, with the aim of taking into account the age of the children and their lack of full discernment. They want to ensure that the penalties handed out to children found guilty of an offence are much less severe than those handed out to adults in similar circumstances. They also want changes to Art 31 of the Penal Code. As it stands Art 31 obliges judges to apply penalties rather than alternative measures where the child is above the age of criminal responsibility and has full discernment. They believe that when dealing with children alternatives must be given priority and custody must be a matter of last resort. In line with the proposed changes to Art 31 the lawyers are seeking changes to Art 11 of the Child Protection Law in order to allow the introduction of alternative measures.

In order to start the debate, Betül Onursal, a long-time advocate of children’s rights in Turkey and a member of the Council of the IAYFJM, decided to invite the Association’s Executive Committee to hold one of its meetings in Istanbul. She proposed that she would organise a conference to coincide with the meeting to discuss the matters outlined above. By way of bringing a European perspective to the debate she asked the five Executive Committee members to outline juvenile justice legislation in their own countries (namely Austria, France, Holland, Northern Ireland and Switzerland), with a particular focus on alternatives, and to outline the latest recommendations from the Council of Europe in these matters. In this way Turkish delegates to the conference would be in a better position to judge the extent to which the proposed legislation in Turkey is in line with international instruments. It would have the further advantage of opening lines of communication between those working in the field of juvenile justice in Turkey and European colleagues. The lawyers believe this is an important step in view of the current debate on Turkey’s admission to the European Union.

Members of the Executive Committee arrived in Istanbul on June 01. A visit to the Children’s Court was arranged for June 2 where EXCO members had the opportunity to meet and discuss with the judges who deal with children’s matters. Members then had the opportunity to visit the Blue Mosque and have a walk around the city centre before being taken out to dinner.

The Executive Committee meeting was held on June 3. This was the fist time in the Association’s history that one of our meetings had been held in Turkey. We could not have asked for a more beautiful venue than the Senior Common Room of the University of Bahçeşehir with its views over the Bosporus Straits and across to Asia Minor.

The Conference, held on June 4 and 5, was attended by several hundred delegates and, judging from the reaction of the delegates and the number of questions raised, was an outstanding success. It certainly achieved its objective of beginning the debate and putting the focus on the need for alternative sanctions.

On June 6 we had the opportunity to fly to Ankara to visit the Ankara Juvenile Reformatory. This is a facility for young offenders aged 12-18. A range of social, cultural and educational programmes are provided with a view to reintegrating offenders into their community. We were also taken to a secure facility for older, more serious offenders.

We believe that the idea of inviting the Executive Committee to meet in Turkey and allowing us to participate in this important debate was a novel concept and we would like to thank especially Betül Onursal whose brain-child it was. But there are a number of other people we would like to thank also both for facilitating our visit and for the wonderful hospitality we were shown during our stay.

We wish to thank the Ministry of Justice, partner of the Symposium and organizer of the visits to the various institutions. We extend a special word of thanks to the General Director of the Criminal Institutions in Ankara.

We would like to thank Kazım Kolcuoğlu, President of İstanbul Bar Association and all of his colleagues for their support in organising this seminar. We extend a special word of thanks to Board Member Nazan Moroğlu and to Luiz Bakar, Member, İstanbul Bar Association.

The Center of Child’s Rights at the İstanbul Bar Association was central to this initiative. We have already mentioned our colleague Betül Onursal. We would also like to thank Aşkın Topuzoglu, Harika Seliçi, Seda Akço, Ülkü Alangoya, Berrin Tezgen, Fatma Başar, Ufuk Gürler, Ayşenur Demirkale both for their role in organising the conference and for the hospitality extended to us during our visit.

We wish to thank Prof. Süheyl Batum, Rector, University of Bahçeşehir and Prof. Feridun Yenisey, Penal Code Chair, University of Bahçeşehir who played a key role in organising the conference.

Finally, we would like to thank Rıza Küçükoğlu, Retired General, IGUL Foundation.

We extend sincere apologies to anyone we may have overlooked.

We commend our Turkish colleagues on this initiative and suggest that it is an example which others might wish to follow.

Children do not belong behind bars. Children should go to school. They should be playing with their friends. They should be together with their families.

Different studies have estimated that over one million boys and girls are behind bars worldwide, too often in horrific, degrading, overcrowded and violent conditions. Detention should be considered as an option only for the very small number of children who have committed violent and serious offences.

The majority of children currently behind bars do not belong there. Many have committed only petty crimes and are still awaiting trial. Many have committed no crime at all such as street children, political prisoners, refugee and asylum seekers, children with mental disabilities and others detained without judicial process.

One hundred and ninety-two governments have already committed to the general principles outlined in this document by ratifying the United Nations Convention on the Rights of the Child (CRC). Nevertheless children in prison and detention remain abused and forgotten.

At the same time, repressive policies and actions have been promoted and implemented by the governments of many countries. These measures have significantly increased the number of children behind bars.

Putting boys and girls behind bars and separating them from their families and communities seriously damages their physical, mental and social development. Many do not receive adequate food, health care or education. Children are exposed to physical, psychological and sexual abuse and may become infected with HIV. Detention leads to lifelong stigmatization which hampers reintegration of children into communities.

During this international conference we have learnt that thousands of Palestinian children have been arrested and detained by the Israeli Occupation Forces since September 2000 for political reasons, as a deliberate policy designed to strengthen and maintain the Israeli occupation.

For us, this situation is unacceptable. Thousands of Palestinian children have been detained during mass, arbitrary arrest campaigns over the last four years and are often used as political hostages to the negotiation process. These children should not be used as bargaining chips.

Call for Government Action

Stop putting kids behind bars

Stop the arrest and detention of girls and boys who are not suspected of an offence;
Stop detaining children who have committed petty offences;
Stop putting children in need of care and protection behind bars;
Immediately decriminalize survival behaviours such as begging and vagrancy, and status offences such as truancy, and children who are victims of sexual or other forms of exploitation;
Put an end to harsh, repressive, “tough on crime” policies that carry an excessive economic and social cost;
Immediately release all child political prisoners and end the practice of political arrest;
End discriminatory laws, policies and practices that put children behind bars based on race, nationality, ethnicity, socio-economic and other status;
Bring those responsible for arbitrary and illegal arrest and other human rights violations such as torture to justice.

Invest in a positive future for children

Prioritise and invest in programmes such as: social spaces; community youth centres; sports and cultural programs; mentoring; programs to help boys and girls stay in school;
Implement programs to reduce violence and to promote positive child-rearing in families and communities, and to strengthen social support systems;
Strengthen opportunities for participation of children in decisions that affect them and their communities and foster their roles as positive social actors;
Increase opportunities for children to develop sustainable economic livelihoods and life skills;
Strengthen and maintain care and protection systems, including alternative family-based care for children deprived of a family environment and other social welfare services.

Develop community based and restorative alternatives

Provide a range of local, community-supported diversion and individualized options for children in conflict with the law that will address the root causes of their offending in a way that is restorative to the victim and community e.g. victim/offender mediation, family group conferencing, community service;

Focus on community-based support to reduce stigma and ensure that children avoid repeat conflict with the law and to empower children to work towards positive futures.

Improve conditions for the exceptional cases of children who need to be detained

Ensure that detention as a last resort is used only for those exceptional cases where children need to be detained for the seriousness of their offence or because they pose a danger to themselves or others;

Provide child-oriented, child-sensitive systems that are separate from adult criminal justice systems. Children must not be tried as adults;
Make sure children are processed as quickly as possible by limiting detention in police custody to a maximum of 24 hours and ensuring that detention before conviction is court-ordered and regularly reviewed;
Comply with international standards for physical and psychological protection, well-being and development of children while behind bars;
Ensure the total separation of children from adults in detention and separation on the basis of sex and convicted status;
Ensure that children are informed of their rights and the functioning of the juvenile justice system while they are in detention.

Establish national plans to reduce the numbers of children behind bars

Develop mechanisms to effectively measure, monitor and report on the number of girls and boys behind bars;
Develop a plan of action to reduce the number of kids behind bars which includes establishing a baseline and means to reduce that number by 50% within 10 years;
Provide compulsory and quality training on standards and sensitisation of law enforcement and juvenile justice personnel;
Develop effective independent complaints and investigation procedures, independent monitoring and NGO access;
At a local level, governments must monitor the situation in places where kids are behind bars and develop local action plans.

Call for Action to Other Partners

UN and other international bodies^[30] must:

Assist governments to collect and analyse national data;
Provide technical assistance for the implementation and monitoring of national plans of action including training;
Publish annual statistics on children in detention and in conflict with the law;
Organize regular international meetings on children behind bars.

NGOs and civil society:

International NGOs must lobby to place the topic on the international agenda, organize for a world congress and stimulate plans of action;

National NGOs must establish national campaigns on No Kids Behind Bars, monitor government actions and conditions in detention, and collaborate on a regional level;
Community organizations must work closely with youth at risk, participate in local action plans and support children in closed institutions.

Media and educators^[31] must:

Inform the public about the problem of boys and girls behind bars based upon accurate and balanced information that does not sensationalize, victimize and exaggerate incidents that increase fear of crime;
Support and publicize the No Kids Behind Bars campaign;
Develop programs about kids behind bars for school curricula and community groups that encourage critical thinking and their participation in the No Kids Behind Bars campaign.

The general objective of the 11^th United Nations Congress on Crime Prevention and Criminal Justice, which took place from the 18^th to the 25^th April in Bangkok, Thailand, was to promote the adopting of policies for the prevention of crime and fairer and more effective methods of penal justice in a global context.

The Congress was attended by government delegations, other representatives from both inter and non-governmental organizations, groups from the United Nations, as well as independent experts in the area of penal justice. A total of 2,370 government representatives attended as well as 167 non-governmental organizations and another 1,135 independent experts.

As a global forum, the Congress contributed to the exchanging of information and work practices between the States, the organizations and the professionals specialized in the subject of crime prevention and criminal justice.

The main theme of the Congress was "Sinergies and Responses: Strategic alliances in Crime Prevention and Criminal Justice ", as was determined on the 18^th of December 2002, in Resolution 57/171 of the General Assembly of the United Nations.

On this theme, during the congress in Bangkok, it was stated that as well as the traditional threats to peace and security that exist, there were also new, global threats, which are found in permanent interrelation, and which therefore, must be treated in the same way.

Along the same lines, the main issues of the program of the Congress were the adoption of effective ways to fight against organized crime on a trans-national scale, the international cooperation in the fight against terrorism, corruption, economic and financial crimes and the putting into practice of the existing legislation which deals with crime prevention and criminal justice.

Also seminars and panels were organized on various themes relating to the strengthening of the international cooperation between the institutions in charge of the application of the law, including the extradition; the reforming of the penal justice system, including restorative justice; the strategies and optimum practices to prevent crime, taking into account particularly urban crime and youth in situations where they are at risk; methods to fight terrorism, with reference to the relevant conventions and international protocols; ways to fight against economic crime, including money laundering; and methods to fight against computer science crimes.

In the last part of the 11^th congress the key document for the Final Declaration also came about. The States reaffirmed their willingness to improve their international cooperation in the fight against crime and terrorism on multilateral, bilateral and regional bases.

Although the recommendations which came out of the 11^th Congress will have impacts on the development of the criminal justice policies and will strengthen the application of the law and emphasise the focus on prevention in each country, the 11^th Congress did not give reference to the specialized area of the administration of Juvenile Justice. That is to say, directives were not specified by the States on the development of the policies and programs referring to children and adolescents in conflict with the law, as is up-held by the Convention on the Rights of the Child and other standards of the United Nations.

In the official discourses of the opening of the Congress, presented by Antonio María Costa, executive director of the United Nations Office for Drugs and Crime (UNODC), Suwat Liptapanlop, Thai minister for justice (President of the 11^th Congress) and Kofi Anan, Secretary General of the United Nations (discourse read by the Executive Director of UNODC) there was a special focus on the fight against terrorism, but other issues, amongst them the administration of Juvenile Justice, were not mentioned. What is more, in the final stage of the Congress during the debates about the formulating of the Declaration project, there was a tendency to give the same focus to the situation of children and adolescents in conflict with the law and to the situation of children and adolescents who are victims of crime, although they are distinct realities which correspond to specialized areas of work. Paragraph 25 of the Preliminary Text of the Project of the Declaration of the Congress assumes this same uniform focus.

Due to this, the result of the finalizing of the 11^th Congress it is without doubt that there is still a lot of work to be done on an international scale to promote the Convention on the Rights of the Child in relation to Juvenile Justice. This is the challenge of the organizations dedicated to the promotion and protection of the rights of children and, in general of all the organizations for the Defence of Human Rights, in the understanding that the best method of the prevention of crime is through making opportunities for the exercising of the rights of children and adolescents.

We, the participants, recognise the importance of a child rights approach in order to bridge the gap between standards and reality, and the challenge of changing perceptions in society, in structures of governance and at an individual level, of what are acceptable ways of behaving towards children. We agree to take the following actions as a matter of priority:

1. Develop and put into action, with the active assistance of civil society organisations, measures at all levels to prevent violence against children through interdisciplinary and participatory approaches that include professionals from different sectors and backgrounds, parents and children, and which are supported at the highest possible political level;

2. Ratify relevant international treaties, enact, amend or repeal all domestic legislation as necessary in order to prohibit all forms of violence against children including corporal punishment and humiliating treatment, and take all necessary measures to prevent and sanction such offences against children; also pay special attention to the development of juvenile justice procedures to prevent violence against children in all stages of the process;

3. Give the highest visibility and political importance to the prevention of violence against girls and boys, including, for example, the launching of public information campaigns to raise awareness about the scope and negative consequences of all forms of violence; and to do this by means of developing sustainable partnerships with children, parents, civil society, the private sector, new information technology industries and mass media;

4. Upgrade technical, legal, procedural and institutional capacity across relevant sectors, such as education, health, justice, protection services and labour inspections to identify violence and put in place appropriate evidence-based strategies and explicit family and child policies to prevent violence, support child victims and strengthen reporting, referral and response;

5. Seek to establish, analyse and regularly monitor, the extent of different forms of violence against children, collect desegregated data by sex, age and other relevant factors, including the sources of discrimination that make some groups of children particularly vulnerable to violence, and systematically evaluate the appropriateness and effectiveness of interventions to protect children from violence, as well as efforts to provide timely assistance and address the consequences of abuse, including its social and economic cost for society;

6. Intervene in an early, effective, gender sensitive and child friendly manner to prevent victimization and re-victimization, through development of sensitive procedures and mechanisms, including provision of confidential advice; child-friendly judicial proceedings, and supportive health and protection services to ensure the physical and psycho-social recovery of affected children and young offenders;

7. Develop systematic and integrated education on child protection, encourage training for parents, all relevant professional groups and the mass media, that include information on human rights standards, on non-violent methods of conflict resolution and discipline, as well as on child development and the rights of children with special needs;

8. Strengthen and develop further all forms of international and cross-border co-operation, including prevention of criminal activities, in order to prevent and combat all forms of violence against children and to ensure that perpetrators of such violence do not escape justice and receive appropriate treatment;

9. Create opportunities for children and young people to play a more active role in addressing violence, equipping children with the knowledge and skills to be better able to recognise violence, and establishing mechanisms to ensure their participation in situation analysis, research and monitoring, and in the design of laws and policies that affect them;

We, participants from all the countries of the European and Central Asian Region, agree that these 9 steps will be the first important steps that we will take at domestic and regional level to address violence against children.

Justice is best achieved through the implementation of the various international instruments concerning the rights of the child. The theme puts the focus on children’s rights and considers what progress has been made putting theory into practice. It highlights the very important role of the judiciary not only as guarantors of justice but also in advancing the rights of the child.

The theme will focus on the extent to which the rights of children are protected and/or promoted by international instruments.

The IAYFJM draws members from more than 80 countries and from every continent. These instruments are the only legal instruments they all have in common. The Congress will provide a unique forum for members to exchange on how the CRC and other international human rights instruments are relevant to their practice. Discussions will stimulate individual reflection and provide an interesting impetus for the application of these instruments. The Congress is an opportunity for the IAYFJM to make a major contribution to the globalisation of perspectives on children’s rights.

Speakers will be invited to reflect critically on the way the rights of children are viewed, implemented and monitored in their respective countries and how national practice tries to meet, or fails to meet, the requirements of international standards. The consequences of non-implementation and even violations will be highlighted.

The implementation of rights is likely to be made differently depending on the legal tradition of each country, the social and economic resources it has, or does not have, culture and traditions, and so forth. Speakers will be invited to reflect on the underlying substantive policy issues, particularly on the need to provide economic support to developing nations. They will consider the legal aspects of rights and explore the values and the conception of children and justice which underpin the rights as outlined in the instruments.

Linguistic sessions and workshops will be divided according to types of rights and/or the types of interventions or proceedings to which these rights apply. They will start with brief presentations by people from different countries / continents, that might be viewed as representative of main trends, with a view to stimulating the reflection and discussion that should take place.

To take into account necessary distinctions between children in conflict with the law and children in need of care and protection, delegates will be invited to look at the various rights and reflect on how they apply (similarly or differently) to the various categories of cases.

Similarly, delegates will be invited to consider the extent to which the holistic approach needed in family and youth justice is reflected in practice. How well does the judiciary and all those court-connected professionals, whose work supports the courts, succeed in putting the pieces together again?

Rights tend to undergo some evolution over time, as values and conceptions change. Delegates will have an opportunity to consider the relevance of the instruments and whether any or all need to be updated.

Simultaneous translation will be available in each of our three official languages - English, French and Spanish - for all plenary sessions.

Included among the hundreds of delegates from around the world will be senior representatives of the judiciary and all the professions whose work supports the courts in dealing with children, families and youth justice.

This will be a major international conference embracing both an international and a multi-disciplinary approach to children worldwide and which will endeavour to deliver enduring outcomes throughout the globe.

The aim of the Congress will be to promote fresh initiatives internationally for the protection of children’s rights and the progress of youth justice.

The primary objective of the Congress will be to draw up a set of recommendations which will serve as an inspiration to policy makers, professionals and judges throughout the world in the formulation, development and application of youth and family justice.

Issues touching on the administration of justice as it affects the main influences on children and youth: family, community, society and youth justice will be considered within the overall context of a set of themes that reflect the rights enshrined within the UN Convention on the Rights of the Child and other relevant international instruments.

The development of youth justice in a worldwide context will be a key ingredient in our discussions.

Speakers

Speakers will be drawn from around the world and will represent a range of nationalities and cultures.

Target Audience

Our target audience includes judges, magistrates, psychiatrists, educators, legal professionals, social scientists, police, academics and representatives from government departments, human rights organisations, community groups and welfare agencies.

Organising Committee

The Congress Organising Committee is chaired by the Honourable Mr Justice Gillen – the senior Family Judge for Northern Ireland and comprises representatives from the main agencies supporting the Congress:

Northern Ireland Court Service

Northern Ireland Office

The Public Prosecution Service

Police Service of Northern Ireland

Probation Service of Northern Ireland

Social Services Inspectorate

Office of the First Minister and Deputy First Minister

Programme

Following a Welcome Reception for delegates on Sunday 27 August 2006, the Congress programme will cover 5 days and will strongly reflect the Congress theme.

MONDAY The Child in the Family -

A Child’s Right to Family Life

(i) The meaning of “family life” in a diverse early 21st Century.

(ii) What is the meaning of “abuse”?

(iii) Children as parents.

(iv) Recent developments in the law of international abduction and access.

(v) Parental responsibilities within the family.

TUESDAY A Child in the Community - A Child’s Right to Survival and Development

(i) How are we to hear the voice of the child?

(ii) Rights of child refugees.

(iii) A child’s right to marry.

(iv) Discrimination against children worldwide.

(v) The menace of the Internet.

WEDNESDAY Morning - An opportunity to visit children’s courts and various institutions for children.

Afternoon - Social programme.

THURSDAY Children in Conflict with the Law

(i) Child soldiers - children in war zones.

(ii) The right to protection against trafficking and child prostitution.

(iii) Restorative justice - a fair alternative?

(iv) The right to a fair trial.

(v) Children in custody.

FRIDAY Drafting recommendations and resolutions.

Veillard Cybulski Award

Closing Address

Call for Papers

The Scientific Committee has made a general Call for papers. Papers must be submitted by November 26, 2005. Papers MUST follow a set format and MUST be submitted on-line to the address given on the website.

For detailed guidelines on the submission of papers please visit the Congress website.

www.youthandfamily2006.com

As well as submitting papers delegates will be able to register, select workshops, book accommodation, book pre- or post-Congress tours.

For further information contact:

Gerry McLaughlin

Head of World Congress Secretariat

Northern Ireland Court Service

t. +44 28 9041 2270 / +44 28 9041 2267

f. +44 28 9023 8506

email: wcongress@courtsni.gov.uk

Susan Kirk

Professional Congress Organiser

The Ovation Group

t. +44 28 9042 4215

f. +44 28 9042 4216

email: susan@ovation-ni.com

Articles for the Chronicle should be sent directly to

Dr Willie McCarney,

Editor-in-Chief,

“St. Martin”, 175, Andersonstown Rd., Belfast. BT11 9EA

N Ireland.

Tel: +44 28 9061 5164; Fax : +44 28 9061 8374;

E-mail: w.mccarney@btconnect.com

Articles should be typed.

Copies in our three working languages

(English, French and Spanish)

would be appreciated.

Alternatively, articles may be directed to any member of the Editorial Panel. Names and addresses are given below, together with telephone and fax numbers, where available.

Honorable Oscar d'Amours, juge, Cour du Québec,

Chambre de la jeunesse

Palais de Justice,

1111, boulevard Jacques-Cartier Est,

Longueuil,(Québec) CANADA

J4M 2J6

Téléphone: (450) 646-4077

Email odamours@sympatico.ca

Jacob J. van der Goes

Molenstraat 15,

4851 SG Ulvenhout,

Holland.

Tel/Fax: 31 76 5612640

E-mail address:

j.vandergoes@tip.nl

Mónica Vazquez Larsson,

Av. Coronel Diaz 2333

piso 13 “A”

(1425) Buenos Aires

Argentina

Tel: (54 -11-) 48001160

Fax: (54 -11-) 48001161

E-mail address:

larsson@satlink.com

Dra Gabriela URETA

Juez 7° Juzgado Menores

Talavera de la Reina, calle 17, n° 656,

Las Condes 6780453

Santiago

Chile

E-mail address: gureta@vtr.net

Prof. Jean Trepanier,

École de criminologie,

Université de Montréal,

C.P. 6128,

Succursale Centre-Ville,

Montréal, Québec,

H3C 3J7, Canada.

Tel: 1 514 343 7325

E-mail address:

jean.trepanier.2@umontreal.ca

Dr Atilio J. ALVAREZ

Defensor de Menores

Santos Dumont 2380

1426 Buenos Aires

Argentina

E-mail address:

infanciayjuventud@yahoo.com.ar

^[1] Anti-Social Behaviour Orders

^[2] Home Office Guidelines on the use of ASBOs

^[3] the right to liberty and security of person

^[4] the right to fair trial

^[5] the right to family life

^[6] The right to life

^[7] The right to freedom from torture, inhuman or degrading treatment or punishment

^[8] Robert C. Trojanowicz & Merry Morash. Juvenile Delinquency: Concepts and Control §3.6.1 (4^th.ed. 1987)

^[9] Codigo Civil para el Estado de Sonora, (hereinafter Civil Code for the State of Sonora), Ley Numero 32, B.O. 8 de julio1949, Article 580

^[10] Semanario Judicial de la Federación (hereinafter S.J.F.). Primera Sala (First Chamber), Quinta Época. Parte L; Pagina 1352. Nature of the Juveniles Courts: Except for the projects of 1908 and 1920, relating to the founding of the Paternal Courts and the Court for the Protection of the Child, there is no other precedent to the Law of March 30, 1928. The main characteristic of the system established by this law is that it declares juveniles under 15 years old not criminally responsible of the offences they commit. It is the Tribunal for Juveniles, removed from the punitive system of the common courts, which is in charge of hearing cases of contraventions to government regulations or criminal law by juveniles and to make all the personal determinations of the minor in order to propose educational corrective measures and change them when necessary. These resolutions do not have the form of sentences, they are only preventive and educative measures, and in any case, conditional, according to the needs of the juvenile. The measures can consist of custody and educational reclusion of the minor, and in the case of observance of juveniles, special establishments in which juveniles can be better observed for a term of 15 days. Furthermore, the actions of the Juvenile Tribunals lack an authoritative nature, they are in fact carrying out a social mission, this is evident because offenders are not subject to imprisonment, and they are enrolled in an observation house. In the observations house the process is conducted in a family environment that is considered adequate for successful scientific observation of the juvenile, which is necessary in the Tribunals determinations

^[11] Robert C. Trojanowicz & Merry Morash. Juvenile Delinquency: Concepts and Control §3.6.1 (4^th.ed. 1987)

^[12] D.O.F. February 5, 1917. Political Constitution of the United Mexican States. [hereinafter Mexican Constitution] article 1

^[13] Mexican Constitution, supra note article 133

^[14] United Nations Convention on the Rights of the Child, ratified by Mexico on August 10, 1990.

^[15] D.O. February 5, 1917. Political Constitution of the United Mexican States. [hereinafter Mexican Constitution]Article 18.(3) Arrest is permissible only for offenses punishable by imprisonment. The place of detention shall be completely separate from the place used for the serving of sentences.The federal and state governments shall organize the penal system withintheir respective jurisdictions on the basis of labor, training, and education as a means of social readjustment of the offender.

^[16] Ana Josefina Alvarez, México, in International Handbook on Juvenile Justice. pg. 207 (Ivonne Vinay trans., Greenwood Press, ed. 1996)

^[17] See note

^[18] Código Penal del Estado de Sonora (hereinafter Criminal Code for the State of Sonora), Boletín oficial del Gobierno del Estado 10, seccion II, 03 de agosto de 1949

^[19] Ley que Crea el Consejo Tutelar para Menores de Estado de Sonora ( hereinafter Law that Creates the Juvenile Tutelary Counsel for the State of Sonora), Boletin Oficial del Gobierno del Estado, 12 de diciembre de 1984. This law annuls articles 113, 114, and 115 of the Criminal Code and articles 451-471 of the Criminal Process Code.

^[20] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 18

^[21] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 21

^[22] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 35

^[23] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 19

^[24] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 21. The President and the Counselors must be professionals that posses interest and understanding of the problems relating to minors.

^[25] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 29

^[26] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 28

^[27] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 30

^[28] Boletin Official No. 52, sección 1 de 1992/12/28. Articles 19 section I; 34, 44 paragrapgh II, 49 and 55 were reformed. And the following articles were added: 1bis, 48bis, 4 parragraph, 19 last paragrapg, 28 section 10, 30 section VI, and 52 paragraphs II-V.

^[29] Law that Creates the Juvenile Tutelary Counsel for the State of Sonora, Article 48 bis

^[30] e.g. UNICEF, WHO, UNDP, UN Committee on the Rights of the Child, UN Commission on Human Rights, UN Office on Drugs and Crime, UNIFEM and Habitat

^[31] e.g. TV, radio, newspapers, Internet, film and other cultural outlets, schools and academic institutions

Basic Procedural Rights	U.N. Convention on the Rights of the Child	Juvenile Justice Law in Sonora
Presumption of Innocence	Article 40, section 2.b (i)	Article 48 bis. Section I
The Right to be Notified of the Charges	Article 40, section 2.b (ii)	Article 48 bis Section V
The Right to Remain Silent	Article 40, section 2.b (i)	Article 48 bis Section V
The Right to Counsel	Article 40, section 2.b (iii)	Article 48 bis. Section III & IV
The Right to the Presence of a Parent or Guardian	Article 40, section 2.b (iii)	Article 48 bis. Section II & Article 55 & 39 Note: These establish that juveniles have the right to have parents or guardian notified of the charges and only mentions their presence for the ruling of the Final Resolution.
The Right to Confront and Cross-examine Witnesses	Article 40, section 2.b (iv)	48 bis. Section VII
The Right to Appeal to a Higher Authority	Article 40, section 2.b (v)	Article 55 Note: There is a right of appeal but it is only applicable to the Initial and Final Resolution, and only before the same COTUME Council that issued the final Resolution, not to a separate and higher authority. However, there is a Constitutional right of appeal to all Acts of State that infringe any of the basic guaranties protected by the Constitution, know as Amparo.

Juvenile courts in Sonora, Mexico

Process under the

Sonora Juvenile Justice Law

Due Process Rights

Basic Procedural

Rights

U.N. Convention on the Rights of the Child

Juvenile Justice Law in Sonora

Article 40, section 2.b (i)

Article 48 bis. Section I

Article 48 bis. Section II & Article 55 & 39

Article 55