The Right to Education is a fundamental human right, set forth in the Universal Declaration of Human Rights and the International Human Rights Covenants, which have the force of international law. It occupies a central place and is essential and indispensable for the exercise of all other human rights and for development.

Education is the key to empowerment. It is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty, and obtain the means to participate fully in their communities. None of the civil, political, economic and social rights can be exercised by individuals unless they have received a certain minimum education.

Among the United Nations instruments, there exists many standard-setting instruments relating to the right to education, ranging from the Universal Declaration of Human Rights itself to various conventions, declarations, recommendations, frameworks and programmes of action, aimed at ensuring the implementation of this right or particular aspects of it.

The specific dimensions of the right to education are especially covered by the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Rights of the Child (1989), the Convention on the Elimination of All Forms of Discrimination against Women (1979).

Another treaty, the Convention on the Elimination of All Forms of Racial Discrimination (1965), requires States Parties to eliminate ‘racial discrimination in all its forms…’ in regard to ‘the right to education and training’, among several other rights.

Articles 13 of the International Covenant on Economic, Social and Cultural Rights has been interpreted as being the most comprehensive article on the right to education. Paragraph 13 (1) is the most relevant to us in the present context:

The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

Since the General Assembly adopted the Covenant in 1966, other international instruments have further elaborated the objectives to which education should be directed. States parties are required to ensure that education conforms to the aims and objectives identified in article 13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien, Thailand, 1990) (art. 1), the Convention on the Rights of the Child (art. 29 (1)), the Vienna Declaration and Programme of Action (Part I, para. 33 and Part II, para. 80), and the Plan of Action for the United Nations Decade for Human Rights Education (para. 2). While all these texts closely correspond to article 13 (1) of the Covenant, they also include elements which are not expressly provided for in the article, such as specific references to gender equality and respect for the environment. These new elements are implicit in, and reflect a contemporary interpretation of article 13 (1). They have received widespread endorsement from all regions of the world.

To pursue the aim of education for all is an obligation accepted by all States. It is more than an ambitious objective: it is an ambitious ethic – predicated on human dignity. Today the notion of literacy is no longer restricted to reading, writing and numeracy: education must also offer access to skills and know-how that enable the individual to take his or her place in society. It must also be a school of democracy, for the surest defence of the City is an educated and responsible citizenry.

Education must be accessible at all stages of life, so as to give a “second chance” to the excluded and enable every individual to adapt to a changing world and work environment. It must give access in the first instance to necessary knowledge, and then make available throughout life - not only in school but also through non-formal and informal education - what Robert Carneiro, in Keys to the 21st Century, calls “antidotes to unlearning”.

This objective will only be achieved if education for all is integrated in national development and poverty-reduction programmes. For today the essential link between education, development and poverty-reduction is universally recognized. This is why the poor and the excluded – particularly women and girls, too often deprived of education, and marginalized groups – should be the main targets of Education for all.

Societies must recognise that educating girls is not an option, but a necessity. It is a long-term investment ... and a tool for preventing conflict. It is the most cost-effective form of defence spending.

In November 2003 representatives from 18 countries and eight global aid and United Nations organisations meeting in New Delhi agreed to speed a plan to educate tens of millions of girls. But officials said that they have pledges for only half of the $3.5 billion needed annually for the project. The plan urges all countries where girl’s education lags to give budgetary priority to policies that promote gender equality.

Some of you may wish to remind me at this point that my stated aim for the International Association of Youth and Family Judges and Magistrates is “Supporting Youth And Family Judges And Magistrates In Maintaining The Rule Of Law” and not the promotion of “Education for All”. So where do judges and magistrates fit in?

The right to education is established in texts of varying legal nature such as conventions, recommendations, declarations, frameworks for action and charters which do not, legally speaking, involve the same obligations but which all serve the same end: the promotion and development of the right of every person, without discrimination, to enjoy access to education.

Almost every country has ratified the relevant Conventions, listed above. As soon as a Convention has been ratified, accepted or acceded to in sufficient numbers to enable it to enter into force, it ultimately becomes binding on the State that has adhered to it. Once incorporation procedures have been completed, it can be brought into force within that State’s internal order.

Declarations, Recommendations, Charters and Frameworks for Action are not binding and have only declamatory character. They are not subject to ratification. However, States and Governments adopting these declarations and recommendations also subscribe to moral commitments. These instruments clearly state their intention to implement them, even though there are no legal penalties for non-compliance. Furthermore, they may by custom become recognized as laying down rules binding upon States.

The responsibility devolves upon Governments to ensure that political commitments undertaken at the World Education Forum (Dakar, April 2000) are translated into national laws and policies. As a result, the constitutional and legislative foundation of the right to education assumes added significance, taking fully into account the legal implications of the Dakar Framework for Action. The Discussion on the Right to Education and Follow-up to the World Education Forum organized by the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), in co-operation with UNESCO, on 14 May 2002, clearly showed how crucial it was to introduce constitutional provisions on the right to education as well as appropriate enabling legislation so that the State obligations under the relevant international conventions are incorporated into the domestic legal order.

The fundamental question is how the obligations relating to the right to education undertaken by Member States under international and regional instruments are incorporated into national legal systems. This is all the more important for achieving the Dakar goals, especially the goal of free and compulsory quality basic education.

The adoption of a human-rights based approach will greatly facilitate implementation of the right to education.

As the Informal Expert Consultation on Monitoring the Right to Education organized by UNESCO in March 2001 suggested, the follow-up to the World Education Forum should be linked to the implementation of international and regional instruments. It underlined the need for (i) examining the bases of the Dakar Framework for Action in both modern comparative constitutional law and conventional international law, and (ii) establishing the relationship between the Dakar Framework for Action and existing normative instruments as a continuity of existing law.

Following the general education law, national legislation in specific areas such as higher education, free and compulsory education, vocational and technical education, and financing of education would also require to be elaborated.

As provided for under existing instruments, the right to education can only be availed by its beneficiaries when the State obligations under these instruments are incorporated into the national legal system and their implementation is ensured effectively.

Therefore, it is crucial that the right to education in its various dimensions is incorporated into the constitutions and legislation of all Member States, so that it is really enjoyed by individual right-holders and by society.

Once a Convention is brought into force within a State’s order, the beneficiary of the right established by the Convention can use every available legal means to secure compliance: recourse to law courts, for instance, where the judge or magistrate ultimately has the power to examine whether there is a breach of the State’s legal obligations, and to come to a decision.

Clearly it was expected that as a follow-up to the World Education Forum, countries should modernize their legislation. UNESCO has been analysing constitutional provisions and national legislation relating to the right to education in different countries, on the one hand, and providing technical assistance to Member States in developing/modernizing national legislation, on the other.

Mobilising governments to develop and modernize national legislation is a critical element of implementing the Dakar Framework for Action. This is a mammoth task, especially in developing countries. Technical assistance provided by UNESCO would need to be available on a much broader scale. The International Association could usefully collaborate with UNESCO in drawing up education legislation in line with the Human Rights Conventions so as to advance the work in that direction.

The Dakar Framework for Action assigned to the international community six goals, two of which are particularly relevant. The first commits us to “ensuring that by 2015 all children, particularly girls, children in difficult circumstances and those belonging to ethnic minorities, have access to and complete free and compulsory primary education of good quality”. The second involves “achieving a 50 per cent improvement in levels of adult literacy by 2015, especially for women, and equitable access to basic and continuing education for all adults”.

And yet, almost four years after Dakar the right to education remains a distant goal for millions of people. The number of adult illiterates worldwide remains obstinately at around 900 million. Over 100 million children of primary school age still do not attend school and have no possibility of doing so.

All States agree that children must have access to basic education as of right, in particular to primary education which must be free. Poverty must not be a hindrance and the claim by the poor to such education must be recognized and reinforced. And yet, despite the presence of such an array of legal obligations and political commitments, millions of children still remain deprived of educational opportunities, many of them on account of poverty.

In 1990 international leaders meeting in Jomtien, Thailand, promised the world’s children an education by 2000. But the nineties was a decade of broken promises and brought no improvement in the overall situation. The world’s leaders had a chance to redeem themselves in Dakar but most, including the US President and the British Prime Minister, failed to even turn up. At the G7 meeting in Okinawa the following July The Dakar Framework for Action was not discussed, although the leaders did pledge to work towards closing the digital divide between North and South: the gap in access to new technology between rich and poor countries.

It is worth pointing out that the problems of illiteracy are not confined to developing nations. Even in the richest nations education systems cannot ensure sustainable literacy among the population. Studies show that over one-tenth, and more often than not one-fifth, of the population of industrialized countries is affected by illiteracy – defined as the inability to read and write with understanding a short simple statement in relation to everyday life.

Almost a quarter of young adults in the US having difficulty reading all but the simplest of texts. In the developed, as in the undeveloped, world low literacy invariably means poverty and the spiralling problems of drugs, violence and the insecurity which go with it.

A recent report on education in the UK (November 2003) found that pupils from deprived backgrounds were twice as likely as others to leave school without qualifications. More than 100,000 pupils had simply dropped out of the school system and disappeared. 41% of children referred to Youth Offending Teams had disrupted schooling. The Report pointed out that not having an education means that a child’s opportunity to fulfil its potential as an adult is hampered. This has costs for the child, the community in which they live and wider society.

Achieving the right to basic education for all is one of the biggest moral challenges of our times. It is more than ever necessary for us to rouse ourselves and take action. Education will only be effectively ‘for all’ when it becomes the active concern of everyone. Dakar must not be “yet another conference”, and Education for All must not forever remain an unfulfilled promise.

We must stop betraying hope, stop postponing action. Investing in education is investing in success, it is building our future. Governments, international institutions, social agencies, NGOs, associations, the private sector and citizens must join forces in carrying through this undertaking.

In the aftermath of 11 September we should also reflect on the fact that investing in education means investing in national and international security. For education is founded on four pillars: learning to know, learning to do, learning to be, and learning to live together. Education for all is the best cement of peace, both between and within nations. But are we ready to pay the price of peace? To those who complained about the cost of education, Abraham Lincoln was in the habit of replying: “Very well, gentlemen, then try ignorance!”

The war against terrorism does not appear to be making the world a safer place. If we gave the same commitment, and financial backing, to the Dakar Programme for Action we might have more positive results.

Dr Willie McCarney, President

On 24 September 2003 the Committee of Ministers of the Council of Europe adopted a recommendation on new ways of dealing with juvenile delinquency (Recommendation Rec(2003)23). This recommendation succeeds an earlier recommendation from 1987 (Recommendation No. R (87) 20).

The reason for producing a new recommendation was twofold. First of all there were concerns about levels of juvenile crime and the increased use of violence in particular. This may require new answers and new policies. Secondly, the Council of Europe has grown rapidly over the last decade. The Council of Europe now counts 45 member states. The new member states all come from Central and Eastern Europe. They are confronted with similar problems as Western European countries, but also have to deal with specific problems related to their own domestic situation. It was believed not only that Recommendation No. R (87) 20 in some respects was a little out of date, but also that it would not cover sufficiently the needs and specific situations and problems of the new member states.

In this presentation key elements of the new recommendation and some of the work of the expert committee that drafted the recommendation is presented including calls for separate European Prison Rules and European Rules on Community Sanctions and Measures for minors, for multi-agency approaches at a local level, for a continued search for alternatives to custody, for the recognition of victims’ interests, for the use of evidence-based interventions, for the desire to involve parents more systematically in procedures and programmes, and for the idea of producing race impact statements alongside policy plans.

The tasks of the Expert Committee, in which experts from 22 member states as well as from 3 observing parties (Canada, the International Association of Juvenile and Family Court Magistrates (IAJFCM) and the Permanent European Conference on Probation and Aftercare (CEP)) participate, in accordance with its terms of reference were to consider, in particular:

- the current trends in juvenile delinquency and the response of the of juvenile justice system;

- the functioning (and possible malfunctioning) of the juvenile justice system, along with possibilities for making it more effective;

- the safeguards that young offenders should enjoy throughout proceedings;

- the methods of intervention, both in open and in closed environments, in response to juvenile delinquency, and the problem of persistent offenders;

- the functioning and possible malfunctioning of the existing institutions for dealing with young offenders in closed environments (prisons, custodial centres, new types of residential establishments, for instance); particular attention should be paid to the conditions in which young offenders are detained and the implementation of appropriate socio-educational programmes in closed institutions.

The recommendation, accepted by the Committee of Ministers, reads as follows:

- be guided in their legislation and policies and practice by the principles and measures laid down in this recommendation;

- bring this recommendation and its explanatory memorandum to the attention of all relevant agencies, the media and the public; and

- acknowledge the need for separate and distinct European Rules on Community Sanctions and Measures and European Prison Rules for Juveniles.

Recommendation Rec(2003)20 uses the following definitions:

- “Juveniles”. This refers to persons above the age of criminal responsibility and below the age of majority. However, the term ‘juvenile’ is a legal rather than a developmental term and the age of what constitutes a ‘juvenile’ therefore varies between member states. In practice, the Recommendation extends above the age of majority to encompass young adults, in recognition of the lengthening transition to adulthood. It also extends to those below the age of criminal responsibility as a number of countries have expressed concern about how better to respond to the anti-social behaviour of children, which, were they older, would be defined as criminal and responded to accordingly.

- “Delinquency”. This is not a legal term and means different things in different countries. In general it means actions which are dealt with under criminal law. In some countries it also extends to anti-social and/or unruly behaviour, including incivilities, bullying, truancy, drug misuse and under-age drinking, which may be dealt with under administrative or civil law. The draft recommendation focuses primarily on behaviour.

- “Juvenile justice system” is defined as the formal component of a wider approach for tackling youth crime. In addition to the youth court, it encompasses official bodies or agencies like the police, prosecution and legal profession, probation and penal institutions. It works closely with related agencies such as health, education, social and welfare services and non-governmental bodies, such as victim and witness support.

RECOMMENDATION NO. R (87) 20

Recommendation Rec(2003)20 reiterates many of the principles contained in Recommendation No. R (87) 20 on Social Reactions to Juvenile Delinquency, including:

- that the juvenile justice system is only part of the overall response to juvenile crime;

- that the juvenile justice system should avoid repressive approaches and focus on education and reintegration;

- that juveniles should at least receive the same level of procedural safeguards as adults; and

- that depriving juveniles of their liberty should only be used as a last resort and that, as far as possible, interventions should be carried out in the juvenile’s home environment.

However, the Committee of Ministers also believes that a re-appraisal of our response to juvenile crime is required due to the accession of new member states from Central and Eastern Europe, advances in scientific research, developments in juvenile justice policy and practice and significant changes in the lives of young people.

THE CHANGING LIVES OF YOUNG PEOPLE

Since the 1980s, changes in the lives of young people have increased the risk of their involvement in violent and criminal behaviour. This seems particularly the case in the rapidly changing societies in many Central and Eastern European countries. The most important are:

- the rise in child poverty and income inequality, especially in Central and Eastern Europe

- the greater incidence of divorce and family breakdown and the impact this has on parenting

- the growth in experimentation, at an increasingly young age, with psychoactive substances, including alcohol

- the decline of the youth labour market and the rise in unemployment among young adults, particularly young men and those with low skill levels

- the increasing concentration of social and economic problems and related crime and violence in specific areas, often inner cities or housing estates on the periphery of urban conglomerations

- the mass migration of ethnic minorities into and within Europe and

- the increased risk of psycho-social disorders among young people, especially young men.

THE CHANGING NATURE OF

CRIME AND DELINQUENCY

Whilst these changes are likely to have affected the scale and nature of juvenile crime, there is little empirical data to support this. Many countries lack the infrastructure and means to produce reliable crime data over a reasonable period of time to allow for valid conclusions on trends and developments.

Police statistics from some Western European countries suggest that juvenile crime is generally stable, but that violent crime is rising. Other sources of information, however, question this view. In those few countries where victim and self-report studies have been undertaken, the rise in violent crime appears to be more modest or even non-existent. Based purely on anecdotal evidence, it seems that rates of juvenile crime and violence in some but not all of the countries of Central and Eastern Europe are lower than in the West, but are increasing at a greater pace.

THE NEED FOR NEW RESPONSES

Irrespective of whether juvenile crime and violence has increased, there is clearly a general perception that juvenile violence is increasing, that offenders are starting to offend earlier and that a small proportion commits large numbers of offences. At the same time, research tells us more about the causes of crime and also that some interventions can work with some young offenders some of the time. Experiments with alternative approaches to dealing with juvenile offenders, such as restorative justice and intensive, community-based support and supervision, suggest that there are ways of supplementing the more traditional approaches which could improve our response to juvenile crime and violence.

However, there is a concern that the juvenile justice system is slow, ineffective and over-burdened. Delays are commonplace, public confidence is low and re-offending rates are high. As traditional sources of informal social control - schools, families and the workplace – may have weakened, the expectations placed on the criminal justice system have increased. These developments seem to have led, at least in a few member states, to a more repressive approach, which is reflected in higher rates of custody for juveniles and a shift from a welfare (needs-led) model to a justice (punishment or ‘just deserts’) model. In other countries, there is simply not enough information to establish whether custody rates are rising or whether data that is published includes those on pre-trial detention or in secure residential homes. Nevertheless, it is believed that in many countries, increasing use is being made of such provisions.

In Central and Eastern Europe, where resources are much more limited, some member states are struggling to implement existing international standards. For them the most pressing issues are the provision of adequate capacity and the quality of such provision.

Taking these considerations into account Recommendation Rec(2003)20 identifies a number of new principles, which build on those identified in Recommendation No. R (87) 20, but are seen to be of equal if not greater importance today. They include:

- that the response to juvenile offending should be swift, early and consistent;

- that the responsibility for offending behaviour be widened to include a young offender’s parent(s);

- that, as far as possible and where appropriate, interventions with young offenders should include reparation to victims and their communities;

- that interventions should directly address offending behaviour and be informed, as far as possible, by scientific evidence on effectiveness.

EUROPEAN RULES FOR MINORS

It is important to note that Recommendation Rec(2003)20 presents a set of standards for policies, legislation and practices in the field of juvenile justice, but does not contain any provisions on the treatment of juveniles in prison or subject to community sanctions and measures. Therefore, Recommendation Rec(2003)20 highlights the need to develop separate and distinctive European Rules for juveniles deprived of their liberty or subject to community sanctions and measures.

Juveniles in custody are often highly vulnerable. Given the high prevalence and incidence of suicide, attempted suicide, bullying, self-harm and mental health problems, the experience of custody seems very traumatic. In this respect, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recommends that juveniles deprived of their liberty because of criminal behaviour be held in detention centres specifically designed for young persons, with regimes tailored to their needs and staffed by persons trained in dealing with the young.

In 2001, the Council of Europe decided to revise the European Prison Rules. Gaps and weaknesses were identified, including inadequate provision for young offenders. However, the European Prison Rules do not apply to juveniles. The same is true for the European Rules on Community Sanctions and Measures. Therefore, the committee that drafted Recommendation Rec(2003)20 strongly believed that the development of European Rules for Juveniles covering both of these areas is necessary. It recommended that such a new set of rules should cover all forms of detention, including asylum and immigration detainees. The Committee of Ministers accepted this suggestion and it is expected that in 2004 a group of experts will start drafting such rules.

KEY ISSUES

Key issues in Recommendation Rec(2003)20 are:

- a more strategic approach;

- new responses;

- implementation;

- rights and safeguards; and

- monitoring, evaluation and information dissemination.

A MORE STRATEGIC APPROACH

THREE PRINCIPLES

Juvenile justice in Europe has no common vision or philosophy. Some countries have ‘welfare’ based models focusing on the needs of the juvenile, others have ‘justice’ models emphasising retribution and public protection.

In practice, juvenile justice systems should meet both the welfare needs of the young offender and the protective and retributive needs of society. This, however, undermines public confidence in the capacity of the system and its practitioners to effectively deal with juvenile crime. There is a need for a common, public vision and purpose, constructed around three principles that reflect the best interests of young offenders, their victims and the public:

1. prevention of offending;

2. reintegration of the offender;

3. reparation to compensate for wrongdoing.

These reflect, in combination, the best interests of young offenders, their victims and the public.

WORKING TOGETHER

Juvenile crime cannot be tackled by the juvenile justice system alone. Using the law as the only tool for tackling crime limits society’s capacity to control and prevent criminal behaviour. Studies on the causes of crime confirm families, schools, local neighbourhoods and peer groups as key influences on delinquent behaviour. This suggests that there are important roles to play for the key institutions of socialisation:

- the family;

- the school;

- the workplace;

- the local community.

TARGET GROUPS

Recommendation Rec(2003)20 addresses several target groups.

Young persistent and serious offenders, in particular, are responsible for a large amount of crime and have a disproportionate impact on their families and local communities. They often have multiple needs and inter-connected problems (drug misuse, truancy from school or problems at home). They need to be tackled together by a juvenile justice system that includes local agencies that can address wider contextual factors to reduce the risk of offending and re-offending.

There is also special concern about drug-related offending and the increasing prevalence of drug misuse amongst children and young people. Recommendation Rec(2003)20 supports specific measures developed in some countries for treating drug misuse and dealing with drug-related crime, such as diverting problem drug users from prosecution under the condition that they agree to undertake treatment and accept testing that they remain drug free.

Similar concerns exist about alcohol-related offending. In some countries the increase in public order offences and violent offences is believed to be the result, at least in part, of the widespread and more excessive drinking habits of young people. Recommendation Rec(2003)20 endorses measures taken in several countries such as banning the consumption of alcohol from certain places during certain times and using licensing laws to discourage under-age drinking by young people.

Most member states are concerned by the large and increasing numbers of young offenders from minority ethnic communities who appear before the courts. This is partly a consequence of recent trends in mass migration, but in some countries minority ethnic communities are into their second and even third generations, whilst other countries have historic or indigenous minorities.

This concern is also reflected in the disproportionate representation of offenders from minority ethnic communities at each stage of the criminal justice system, from arrest through to custody. This may be partly explained by higher offending rates, which in turn may be due to higher exposure to poverty and social exclusion, but may also reflect discrimination.

In developing effective responses to offending by minority ethnic groups, member states may build on initiatives in specific countries and on the Council of Europe’s Recommendation No. R (88) 6 on Social Reactions to Juvenile Delinquency Among Young People coming from Migrant Families. However, given the recent trends in mass migration in Europe it may be necessary to revisit this Recommendation in the near future.

Other target groups addressed are young people that offend in groups, young female offenders and young children under the age of criminal responsibility.

EFFECTIVELY INTERVENING

Interventions with juvenile offenders should be effective. Over the last decade, research has begun to show that the ‘nothing works’ doctrine is wrong. New ways of effectively dealing with young offenders are emerging and there is now scope for cautious optimism. Essentially, effective interventions are those which:

- address criminogenic factors which cause or directly contribute to the offending behaviour (for example antisocial attitudes, drug misuse, poor cognitive skills, educational failure and poor parenting) and continue to place the offender at risk of re-offending in the future;

- ensure a close match between the risk of re-offending and the nature, intensity and duration of the intervention;

- employ practitioners whose teaching approach matches the learning approach of the offender and use material tailored to the offender’s needs and abilities;

- are based in the community and are closely connected to the offender’s home environment rather than based in institutions; and

- draw on a range of methods (e.g. social skills training, anger management, problem-solving etc.) often referred to as a cognitive behavioural approach.

Much of the evidence focuses on interventions with serious and persistent offenders. The prevailing view is that petty and first time offenders should continue to be diverted from formal prosecution. Very little is known about the effectiveness of interventions designed specifically for young women, ethnic minorities and migrants. This needs to be addressed.

A recent development in the promotion of evidence-based policy and practice was the setting up of the Campbell Crime and Justice Group in 2000. The Group – an international network of scientific experts committed to providing the best evidence on effective policy and practice – systematically reviews scientific research and evaluation studies. Reviews are published electronically.^[1]

RACE IMPACT STATEMENTS

To reduce the risk of discrimination the expert committee believes that it may help if public authorities are required to monitor the impact of justice reforms and practices on equality.

They can do this by preparing a statement setting out how the needs of ethnic minorities have been taken into consideration and what procedures and safeguards have been put in place to ensure that the new reform does not inadvertently discriminate against them. The kinds of issues that impact statements should seek to address are whether the policy might place some ethnic minority at a disadvantage or adversely affect relations between different ethnic minorities and how such impacts might best be avoided.

NEW RESPONSES

Recommendation Rec(2003)20 proposes a series of new responses. Since some of them are perhaps less new as suggested and most of them speak for themselves they are listed without further comments.

1. Expanding the range of suitable alternatives to formal prosecution should continue to be developed. They must adhere to the principle of proportionality, reflect the best interests of the juvenile and apply only in cases where responsibility is freely accepted.

2. To address serious, violent and persistent juvenile offending, member states should develop a broader spectrum of new, more effective (but still proportional) community sanctions and measures. They should directly address offending behaviour as well as the needs of the offender. They should also involve the offender’s parents or other legal guardian (unless this is considered counter-productive) and, where possible and appropriate, deliver mediation, restoration and reparation to the victim.

3. Culpability should reflect better the age and maturity of the offender, be more in step with the offender’s stage of development, with criminal measures being progressively applied as individual responsibility increases.

4. Parents (or legal guardians) should be encouraged to take greater responsibility for the offending behaviour of younger children. They should attend court proceedings (unless this is considered counter-productive) and, where possible, they should be offered help, support and guidance. They should be required, where appropriate, to attend counselling or parent training courses, ensure their child attends school and assist official agencies in carrying out community sanctions and measures.

5. Reflecting the extended transition to adulthood, young adults under the age of 21 should be adjudicated and sentenced as juveniles and be subject to the same interventions, unless deemed by the court to be as mature and responsible for their actions as a full adult.

6. To facilitate their entry into the labour market, young adult offenders under the age of 21 should not be required to disclose their criminal record to prospective employers, other than in exceptional circumstances.

7. Instruments for assessing the risk of future re-offending should be developed in order that the nature, intensity and duration of interventions can be closely matched to the risk of re-offending, as well as the needs of the offender, always bearing in mind the principle of proportionality. Where appropriate, relevant agencies should be encouraged to share information, but always in accordance with the requirements of data protection legislation.

8. Time limits for each stage of criminal proceedings should be set to reduce delays and ensure the swiftest possible response to juvenile offending. In all cases, measures to speed up justice and improve effectiveness should be balanced with the requirements of due process.

9. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed in a manner that ensures their full understanding of their rights and safeguards. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian. They should also have the right to access a medical doctor. They should not be detained in police custody for longer than 48 hours in total and for younger offenders every effort should be made to reduce this time further.

10. When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months up to trial commencement. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances.

11. Where possible, alternatives to remand in custody for juvenile suspects should be used, such as placements with relatives, foster families or other forms of supported accommodation. Custodial remands should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures.

12. In considering whether to prevent further offending by remanding a juvenile suspect in custody, courts should undertake a full risk assessment based on comprehensive and reliable information on the young person’s personal and social circumstances.

13. Preparation for the release of juveniles deprived of their liberty should begin on the first day of their sentence. A full needs and risk assessment should inform a reintegration plan, which fully prepares offenders for release by addressing in a co-ordinated manner their education, employment, income, health, housing, supervision and family and community-related needs.

14. A phased approach to reintegration should be adopted, using periods of leave, open institutions, early release on licence and resettlement units. Resources should be invested in the provision of reintegration post-release that, in all cases, should be planned and carried out with the close co-operation of outside agencies.

IMPLEMENTATION, RIGHTS AND SAFEGUARDS, MONITORING, EVALUATIONS AND INFORMATION DISSEMINATION

Recommendation Rec(2003)20 finishes with a number of paragraphs on implementation, rights and safeguards, and monitoring, evaluation and dissemination. Again, they are presented here without further comments.

IMPLEMENTATION

1. The response to juvenile delinquency should be planned, co-ordinated and delivered by local partnerships comprising the key public agencies – police, probation, youth and social welfare, judicial, education, employment, health and housing authorities – and the voluntary and private sector. Such partnerships should be responsible and accountable for achieving a common aim, be clearly led and:

- provide initial and in-service training

- plan, fund and deliver services

- set standards and monitor performance

- share information (adhering to the legal requirements of data protection and taking into consideration the specific duties of the agencies concerned) and

- evaluate effectiveness and disseminate good practice.

RIGHTS AND SAFEGUARDS

1. All new responses and procedures contained in the current Recommendation must be considered within the framework of the rights and safeguards set out in relevant international instruments.

MONITORING, EVALUATION AND INFORMATION DISSEMINATION

1. To increase the knowledge base on what interventions work, funds should be allocated to the independent scientific evaluation of such interventions and the dissemination of findings to practitioners.

2. To ensure against discrimination on ethnic grounds within the juvenile justice system and to identify cases where culturally specific interventions are required, information should be collected and/or research should be undertaken on the involvement and treatment of ethnic minorities at each and every stage of the juvenile justice system.

3. To counter overly negative perceptions, inform public opinion and increase public confidence, public information strategies on juvenile delinquency and the work and effectiveness of the juvenile justice system should be developed, using a wide range of outlets, including television and the Internet. This should be accomplished without making available personal information or other data that may lead to the identification of an individual offender or victim.

Since the adoption of the Constitution of July 20^th, 1991, Mauritania has embarked on a democratic process founded on justice and the equality of citizens according to the principles of Islam. In order to do this, it has initiated a batch of institutional and legislative reforms designed to free up and channel individual efforts in the context of the economic and social development of the country.

In accordance with the commitments taken on by Mauritania in the context of international human rights conventions, the Government intends to crack down on all practices likely to harm this progressive initiative, particularly human trafficking. This is a major obstacle to the emancipation of all sections of the population and a serious impediment to any harmonious development in a just environment.

Law no. 025/2003 of July 17^th, 2003, designed to crack down on human trafficking, contributes to the establishment of an egalitarian society respectful of human dignity and constitutes an indispensable legal instrument in the struggle against social inequality.

In order to do this, it criminalizes and severely penalises a practice incompatible with modern societies founded on the principles of equality of citizens, respect for human dignity and liberty, as well as the rights of paid workers.

Anxious to combat new forms of human trafficking, it makes procuring a felony (it was formerly considered a misdemeanour by article 311 of the Penal Code.

This text is also notable for a combination of prison sentences, the forfeiture of civil and civic rights and fines against the perpetrators of this scandalous practice.

The law organises the struggle against human trafficking through a clear and precise definition of this offence which has become a felony. The mitigating circumstance of victim consent is eliminated and penalties become harsher if the victim is a child.

This law is the most recent action taken by the government in order to gradually, continually and appropriately improve the situation of the child. It is the visible part of the regulatory and institutional structure for the protection of children’s rights which should be analysed in order to determine the importance of the child in the Mauritanian institutional set-up. (II).

But before doing this we must set out the context into which this law was introduced, before analysing the system for protecting children, of which the law is only one part. (I).

2. Context of Law no. 025/2003 of July 17^th, 2003 against human trafficking

Law no. 025/2003 of July 17^th, 2003 against human trafficking was introduced in a context marked by concern to affirm individual and collective rights. This has made it possible to identify the threats hanging over children.

2.1. The affirmation of individual and collective liberties

Reform of the justice system and social and political transformations with the aim of giving citizens a say in their affairs have contributed to the emergence of a society oriented towards democracy and devoted to the protection of every individual, including the child.

2.1.1. Justice system reform

On July 20^th, 1991, Mauritania adopted a constitution which restores the rule of law, re-establishes fundamental liberties, installs pluralistic democracy, establishes the independence of the judicial power, which gives human rights a strong constitutional character.

The separation of powers has seen the emergence of an independent and dynamic justice system capable of driving strong social and economic development.

A reform was initiated by the President of the republic and the President of the High Council of the Magistrature. The priorities of the latter were: improving the legal framework, the specialisation of jurisdictions, rapidity and efficiency in the workings of the justice system, the construction of judicial infrastructures, and the training of magistrates and court personnel.

The efforts brought by the State in the context of developing the justice system have contributed to:

1. Reinforcing the rule of law;

2. Creating the optimum conditions for a legislative and regulatory framework appropriate for the success of economic policy and financial and commercial activities;

3. Ensuring greater social and national cohesion be reinforcing the foundations of the State and constantly seeking effectiveness and efficiency in the justice system;

4. Restoring the credibility of the justice system and citizens’ confidence in it;

5. Bringing the justice system closer to the people.

The results anticipated from this reform have already been seen to have a positive impact on the legal system: revision of the judicial plan which has seen the creation of specialised chambers at different jurisdictional levels (administrative chamber, civil chamber, commercial chamber, criminal chamber, juvenile chamber and examining magistrates for children). The justice system has been brought closer to those it is to judge through the setting-up of legal assistance and through the reinforcement and simplification of the laws.

In this way Mauritania has:

1. Comprehensive business legislation which, apart from a code of attractive investment and exhaustive trade regulations, includes an arbitration code which answers the concerns of the business world;

2. A simplified Code of Commercial and Administrative Civil Procedure, adapted to rendering judgements rapidly;

3. A Code of Obligations and Contracts which regulates the various legal transactions inherent in a society in the full swing of economic change;

4. A code of legal organisation which introduces a specialised judicial system capable of dealing with all disputes, whatever their nature;

5. A law on legal costs which lightens and reduces the cost of access to the courts;

6. A personnel status code which organises company reports on a consensual legal basis and clearly defines the obligations and the rights of each individual, as well as ways to preserve them;

7. Providing magistrates with the appropriate legal instruments, so that they will now have available all the essential legal texts for the fulfilment of their tasks. In the very near future, there will be a law to give legal protection to children (including a penal code and a criminal procedure code for children), as well as internal regulations for re-education centres for children in conflict with the law.

In the area of human resources the reform of the justice system has been characterised by:

1. Recruitment of a sufficient number of magistrates with emphasis on both quality and quantity;

2. Recruitment of clerks of the court and chief clerks indispensable for the functioning of the public justice service;

3. Liberalisation of the professions of solicitors and bailiffs;

4. The organisation of the profession of judicial specialist, with a view in particular to reduce the time taken by the various courts, as the delays not only jeopardise the principle of equality before the law, but also maintain distrust towards the jurisdictions.

5. The drafting of a magistrature code which assures the independence of the courts and guarantees their autonomy according to the constitution.

Finally, the creation of reception and information offices, media campaigns and the publication of new texts have been the major stages of a campaign of information, education and communication which has contributed to citizens’ knowledge of their rights and obligations, helping them to form and provide their points of view on the organisation and functioning of judicial institutions as well as the issues at stake with reform.

On the strength of these achievements and conscious of the efforts which remain to be put in, the department of justice has considerably and fundamentally improved the training of court personnel to guarantee the success of justice reform. Apart from the judicial profession, citizens have been even more the targets of reforms aimed at them and to the success of which they have contributed thanks to their opinions and analyses of the various stages, orienting the efforts of the public authorities in the direction of a reform to which they adhere and which corresponds to their ideal of justice.

In addition to almost exhaustive economic legislation, a harmonious legal and judicial framework able to deal with all disputes, court personnel in the process of specialisation, supplementary texts, simplified procedures, well-informed citizens and accessible courts, the State has laid the foundations of a justice system designed to bring democracy and economic and social advancement. This system effectively protects citizens’ rights and allows the most disadvantaged to participate directly in the development of their country. Through the security it grants to national and foreign investors, the justice system contributes to national economic development.

2.1.2. Social and political transformations

Since the adoption by referendum of the pluralistic constitution of July 20^th, 1991, Mauritania has set up a dynamic, pluralistic and participative democracy. Its vitality is demonstrated by the regular holding of open elections. Moreover, all sections of the Mauritanian people participate in the running of the country’s affairs.

All political parties freely carry out all their activities without any obstacles and press freedom today is reinforced by the existence of a free and independent press.

All Mauritanians, whatever their social origin, their level of education or their political affiliation, are eligible voters.

To widen the participation of all political protagonists in the running of public affairs, the government recently introduced proportional representation in the electoral system, thus allowing all political parties to be represented in the country’s various institutions.

Mauritania is one of the rare African countries where the opposition is present in political, parliamentary and community institutions,

However, like all African societies, Mauritania has known a form of social hierarchy, the remnants of which the government is vigorously combating with a view to eliminating tribalism, regionalism and all other forms of sectarianism.

In order to eradicate all social inequalities and integrate as much as possible the most deprived classes of the population into public life, the Commission for Human Rights, Struggle Against Poverty and Social Insertion is currently carrying out an ambitious program to improve the living conditions of the most disadvantaged sections of the population.

Today, various action programs to develop education, health and social welfare benefit all sections of the population, whatever their origin. They have translated into access to drinkable water, generalised and compulsory education and the integration of women into the process of development.

With this perspective, the identification of the rights of the child was placed in the centre of the Mauritanian legal arsenal. The law 025/2003 of July 17^th, 2003 against human trafficking makes a very great contribution to preserving the rights of the child in cutting off the threats liable to disturb children’s tranquillity.

2.2. Dangers threatening the child

Law no. 25 of July 17^th, 2003 against human trafficking fits into a perspective of protecting all individual rights, rejecting all forms of human trafficking, including its contemporary aspects which traditional legislation, often founded on rigid, repressive and obsolete principles, no longer cover today. The first article is quite explicit in this regard, even if the manifestations of human trafficking are manifold and complex. It stipulates:

“The definitions provided by international human rights treaties and conventions ratified by Mauritania notwithstanding, the expression “human trafficking” denotes the enlistment, transport or transfer of persons by force, by resorting to force or threats or other forms of coercion, by abduction, deceit, abuse of authority or exploitation of a situation of vulnerability, or by offering payment or other advantage to obtain the consent of a person having authority over another, with the object of exploitation”.

The term “vulnerability” used by this article is a reflection of the lawmaker’s concern to give the child a special place in the new protective framework being put in place. In fact, who else but children are today, among the various domestic and international legal problems, the focus of particular attention due to their personal vulnerability and the impassiveness of the world run by individuals whose children, its potential for the future and tomorrow’s citizens, have not always been the main concern.

In basing the struggle against human trafficking on the protection of vulnerable individuals, Mauritanian legislators on the one hand are showing originality and good sense in running with a progressive current of modern society which is beginning to mobilise in order to ensure a better world for children, a sign of its durability. On the other hand, the struggle against trafficking in human beings is being strengthened with an evaluation provision which allows the judge to come down heavily on all individuals who have, in one way or another, directly or indirectly, in however small a manner, participated in or profited from this degrading practice, or been aware of it without reporting it.

The reinforcement of the Mauritanian legal arsenal, already equipped with a penal code and a criminal procedure code, anticipates the existence of threats against the rights of the child. These are inherent in the mutation of modern society, characterised by the passage from a nomadic way of life to that of a post-industrial system. These threats are essentially linked to the vulnerability of children in difficulty, child beggars, child labour and commercial sexual exploitation.

2.2.1. Children in difficulty

This is a generic term which covers all children who have difficulty integrating into the social fabric. The expression “children in difficulty” will be, for the purposes of this article, confined to street children. These are, through their vulnerability, susceptible to all forms of human trafficking and Law no. 025/2003 of July 17^th, 2003 anticipates this risk in stating in a further article that: “the enlistment, the transfer, the harbouring or the housing of a child with the aim of exploitation are considered as “human trafficking” even if none of the methods listed in Article 1 are employed”.

In fact, the phenomenon of street children is increasing in significance in the country’s larger cities, especially in Nouakchott (the political capital), Nouadhibou (the financial capital) and Rosso (a border town with one side on the banks of a river). Besides, the exodus from the countryside combined with the economic and social difficulties linked to the settlement of nomads in cities, make for a favourable environment for the exploitation of these children whose parents are in most cases economically deprived. The endemic academic failure and the spiralling delinquency among children will be somewhat slowed down by the coercive and deterrent measures of Law No. 025/2003 of July 17th, 2003 against human trafficking, which criminalises the perpetrators of human trafficking and the negligence of the children’s parents. The same rigor is also observed with regard to the parents of child beggars.

2.2.2. Child beggars

The coming into force of Law no. 025/2003 of July 17th, 2003 against human trafficking has already meant a decline in the phenomenon of child begging, which is already an offence, since it constitutes a form of child trafficking which has become unbearable and revolting today.

Formerly considered as an educational procedure essential to teach children modesty, piety, knowledge and autonomy, this phenomenon, today called “talibé”, means that parents are not fulfilling their legal and natural obligations to meet their children’s needs of food, education, health care and protection. The children, entrusted to a master, are left to their own devices. The master obliges them to bring him a certain sum of money every day, or else they are beaten. Tired of begging, they get up to all kinds of delinquency in order to satisfy this burden, including theft, drugs, fraud, prostitution and sometimes even murder. Failure to make the daily payment means a choice between life on the streets, with the risk of all forms of exploitation, and corporal punishment of extraordinary violence. Moreover, in many cases the children who succeed in gathering the necessary sum of money are still badly fed, undernourished and crammed into makeshift shelters put at their disposal by their master without any hygiene measures. Their level of schooling when they leave this environment is almost zero. The combination of the first three articles of Law no. 025/2003 of July 17th, 2003 against human trafficking, allow the indictment of both active and passive participants in this process, who will be punished and will no longer be able to invoke the consent of the victim or of his or her guardians in order to escape from the hands of the law.

2.2.3. Child labour

Despite the ratification by Mauritania of international conventions, child labour seems to be widely practised by private individuals. In fact, the phenomenon of servant girls disturbs no-one nowadays. It seems to suit everyone – the employer who benefits from cheap labour and the servant girl’s parents who boost their monthly income thanks to the earnings which their progeny brings them at the end of every month. However, this repugnant practice which exploits children now falls under the new law which punishes the parents and the employer even if the child consents. Let us bank on the hope that it will be sufficient to discourage shady employers and negligent parents.

2.2.4. Sexual exploitation of children for commercial purposes

The sexual exploitation of children for commercial purposes is a marginal and relatively recent phenomenon in Mauritania. The only known manifestations of this practice, in quite particular circumstances, are forced early marriages and rape of girls. However, over the last few years the phenomenon has been emerging in the country, particularly through child prostitution with quite well-organised internal networks, trafficking in children for sexual purposes, prostitution in the home and sex tourism. These practices, still in their initial stages, nevertheless demonstrate the persistence of the phenomenon and its future expansion if measures are not taken. The general spirit of Law no. 025/2003 of July 17th, 2003 against human trafficking targets these practices through its first five articles, since initially the trafficking punishable by law concerned essentially the long-running practice of the prostitution of women. Today, with modernisation and the diversification of the forms of that activity, Mauritanian legislators have adapted their reactions to the struggle against the threats hanging over children and the importance they are to attach to them in the institutional set-up.

3. Protection of the child in the Mauritanian legal and institutional system

The protection of the child has become an integral feature of Mauritanian legislation and institutions. The contribution of Law no. 025/2003 of July 17th, 2003 against human trafficking is a substantial one to this purpose. The law is one of a number of measures taken by the State in order to protect the rights of the child.

3.1. The contribution of Law no. 025/2003 of July 17th, 2003 against human trafficking

Law no. 025/2003 of July 17th, 2003 against human trafficking is part of the framework of establishing an egalitarian society which offers everyone the same conditions for social advancement. It puts into practice the social plan drawn up by Mauritania to protect its children.

Article 1 refers to the international commitments entered into by Mauritania, among which are treaties and conventions concerning children. This is already a sign of a country’s commitment to the struggle against this practice while keeping in mind the protection of its children. It uses the expression enlistment, which implies coercion, since this is a part of human trafficking. This expression was consciously preferred rather than that of “recruitment”, which means being part of an action, since it maximises the effectiveness of the struggle against trafficking in children.

Subsequently, legislators have not used the accommodation and housing situations as applied to adults, since they are not likely to amount to the crime of human trafficking – those given accommodation are not threatened since they are receiving free benefits. On the other hand, this is a crime when children are involved.

The expression “by force or by resorting to force or the threat of force” is explicit since it implies that the victim’s will is being disregarded.

Moreover, in a quest for fairness, the law distinguishes between the ban on the removal of an organ carried out for medical purposes and that carried out for the sole purpose of profit, which is forbidden and can in no way benefit a child.

The usual expression “victim consent is null and void” is set down by the legislator to show the importance of eliminating mitigating circumstances in this area, even if the person being trafficked gives consent.

One again, the use in other articles of the law, of the expression “enlistment” conveys the idea of the severity of society’s reaction and denotes the continuity of the Mauritanian legislators’ reasoning, putting further emphasis on tracking down traffickers in human beings.

Finally, the legislators do not define the child. Anxious to be efficient, they conform to the conventions and agreements ratified by Mauritania in order to broaden as much as is practicable the protection from which children can benefit. This attitude is laudable, since apart from the fact that national legislation is still on this side of what is desired for the purpose of harmonisation with the Convention on the Rights of the Child, it does not define the child. In keeping with international conventions, the legislator therefore allows magistrates and institutions charged with the protection of children’s rights to draw on the international legal arsenal, strongly marked in recent years by the concern to preserve children’s rights in order to protect them. Consequently, the definition of the child used by Law no. 025/2003 of July 17th, 2003 against human trafficking, is that set out by texts referring specifically to children as well as the international conventions to which the law refers. This therefore reinforces its effectiveness and contributes to a wider protection of the rights of the child.

Article 5 organises the punishment of human trafficking. In addition to a custodial sentence, it imposes a fine and automatically suspends the civil and civic rights of those responsible for human trafficking. The punishment of perpetrators of human trafficking who belong to organised crime syndicates is already included and taken into consideration by the article as an aggravating circumstance.

Through a fortunate adjustment of the law, the legislator has not regulated the prevention and investigation of human trafficking, which have no place at this stage of a criminal statute. The Criminal Proceedings Code already sets out these procedures explicitly. Besides, the prosecution and extradition of the perpetrators of this crime outside Mauritanian territory are carried out by means of international legal co-operation on criminal matters, governed by bilateral and multilateral treaties which are part of the legal arsenal for the protection of children.

3.2. The legal arsenal for the protection of children

For more than a decade, the protection of children’s rights has been a principal target for the Mauritanian authorities, who see a means of setting the country on a steady course of development. The defence of children and their protection against all economic, social and political dangers potentially harmful to their development has been the subject of a determined struggle.

In this way, economic, political and legislative measures demonstrate this new characteristic aspect of the Mauritanian system. The reinforcement of the protection of the child is greatly aided by the improvement in women’s rights and the institutionalisation of the protection of children.

3.2.1. Improving the rights of women to preserve those of children

The protection of the family, the basic unit of society, first of all requires the protection of women’s rights. In the preamble to the Constitution of July 20^th, 1991, “the Mauritanian people proclaims particularly that family rights should be guaranteed, since the family is the basic unit of Islamic society”.

During the entire period from 1990 to 2002, Mauritania went through a true transformation regarding the promotion of women’s rights. On the one hand, the political leanings of the government insisted on the promotion and protection of civil, political, economic, social and cultural rights of women through the Strategy for the Promotion of Women. This is based on family-oriented policy, improvement in women’s earnings, an increase in the participation of women and women’s organisations in the basic processes of development. On the other hand, the State has drawn up a strategy of Information, Education and Communication (IEC) to accompany the implementation of this strategy and the institutional reinforcement of the State Secretariat for Women’s Issues.

As regards standards, the State first ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDEF) in 1999, but with a reserve concerning the conformity of this Convention with the Sharia (Muslim law). It then organised a campaign to raise women’s awareness of the principles defined by the CEDEF. Finally, 2001 saw the passing of the Personal Status Code, which defines the rules and standards likely to limit the anachronisms and chaos which predominate in the area of divorce, custody of children and the maintenance and housing of spouses. This has been the beginning of a continuous and indispensable campaign to make current legislation evolve in the direction of international standards and at the same time protect children’s rights.

3.2.2. Institutionalisation of the protection of children’s rights

The vulnerability of children finds expression in their dependence on their parents or legal representatives, as well as their legal, economic and social environment. In Mauritania, despite a context of poverty and quite a severe rate of illiteracy, children enjoy guaranteed legal, economic and social protection. This came to fruition on one hand through the ratification of the Convention on the Rights of the Child (CDE) and signing up to its two optional protocols concerning the sale of children and their sexual exploitation, and the involvement of children in armed conflicts. On the other hand, the guarantee of civil rights for children is assured by the Code of Obligations and Contracts which sets out in Article 16: “children enjoy their civil rights on the condition that they are born viable”. The ban on the enlistment, transfer, housing or lodging of a child for the purpose of exploitation, which are considered forms of human trafficking by Law no. 25/2003 designed to punish human trafficking, ensures a further level of protection of the child against all these forms of trafficking.

The Mauritanian legal and judicial system is also adapted to the protection of children’s rights. In this way, first of all abortion, infanticide and the abduction of minors, the abandonment of children and trading in children are severely punished by the Penal Code. Nevertheless, the Penal Code recognises being under age as a defence and mitigating circumstances when a child perpetrator is to be judged. In this perspective, the Labour Code has also been revised in order to adapt it to the international context concerning child labour. Further, the judgement of children and their detention are governed by specific measures. First of all, 13 juvenile jurisdictions and examining magistrates’ offices for children have been created in all the country’s larger cities in order to examine and judge cases coming before the justice system. Secondly, a re-education centre for children in conflict with the law has been set up. Its internal regulations have just been fixed by Directive R01524 of September 9^th, 2003 on the internal regulations of re-education centres for children in conflict with the law, respecting the principle of separation of adults and minors in the prison environment. This principle is applied in detention centres by the provision of accommodation reserved for children.

Finally, Law 054/2001 of July 19^th, 2001 obliges parents to educate their school-age children.

This legal arsenal is supported by the dynamism of a civil society working towards the promotion of juvenile law, in particular, among others, the National Council for Children (CNE), the Mauritanian Parliamentary Group for Children (GPME), the Initiative of Mauritanian Mayors for the Defence of Children, the Association of Imams for the Defence of the Rights of the Child, who are now forming effective networks and benefiting from training on the rights of the child.

4. Conclusion

Respect for human rights begins with the way in which a society treats its children. A society which takes care of its children will offer them freedom and dignity, creating conditions which allow them to develop their whole personalities and to be ready to lead a full and satisfying adult life.

It is no doubt these values which should be linked to the various measures taken in recent years in favour of children and which indisputably place Mauritania in the avant-garde of what countries can do in this area with a view to promoting the status of children within the family and in society in general. These measures and the attention paid to the issue not only reveal that Mauritania is capable of compassion and humanitarian action towards its children, but that it has a sense of history, is committed to the future and wishes to improve the human condition of its future generations.

The recent adoption of Law n° 025 of July 17^th, 2003 against human trafficking is without doubt the starting point of an ordered process of giving a new impetus to all programs so far launched to work for the benefit of children, with a view to achieving a better alignment of national legislation and policy with the rules and principles proclaimed by the Convention on the Rights of the Child.

However, beyond their importance and their diversity, these laws and mechanisms, even if they represent the most edifying sign of the attention the State has devoted to child welfare, are now applied to a lesser degree. Quite an exceptional work and a reflection of what a society can do best in the field of protection and promotion of future generations, these initiatives arise from a new ethic according to which children, due to their weakness, both physical and psychological, are owed protection from all of society. Therefore, parents, communities, public and private organisations from the wide network of health, education and social services are called upon to unite their efforts to ensure that childhood should be the time of life permitting children to develop a permanent trust in humanity.

This translates into corresponding extra responsibilities, preventive actions and, if necessary, appropriate forms of intervention, which must be combined with a view to finding, in a timely fashion and while respecting the best interests of the child, adequate solutions for many children who often live in difficult situations which compromise their security and their development. The adoption of the law protecting the child in the area of criminal law, which includes a juvenile criminal procedure code and a juvenile penal code, already makes it possible to ensure a certain effectiveness for laws and systems protecting children, punishing those who do not respect their status.

Let us trust that the Mauritanian authorities, anxious to complete the process of integrating the child, will hurry the adoption of these measures in order that they may reflect well in the evaluation report on the implementation of the Convention on the Rights of the Child that Mauritania is currently drafting in order to present it to the Geneva Committee charged with following up the implementation of the CRC.

Haimoud Ramdan

The subject of the child as a victim of crime can be approached from a general perspective, as is the case with existing procedural systems. Both national and Latin American legal systems recognise the rights and guarantees offered to adult victims of crime, but without forgetting the need to move towards establishing specific legislation which takes into account the implementation of the International Convention on the Rights of the Child. Central pillars of the aforementioned treaty are the rights dubbed the “three Ps” - Provide, Protect and Participate. These have three basic elements: a) Reaffirming the application of specified rights, 2) Raising the bar for their application c) Establishing specific standards in specific areas applicable to children and above all establishing the principle of the Best Interests of the Child as a guarantee.

Among the pillars mentioned above, the protection of privacy turns out to be one of the most controversial in cases of child victims of crime. Just after making progress regarding the respect due to privacy, it does not prove easy to clear up the conflicts which arise between privacy and other rights and liberties which are claimed to be of equal or superior status.

We must use as a starting point the meaning of the “best interests of the child” in order to start unravelling the complexity of the subject and reach a satisfactory conclusion. We can summarise the concept as the “full satisfaction of rights”. The proposal put forward by the Convention - as Cillero Bruñol pointed out well - sets out “the principle of the best interests of the child as a guarantee of the applicability of other rights, which when respected, enshrine and identify with the child’s best interests; that is to say that the principle has meaning in so far as there exist rights and the subjects of rights and that the authorities are bound by those rights”.^[2]

As for private institutions, they themselves must respect the “best interests of the child” and this is so “not because these best interests are considered socially valuable or through any other concept of social welfare or goodness, but rather because in so far as children have a right, before measures are taken concerning them, to measures which promote and protect their rights and not measures which violate them.”^[3]

The International Convention on the Rights of the Child is clear in its article 16 which states: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks.” On the basis of this concept of the right to privacy contained in the Convention, without neglecting to consider in any circumstances the best interests of the child, we must say that it has been accepted that no right is absolute; therefore the problem arises when the right to privacy clashes with freedom of expression and information.

In comparative law, Spain enshrines in Article 20.4 of its Constitution that general principle, however those liberties (freedom of expression and information) are limited by the rights comprised in Article I of the Spanish Great Charter and specifically by the rights to honour, privacy and one’s own image, as well as the protection of young people and children. These rights are to be given the strongest protection as they are the most exposed to violations with respect to the principles of Article 20 of the Constitution.

Looking further, we begin to glimpse how the legislation of various States, their Constitutions and the decisions of the courts are opening a pathway for the purpose of finding harmony between the rights and responsibilities which converge within the legal system. One example of a beneficial step forward in such a direction are the resolutions of the Constitutional Court of Costa Rica, which by using the “theory of limits” from Spanish law, clearly stated that “information as a right meets clear limits in the areas of privacy, honour, personal image and the principle of presumption of innocence.”^[4]

In our country, there have been attempts in certain cases, wrongly in my opinion, to place on an equal footing the right of the child, established in Article 16 of the International Convention on the Rights of the Child, incorporated into Article 75 Section 22 of the National Constitution, and freedom of the press and information (accompanied in most cases by images) stipulated by Articles 14 and 32 of our Fundamental Law.

While in principle this matter can be seen as a question of conflict of rights, freedom of the press and information vs. the right to privacy, I personally consider that the first should give way to the second. Likewise this doctrine has been proclaimed when children or adolescents are involved, with the clear statement that “it is obvious that the right to privacy which is part of the most personal of rights, has a higher priority than the freedom to express ideas through the press; for this reason priority must be given to the right to privacy, foregoing the other.”^[5]

Thus there is no doubt that between children’s right to privacy and freedom of the press and information the former must be given priority - when minors are involved the issue of the “best interests of the child” can never be avoided. It is a principle of guarantee which must be used to make decisions when there is a conflict of rights and must be respected by both public and private institutions.

In our legislation, as in that of Mendoza and Chubut, Law 4347 on the “Total Protection of Infants, Children and Adolescents”, the stance taken on the rights and guarantees enjoyed by children and adolescents with reference to the subject we are now discussing is clear: “No social, public or private communications medium shall publish or disseminate information which identifies or can lead to the identification of children or adolescents who are perpetrators or victims of criminal offences” (Article 21 of Law 4347 of the Province of Chubut and Article 12 of Law 6354 of the Province of Mendoza).

This leads us to conclude that without restricting any rights, rights must be exercised appropriately, thus if there is an attack on a very personal right (a child’s privacy), other constitutional rights such as freedom of the press cannot be asserted. Prevailing doctrine and the court system pick up this subject stating that “even assuming that both rights can be set against each other legitimately, (a very personal right and the freedom of the press), when making a decision the first consideration must be which right ranks higher in the constitution from the perspective of a hierarchical order of civil rights, i.e. it is appropriate to give the right to honour and privacy priority over press freedom”.^[6]

We cannot be ignorant of the fact that in times when cases of public corruption are ever increasing and of a worrying dimension, the role of the press is essential in making public the actions of government officials, shedding light on such cases and disseminating information.

In this way freedom of the press also proves to be “an indispensable base in the framework of the Rule of Law”^[7], reinforcing it and helping

to make government actions transparent. Freedom of the press has often been silenced in an unjust and underhand way by States where totalitarian regimes hold sway.

We will then try to place rights and guarantees in their proper order, thus the freedom to inform is a right. However it is not absolute and must be respectful of other human rights, in this case the right to privacy of child victims of crime, by virtue of the fact that in this case the press is part of society and “the best interests of the child” is a community interest which must be analysed over any other individual interest.

This article is aimed solely to make us think about the importance of very personal human rights, which Nations have taken many years to bring about and which, if implemented in an adequate and harmonious manner, improve the system of democratic coexistence.

Prof. Dr Ricardo Angel Basilico.

Biological perspectives on the criminal behaviour of youths have sought to explain in terms of genetic predisposition or other biological factors that play a significant role in the commission of crimes and delinquent acts. Recent biological research has been especially promising in linking antisocial behaviour and aggression to various biological abnormalities, deficiencies, characteristics, or influences.

Heredity-Genetic Theories

Heredity biological theorists tend to explain deviant behaviour as being caused to some extent by the genetic transmission of certain mental or physical characteristics from generation to generation. This has been found to be particularly true where it concerns violent tendencies. For instance, some studies have found a significant relationship between genetics and conduct disorder. Other researchers have found that certain biological characteristics such as low birth weight and other prenatal and perinatal problems may result in a predisposition for some children to become delinquent.

Studies of Twins, Adoption & Fostering

The association between heredity and antisocial behaviour has received the most support in the study of twins. Researchers have found a higher rate of criminal concordance among identical twins.

The role of genetics has also been examined through adoption and fosterling studies. The researchers concluded that the biological predisposition to commit crimes increased the probability of children to become delinquent or criminal offenders.

Testosterone and Offending

Research has found a positive correlation between high levels of testosterone and male violence and aggressive behaviour. In one study researchers found that prisoners with the highest testosterone levels were most likely to have violent criminal histories, while inmates with the lowest levels of testosterone were most likely to have non-violent criminal histories.

Another study found a significantly higher level of testosterone among young males who were aggressive while intoxicated, compared to those who were not aggressive. A study of salivary testosterone levels in males and females whose behaviour was aggressive or antisocial, found males to have five times the salivary testosterone as their female counterparts.

Hyperactivity and Antisocial Behaviour

Hyperactivity has been shown to be an important biological risk factor for delinquent and criminal behaviour. Beginning in early childhood, hyperactivity—or being highly or excessively active—is often related to aggressive tendencies, and increases the risk of antisocial personality, conduct disorder, adult criminality, and substance abuse. One study found that boys with hyperactivity that continued into adolescence were four times as likely as boys not hyperactive to develop deviant behaviour and were significantly more likely to have criminal arrests, along with problems such as fighting, larceny, truancy, and expulsion from school.

Persons diagnosed with ADHD have been found to be at risk for a number of deviances and abnormal conditions including delinquency, criminality, feelings of worthlessness, psychiatric morbidity, unemployment, family dysfunction, and suicide.

Intelligence and Delinquency

Some studies support a link between intelligence and delinquent behaviour. A strong correlation exists between delinquency and IQ, independent of race and social class. A low IQ affects school performance, in turn leading to antisocial behaviour. Low intelligence nonverbally is strongly related to low intelligence verbally and low school attainment as predictors of delinquency. Longitudinal surveys have consistently shown a correlation between failure in school and delinquent and criminal behaviour.

It has been suggested that a high IQ can act as a protective mechanism against criminal behaviour for high-risk children.

Other Biological Research

The link between biology and criminality has focused more in recent years on various brain and neurological dysfunctions and their effect on behaviour. Some research has found abnormal electroencephalogram (EEG) recordings of brain activity in criminals and delinquents, associating it with violent and aggressive behaviour, destructiveness, limited impulse control, and weak social adaptations. A higher rate of epilepsy has been found in juvenile delinquents in which seizures may result in a loss of self-control.

Other biological research has linked brain dysfunction to such learning disabilities as aphasia, hyperactivity, and dyslexia, which some researchers believe predisposes each such individual to deviant behaviour. A correlation has been shown as well between brain tumours and violent criminal behaviour and criminality and vitamin deficiencies.

Many behavioural scientists today support a multidisciplinary approach in the study of antisocial behaviour, combining genetics research with environmental studies and other disciplines such as neuroscience, endocrinology, and psychology in exploring delinquency and criminality.

SOCIOLOGICAL THEORIES

Sociological and cultural theories tend to focus on the relationship between delinquency and criminal behaviour and the social structure, culture, environment, and associated variables beyond the individual. This school of thought often regards antisocial conduct as normal behaviour within the context of the social and cultural influences of the deviant.

Social Control Theories

The social bond that ties juveniles to the social order consists of four key components: (1) attachment (ties to others such as family and peers), (2) commitment (devotion to social conformity), (3) involvement (in legitimate activities), and (4) belief (attitudes toward conformity). Delinquent youths are seen as not possessing the intimate attachments, goals, and moral standards that bond most people to the values and norms of society; consequently, they are free to perpetrate acts of criminality and delinquency.

Strain Theories

Strain theories explain deviant behaviour as a response to the lack of socially approved opportunities.

Distress occurs when individuals feel unrewarded for their efforts compared to the efforts and rewards of similar others for similar outcomes. The negative emotions associated with negative relationships may be more effectively handled by participating in delinquent behaviour rather than non-delinquent behaviour.”

It has been concluded by some experts that delinquency “is higher among those who experience family, school, and neighbourhood strain [and]...higher among certain categories of juveniles experiencing peer abuse;” and, further, that the likelihood of strain resulting in delinquent conduct was greater among adolescents who were older.

cultural transmission theories

Cultural transmission theories explain delinquency as learned behaviour and, thus, a reflection of the norms, values, beliefs, and patterns in behaviour people learn from those they interact with. Cultural transmission theorists believe that crime and delinquency are caused primarily by persons “conforming to the behavioural norms of a culture or subculture that are contrary to conventional norms and values with respect to the behaviour and the law.” Delinquent norms are also seen as intergenerational in cultural transmission theories in both the socialization process and the techniques used in perpetrating criminal or delinquent acts.

MASCULINITY THEORIES

A strong relationship has been shown between masculinity, violence, and aggressive behaviour among youth. Researchers have found that a higher incidence of violent and self-destructive behaviour exists among socially marginalized or disadvantaged male youths.

Violence is seen by these youths as a means of proving one’s masculinity, thus achieving social status and power. According to studies on disadvantage and masculinity, violence prevention programs can only work if they are “culturally relevant in all senses of the word ‘culture’.”

PRECURSORS TO ANTISOCIAL YOUTH

Many researchers have noted the effect of intrafamilial elements on current and future delinquency and criminality. These include child abuse and neglect, family violence, and broken homes. While such correlates are not seen as causative of criminality, per se, they are regarded as significant indicators in crime predictability and preventability for at risk individuals.

Child Abuse and Neglect

The correlation between child abuse and neglect and delinquent and serious or violent criminal behaviour among youth has proven to be strong. In an examination of the impact of child maltreatment on later antisocial behaviour by juveniles, including drug use, it was found that persistent maltreatment in childhood and adolescence was strongly and consistently associated with delinquency. A study of juvenile offenders found that more than 80 percent offenders had a history of being abused, with 43 percent recalling being knocked unconscious by a parent. while another study of young criminals found that nearly half had been abused, neglected, or abandoned at some stage in their lives.

Cycle of Family Violence

The violence and criminality of juveniles and young people is often regarded as reflecting a cycle of family crime and violence, which then transfers itself outside the family. Researchers

have characterized some parents of juvenile delinquents as being emotionally disturbed and themselves exhibiting deviant behaviour.

In a retrospective study on the cycle of violence, it was found that children who were victims of physical abuse up to the age of eleven were considerably more likely to become violent offenders during the next fifteen years of life. Another study suggested an intergenerational cycle of family misfortunes and deviance.

Broken Homes

The broken home has often been examined in relation to delinquent and criminal behaviour, indicating a link between them. The term “broken home” is generally defined as a home “in which one or both parents are absent due to desertion, divorce, separation, or death—thus depriving the child of a complete, stable family life.”

In a recent comprehensive meta-analysis of the relationship between broken homes and delinquent behaviour, the researchers found that persons from broken homes were 10 to 15 percent more likely to become delinquents than persons from two-parent homes. However, another study of the impact of broken homes on delinquent behaviour suggested a much higher percentage of youths from broken homes were likely to engage in delinquent conduct, with a strong correlation between broken homes and various types of delinquencies, including status offences, violent crimes, and property crimes.

(*) Ricardo Angel Basilico. Doctor in Criminal Justice Sciences. Professor of Criminal Law at the National University of Patagonia. Examining Magistrate.

^[2] Cillero Bruñol, Miguel. “El Interés Superior del Niño en el Marco de la Convención Internacional sobre los Derechos del Niño”, part of the joint work “Infancia, Ley y democracia en América Latina”. Editorial Temis-Depalma. Argentina. 1998.

^[4] Saenz Zumbado, Luis “Derecho a la Información y la Cobertura de los Procesos Judiciales” published in the Revista de Ciencias Penales de Costa Rica, page 74, Año 11 nro. 16. San José de Costa Rica. 1999.

^[5] Ekmekdjian, Miguel Angel. “El Derecho a la Intimidad. La Convención sobre los Derechos del Niño, El orden jerárquico de los Derechos y la Libertad de Prensa”. La Ley. T. 1997. D. Pag. 100.

^[6] From the report of Dr. Alejandro Molina, Juvenile Justice Consultant in the Chambers of the Federal Capital, Rev. L.L. T. 1997-D. Page 102, citing a ruling of the Supreme Court of Justice of the Nation in the case “Ponzetti de Balbín s/ Editorial Atlántida” (L.L. 1985-B-pag. 120).

^[7] Superti, Hector.C. “Derecho Procesal Penal”, pag. 147. Editorial Juris. 1998. Argentina.