Content

Christian Bochmann, “The Beijing Rules” in:

Christian Bochmann

Entwicklung eines europäischen Jugendstrafrechts, page 331 - 337

1. Edition 2009, ISBN print: 978-3-8329-4057-7, ISBN online: 978-3-8452-1343-9 https://doi.org/10.5771/9783845213439

Series: Kieler Rechtswissenschaftliche Abhandlungen (NF), vol. 56

Bibliographic information
331 Anhang 2.2: “The Beijing Rules” UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE („THE BEIJING RULES“) Adopted by General Assembly resolution 40/33 of 29 November 1985 PART ONE – GENERAL PRINCIPLES 1. Fundamental perspectives 1.1 Member States shall seek, in conformity with their respective general interests, to further the well-being of the juvenile and her or his family. 1.2 Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible. 1.3 Suf? cient attention shall be given to positive measures that involve the full mobilization of all possible resources, including the family, volunteers and other community groups, as well as schools and other community institutions, for the purpose of promoting the well-being of the juvenile, with a view to reducing the need for intervention under the law, and of effectively, fairly and humanely dealing with the juvenile in con? ict with the law. 1.4 Juvenile justice shall be conceived as an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society. 1.5 These Rules shall be implemented in the context of economic, social and cultural conditions prevailing in each Member State. 1.6 Juvenile justice services shall be systematically developed and coordinated with a view to improving and sustaining the competence of personnel involved in the services, including their methods, approaches and attitudes. 2. Scope of the Rules and de? nitions used 2.1 The following Standard Minimum Rules shall be applied to juvenile offenders impartially, without distinction of any kind, for example as to race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status. 2.2 For purposes of these Rules, the following de? nitions shall be applied by Member States in a manner which is compatible with their respective legal systems and concepts: (a) A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult; (b) An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems; (c) A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence. 2.3 Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules and provisions speci? cally applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed: (a) To meet the varying needs of juvenile offenders, while protecting their basic rights; 332 (b) To meet the need of society; To implement the following rules thoroughly and fairly. 3. Extension of the Rules 3.1 The relevant provisions of the Rules shall be applied not only to juvenile offenders but also to juveniles who may be proceeded against for any speci? c behaviour that would not be punishable if committed by an adult. 3.2 Efforts shall be made to extend the principles embodied in the Rules to all juveniles who are dealt with in welfare and care proceedings. 3.3 Efforts shall also be made to extend the principles embodied in the Rules to young adult offenders. 4. Age of criminal responsibility 4.1 In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be ? xed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. 5. Aims of juvenile justice 5.1 The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence. 6. Scope of discretion 6.1 In view of the varying special needs of juveniles as well as the variety of measures available, appropriate scope for discretion shall be allowed at all stages of proceedings and at the different levels of juvenile justice administration, including investigation, prosecution, adjudication and the follow-up of dispositions. 6.2 Efforts shall be made, however, to ensure suf? cient accountability at all stages and levels in the exercise of any such discretion. 6.3 Those who exercise discretion shall be specially quali? ed or trained to exercise it judiciously and in accordance with their functions and mandates. 7. Rights of juveniles 7.1 Basic procedural safeguards such as the presumption of innocence, the right to be noti? ed of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings. 8. Protection of privacy 8.1 The juvenile‘s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling. 8.2 In principle, no information that may lead to the identi? cation of a juvenile offender shall be published. 9. Saving clause 9.1 Nothing in these Rules shall be interpreted as precluding the application of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations and other human rights instruments and standards recognized by the international community that relate to the care and protection of the young. 333 PART TWO – INVESTIGATION AND PROSECUTION 10. Initial contact 10.1 Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately noti? ed of such apprehension, and, where such immediate noti? cation is not possible, the parents or guardian shall be noti? ed within the shortest possible time thereafter. 10.2 A judge or other competent of? cial or body shall, without delay, consider the issue of release. 10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the wellbeing of the juvenile and avoid harm to her or hi m, with due regard to the circumstances of the case. 11. Diversion 11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority, referred to in rule 14.1 below. 11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules. 11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a competent authority, upon application. 11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims. 12. Specialization within the police 12.1 In order to best ful? l their functions, police of? cers who frequently or exclusively deal with juveniles or who are primarily engaged in the prevention of juvenile crime shall be specially instructed and trained. In large cities, special police units should be established for that purpose. 13. Detention pending trial 13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time. 13.2 Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. 13.3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations. 13.4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. 13.5 While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality. PART THREE – ADJUDICATION AND DISPOSITION 14. Competent authority to adjudicate 14.1 Where the case of a juvenile offender has not been diverted (under rule 11), she or he shall be dealt with by the competent authority (court, tribunal, board, council, etc.) according to the principles of a fair and just trial. 334 14.2 The proceedings shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely. 15. Legal counsel, parents and guardians 15.1 Throughout the proceedings the juvenile shall have the right to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid in the country. 15.2 The parents or the guardian shall be entitled to participate in the proceedings and may be required by the competent authority to attend them in the interest of the juvenile. They may, however, be denied participation by the competent authority if there are reasons to assume that such exclusion is necessary in the interest of the juvenile. 16. Social inquiry reports 16.1 In all cases except those involving minor offences, before the competent authority renders a ? nal disposition prior to sentencing, the background and circumstances in which the juvenile is living or the conditions under which the offence has been committed shall be properly investigated so as to facilitate judicious adjudication of the case by the competent authority. 17. Guiding principles in adjudication and disposition 17.1 The disposition of the competent authority shall be guided by the following principles: (a) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society; (b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; (c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response; (d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. 17.2 Capital punishment shall not be imposed for any crime committed by juveniles. 17.3 Juveniles shall not be subject to corporal punishment. 17.4 The competent authority shall have the power to discontinue the proceedings at any time. 18. Various disposition measures 18.1 A large variety of disposition measures shall be made available to the competent authority, allowing for ? exibility so as to avoid institutionalization to the greatest extent possible. Such measures, some of which may be combined, include: (a) Care, guidance and supervision orders; (b) Probation; (c) Community service orders; (d) Financial penalties, compensation and restitution; (e) Intermediate treatment and other treatment orders; (f) Orders to participate in group counselling and similar activities; (g) Orders concerning foster care, living communities or other educational settings; (h) Other relevant orders. 18.2 No juvenile shall be removed from parental supervision, whether partly or entirely, unless the circumstances of her or his case make this necessary. 335 19. Least possible use of institutionalization 19.1 The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period. 20. Avoidance of unnecessary delay 20.1 Each case shall from the outset be handled expeditiously, without any unnecessary delay. 21. Records 21.1 Records of juvenile offenders shall be kept strictly con? dential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorized persons. 21.2 Records of juvenile offenders shall not be used in adult proceedings in subsequent cases involving the same offender. 22. Need for professionalism and training 22.1 Professional education, in-service training, refresher courses and other appropriate modes of instruction shall be utilized to establish and maintain the necessary professional competence of all personnel dealing with juvenile cases. 22.2 Juvenile justice personnel shall re? ect the diversity of juveniles who come into contact with the juvenile justice system. Efforts shall be made to ensure the fair representation of women and minorities in juvenile justice agencies. PART FOUR – NON-INSTITUTIONAL TREATMENT 23. Effective implementation of disposition 23.1 Appropriate provisions shall be made for the implementation of orders of the competent authority, as referred to in rule 14.1 above, by that authority itself or by some other authority as circumstances may require. 23.2 Such provisions shall include the power to modify the orders as the competent authority may deem necessary from time to time, provided that such modi? cation shall be determined in accordance with the principles contained in these Rules. 24. Provision of needed assistance 24.1 Efforts shall be made to provide juveniles, at all stages of the proceedings, with necessary assistance such as lodging, education or vocational training, employment or any other assistance, helpful and practical, in order to facilitate the rehabilitative process. 25. Mobilization of volunteers and other community services 25.1 Volunteers, voluntary organizations, local institutions and other community resources shall be called upon to contribute effectively to the rehabilitation of the juvenile in a community setting and, as far as possible, within the family unit. PART FIVE – INSTITUTIONAL TREATMENT 26. Objectives of institutional treatment 26.1 The objective of training and treatment of juveniles placed in institutions is to provide care, protection, education and vocational skills, with a view to assisting them to assume socially constructive and productive roles in society. 26.2 Juveniles in institutions shall receive care, protection and all necessary assistance-social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development. 336 26.3 Juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. 26.4 Young female offenders placed in an institution deserve special attention as to their personal needs and problems. They shall by no means receive less care, protection, assistance, treatment and training than young male offenders. Their fair treatment shall be ensured. 26.5 In the interest and well-being of the institutionalized juvenile, the parents or guardians shall have a right of access. 26.6 Inter-ministerial and inter-departmental co-operation shall be fostered for the purpose of providing adequate academic or, as appropriate, vocational training to institutionalized juveniles, with a view to ensuring that they do no leave the institution at an educational disadvantage. 27. Application of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations 27.1 The Standard Minimum Rules for the Treatment of Prisoners and related recommendations shall be applicable as far as relevant to the treatment of juvenile offenders in institutions, including those in detention pending adjudication. 27.2 Efforts shall be made to implement the relevant principles laid down in the Standard Minimum Rules for the Treatment of Prisoners to the largest possible extent so as to meet the varying needs of juveniles speci? c to their age, sex and personality. 28. Frequent and early recourse to conditional release 28.1 Conditional release from an institution shall be used by the appropriate authority to the greatest possible extent, and shall be granted at the earliest possible time. 28.2 Juveniles released conditionally from an institution shall be assisted and supervised by an appropriate authority and shall receive full support by the community. 29. Semi-institutional arrangements 29.1 Efforts shall be made to provide semi-institutional arrangements, such as half-way houses, educational homes, day-time training centres and other such appropriate arrangements that may assist juveniles in their proper reintegration into society. PART SIX – RESEARCH, PLANNING, POLICY FORMULATION AND EVALUATI- ON 30. Research as a basis for planning, policy formulation and evaluation 30.1 Efforts shall be made to organize and promote necessary research as a basis for effective planning and policy formulation. 30.2 Efforts shall be made to review and appraise periodically the trends, problems and causes of juvenile delinquency and crime as well as the varying particular needs of juveniles in custody. 30.3 Efforts shall be made to establish a regular evaluative research mechanism built into the system of juvenile justice administration and to collect and analyse relevant data and information for appropriate assessment and future improvement and reform of the administration. 30.4 The delivery of services in juvenile justice administration shall be systematically planned and implemented as an integral part of national development efforts. 337 Anhang 2.3: “The Riyadh Guidelines” UNITED NATIONS GUIDELINES FOR THE PREVENTION OF JUVENILE DELINQUEN- CY (“THE RIYADH GUIDELINES”) Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990 I. FUNDAMENTAL PRINCIPLES 1. The prevention of juvenile delinquency is an essential part of crime prevention in society. By engaging in lawful, socially useful activities and adopting a humanistic orientation towards society and outlook on life, young persons can develop non-criminogenic attitudes. 2. The successful prevention of juvenile delinquency requires efforts on the part of the entire society to ensure the harmonious development of adolescents, with respect for and promotion of their personality from early childhood. 3. For the purposes of the interpretation of the present Guidelines, a child-centred orientation should be pursued. Young persons should have an active role and partnership within society and should not be considered as mere objects of socialization or control. 4. In the implementation of the present Guidelines, in accordance with national legal systems, the well-being of young persons from their early childhood should be the focus of any preventive programme. 5. The need for and importance of progressive delinquency prevention policies and the systematic study and the elaboration of measures should be recognized. These should avoid criminalizing and penalizing a child for behaviour that does not cause serious damage to the development of the child or harm to others. Such policies and measures should involve: (a) The provision of opportunities, in particular educational opportunities, to meet the varying needs of young persons and to serve as a supportive framework for safeguarding the personal development of all young persons, particularly those who are demonstrably endangered or at social risk and are in need of special care and protection; (b) Specialized philosophies and approaches for delinquency prevention, on the basis of laws, processes, institutions, facilities and a service delivery network aimed at reducing the motivation, need and opportunity for, or conditions giving rise to, the commission of infractions; (c) Of? cial intervention to be pursued primarily in the overall interest of the young person and guided by fairness and equity; (d) Safeguarding the well-being, development, rights and interests of all young persons; (e) Consideration that youthful behaviour or conduct that does not conform to overall social norms and values is often part of the maturation and growth process and tends to disappear spontaneously in most individuals with the transition to adulthood; (f) Awareness that, in the predominant opinion of experts, labelling a young person as „deviant“‘, „delinquent“ or „pre-delinquent“ often contributes to the development of a consistent pattern of undesirable behaviour by young persons. 6. Community-based services and programmes should be developed for the prevention of juvenile delinquency, particularly where no agencies have yet been established. Formal agencies of social control should only be utilized as a means of last resort. II. SCOPE OF THE GUIDELINES 7. The present Guidelines should be interpreted and implemented within the broad framework of the Universal Declaration of Human Rights, the International Covenant on

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Zusammenfassung

Die Jugendstrafrechtssysteme in Europa sind sehr verschieden. Anhand des Rechtsvergleichs und der Rechtsentwicklung in der EU und mittels der Völkerrechtsinstrumente zur Jugendgerichtsbarkeit formuliert der Autor Elementarteile eines Europäischen Jugendstrafrechts. Behandelt werden:

• Konzeption und Zielsetzung

• Alter und Prüfung der Strafbarkeit

• der Umgang mit jungerwachsenen Tätern

• Diversion und Entkriminalisierung

• der Sanktionskatalog nebst Freiheitsentzug

Neben einer Analyse von Trends in der Jugendkriminalität und kriminologischer Erklärungsansätze werden die Wünschbarkeit und Zweckmäßigkeit einer gemeineuropäischen Rahmenstrategie im Jugendstrafrecht erörtert sowie Harmonisierungswege für die europäische Integration aufgezeigt.

Die Arbeit bündelt verstreute Reformansätze auf nationaler und internationaler Ebene zu einem neuen Anlauf. Sie hilft, eine zeitgemäße und angemessene Reaktion auf die verschiedenen Formen der Jugenddelinquenz zu erarbeiten. Sie richtet sich an Wissenschaftler, Politiker und Praktiker im Jugendrecht.

Der Autor war Doktorand und Mitarbeiter an der Forschungsstelle für Jugendstrafrecht und Kriminalprävention der Christian-Albrechts-Universität Kiel.