Christian Bochmann, “The Havana Rules” in:

Christian Bochmann

Entwicklung eines europäischen Jugendstrafrechts, page 344 - 346

1. Edition 2009, ISBN print: 978-3-8329-4057-7, ISBN online: 978-3-8452-1343-9

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

Bibliographic information
344 Anhang 2.4: “The Havana Rules” UNITED NATIONS RULES FOR THE PROTECTION OF JUVENILES DEPRIVED OF THEIR LIBERTY (“THE HAVANA RULES”) Adopted by General Assembly resolution 45/113 of 14 December 1990 I. Fundamental perspectives 1. The juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles. Imprisonment should be used as a last resort. 2. Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release. 3. The Rules are intended to establish minimum standards accepted by the United Nations for the protection of juveniles deprived of their liberty in all forms, consistent with human rights and fundamental freedoms, and with a view to counteracting the detrimental effects of all types of detention and to fostering integration in society. 4. The Rules should be applied impartially, without discrimination of any kind as to race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. The religious and cultural beliefs, practices and moral concepts of the juvenile should be respected. 5. The Rules are designed to serve as convenient standards of reference and to provide encouragement and guidance to professionals involved in the management of the juvenile justice system. 6. The Rules should be made readily available to juvenile justice personnel in their national languages. Juveniles who are not ? uent in the language spoken by the personnel of the detention facility should have the right to the services of an interpreter free of charge whenever necessary, in particular during medical examinations and disciplinary proceedings. 7. Where appropriate, States should incorporate the Rules into their legislation or amend it accordingly and provide effective remedies for their breach, including compensation when injuries are in? icted on juveniles. States should also monitor the application of the Rules. 8. The competent authorities should constantly seek to increase the awareness of the public that the care of detained juveniles and preparation for their return to society is a social service of great importance, and to this end active steps should be taken to foster open contacts between the juveniles and the local community. 9. Nothing in the Rules should be interpreted as precluding the application of the relevant United Nations and human rights instruments and standards, recognized by the international community, that are more conducive to ensuring the rights, care and protection of juveniles, children and all young persons. 10. In the event that the practical application of particular Rules contained in sections II to V, inclusive, presents any con? ict with the Rules contained in the present section, compliance with the latter shall be regarded as the predominant requirement. II. Scope and application of the rules 11. For the purposes of the Rules, the following de? nitions should apply: 345 ( a ) A juvenile is every person under the age of 18. The age limit below which it should not be permitted to deprive a child of his or her liberty should be determined by law; ( b ) The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority. 12. The deprivation of liberty should be effected in conditions and circumstances which ensure respect for the human rights of juveniles. Juveniles detained in facilities should be guaranteed the bene? t of meaningful activities and programmes which would serve to promote and sustain their health and selfrespect, to foster their sense of responsibility and encourage those attitudes and skills that will assist them in developing their potential as members of society. 13. Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty. 14. The protection of the individual rights of juveniles with special regard to the legality of the execution of the detention measures shall be ensured by the competent authority, while the objectives of social integration should be secured by regular inspections and other means of control carried out, according to international standards, national laws and regulations, by a duly constituted body authorized to visit the juveniles and not belonging to the detention facility. 15. The Rules apply to all types and forms of detention facilities in which juveniles are deprived of their liberty. Sections I, II, IV and V of the Rules apply to all detention facilities and institutional settings in which juveniles are detained, and section III applies speci? cally to juveniles under arrest or awaiting trial. 16. The Rules shall be implemented in the context of the economic, social and cultural conditions prevailing in each Member State. III. Juveniles under arrest or awaiting trial 17. Juveniles who are detained under arrest or awaiting trial („untried“) are presumed innocent and shall be treated as such. Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances. Therefore, all efforts shall be made to apply alternative measures. When preventive detention is nevertheless used, juvenile courts and investigative bodies shall give the highest priority to the most expeditious processing of such cases to ensure the shortest possible duration of detention. Untried detainees should be separated from convicted juveniles. 18. The conditions under which an untried juvenile is detained should be consistent with the rules set out below, with additional speci? c provisions as are necessary and appropriate, given the requirements of the presumption of innocence, the duration of the detention and the legal status and circumstances of the juvenile. These provisions would include, but not necessarily be restricted to, the following: ( a ) Juveniles should have the right of legal counsel and be enabled to apply for free legal aid, where such aid is available, and to communicate regularly with their legal advisers. Privacy and con? dentiality shall be ensured for such communications; ( b ) Juveniles should be provided, where possible, with opportunities to pursue work, with remuneration, and continue education or training, but should not be required to do so. Work, education or training should not cause the continuation of the detention; ( c ) Juveniles should receive and retain materials for their leisure and recreation as are compatible with the interests of the administration of justice. IV. The management of juvenile facilities (...) 346 Anhang 2.5: Recommendation No. R (1987) 20 RECOMMENDATION No. R (87) 20 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON SOCIAL REACTIONS TO JUVENILE DELINQUENCY (Adopted by the Committee of Ministers on 17 September 1987 at the 410th meeting of the Ministers‘ Deputies) The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that young people are developing beings and in consequence all measures taken in their respect should have an educational character; Considering that social reactions to juvenile delinquency should take account of the personality and speci? c needs of minors and that the latter need specialised interventions and, where appropriate, specialised treatment based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child; Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration and that it should as far as possible abolish imprisonment for minors; Considering that measures in respect of minors should preferably be implemented in their natural environment and should involve the community, in particular at local level; Convinced that minors must be afforded the same procedural guarantees as adults; Taking account of earlier work by the Council of Europe in the ? eld of juvenile delinquency and in particular of Resolution (78) 62 on juvenile delinquency and social change and the conclusions of the 14th Criminological Research Conference on „Prevention of juvenile delinquency: the role of institutions of socialisation in a changing society“; Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Recommends the governments of member states to review, if necessary, their legislation and practice with a view: I. Prevention 1. to undertaking or continuing particular efforts for the prevention of juvenile maladjustment and delinquency, in particular: a. by implementing a comprehensive policy promoting the social integration of young people; b. by providing special assistance and the introduction of specialised programmes, on an experimental basis, in schools or in young peoples‘ or sports‘ organisations for the better integration of young people who are experiencing serious dif? culties in this ? eld; c. by taking technical and situational measures to reduce the opportunities offered to young people to commit offences; II. Diversion – mediation 2. to encouraging the development of diversion and mediation procedures at public prosecutor level (discontinuation of proceedings) or at police level, in countries where the police has prosecuting functions, in order to prevent minors from entering into the criminal justice system and suffering the ensuing consequences; to associating Child Protection Boards or services to the application of these procedures; 3. to taking the necessary measures to ensure that in such procedures: - the consent of the minor to the measures on which the diversion is conditional and, if necessary, the co-operation of his family are secured;

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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.