Recommendations to Strengthen Juvenile Justice System

Concluding Observations by Committee on the Rights of the Child (CRC)  

Concluding Observations on 5th Periodic Report adopted by the Committee on the Rights of the Child at its seventy-second session (17 May-3 June 2016).

Section 25. The Committee urges the State party to take, as a matter of highest priority, measures to:

(a) Order a stay on all executions involving minors and launch a review of all cases where the death penalty was handed down to children or individuals who had committed a crime while under the age of 18 years and where there is, or was, any indication that they were juveniles, with a particular emphasis on how the age of the accused was determined and, where necessary, to reopen inquiries in relation thereto, with a view to either releasing the prisoner or commuting his or her sentence to a prison term. This should also apply to cases where the crime was committed before the entry into force of the Juvenile Justice System Ordinance of 2000.

(b) Establish effective age determination mechanisms in order to ensure that in cases where there is no proof of age, the child is entitled to a proper investigation to establish his or her age and, in the case of conflicting or inconclusive evidence, has the right to the rule of the benefit of the doubt.

(c) Ensure that all stages of cases involving children, even those concerning terrorism-related crimes or violations of sharia law, including arrest, detention (whether pretrial or post-trial) and trial, are overseen by juvenile courts, in compliance with the Convention and all applicable international standards.

(d) Provide data on the number of children, and the number of persons alleged to have committed a crime while under the age of 18 years, on death row.

Section 33. With reference to the Committee’s general comment No. 13 (2011) on the right of the child to freedom from all forms of violence and target 16.2 of the Sustainable Development Goals, the Committee urges the State party to launch without delay an independent inquiry into all alleged cases of torture and ill-treatment of children, in particular those committed by law enforcement officers, including the Faisalabad district police, and to ensure that those involved in carrying out, ordering, condoning or facilitating these practices are brought to justice and punished using penalties commensurate with the gravity of their crime. The Committee further recommends that the State party review its laws and practices and exempt all children below the age of 18 years from punishment for hadood offences, in particular penalties such as amputation, whipping, stoning or other forms of torture and cruel and degrading punishment. 

Section 80. In the light of its general comment No. 10 (2007) on children’s rights in juvenile justice, the Committee urges the State party to bring its juvenile justice system fully into line with the Convention and other relevant standards. In particular, the Committee urges the State party to: 

(a) Revise, as a matter of the highest priority, its legislation and increase the minimum age of criminal responsibility to an internationally accepted level; 

(b) Review its legislation with a view to prohibiting cruel and inhuman punishments for any persons below the age of 18 years, including death sentences and lengthy prison terms;

 (c) Ensure that the Juvenile Justice System Ordinance of 2000 prevails over all other laws, including sharia law, paying particular attention to sections 11 and 12 (a) of the Ordinance, which both apply “notwithstanding anything to the contrary contained in any law for the time being in force”; 

(d) Introduce compulsory procedures and mechanisms to establish the age of a child, including a presumption of validity of official records such as birth certificates and placement of the onus on the State to prove adulthood beyond reasonable doubt;

(e) Promote alternative measures to detention, such as diversion, probation, mediation, counselling or community service, wherever possible and ensure that detention is used as a last resort and for the shortest possible period of time, and that it is reviewed on a regular basis with a view to withdrawing it;

(f) In cases where detention, including pretrial detention, is unavoidable, ensure that children are not detained together with adults and that detention conditions comply with international standards, including with regard to access to education and health services; 

(g) Carry out systematic and regular monitoring of detention facilities where children are detained, investigate any reports or allegations of torture or illtreatment of children and ensure that perpetrators receive punishments commensurate with the gravity of their crimes;

(h) Set up, in accordance with the Juvenile Justice System Ordinance of 2000, specialist juvenile courts staffed by specially trained juvenile judges, prosecutors, probation officers, defence advocates and other relevant personnel, and ensure that all persons below the age of 18 years are tried exclusively by such courts, without exception; 

(i) Ensure the provision of free, qualified and independent legal representation to children in conflict with the law, from the outset and at all stages of the legal proceedings; 

(j) Prohibit informal courts, such as jirgas and panchayats, and carry out prompt and effective investigations into decisions taken by such courts and, where appropriate, prosecute their members, in particular in cases of honour killing, under the relevant articles of the criminal law.

Section 81. To that effect, the Committee recommends that the State party make use of the technical assistance tools developed by the Interagency Panel on Juvenile Justice and its members, including the United Nations Office on Drugs and Crime, UNICEF, the Office of the United Nations High Commissioner for Human Rights and nongovernmental organisations, and seek technical assistance in the area of juvenile justice from members of the Panel.

General Recommendations

Data Collection

• There is an urgent need for systematically collecting gender and age disaggregated, comparable data relevant to the information on the practice of the administration of juvenile justice, and necessary for the development, implementation, and evaluation of policies and programmes aiming at the prevention and effective responses to child involvement in crime in full accordance with the principles and provisions of international standards and norms.

Communication and Advocacy

• Raise awareness among children in conflict with the law and stakeholders through advocacy and capacity building of law enforcement officers and judicial officers on the importance of age determination, the applicable minimum age of criminal responsibility and its implications, as well as the importance of child-sensitive treatment.
• Promote awareness among magistrates, prosecutors and defence counsels of issues related to mental health among children deprived of liberty to create conditions conducive to the effective rehabilitation and reintegration for these children.

Trainings of Stakeholders

• Conduct multi-disciplinary training on juvenile justice and child-sensitive procedure and treatment to professionals who come into contact with child alleged offenders (including law enforcement officers, prosecutors, judges and magistrates).
• Promote awareness among magistrates, prosecutors and defence counsels of the provisions made JJSA regarding the statutory right to bail for children in conflict with the law and encourage its application.
• Develop training programmes and deliver training activities for all staff in contact with children to encourage the use of probation, parole and other options for conditional release of children.

Detention Facilities

• Ensure separation of children from adults at all times during police custody, including transport, during detention.
• Establish observation homes as per the JJSA for children deprived of liberty during police custody, and establish remand homes and juvenile rehabilitation centres as per the JJSA for children deprived of liberty.
• Improve conditions of detention for children deprived of liberty and ensure their child-sensitive institutional treatment, and ensure their continued access to education and vocational training, psycho-social support, medical services, legal assistance, and other services.

Legal Assistance and Coordination Mechanisms

• Enforce the right to legal assistance for all children throughout legal proceedings as per the JJSA, inter alia by clearly defining responsibilities and referral mechanisms for legal aid providers and by providing training and integrating juvenile justice into national training curricula for legal aid providers.
• Ensure that all children currently under trial that would be eligible to receive legal aid  as per the JJSA 2018, most urgently those who are currently held in custody or detention.
• Enhance cooperation between State and non-State actors to set up a system of financial aid and legal assistance to facilitate provision of bail for children from low-income families.
• Devise a provincial policy discouraging the use of monetary bail for children and encourage the use of non-monetary bail and other alternative measures to pretrial detention.
• Ensure access to efficient complaint mechanisms for children in conflict with the law by providing regular, confidential access to legal assistance providers in detention for all children, in cooperation with nongovernmental organisations and Bar Councils.
• Adopt Standard Operating Procedures (SOPs) on the treatment of children accused of or charged with status offences such as beggary and their referral to child protection and other social welfare services.

Probation

• Widen the use and application of non-custodial measures for children in conflict with the law, by strengthening probation departments and making a large range of noncustodial programmes and sentencing options available for children. To facilitate the application of non-custodial measures, improve the development of social enquiry reports by strengthening the capacity of officials in charge of preparing the reports.
• Strengthening the role of probation officers by filling vacant posts, allocating resources and dedicating office space to probation departments in all Juvenile Courts and detention facilities where children are deprived of liberty.

Legal and Policy Frameworks

• Develop a strategy or a provincial level rollout plan for the implementation of the JJSA and define responsibilities of all actors involved, and for the prevention of child involvement in crime and violence, including tailored programmes and interventions fostering cooperation between different sectors.
• Standardise age determination processes through the adoption of standard operating procedures (SOPs) and the adoption of Rules for the implementation of the JSSA.
• Revise legislation and raise the minimum age of criminal responsibility to a minimum recommended by the Committee on the Rights of the Child (14 years).
• Notify Juvenile Justice Committees and framing the Rules for the JJSA, and attribute  responsibilities to the members of Juvenile Justice Committee in the area of coordination and cooperation in the area of juvenile justice, and operationalise the diversion system as per the JJSA.
• Harmonise legislation as regards to the criminalisation of the use and exploitation of children for offences such as beggary, including special protection measures for all individuals under the age of 18 years.

Court System

• Ensure that a specialised juvenile justice system such as the one established under the Juvenile Court shall retain jurisdiction over all cases involving child alleged offenders, irrespective of the type of offence. Alternatively, establish a separate unit or part of existing courts under a system which is distinct from adults and specialised for adjudicating cases of children and ensure that all Courts adjudicate such cases in accordance with juvenile justice principles.
• Establish separate Juvenile Court facilities as well as specialised units for police, prosecution and probation departments that observe child-sensitive procedures that are adopted as Rules under the JJSA and provide for regular training of all stakeholders.
• Pending the establishment of separate Juvenile Courts, provide for child-sensitive measures within existing Courts, such as by ensuring hearings are held at separate timings and observe child sensitive procedures.

Social Re-integration

• Provide after-care and promote the social reintegration of children in conflict with the law, through the development of individual social reintegration plans and awareness-raising campaigns within the communities together with non-State actors.
• Develop initiatives and increase the availability of programmes preparing children for release, in cooperation with the child protection, education, justice sectors and non-State actors.