4412.00.10 - International Law
RESTORATIVE MODEL OF JUVENILE JUSTICE AS AN ALTERNATIVE TO CRIMINAL PENALTIES: INTERNATIONAL STANDARDS AND
NATIONAL LEGISLATION
Miruktamova Feruza Lutfullayevna,
Lecturer of Tashkent State Law University E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords:
juvenile justice, minors, compulsory educational measures, restorative justice, juvenile offenders.
The article reveals the features of international standards of restorative approach to criminal proceedings against minors. It presents a general description of the concept of juvenile restorative justice in the course of providing examples of the most effective practices of its application in various countries. Issues related to the introduction of restorative justice in cases involving minors in domestic criminal proceedings are considered. The author analyzes the experience of a number of European countries in the use of elements of restorative justice when working with minors who have committed crimes, and thereby draw the attention of domestic lawmakers and law enforcement officers to the problem of improving measures of criminal law impact on minors who have committed crimes in the Republic of Uzbekistan.
INTRODUCTION
In the last decades of the XX century, of the priorities of the world community's development has been to ensure proper protection of the rights and interests of minors, to prevent crimes among this category of persons and to protect the rights of those who are in conflict with the law.
Authoritative international legal acts establish the principle of enhanced legal protection of minors, which requires the creation of a comprehensive and effective organizational structure designed exclusively for working with these individuals. As stated in article 40, paragraph 3, of the United Nations
Convention on the Rights of the Child, states parties should seek to promote the establishment of laws, procedures, bodies and institutions that are directly relevant to children in conflict with criminal law (paragraph 90 of the General Comment). This is also stated in p. 2.3 of the Beijing rules: «Efforts should be made within each national jurisdiction to enact a set of laws, rules and regulations that relate directly to juvenile offenders and institutions and bodies responsible for the administration of juvenile justice». Such a special complex system of protection of the rights and legitimate interests of minors is called Juvenile Justice. [1]
The juvenile justice system, which complies with international standards and principles, promotes, inter alia, the use of diversion measures and other alternative measures in place of pre-trial and subsequent incarceration and restorative justice for juvenile offenders. The Committee on the rights of the child clearly States that
such a juvenile justice system takes into account both the best interests of juvenile offenders and the interests of society. The use of pre -trial and post-trial deprivation of liberty against minors not as a measure of last resort and/or not for the shortest appropriate period of time is a violation of article 37(B) of the UN Convention on the Rights of the Child.
International juvenile justice instruments promote restorative justice approaches for juvenile offenders (see the quote from the Lima Declaration (2009) in the box). The Lima Declaration defines restorative justice for minors as "a way to treat children in conflict with the law in order to compensate for individual, relational and social damage caused by a crime committed". This goal requires a process in which the child in conflict with the law, the child victim and, if necessary, other individuals and members of the community are actively involved in resolving issues related to the crime.
"Restorative justice should be applied at all stages of the juvenile justice process, either as an alternative measure or in addition to other measures. At the police level, one of the options should be to send the child to the restorative justice process."
Lima Declaration on Restorative Justice
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MAIN BODY The conversation among _practitioners and legal scholars
about the goals and objectives of justice has been going on for more than a century. The problems associated with traditional methods of resolving criminal cases are well known and indisputable. Criminal proceedings have obvious drawbacks, while their positive aspects are barely noticeable for both participants and outside observers. Therefore, it is logical that serious efforts are being made to replace formal criminal proceedings with alternative methods that are more promising in terms of achieving positive results.
Currently, instead of the traditional models of inquisitorial (punitive) justice, a new concept of justice is being formed, involving the use of non-judicial, alternative practices for resolving legal conflicts, which in international practice has been called "restorative justice".
This term refers to various practical models of response to crimes that are United by a common goal and ideology: the focus on psychological and mental healing of victims, the re-socialization of offenders and the restoration of relations between them, society and the state.
As noted by D. M. Gromet, restorative justice is a different approach to achieving justice than the traditional judicial system. The
judicial system relies on punitive measures and does not take into account the interests of the victim, while restorative justice focuses on compensating for the harm caused by the crime, returning the offender to society and allowing all parties to the process (the offender, the victim and society) to participate directly in the administration of justice. [2]
Many countries' criminal justice systems are "punitive" - that is, they are concerned with retribution and punishment of offenders. Punitive justice is more interested in the crime itself, rather than the people involved in the crime. However, this is not always in the best interests of the victim, the offender and society as a whole. The parties involved may feel more alienated, damaged, neglected, disarmed, and feel less secure and engaged in society.
A much better system is "restorative justice". This approach focuses on restoring damaged relationships (between the victim, the offender, and society) to a state prior to the Commission of the crime in order to make everything as fair as possible. It puts forward methods for reparations, reconciliation of the parties, restoration of harmony in society and reassurance of the parties. The original goal of restorative justice is healing and correction. It emphasizes the
importance of the active participation of the offender, the victim and society in listening to the circumstances and feelings of all parties and finding out, as well as implementing, decisions that balance the best interests of all concerned. The offender is responsible for his crime and compensates the victim and the community. This makes remorse, forgiveness, and integration possible. Restorative justice emphasizes the need for a "proportionate" response that is much more rational, effective, and designed to reduce reoffending.
Replacing criminal
responsibility with alternative forms of corrective action means removing children who violate the law from the formal criminal justice system, and in particular from formal trials and criminal detention.
Restorative justice is suitable for people of all ages, but it is especially important for young offenders, as it provides a long-term impact on their emotional and moral development, which is more positive than negative: it can stop the process of turning a young offender into an adult criminal.
Wright notes: "Punitive measures are not very effective in deterring criminals, but if the crime has already been committed, they deter the criminal from admitting guilt." [3] Braithwaite confirms this point of view: "Criminal justice, with its commitment to punishments, becomes, in fact, the main obstacle to the establishment of the truth, since it encourages denial of confessions." [4] Ostendorf notes: "Society does not consider criminals either in their social and family environment, or in a specific crime situation. Criminals represent evil, they commit crimes without any reason. The crime becomes the center of attention, then it is transferred to the criminal." [5] But when the criminal and the victim communicate, the criminal is again presented/seen/ becomes/a person, that is, "if there are victims, then responsibility passes from one to the other, as if from one train car to another." [6]
The table below shows the advantages of restorative justice compared to approaches used in the formal justice system.
Justice Punitive Rehabilitative Restorative
Density Crime Criminal Relationships
Reaction Punishment Correction Compensation
Goal Intimidation Conformism Recovery
The position of the victims Secondary Secondary Main
Social context Authoritarian Social security Democratic
Child's reaction Anger Dependence Responsibility
Restorative justice recognizes that not all offenders will choose to interact. Therefore, there must be an external official who will be authorized to make decisions for offenders who do not want to cooperate.
Restorative justice is a broad concept. It can be taken at the pre-trial stage, at the sentencing stage, after the sentencing decision is made, and in a number of other situations outside the scope of legal proceedings (such as conflict management in schools or working with children at risk).
Restorative justice, according to UNODC, is based on the following ideas:
any response to an offence should make up for the damage caused to the victim (s) as much as possible.
perpetrators of the offence must understand that such harmful behaviour is not acceptable, and
must also be aware of the impact on the victim and the community;
the offender can and should be held accountable for their actions;
victims should participate in the judicial system and be able to Express their needs and concerns, as well as participate in the process of determining further actions to be taken by the offender in order to make amends;
the community must be responsible and participate in the justice process. [7]
The principle of restorative justice is to satisfy the interests of the victim of a crime. Victims of crimes rarely receive compensation for damages, the formal procedure for bringing the guilty person to criminal responsibility and punishing them often does not bring the victim either moral or material compensation, and does not contribute to the restoration of social justice in relation to the interests of a particular victim.
In The recommendation of September 15, 1999 The Committee of Ministers to the member States of the Council of Europe on the use of mediation in criminal justice defines mediation as "any procedural measures that allow the victim and the person subject to criminal prosecution to actively participate in overcoming difficulties arising from the Commission of a crime, with the direct participation of an independent third party and provided that the parties to the conflict voluntarily agree to the use of these measures».
Legislation formalizing and legalizing mediation appeared later. In France, this was The law of January 4, 1993, developed By the law of June 23, 1999 (in both cases, it was about changes and additions to the CPC). In Belgium, the law of February 10, 1994, which also supplemented the code of criminal procedure, and a number of by -laws.
To begin with, we will highlight the common features of the Belgian and French mediation options:
the procedural prerequisite for the development of mediation practice was the principle of expediency of initiating criminal prosecution and, accordingly, the widespread use of the institution of refusal from criminal prosecution (classement sans suite) not on
formal grounds, but on the grounds of its inexpediency.
This circumstance should also be taken into account: with the help of alternatives to criminal prosecution, including mediation, the legislator not only seeks to mitigate the repressive nature of criminal law, but also fights the negative consequences of leaving a significant number of criminal acts without a clear response from the state;
the basic idea of mediation remains unchanged.
Schematically, it looks like this: the Prosecutor, when making a decision to initiate criminal prosecution in one form or another, initiates a mediation (reconciliation) procedure. The final decision is made depending on the success or failure of its implementation (the criterion is to reach an agreement);
mediation is used in a very wide range of cases with minimal formal restrictions. In France, there are no such restrictions at all. In Belgium, these are cases of crimes punishable by up to 20 years in prison.
In Belgium, mediation functions are assigned directly to the Prosecutor's office (in order to avoid the "privatization" of criminal justice). For this purpose, a special position was created in the States of
Prosecutor's offices - the first assistant Prosecutor (magistrat de liaison), responsible for mediation. In addition, special positions of mediation advisers (professional criminologists) and mediation assistants (sociologists) have been created in Prosecutor's offices. Strictly speaking, it is the latter who take concrete actions to reconcile the victim and the person subject to criminal prosecution;
b) the actual mediation procedure differs significantly, including the degree of its formalization.
Juvenile social rehabilitation infrastructure is focused on finding the right balance between the rights of offenders, victims and the interests of society in public safety and crime prevention.
The main components of restorative justice are:
early prevention of juvenile delinquency;
focus on removing offenders from the formal criminal justice system;
use of punitive measures against minors, but mainly alternative measures of influence;
deprivation of liberty should be used as an exclusive means of response and to the maximum extent possible;
minors must be provided with unhindered access to legal assistance under no circumstances can the death penalty, life imprisonment, torture or corporal punishment be applied to minors;
the public, civil society institutions, the judiciary, and law enforcement agencies should be fully informed and, most importantly, involved in the system of removing juvenile justice from the General justice system;
special rehabilitation and adaptation programs and technologies should be widely used for minors in conflict with the law.
This is directly related to the model that we are building. Since the juvenile social rehabilitation infrastructure is only being formed in Uzbekistan.
National legislation in Uzbekistan includes certain restorative justice measures that can be applied in cases where minors come into conflict with the law, including in combination with measures of diversion (article 87 of the Criminal Code and article 66(1) of the Criminal code). Article 382 "suspension of criminal proceedings" of the criminal procedure code of Uzbekistan does not refer to any approaches to Restorative justice, but also does not prohibit such an approach in relation to juvenile
offenders. This article of the code of Criminal procedure provides that the Prosecutor may refuse to initiate criminal proceedings or suspend the proceedings. The Prosecutor may use this power in relation to a minor in conflict with the law.
In order to apply alternative measures to protect children in conflict with the law, in March 2019, the government of Uzbekistan launched an innovative project on measures of diversion and restorative justice for minors in conflict with the law in the Chilanzar district of Tashkent. The project aims to implement the two main international standards of juvenile justice mentioned in the UN Convention on the rights of the child:
• incarceration of children under the age of 18 should only be used as a last resort;
• children under the age of 18 should be treated outside the formal criminal justice system, where appropriate or possible.
The pilot project responds to the recommendations on the administration of juvenile justice made by the Committee on the rights of the child in its latest report. The Committee on the rights of the child urges the government of Uzbekistan to adopt approaches that involve diversion from the justice system, as well as restorative justice
approaches, in the form of mediation and community-based work (see comment 69(e) and recommendation 70(A) (d)). [8]
Uzbekistan's legislation
stipulates three ages of criminal responsibility. The General age of criminal responsibility is 16 years. However, children are criminally liable from the age of 13 for premeditated murder with aggravating circumstances and, in addition, children from the age of 14 are criminally liable for specific crimes, including premeditated murder, intentional infliction of serious and moderate bodily harm, rape, unnatural forced sexual intercourse, kidnapping, banditry, extortion, robbery, theft, intentional destruction or damage to property under certain aggravating circumstances, escape from prison, illegal possession of narcotic drugs, hooliganism and other crimes (article 17 of The criminal code of the Republic of Uzbekistan).
In Accordance with the legislation of the Republic of Uzbekistan, children are subject to administrative responsibility after they reach the age of 16 and commit an administrative offense, namely: petty theft, simple hooliganism, disobeying legal orders of a police officer, illegal possession of firearms and violation of traffic rules (article 13
of the code of administrative responsibility). Conceptually, minors between the ages of 16 and 18 who have committed an administrative offense cannot be subject to removal measures. Diversion measures are linked to the juvenile justice system and mean that "juvenile offenders are conditionally transferred from a formal trial to a different way of resolving the issue, which allows many - perhaps most - to have their cases handled by non-judicial authorities, thus avoiding the negative consequences of a formal trial and criminal record, provided that human rights and legal guarantees are fully respected". The interdepartmental Commission on juvenile affairs, which is a non-judicial body, is designated as a specialized body for reviewing and determining cases of administrative offenses committed by children, in accordance with the code of
administrative responsibility and the regulations on Interdepartmental commissions on juvenile Affairs. This regulation regulates the activities of commissions at the national, regional and district levels, and provides for measures that can be taken by commissions in relation to minors who have committed administrative offenses. [9] Such a measure of influence as "transfer of a minor under the supervision of parents or persons replacing them, or public educators, as well as under the supervision of the labor collective or NGOs" was used as the legal basis for the pilot on the application of measures of diversion/restorative justice. [10]
Diversion measures have a number of advantages. This can be seen in the table below when compared with national legislation of Uzbekistan.
Difference between diversion measures and other
measures
Diversion measures Reconciliation (article 66-1 of the criminal code of the Republic of Uzbekistan) to-mpulsDry measures [articles JJ/-EB of thecriminalcodeafthellepublicor Uit>*KiJtin)
Thcyipn he jppted throuE^nut entiit criminal Jurtce prKAES lu'llil IhfifirSl L'jjH litdri-^ir tilt tJSd) it ran be ipnlerf oul at Ihe 5t>ie of nqulry. preinna^ ¡i-uiJl^ilLi'i ¿nd lrlal |t<tare thb ojuri it t&mttdd to thb rannJtfiloo r wi| ¿in be ippked by the [Gfrt >1 HIM sl^gr f nryi if Mlif--. of thbCHA IhCÜLit
Mdy b* jftdiad wiihüut ihs- consänc if chd injured parcy Ttw consdnc jt chd Injured parrv is fdquirdd
TT» Oji'iiii'i" üf Chd d££i iätfd ükrXs ii I'Ol f«qüir«d
TIVi iriAdfiE ffidfflClinjj minors to fi j i'i - j J d k i JI.1' M Iii 11 - Recürciijllon ii LJiriid Out Viith thd KtiitJfVCd jf Idw Applied äiükrtivfllv b^ thü iCtrt
protective (sural) bodies. thereby protecting them from enforcement BEendesrthe touri ihfi rig jiiyi impact of participating in tho |ustlcd pracMS.
Require- the voluntary and free consent cfthe mnor and ho The consent of the minor and his le^sl representatives is The consent of the minor and Ns IceeiI reptesentsllves b
ligdlidfidSdiitKivii iuiimidd rüt i dQüfrdd
Thev Iniply the active psrlJopatlon of a miner In their In partite, the mirordoes noi t-a^e part In recordation, the The m«wr does noi parilopate ti the choke cf
chciu Ji\d iiXiidii Chdir responsibility iii'Ji of r; düEidüd by tfw Itigal i äpfdEdniXih« Lin-^uhli^- rYiditui«. Ehbir chcitt- ii ffiddd duLljtihiily
bp the ccurt
Tfrs means that; the conditions are n-wt by the m»Tor In practice. retondllatici c Irnlted to material compensation ^hw means apptyns Bra of the th-ee rr^ewur«
himsdif. which are Jiirwd x his ralhdhlBurticrv. ralntqpntitin, and daas not: p-o-Zidd conditior« iof fdhabiihation. prc^idad for in arricfc 33 of thd ifiminakc-ds cca mince
restoration dF the demace cause-d bv the c*ime. as wdl w reintegration and prevention of re-Commission of the crime including placing the mlno* in a closed! specialised
prevention of re-Commioaten oF cdmes n i|he Future educational Inhibition
implementation of the removal measures means the No criminal record (means es«mphon from cHmraJ liabiktyj idrmlntfftn df criminal prostitution of chd minor ¡id fid absence of a c*lrr">|l record
too cdmrwJ record (means release from criminal punfchnwit)
In General, restorative justice approaches can be applied at all stages of the juvenile justice process. Thus, according to the decree of the President of the Republic of Uzbekistan "On measures for further reform of the judicial and legal system, strengthening guarantees of reliable protection of citizens 'rights and freedoms" dated October 21, 2016, the President called for expanding the use of reconciliation practices. [11] However, juvenile offenders are not explicitly mentioned in this decree.
CONCLUSION
Summing up, we can conclude that, response to crimes, establishes
links of cooperation not with a "clean" criminal process, but with a criminal process that is already in the social rehabilitation infrastructure. [12] A very significant detail is that a special attitude to the perpetrator of a crime is that the first priority in the event of a crime is the need to restore the moral, psychological and material damage caused to the victim by minors and involve the offender in social rehabilitation programs, and not punishment by the state.
Analysis of the application of juvenile restorative justice systems has shown that when implementing them, it is necessary:
first, to resolve the issue of adopting a new version of the
Criminal code, which would implement the basic requirements of international standards in the field of juvenile justice (minimum age of criminal responsibility, the possibility of applying alternative punishments, etc.),
secondly, you should create a specialized (secondary) socio-pedagogical institutions financed from the budget of the Ministry of justice to prepare professionals with skills in the area of juvenile justice,
thirdly, to develop the Institute of reconciliation of the victim with the offender (mediation) in accordance with the principle of adequacy of punishment and the severity of the crime, allowing to bear personal responsibility before the victims.
And this is directly related to the model that we are building. Since the juvenile social rehabilitation
infrastructure is only being formed in Uzbekistan.
Restorative justice approaches benefit not only children who have committed a crime, but also victims, their families, and society as a whole. In accordance with restorative justice approaches, boys and girls in conflict with the law are fully responsible for their actions and compensation for the harm caused by their crime. Restorative justice approaches promote the child's reintegration into society and help them play a constructive role in society. It takes the responsibility of juvenile offenders seriously and can thereby strengthen the child's respect for and understanding of the human rights and fundamental freedoms of others, in particular the victim (child) and other members of society affected by the crime.
REFERENCES
1. The concept of "juvenile justice" (from lat. juvenile - young, youthful, young) is based on the category of "[minors", which is understood as a special age period in the life of an individual, limited by a time frame, and having a certain physical, mental, social and legal specifics.
2. Gromet, D. M. Psychological perspectives on the place of restorative justice in criminal justice systems // Social Psychology of Punishment of Crime / Oswald M. E., Bieneck, S., Hupfeld-Heinemann, J. Chichester: Wiley-Blackwell, 2009. Pp. 39-54.
3. Wright, M. Is it time to question the concept of punishment? // Repositioning Restorative Justice / Walgrave L. Cullomptom: Willan, 2003. Pp. 3-23.
4. Braithwaite, J. Between proportionality and impunity: confrontation - truth -prevention // Criminology 2005. № 43. Pp. 283-306.
5. Ostendorf, H. The Breakup of Dichotomy between Offender and Victim // Restorative Justice - A European and Schleswig- Holsteinian Perspective. Schleswig-Holstein Association for Social Responsibility in Criminal Justice; Victim and Offender Treatment,
Schriftenreihe Soziale Strafrechtspflege / Lummer R., Hagemann, O., Tein, J., 2011. pp. 24-33.
6. Кульман А., Кури Х. Восстановительное правосудие как альтернатива уголовным наказаниям - уроки истории // Актуальные проблемы экономики и права. 2016. Т. 10, № 4. С. 126-149. DOI: 10.21202/1993-047X.10.2016.4.126-149.
7. UNODC, Handbook on Restorative Justice Programmes, 2006.
8. Concluding observations on the combined third and fourth periodic reports of Uzbekistan, adopted by the Committee on the Rights of the Child at its sixty-third session (27 May-14 June 2013).
9. Regulations on commissions for juvenile Affairs, Appendix No. 3 to the Presidential decree 'On measures for further improvement of the system of crime prevention and control #2833 of March 14, 2017.
10. Article 21 of the Regulations on the interdepartmental commissions on cases of minors.
11. The term 'restorative justice ' is not used in national legislation. Instead, "reconciliation of the parties" is used».
12. UNICEF, Implementation Handbook for the Convention on the Rights of the Child: 3rd Edition, 2007.
