Third and Fourth Periodic Report on CRC - Unicef

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<strong>Third</strong> <strong>and</strong> <strong>Fourth</strong> <strong>Periodic</strong> <strong>Report</strong> detention pending trial must not be underestimated.’ This reflects what was earlier stated in the International Covenant on Civil <strong>and</strong> Political Rights (ICCPR) 1966 "Art 2.(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons <strong>and</strong> shall be subject to separate treatment appropriate to their status as unconvicted persons; (b) Accused juvenile persons shall be separated from adults <strong>and</strong> brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation <strong>and</strong> social rehabilitation. Juvenile offenders shall be segregated from adults <strong>and</strong> be accorded treatment appropriate to their age <strong>and</strong> legal status." From the beginning of the 20th-century many International Declarations, Covenants <strong>and</strong> Instruments, including those already referred to above, have been drawn up under the auspices of such bodies as the United Nations. The Convention on the Rights of the Child (also referred to as ‘UNCRC’ or ‘CRC’) was adopted <strong>and</strong> opened for signature, ratification <strong>and</strong> accession by General Assembly resolution 44/25 of 20 November 1989. Some of the contents of that Convention may be fruitfully reproduced here in order to illustrate the modern trends in dealing with matters concerning the children of the world. The preamble states, inter alia: "Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care <strong>and</strong> assistance, Convinced that the family, as the fundamental group of society <strong>and</strong> the natural environment for the growth <strong>and</strong> wellbeing of all its members <strong>and</strong> particularly children, should be afforded the necessary protection <strong>and</strong> assistance so that it can fully assume its responsibilities within the community," Thus it appears that children are now treated as a valuable asset of the society <strong>and</strong> the Nation at large who are to be protected <strong>and</strong> nurtured, <strong>and</strong> rightly so since children are the future citizens of the country <strong>and</strong> will constitute the wealth <strong>and</strong> well-being of the State. The preamble goes on to reflect the basis of the present covenant, viz. "Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 <strong>and</strong> in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 <strong>and</strong> recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil <strong>and</strong> Political Rights (in particular in articles 23 <strong>and</strong> 24), in the International Covenant on Economic, Social <strong>and</strong> Cultural Rights (in particular in article 10) <strong>and</strong> in the statutes <strong>and</strong> relevant instruments of specialized agencies <strong>and</strong> international organizations concerned with the welfare of children," The covenant also recognises, as we have noted earlier, that the child is particularly vulnerable <strong>and</strong> needs protection, viz. "Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical <strong>and</strong> mental immaturity, needs special safeguards <strong>and</strong> care, including appropriate legal protection, before as well as after birth" The preamble also recognises the special needs of the children of the world who are growing up in hostile <strong>and</strong> unfriendly surroundings, viz. "Recognizing that, in all countries in the world, there are children living in exceptionally difficult conditions, <strong>and</strong> that such children need special consideration," This last recognition leads us back to the concept that the plight of the children who face difficulties within the family community is not a creation of their own, but a creation of the community of which the children are mere victims, <strong>and</strong> hence, they need protection. They are the victims of the circumstances created by the lack of adequate care <strong>and</strong> failure to provide a congenial atmosphere for the proper upbringing of the child. 148
Convention on the Rights of the Child In relation to juvenile delinquency the above-mentioned covenant may be read in conjunction with the United Nations St<strong>and</strong>ard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") [Adopted by General Assembly resolution 40/33of 29 November 1985] which states, inter alia: "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 <strong>and</strong> the maintenance of a peaceful order in society." The Rules emphasise that the proceedings should result in the wellbeing of the juvenile <strong>and</strong> that the response/reaction to youthful offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reactions. Rule 16.1 lays down that in all cases except those involving minor offences, before the competent authority renders a final disposition prior to sentencing, the background <strong>and</strong> 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. The overall aim is therefore not to punish the offender, but to seek out the root of the problem, in other words, not treating the delinquents as criminals, but treating the cause of their criminality <strong>and</strong> directing them on a path which will be acceptable to mainstream society in order to ensure their rehabilitation. More so in our case, since our penal policy is basically reformative <strong>and</strong> not retributive. We may also refer to the relatively more recent document on the subject: United Nations Guidelines for the Prevention of Juvenile Delinquency ("The Riyadh Guidelines") adopted <strong>and</strong> proclaimed by General Assembly resolution 45/112 of 14 December 1990. The guidelines are aimed at preventing crime by preventing juvenile delinquency by engaging juveniles in activities which will steer them away from criminal activities. The Guidelines recognise that the adolescent years are to be used for moulding the character of the youth <strong>and</strong> that ‘youthful behaviour or conduct that does not conform to overall social norms <strong>and</strong> values is often part of the maturation <strong>and</strong> growth process <strong>and</strong> tends to disappear spontaneously in most individuals with the transition to adulthood.’ The emphasis is to urge society to provide facilities for the youth so that their propensity towards deviant behaviour <strong>and</strong> the opportunity to commit delinquent acts is reduced. Thus the community is loaded with the responsibility of providing positive, proactive programmes to keep the youth occupied <strong>and</strong> kept on the path perceived to be correct by society <strong>and</strong> also to bring those who have deviated back to the acceptable path by ensuring proper education <strong>and</strong> socialisation, i.e. reformation <strong>and</strong> rehabilitation. The fact that the emphasis is on the community to provide all the necessary facilities for the youth is further exemplified by the Guidelines for Action on Children in the Criminal Justice System Recommended by Economic <strong>and</strong> Social Council resolution 1997/30 of 21 July 1997, this provides, inter alia, as follows: "24. All persons having contact with, or being responsible for, children in the criminal justice system should receive education <strong>and</strong> training in human rights, the principles <strong>and</strong> provisions of the Convention <strong>and</strong> other United Nations st<strong>and</strong>ards <strong>and</strong> norms in juvenile justice as an integral part of their training programmes. Such persons include police <strong>and</strong> other law enforcement officials; judges <strong>and</strong> magistrates, prosecutors, lawyers <strong>and</strong> administrators; prison officers <strong>and</strong> other professionals working in institutions where children are deprived of their liberty; <strong>and</strong> health personnel, social workers, peacekeepers <strong>and</strong> other professionals concerned with juvenile justice." Thus the thrust of the International Declarations, Rules, Covenants <strong>and</strong> other instruments is towards reformation <strong>and</strong> rehabilitation of youthful offenders <strong>and</strong> for establishment of facilities for proper education <strong>and</strong> upbringing of youths so that they are prevented from coming into conflict with the law. In the event that a child or juvenile does come into conflict with the law, then the aim is to provide a system of justice which is ‘child-friendly’ <strong>and</strong> which does not leave any psychological scar or stigma on the child, <strong>and</strong>, on the contrary, prepares him for a fruitful future. 149
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Third and Fourth Periodic Report on CRC - Unicef

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