-- Summary of Intergovernmental Experts Meeting in Bangkok

By Yan Jia

From February 18-21, 2014, a panel of experts, which was established by a resolution of the United Nations Economic and Social Council to draft exemplary strategies and implementation measures for eradicating violence against children in crime prevention and criminal judicature, convened in Bangkok, Thailand, for an intergovernmental experts meeting mainly to discuss the draft. After general discussion, deliberation by the presidium and detailed negotiations, the meeting produced the report, “Exemplary Strategies and Implementation Measures for Eradicating Violence Against Children in Crime Prevention and Criminal Judicature.”

Government representatives from 31 countries, including China, Austria, Canada, France, Japan, Egypt, Jordan and Mexico, took part in the meeting. International organizations, including the United Nations Office on Drugs and Crime, the United Nations High Commissioner for Human Rights and the United Nations Children’s Fund, sent observers to the meeting. China’s Ministry of Justice also sent experts to the meeting.

I. Draft Review

1. Purpose and Content of Draft

The draft is based on comprehensive consideration of the Universal Declaration of Human Rights, the International Covenant on the Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and other international conventions and norms concerned with exemplary strategies and implementation measures for eradicating violence against children in crime prevention and criminal judicature. The draft focuses on eradication of violence against children. Its goal is to protect children’s rights, prevent any form of violence or crimes against children, and urges member countries to maximize the resources to carry out exemplary strategies and implementation measures.

The draft comprises four parts—introduction, definition, principles and guidelines—for a total of 45 articles. The introduction contains five articles concerning the significance, purpose, content and structure of exemplary strategies and implementation measures for eradicating violence against children in crime prevention and criminal judicature. The guidelines, with 37 articles, are divided into three sections. The first section deals with guidelines for prohibiting violence against children, extensively implementing preemptive measures, and pushing forward research and data collection. The second section deals with strengthening guidelines related to the capacity and potential of the criminal judicial system to respond to violence against children and protect child victims. The third section deals with guidelines for prevention of violence against children within the judicial system.

2. Main issues in dispute during draft review

(1) Guidelines for exemplary strategies and implementation measures

The draft requires member states to adhere to guidelines for eradicating violence against children in crime prevention and criminal judicature in the following seven aspects. First, protection of the intrinsic rights of children to life, existence and development. Second, the principle of maximum benefit in child protection. Third, the principle of equality and nondiscrimination. Fourth, the principle of full participation by children. Fifth, the principle of special treatment for gender violence. Sixth, the principle of protection for vulnerable children. Seventh, the principle of protection of the rights of child witnesses.

Representatives of the various participant countries said the seven guidelines are very beneficial to the prevention and eradication of violence against children in crime prevention and criminal judicature. However, some representatives from Eastern Europe raised some proposals. Some said that the seven guidelines required by the United Nations for all member states are not equally appropriate to all countries, which have different levels of economic, social and cultural development and different degrees of judicial protection for children’s rights. Meanwhile, Egyptian representatives questioned the protection for vulnerable children, saying a general description of vulnerable children is more appropriate than a detailed specification. Special representatives from the United Nations said that the draft is not legally binding, thus it might be beneficial to establish high norms for exemplary strategies. However, necessary revisions could be made because of discrepancies in politics, economics and culture between various countries and differences in various domestic laws.

As a result, the viewpoint of the Japanese representatives was accepted, so that the clause, “all member states must ensure implementation of the seven guidelines,” was changed to “all member states should implement the seven guidelines if applicable in their own situations.”

(2) Data collection, analysis and spread of violence against children

The draft requires all member states to supervise and present annual reports on violence against children to police and other criminal judicial organs, as well as collect, analyze and spread independent investigation results and data related to complaints and investigations. This was welcomed by some countries. But in general, there were disputes among representatives from various countries.

Egyptian representatives said that popularization and spread of such data do harm to protecting children’s interests and might result in leaks of children’s privacy. Various countries should make laws to protect the privacy of children and leak nothing about violence against children. Pakistani representatives said that analyses on collected data could be used for drafting effective policies rather than appraising the performance of various countries regarding preventing violence against children. Japanese representatives said that data could be used in a constructive way but not for instructive or selective means. Nonetheless, Austrian representatives said collection and publicity of data about violence against children would earnestly protect children’s rights and restricting such activities under the framework of domestic legislation by various countries might risk making domestic laws override international norms.

After repeated consultation, the draft was revised so that various countries, under the condition of performing the duties of member countries within the framework of international human rights law, should collect, analyze and spread relevant data.

(3) Protection for children who are victims of violence

The draft called for more effectively protecting children who are victims of violence and asked member countries to adopt certain appropriate measures. Article 3 requires police officers, prosecutors, judges and other law-enforcers to quickly respond to violence against children.

Chinese representatives said the term “other law-enforcers” is not specific. They suggested revising it to say “relevant law-enforcers who have a chance to engage with child victims.” Chinese representatives also introduced the experience and practice of Chinese courts regarding questioning minor victims. Courts, if possible, should adopt video methods to question minor victims of sexual offenses to protect the privacy of the victims. The proposal was accepted by the meeting. The draft also includes modern techniques being used for criminal investigation involving minor victims to avoid more psychological hurt.

The proposal raised by Egyptian representatives regarding protecting children’s privacy during all stages of the criminal justice process was also accepted by the meeting.

(4) Minimum age for taking criminal responsibility

The draft requires that the minimum age for taking criminal responsibility should be 12 years old without exception and would be raised to older ages further on.

Representatives from various countries had different views on this issue.

Representatives from the United Nations Children’s Fund said the draft was one step further than the Beijing Rules, which emphasize that the minimum age for taking criminal responsibility should not be too young and should comply with the psychological and mental condition of minors. The Beijing Rules also advocate that efforts should be made to reach consensus on a reasonable minimum age that is suitable to as many countries as possible.

For historical and cultural reasons, different countries have different rules on this issue. For China, the rule is 14 years of age; for Spain, 16 years of age; and for some other countries, it ranges from 7 to 13 years of age.

Egyptian representatives said the Beijing Rules should be adapted to the legal systems of various countries. The United Nations Convention on the Rights of the Child, the United Nations Minimum Standard Rules of Juvenile Justice and the Convention on the Jurisdiction and Legal Application of the Protection of Minors do not specify an age of relative criminal responsibility or an age of complete criminal responsibility. The Egyptian representatives suggested deleting the requirement for a minimum age for taking criminal responsibility.

Pakistani representatives agreed with the opinion of the Egyptian representatives, opposing a regulation setting the minimum age for taking criminal responsibility at 12 years old. However, Mexican representatives said that the minimum age of 12 would be beneficial to Mexico revising its own criminal law.

After repeated consultation, the meeting agreed to set 12 years of age as the minimum age for taking criminal responsibility and reserve the guideline for gradually increasing the minimum age.

(5) Requirement for imprisonment of minor offenders

The draft said the deprivation of freedom should be the last resort for minor offenders and imprisonment should be limited to as short a period as possible. A term of minimum imprisonment should not be imposed on minor offenders. The draft asked various countries to review, appraise and revise their own laws to ensure that their laws, regulations and customary laws do not impose the death penalty or life imprisonment on minor offenders.

There were different views on the imprisonment of minor offenders. Jordanian representatives said criminal offenders, even younger than 14 years, might be treated the same as adults in felony cases, and requested eliminating the requirement for minimum imprisonment. Mexican representatives said the draft’s requirement that countries not compel a term of minimum imprisonment doesn’t comply with the conditions of various countries. It suggested revising the rule to reduce the term of minimum imprisonment. The meeting accepted the opinion to delete the rule rejecting compelling minimum imprisonment.

Representatives from various countries reached consensus on having no death penalty for criminal offenders younger than 18 years, but held different views about not having life imprisonment. Canadian representatives said the United Nations Convention on the Rights of the Child requires that children not be eligible for life imprisonment that excludes any possibility of being released. However, the draft opposed any form of life imprisonment. This exceeds the practice of many countries. Chinese representatives said that the Supreme People’s Court of China rules that minor offenders who have committed severe crimes may be sentenced to life imprisonment. Minor offenders aged from 14 to 16 are usually not sentenced to life imprisonment. The Chinese delegation suggested revising the draft article to prohibit life imprisonment for minor offenders that excludes any possibility of being released. The Austrian and Egyptian delegations agreed with the view of both the Chinese and Canadian delegations. The meeting accepted such an agreement.

(6) Legal aid for children

The draft requires that children should get legal aid during interrogation and detention by the police. Japanese representatives said such legal aid should be conditional. Austrian representatives said such legal aid should cover all judicial procedures, rather than only interrogation and detention. Philippine representatives said children should be informed in a way they might understand about their rights and opportunities to get legal aid. Jordanian representatives said that notification of the rights and opportunities to get legal aid should be part of the criminal investigation procedure; legal aid should not be conditional; and state-sponsored legal aid should be ensured during all judicial stages related to children. The meeting accepted the Philippine and Jordanian proposals regarding police notification and state-sponsored legal aid for children during all judicial stages.

II. Development of Draft

The draft only reflects the principled viewpoints or proposals from experts of various countries. It does not require signing or the participation of various countries and does not represent the official positions of various countries and is not legally binding.

The meeting passed the revisions and proposals related to the draft and the report of the expert panel to the 23rd meeting of the United Nations Commission on Crime Prevention and Criminal Justice. The revised draft would then be submitted to the United Nations Commission on Crime Prevention and Criminal Justice and available on the UN website for opinion and comment. The United Nations Commission on Crime Prevention and Criminal Justice convened its 23rd meeting on May 12 in Vienna, Austria, where it discussed the draft.

III. Exchange and Communication

There are many differences in the prevention and eradication of violence against children among different countries. The draft fully considered the imbalance in judicial protection and the development of children’s rights in different countries and combined suggestions and proposals from experts in various countries.

During the meeting, Chinese representatives extensively exchanged views with representatives from the United Nations and other countries, enhancing mutual understanding regarding criminal judicial work. Most representatives said that children’s rights are special rights. The draft gradually clarified and improved legal norms, exemplary strategies and implementation measures regarding the prevention and eradication of violence against children, reached a consensus on the importance of protecting children and guiding work in various countries to eradicate violence against children. This will benefit the protection of children’s rights throughout the world.

(The author is a research associate at the Crime Prevention Institute of the Ministry of Justice.)

1.“The United Nations Minimum Standard Rules for Juvenile Justice” (the Beijing Rules), “The United Nations Minimum Standard Rules for Juvenile Justice” (the Riyadh Guidelines),“The United Nations Protection of Juveniles Deprived of Liberty,” “The Action Guide for Children’s Issues in the Criminal Justice System,” “The Principles of Justice for Crime-related Child Victims and Witnesses” and ” The United Nations Principles and Guidelines for Legal Aid in the Criminal Justice System.”