Journal of the Institute

Children under the Age of 12

The Dutch Code of Criminal Procedure exempts minors under the age of 12 from prosecution. The police have nonetheless specific powers to investigate offenses committed by these very young children. They may be taken to a police station for questioning and detained there for 6 hours (not counting the hours between 24.00 and 09.00). Parents do not have free access and (free) legal assistance is not available. The police are not obliged to advise them of their right to be silent. Whereas it is prohibited by law to exert undue pressure on adults, no such rule exists for minors under 12. No “Miranda Rules”, therefore, to control police conduct during questioning. The only thing these youngsters can be sure of, is that they will be sent home or handed over to their parents after having been questioned and that they will not be prosecuted. The statements by these children who are not criminally liable by reason of their age may be used in evidence against others who are.

Young Persons from the Age of 12 to 18
The rules of criminal procedure for adults also apply to juveniles, except where special provisions in the code provide otherwise. These special provisions apply to all persons who were between the ages of 12 and 18 at the time at which they offended. So, even if they are over 18 at the time at which prosecution is instituted, these special procedural provisions for juveniles must be applied.

Like adults upon arrest, juveniles may be detained by the police for 6 hours (not counting the hours between 24.00 and 09.00 o’clock) for the purpose of questioning. They may be kept in police custody for two-three days, after which a judge will decide whether they will be remanded in custody for another 10 days. If so decided, the suspect may be remanded for an additional 30 days, which is twice renewable. After that, he must be released or court proceedings must be instituted. The difference with the procedure for adults is that the judge deciding on remand must ex officio consider the possibility to suspend the remand. This may be done, for instance, on condition that the offender begins his court-ordered community service or remedial training. If he does well, the sentencing judge will take this into account.

Juveniles will have to appear before a juvenile court, normally a single judge, who is limited in his sentencing possibilities. The maximum term of juvenile detention to be imposed is six months. The single judge has no power to issue a treatment order. In serious cases, in which the prosecution intends to demand a sentence of detention exceeding six months and/or a treatment order, the case has to be dealt with by a juvenile court consisting of three judges.

Unlike adults, juveniles must appear in person before the juvenile court. If they fail to show up, the case must be adjourned and the judge may order the police to bring the young suspect to court on the next occasion. Only after a serious attempt to get him there in person has failed, may the case be handled

in absentia.

The sessions of the juvenile court are not public, although in special cases the court may order the session to be open to the public. In my opinion, this provision goes against the grain of Article 40, par. 2 (vii) ICRC, which obliges the States Parties to respect the privacy of the child fully at all stages of the proceedings.

Although (free) legal counsel is always present, the juvenile person is entitled to conduct his own defense. His/her parents or guardians are invited to attend. They have the right to bring forward all that they deem helpful to the defense of their child. They also have the right to respond to witness statements and statements made by behavioral experts. Another party present in court is an officer of the Child Welfare Council, who may advise the court on the spot about available community service and/or training programs suited for the defendant.
Legal Assistance
After preliminary questioning, all children placed in police custody or on remand and all prosecuted children are provided with free legal counsel by the president of the court. Special courses in juvenile criminal justice are on offer and in several court districts counsel will not be allowed to participate in legal assistance schemes for juveniles without having completed a specialized course in juvenile criminal law.

Defense lawyers have a somewhat hybrid position at trial. Their young clients expect them to do their job as fully-fledged defense lawyers and adduce all that may lead to acquittal or a minimal sanction. On the other hand, many a juvenile court judge does not appreciate a very active defense and expects all persons present first and foremost to offer pedagogically sound solutions, even if this would entail that certain legal defenses were dropped or asserted in a more low-profile manner.

My own position is that defense counsel must do his legal job first and subsequently, where conviction is unavoidable, put forward proposals that may help put together a pedagogically sound, client-tailored punishment.
5. Experiments with Family Group Conferencing
The practice of Dutch juvenile courts meets with little criticism. Prosecutors and judges are specialized practitioners, who meet regularly to discuss best practice. In a small country, such as the Netherlands, it is easy to stay abreast of what your colleagues are thinking and doing. A possible interesting development are the cautious experiments with restorative forms of juvenile justice, such as Family Group Conferencing (FGC). Reports on the first results of such experiments have now been published. My impression is that FGC could develop into an important modality of out-of-court settlement in cases of ‘medium seriousness’. For the time being and in the near future, serious juvenile crime will probably be dealt with by the juvenile courts.
6. Juveniles in Penal Institutions
The position of children in penal institutions for juveniles is firmly embedded in the Principles of Juvenile Detention Act (Beginselenwet Justitiële Jeugdinrichtingen), which entered into force in 2001. It contains the substantive and procedural rights and duties of children legally deprived of their liberty in juvenile detention centers.

At present, Dutch penal establishments for juveniles house about 2,500 youngsters. These are partly run by the government and partly by government-funded and government-controlled private foundations, which were established in the beginning of the 19^th century by well-to-do, but progressive citizens, who cared about the fate of straying youngsters. There are no private prisons for juveniles as such in the Netherlands, with the exception, perhaps, of a branch of the American Glenn Mills School, but that is not really a closed institution.

Penal institutions for juveniles may be divided into two types: 1) institutions mainly intended for the execution of remand custody and sentences of detention, which I will refer to as juvenile detention centers and 2) institutions for the execution of treatment orders, which I will refer to as treatment centers. Boys and girls are detained separately, although some treatment centers house both categories in different units and may organize joint activities for boys and girls.

The juvenile courts are obliged by law to indicate in which detention and/or treatment center their sentences are to be executed, but in daily practice a special agency of the Ministry of Justice in The Hague decides on selection and the placement of the youngsters.

The ethnic composition of the population in detention centers has changed significantly over the last decades as a consequence of the increased influx of immigrants. As a result, children of immigrants are not only overrepresented in juvenile detention centers, but form an absolute majority. The situation in juvenile treatment centers is somewhat different, although immigrant children are overrepresented there as well: some 60% of the treatment center population is of Dutch ethnic origin.
Let us have a closer look at the juvenile detention centers now.
I have informed you already that the maximum sentence for juveniles is 24 or 12 months, depending on their age at the time of the offense. These maximum sentences are the exception. The average sentence is less than seven months. This means that juveniles reside in juvenile detention centers for a relatively short period of time. In many cases, the time spent on remand equals the final sentence in the majority of cases, so that they are released immediately upon sentencing. The relatively short stay of most young detainees in these detention centers makes it more difficult to tailor detention programs to their specific problems and needs. The directors of detention centers are nonetheless obliged to offer detailed detention plans to their young clientele, especially when, upon sentencing, three months or more months of the sentence remains to be served. Such plans must be drawn up in consultation with the offender himself, his parents or guardians, teachers and other professionals that play a role in the upbringing of the child. The law requires these detention programs to be evaluated regularly, so that they may be adapted should circumstances change in the meantime. Children who were given a relatively long sentence have a right to opt for special reintegration programs, in which they participate for the remainder of their term in free society. If they re-offend during the program, they must serve out their sentence inside the detention center.

Children in juvenile detention centers have their own individual rooms, but during the daytime they are together in groups of about 12 persons, who, as a group, are involved in general education and vocational training. The management of juvenile detention centers have a set of measures and disciplinary sanctions at their disposal to ensure order and observance of the rules by its population.

If a child (or parent or guardian) deems his rights to have been violated by a decision of the director of the detention center, he may lodge a complaint with a special complaints committee recruited from the Board of Visitors and presided over by a judge, who by law is a member of this Board. The child or the director may appeal against decisions of the complaints committee. A central appellate committee will make the final decision. On request, free legal assistance may be obtained to assist complainants.
Closed Juvenile Treatment Centers
Offending children whose treatment is ordered by the criminal juvenile court are transferred to closed treatment facilities, where they are mixed with youngsters that have no criminal record, but for whom the civil juvenile court considers it to be in their best interest to be treated. This practice regularly provokes protest from parents involved, who fear their children will be criminally contaminated by those children that are treated there as a result of having committed a serious crime.

As discussed earlier, a treatment order as a result of a criminal conviction involves a stay of not less than two and not more than four or six years in a treatment center. Children placed there by civil juvenile courts are placed for a period of one year, which term is renewable until they reach the age of 18. The director has to draw up a detailed treatment program, in consultation with the child, its parents and other interested parties. As in detention centers, such programs must be regularly evaluated and adapted to changing circumstances and the development of the child. Likewise, children (and their parents) may complain about alleged violations of their rights as a result of decisions by management.

Some Problems
Although the volume of youth crime has hardly increased over the last few decades, a shift towards more violent youth crime did lead to an increase in the population of juvenile penal institutions. There is no situation of overcrowding – which in no instance is acceptable–; however, there are waiting lists for admission to closed penal treatment centers. This has resulted in the unacceptable situation of children sentenced to treatment orders having to wait up to one year in “ordinary” detention centers, which are not in a position to offer the professional treatment these children need.

Does detention or treatment prevent re-offending? I cannot tell you this. Little research has been conducted on the subject, yielding ambiguous results. The most recent study concerns the treatment programs. One of the conclusions is that, with a few exceptions, the treatment programs and methods are of an eclectic nature and that neither prosecutors, judges nor legal counsel have much of a clue what treatment is available and have no idea whatsoever of its effectiveness. Each of these practitioners believe that what he or she is doing is in the interest of the child. The results of research into re-offending after treatment are not encouraging: most of the youngsters re-offend shortly afterwards.

The good news is that over the years an extensive network of highly professionalized pedagogic institutions has been developed in the Netherlands. It is still expanding in spite of various budget cuts by center-right governments. This could well be the reason why youth crime, although a problem, is still manageable and the juvenile justice system is still able to respond to changes in the nature of youth crime and to the influx of migrant children with their respective cultural backgrounds.
7. International Law and Juvenile Justice
In the course of time, a considerable body of international documents on civil and criminal juvenile justice has developed. The main themes covered by these are: 1) prevention of juvenile delinquency; 2) minimum standards for an adequate juvenile justice system and 3) minimum standards for the execution of sentences, especially deprivation of liberty.

7.1 The concern of the international community for the prevention of youth crime is reflected in the United Nations Guidelines for the Prevention of Juvenile Delinquency, the Riyadh Guidelines, adopted by the General Assembly in 1990. These guidelines represent a checklist for all UN members seeking guidance in developing a comprehensive policy with regard to youth crime prevention. They underscore the role of the (nuclear or extended) family. Special attention is drawn to crime prevention among children of ethnic minorities, migrants and refugees. The importance of instructional facilities and opportunities for vocational training is stressed. Institutionalization of juveniles must be avoided and must continue to be a last resort. The Riyadh Guidelines recommend that the States Parties introduce a special Ombudsman for children.

At the European level, the Committee of Ministers of the Council of Europe adopted a Recommendation, in the year 2000, on the impact of early psychosocial intervention on the prevention of delinquency. The added value of this recommendation is that it expressly focuses on the risk factors indicating a possible criminal career and that it emphasizes the importance of offering parenting programs, by court order if necessary.

7.2 The second theme to be found in the international documents is the establishment of minimum standards for a decent and adequate juvenile justice system. You will be acquainted with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, better known as the Beijing Rules, adopted in 1985 by the General Assembly. As a basic principle, Rule 1.4 characterizes juvenile criminal justice as an integral part of social justice for juveniles. The Beijing Rules encompass almost all levels of criminal juvenile justice: the way the police are to treat juveniles; fair trial; and the execution of sentences.

Most of the issues treated by the Beijing Rules are covered by the International Convention on the Rights of the Child (ICRC), which was ratified by the Netherlands in 1995. Since that time, it has played an increasingly important role in Dutch national legislation and case law. The Convention should by no means be seen as window dressing. In the Netherlands, it serves as a highly respected source of reference. As a result of its superior legal force, it makes a lot of international recommendations superfluous. Of special relevance to the juvenile criminal justice system are Articles 37 (prohibiting torture or other cruel, inhuman or degrading treatment or punishment), and 40 (providing guarantees for a fair trial) CRC; they are of such relevance that the Netherlands has submitted a number of reservations as to their implementation; this to the chagrin of the Geneva-based Committee on the Rights of the Child, to whom the states parties are obliged to report, on a regular basis, on the implementation of the Convention.

The CRC repeats to some extent the provisions of the European Human Rights Convention, but certainly adds special provisions for juveniles, such as the requirement of alternative ways of dealing with crime; the institutionalization of minors as a absolute last resort; and special protection of the privacy of children in conflict with the law.

7.3 The third theme of the international documents relating to juvenile justice is their treatment while in prison and inside prison-like facilities. Its main source are the Havana Rules, short for the UN Rules for the Protection of Juveniles Deprived of their Liberty, as adopted by the General Assemblee in 1990. Time does not allow me to go into the substance of these Havana Rules, but what I will say is that the Dutch Principles of Juvenile Detention Act, which embodies the rights and duties of juveniles in Dutch detention and treatment centers meets the standards of these, rather detailed, Havana Rules and even goes further. I must add that a national supervisory body makes regular visits to juvenile detention and treatment facilities for juveniles, as does the Strasbourg-based European Committee for the Prevention of Torture (CPT) within the framework of its planned and ad hoc visits.

8. Future Development of Juvenile Criminal Justice in the Netherlands and Europe
Allow me to finish with some remarks on the key issues of the debate on youth crime and criminal justice in the Netherlands, and offer several thoughts on developments, or the lack of development, at the European level.

* In the postmodern -and by that I mean a fragmented and morally unstable- Dutch ‘risk society’, it is proving more and more difficult to control media-initiated and politically exploited moral panic, whenever a youngster, especially one belonging to an ethnic minority, is suspected of having committed a serious crime. Chiefs of police and politicians of the center and the right wing use these incidents to argue for more legal powers, more personnel and harsher “adult” punishment for juveniles. Add to this the uncertainties of the recent economic recession in the Netherlands and you will find a certain readiness to adopt a no-nonsense approach with regard to minors, which puts the juvenile justice system as we have developed it over time in jeopardy. If we wish to maintain the relatively high standard of our Dutch juvenile justice system, there is a major task, in my judgment, for practitioners and academics to inform the general public on the realities of preventing and dealing with juvenile delinquency.

* A lot of energy will be spent on the quest for a set of ‘risk factors’ that in an early stage can predict a criminal career. I doubt very much whether this will add much to what we already know. We already know who the poor and underprivileged are; we already know in which neighborhoods they live. Social policy at medium and macro level might yield better results than trying to identify the individual juvenile offender in the cradle.

* Furthermore, I feel it is important to expand and intensify experiments with victim-oriented, judicially controlled Family Group Conferences in various forms and intensities.

* One other important issue, in my view, is a debate on unifying criminal juvenile justice, to begin with among the member states of the European Union. Is it not odd, for instance, that, within a 30-mile radius around Maastricht, the city in which I work, the age of criminal responsibility has been set at 16 and 14, in Belgium and Germany, respectively, whereas in the Netherlands it is 12? Why does Germany have special rules for adolescents between 18 and 21 years and the Netherlands not? Why is it that there are no juvenile courts in Sweden and we nonetheless consider Swedish society to be extremely civilized and socially conscious? What developments can be observed in the USA, the birthplace of juvenile justice? Greater youth mobility, including that of criminal youth, forces us to look beyond our national borders. That is why I am happy to be here, in Missouri. Thank you for your kind attention.