WELCOME

1. WELCOME

2. Juvenile Justice SYSTEM IN NEPAL Prof. Dr. Laxmi Prasad Mainali Sr. Advocate Supreme Court Bar Association Contact No. 9851136071 lmainali@ahoo.com

4. Meaning and Definition of Juvenile • The term “Juvenile” is derived from the Latin word “Juvenis” meaning young. • Juvenile is a young person who is not yet adult. • Juvenile is a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years – Wharton’s Concise Law Dictionary. • Juvenile is a person who has not reached the (usually) 18 years at which one should be treated as an adult by Criminal Justice System – Black’s Law Dictionary

5. [Contd...] • Juvenile is a human being who is below the age of eighteen years unless under the law applicable to the child majority is attained earlier – Convention on the Right of the Child, 1989 (Article 1) • “Juvenile” or “Child’ means a person who has not completed eighteenth years of age – Juvenile Justice (Care and Protection of Children) Act, 2000 (Section 2(k)) • “Child’ means every human being below the age of 16 years – Children’s Act, 2048 (Section 2(a))

6. [Contd...] • A child in conflict with the law (CICL) is a person over 9 years old but below the 21 years old at the time of the commission of the offence – Child and Youth Welfare Code, 1974 ofPhilippines (Article 189) • “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth years of age as on the date of commission of such offence – Juvenile Justice (Care and Protection of Children) Act,2000 of India (Section 2(l)). • No Nepalese law has defined the term CICL.

7. Justification of Juvenile Justice • not fully developed, • incapable of exercising free will • subject to be reformed • different by nature • guided by adults • under physical and mental development process • different by nature • do not have the same level of intent as adults do • Can easily be rehabilitated • Need for different treatment • Have no ability or capacity to know right from wrong • Cannot understand the nature and consequences of actions • Less capacity to judge the results of harms or injuries

8. Models of Juvenile Justice • Medical/Treatment Model • Rehabilitation Model • Community Reintegration Model • Punishment/Crime Control Model • Just Deserts Model • Reality Therapy Model • Justice Model • Modified Justice Model • Due Process Model • Parens Patriae/ Welfare Model • Participatory Model • Corporatism Model • Rights-based and Restorative Justice Model • Logical Consequences Model

9. International Instruments on Juvenile Justice

10. HARD LAWS International Covenant on Civil and Political Rights (ICCPR), 1966 Passed date: 16 December 1966 Entered into force: 23 March 1976 Date ratified by Nepal: 14 May 1991 (31 Baisakh 2048) Structure: Preamble, 6 Parts and 53 Articles Committee Implementing Treaty: Human Rights Committee Periodic Report: State liability submitting report in each five years Complaint by the state: Optional Individual Complaint: Optional Nature: Having binding force

11. [Contd…] • Right against sentence of death (Article 6(5) • Right against torture, cruel, inhuman or degrading treatment or punishment (Article 7) • Right against arbitrary arrest or detention [Article 9(1)] • Right to compensation against unlawful arrest or detention [Article 9(5)]

12. Contd… • Separation of accused Juvenile persons from adults and speedy adjudication [Article 10(2)(b)] • Separation of juvenile offenders from adults and appropriate treatment to their age and legal status [Article 10(3)] • Fair trial and closed hearing [Article 14(1)] • Procedure for juvenile cases shall be on the ground of juveniles’ age and the desirability of promoting their rehabilitation [Art 14(4)]

13. Convention on the Right of the Child (CRC), 1989 Passed date: 20 November 1989 Entered into force: 2 September 1990 Date ratified by Nepal: 14 September 1990 (29 Bhadra 2047) Structure: Preamble, 3 Parts and 54 Articles Committee Implementing Treaty: Child Rights Committee Periodic Report: State liability submitting report in each five years Complaint by the state: No Individual Complaint: No Nature: Having binding force Nearly universal ratification

14. [Contd...]Basic Principles of CRC • Non-Discrimination • Best Interests of the Child • Survival and Development • Child Participation Child Rights Under CRC Survival Rights • Right to life (Article 6) • Right to adequate standard of living (Article 27) • Right to health care (Article 24) • Right to parental care and support (Article 5, 9, 10 and 18) • Right to social security (Article 26)

15. [Contd...]Development Rights • Right to information (Article 17) • Right to education (Article 28 and 29) • Right to leisure, recreation and cultural activities (Article 31) • Right of children with disabilities (Article 23) • Rights of Children of indigenous peoples (Article 30)

16. Contd… Protection Rights • Right to a name and nationality (Act 7 and 8) • Right to privacy (Article 16) • Right against exploitation and abuse • Sexual exploitation (Article 34) • Child labour (Article 32) • Trafficking (Article 10 and 35) • Drug abuse (Article 33) • Child abuse and maltreatment (Article 19)

17. [Contd...] • Right to alternative means of child care (Article 20 and 21) • Protection during armed conflict (Article 38) • Protection of refugee children (Article 22) • Protection from torture, deprivation of liberty and death penalty (Article 37) • Right of children in conflict with the law (Article 40) • Right to recovery and reintegration (Article 39)

18. Contd… Participation Rights • Right to an option (Article 12) • Freedom of thought, conscience and religion (Article 14) • Right to freedom of association and assembly (Article 15) • Right to be heard in judicial and administrative proceedings (Article 12) • Right to freedom of expression (Article 13)

19. Article 37 • No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment, or sentenced to capital punishment or life imprisonment without release. • No child shall be unlawfully or arbitrarily deprived of liberty; detention shall only be a last resort and for the shortest possible time. • A child of liberty shall be treated with humanity and respect, taking into account the child’s age, the child shall detained separately from adults. • A Child deprived of liberty shall have the right to legal assistance and to challenge the legality of his or her detention.

20. Article 39 • Requires measures to help child victims of violence, neglect, exploitation, abuse, torture, inhuman or degrading treatment or punishment. • Physical and psychological recovery and reintegration must take place in an environment that fosters the health, self-respect and dignity of the child. • Without discrimination, in the best interests of the child, ensuring the maximum survival and development of the child.

21. Article 40 • CICL shall be treated with dignity taking into account the child’s age and with the objective of the child’s reintegration. • CICL may be liable only for acts prohibited by law at the time they were committed. • CICL entitled to legal guarantees: • Presumption of innocence. • Right to be informed of charges against him or her • Right to a speedy trial before an impartial body • Right to legal assistance • Right against self-incrimination • Right to confront witnesses • Right to appeal • Right to an interpreter • Right to privacy

22. SOFT LAWS • The UN has developed standards and guidelines to assist the pillars of juvenile justice in dealing with children in conflict with the law. These are called the UN Standards or Soft Laws on Juvenile Justice • Declaration of the Rights of the Child authored by EglantyneJebb in 1923 • League of Nations Declaration on the Rights of the Child, 1924 • Universal Declaration of Human Rights, 1948 (Articles 25 (2) and 26 (3). • United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955 (first establish the principle of separation of young people from adults in custodial facilities) • Declaration on Rights of the Child, 1959

23. UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (Adopted by General Assembly Resolution 40/33 of 29 November1985)

24. Fair and humane treatment to promote well-being of child • Proportionality between offense and offender • Use of community programs for diversion from formal court processes, with child's consent • Detention as a last resort and for shortest possible period of time • Children detained separately from adults • Best interests of the child

25. Contd... • Child’s full participation • Deprivation of liberty only for serious offenses • Institutionalization as a last resort • Capital and corporal punishment prohibited • Continuous and specialized training for police officers • Educational services for children under institutional treatment • Release as soon as possible

26. UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)(Adopted and proclaimed by General Assembly Resolution 45/112 of 14 December 1990.)

27. Prevention of Juvenile Delinquency is an Essential Part of Crime Prevention in Society • Prevention Requires Efforts on the Part of the Entire Society • Prevention Policies for All Young People, not just Offenders • Family as Central Unit Responsible for Socialization of Children • Well-being from Early Childhood should be the Focus of any Preventive Program • Active Prevention of Crime through Community-based Services and Programs

28. UN Rules for the Protection of Juveniles Deprived of their Liberty (JDL)(Adopted by General Assembly 68th plenary meeting 14 December 1990)

29. Detention before Trial should be Avoided or Used only as a Last Resort • Otherwise, It should be Limited to the Shortest Period of Time and in a Non-discriminatory Manner • Entitled to Prompt Access to Legal and Other Assistance • Establishment of Open Detention Facilities to enable Individualized Treatment • Facilities &Services should be Consistent with Respect for Human Rights and Dignity of a Child • Respect Child's Right to Family Life and Reintegration into Society • Help to Understand their Rights and Obligations during Detention • All Personnel working with Children Deprived of Liberty should Receive Appropriate Training • Use of Physical Force and Carrying of Weapons • Cruel, Inhuman & Degrading Treatment and Discipline Prohibited • Children Detained Separately from Adults; Separate Detention for Younger and Older Children • All Personnel Working with Children should be Fully Accountable for their actions

30. UN Standard Minimum Rules on Non-custodial Measures (Tokyo Rules)(Adopted by General Assembly Resolution 45/110 of 14 December 1990)

31. General Principles • The Rules are intended to promote greater community involvement in the management of criminal justice, specially in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society. When implementing the Rules, member States shall endeavor to ensure: • Proper Balance Between the Rights Of Individual offenders; • Rights of Victims; and • Concern of Society for Public Safety and Crime Prevention.

32. Scope of Non-custodial Measures • In order to provide greater flexibility consistent with the nature and gravity of the offense, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post sentencing dispositions.

33. Pre-trial Dispositions • Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims.

34. United Nations Guidelines for Action on Children in the Criminal Justice System (Vienna Guidelines), 1997 The aims of the guidelines are: • Implementation of the CRC in order to achieve the goals set out for the administration of juvenile justice • Facilitate the provisions of assistance to states for the implementation of the CRC

35. Juvenile Justice Laws in Other Countries UK • Children and Young Persons Act, 1963 • Criminal Justice Act, 1982 USA • Juvenile Justice and Delinquency Prevention Act, 1974 Canada • Young Offenders Act, 1982 Australia • Children and Young People Act, 1999 of Australian Capital Territory • Children ( Criminal Proceedings) Act, 1987 of New South Wales • Children (Detention Centres) Act, 1987 of New South Wales • Childrens Court Act, 1987 of New South Wales • Children (Community Service Orders) Act, 1987 of New South Wales • Children (Care and Protection) Act, 1987 of New South Wales • Children (Protections and Parental Responsibility) Act, 1997 of New South Wales • Young Offenders Act, 1997 of New South Wales

36. Commission for Children and Young People Act, 1998 • Juvenile Justice Act, 1983 of Northern Territory • Young Offenders Interstate Transfer Act, 1987 of Queensland • Juvenile Justice Act, 1992 of Queensland • Children’s Court Act, 1992 of Queensland • Children’s Commissioner and Children’s Services Appeals Tribunal Court, 1996 of Queensland • Young Offenders Act, 1993 of South Australia • Youth Court Act, 1993 of South Australia • Youth Justice Act, 1997 of Tasmania • Children, Young People and Their Families Act, 1997 of Tasmania • Children and Young Persons Act, 1989 of Victoria • Children and Young Persons ( Miscellaneous Amendments) Act, 1996 of Victoria • Children’s Court Act, 1988 of Western Australia • Young Offender Act, 1994 of Western Australia

37. New Zealand • Children , Young Persons and Their Families Act, 1989 German • Juvenile Justice Act, 1990 Latvia • Protection of the Rights of the Child law, 2003 Philippines • Juvenile Justice and Welfare Act, 2006 Norway • Child Welfare Act, 1953 Uganda • Children Statute, 1996 • Community Service Act, 2000 • Community Service Regulation, 2001 Tanjania • Children and Young Persons Ordinance (Enacted after the ratification of the CRC on 10th of the June, 1991)

38. India • Juvenile Justice (Care and Protection of Children) Act, 2000 • Juvenile Justice (Care and Protection of Children) Rules, 2007 • Hyderbad Children Act, 1951 • Uttar Pradesh Children Act, 1951 • Bombay Children Act, 1954 • Saurashtra Children Act,1956 • Jammu and Kashmir Children Act, 1970 • Madhya Pradesh Children Act, 1970 • Rajasthan Children Act, 1970 • Assam Children Act, 1971 • Kerala Children Act, 1973 • Haryana Children Act, 1974 • Himachal Pradesh Children Act, 1979 • All States of India except Nagaland, Orissa, Sikkim and Tripura enacted their Children Acts in the International year of the Child, 1979 • The State of Uttar Pradesh enacted laws prohibiting teenagers from smoking bidis and cigarettes.

39. Afghanistan • Juvenile Code, 2005Bangladesh • Children Act, 1974 • Children Rules, 1976Bhutan • Civil and Criminal Procedure Code, 2001 • Penal Code, 2004Maldives • Law on the Protections of the Rights of the Children, 1991Pakistan • Juvenile Justice System Ordinance, 2000Srilanka • Children and Young Person’s Ordinance, 1939

40. China • Law of the People’s Republic of China on the Protection of the Minors’, 1990 • Law of the People’s Republic of China on the Prevention of Minors’ Delinquency, 1992 • Rules of Law Application of Minors’ Criminal Cases, 1995 • Criminal Procedural Law of People’s Republic of China, 1996 • Rules on Dealing with Criminal Cases of Minors’, 2000

41. Domestic Legal Framework

42. Constitution of Nepal, 2072 • Right to live with dignity (Article 16) • Right to freedom (Article 17) • Right to equality (Article 18) • Right relating to justice (Article 20) • Right against torture (Article 22) • Right to privacy (Article 28) • Rights of the child (Article 39)

43. The Constitution of Nepal, 2072 has addressed rights of the child as fundamental rights in its Article 39. (1) Every child shall have the right to name and birth registration along with his/her identity. (2) Every child shall have the right to education, health, maintenance, proper care, sports, entertainment and over all personality development from the families and state. (3) Every child shall have the right to elementary child development and child participation. (4) No child shall be employed to work in any factory, mine or engaged in similar other hazardous work. (5) No child shall be subjected to child marriage, transported illegally, abducted/kidnapped or taken in hostage.

44. (6) No child shall be recruited or used in army, police or any armed group, or be subjected, in the name of cultural or religious traditions, to abuse, exclusion or physical, mental, sexual or other form of exploitation or improper use by any means or in any manner. (7) No child shall be subjected to physical, mental or any other form of torture in home, school or other place and situation whatsoever. (8) Every child shall have the right to juvenile friendly justice.

45. (9) The child who is helpless, orphan, with disabilities, conflict victim, displaced or vulnerable shall have the right to special protection and facilities from the State. (10) Any act contrary to in clauses (4), (5), (6) and (7) shall be punishable by law, and a child who is the victim of such act shall have the right to obtain compensation from the perpetrator, in accordance with law. • Right To constitutional remedies (Article 46)

46. The Children Act, 2048 • An outcome of the ratification of the 1989 CRC. • Introduces a concept of Juvenile justice as a separate branch of justice system. • Aims at the physical, mental and intellectual development of the children. • Protects the right and interest of the children. • Rights to a name and determination of birth date of the child-Section3. • Right to maintenance and upbringing, education and health care-Section4

47. Contd… • Non discrimination gurantee-Section5 and 6. • Prohibition on torture and cruel treatment-Section7. • Facilities to be given to maintain contact-Section8. • Right to direct contact or correspondence with natural parents of adopted son or daughter-Section9. • Right to mention the name of mother and maternal grandfather-Section10.

48. Contd… • Criminal liability fixed on the basis of age- Section 11. • Disqualifications or recidivism not to be applicable-Section 12. • Prohibition to engage children in begging and to make fakir-Section 13. • Prohibition on offering of child in the name of God or goddess-Section 14. • Prohibition on imposing rigorous punishment-Section 15.

49. Contd… • Children not to be made involved in immoral profession-Section16. • Restriction of children on employment-Section 17. • Protection from engaging in hazardous work-Section 18. • Children case not to be entertained in absence of legal practitioner-Section 19. • Remedial right guaranteed-Section 20.

50. Contd… • Establishment and operation of children’s rehabilitation home-Section 42. • Only particular person can attend in the case relating to the children-Section 49. • Particulars of the incident relating to the children’s case cannot be published in any paper without permission-Section 49.