Published by Save the Children UK

Published by Save the Children UK,

Bosnia and Herzegovina Programme

Researched and prepared by:

Olivera Damjanovic

Annex I prepared by:

Ramiz Huremagic

Prepared for publishing by:

Shon Campbell

Bojana Matic

Paula McDiarmid

Cathy O’Neill

Vanja Sotra

Technical assistance:

Dragana Strinic

Dijana Ratkovic

Slobodan Stankovic

Nermina Vrbcic

Design, DTP and printing: JORDAN Studio, Sarajevo

First published in 2003. © Save the Children UK / UNICEF. All rights reserved. This publication may not be reprinted without the prior permission of the Publisher.

Young People in Conflict with the Law:

A Review of Practice and Legislation in Bosnia and Herzegovina

in Relation to International Standards

TABLE O F CONTENTS

INTRODUCTION

List of Acronyms Used in the Text

I CHAPTER 1 - CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA (BiH)

1.1 BASIC CHARACTERISTICS OF CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA

A Child's Age in the Criminal Legislature of Bosna i Hercegovina

The Age at which Criminal Offences are most Frequently Committee

Status Offences – the Status of the Child and a Criminal Offence

Gender Differences

Risk Factors / Causes of Juvenile Offending

The Importance of Analysing the Causes of Juvenile Offending

The Most Frequently Committed Offences

Is Youth Crime on the Rise or Decline in BiH?

Insufficient Data

The importance of statistics

Other Characteristics

Recidivism

Juvenile Offending – an Urban Phenomenon

Juvenile Offenders and Educational Problems

Victims of Juvenile Crime – Juveniles Themselves

Are Specific Groups of Children in BiH more likely to Commit Offences - an open question

1.2 THE PUBLIC AND CHILDREN IN CONFLICT WITH THE LAW

Perception of Juvenile Crime by BiH Society

Experiences of Other Countries – the Importance of Monitoring Public Opinion and of Providing Information to the Public

THE ROLE OF THE MEDIA

The usual Models of Informing the Public on Juvenile Offending

Protection of the Child’s Integrity

Education of Journalists and Reporters

Towards better and more accurate reporting

1.3 CONCLUSIONS – IDENTIFIED STATE OF AFFAIRS AND GAPS

The Current Situation

Gaps Identified

II CHAPTER 2 - JUVENILE JUSTICE IN BOSNIA AND HERZEGOVINA – ROLES AND RESPONSIBILITIES OF INSTITUTIONS IN THE SYSTEM

2.1 ASSESSMENT OF CURRENT PRACTICE IN THE STATE INSTITUTIONS

WITHIN THE JUVENILE JUSTICE SYSTEM

Justice System

Internal Affairs

Social Care

2.1.1 WORK OF INTERNAL AFFAIRS BODIES (POLICE)

Organisation of Work

Current Practice

Procedures of Work with Juveniles within Internal Affairs Bodies

(Police stations and Public Security Centres)

Legal provisions and deprivation of liberty

Internal Binding Documents pertaining to Arrest and the Deprivation of Liberty

Grounds for conduct of inquiry and deprivation of liberty

- Methods of apprehension

Procedure with a minor in police premises

Presence of parents

Examination of a juvenile

Engagement of a defence counsel

Forwarding of Cases to the Public Prosecutor’s Office

Remand in custody and deprivation of liberty

Caution that may be given by the police

Protection of information on juveniles

Police and prevention

Police co-operation with other institutions in the juvenile justice system

2.1.2. PROSECUTION

Organisation of work

Current practice

Completion of the preparatory proceedings

Public prosecutors in the situation of non-implementation of institutional measures in practice

2.1.3. COURT

Organisation of work

Current practice in the courts

Duration of court procedures and the importance of accelerating the process

Detention during preparatory proceedings

Bail in preparatory proceedings

Judges and the ordering of educational recommendations in the FBiH

Preparatory proceedings and the trial

The judge's responsibilities in the period of implementation of measures

Basic problems/Gaps noted in the practice of the courts

2.1.4 SOCIAL WELFARE CENTRES

Organisation of work

Current practice

Implementation of the measure of intensified supervision by a guardian body

Implementation of other measures by social welfare centres

Reporting to the court

Reform of criminal legislation and the position of the social welfare centre – an open question

III CHAPTER 3 - CRIMINAL SANCTIONS FOR JUVENILES IN BOSNIA AND HERZEGOVINA

3.1 ANALYSIS OF THE NATURE OF CRIMINAL SANCTIONS

Balance between the ‘welfare principle’ and the ‘justice principle’

Theoretical background

Restorative justice – a new model of response to juvenile offending

Analysis of some aspects of criminal sanctions in Bosnia and Herzegovina

3.1.1 EDUCATIONAL MEASURES OF AN INSTITUTIONAL TYPE

Placement in an educational institution

Placement in an educational/reformatory home

Placement in other correctional or special institutions

3.1.2 JUVENILE PRISON SENTENCE AND ITS IMPLEMENTATION IN PENAL-CORRECTIONAL INSTITUTIONS

Basic characteristics of work with juveniles in penitentiary institutions

Admittance, registration and transfer

Physical ambience and accommodation

Education, vocational training and work

Recreation, and practising of religion

Medical care

Contacts with family and the wider community

Complaints and the possibility of external supervision

Preparation for release

Education of staff in residential institutions

IV CHAPTER 4 - PREVENTION OF JUVENILE OFFENDING

Juvenile Justice Prevention – International Instruments

Juvenile Justice Prevention in BiH – existing plans

Preventive Programmes in the area of Juvenile Offending – experiences from Western Europe

V CHAPTER 5 - KEY AREAS TO BE ADDRESSED

5.1 LEGISLATION

5.2 INSTITUTIONS

Ministries and other government bodies (at various administrative levels in BiH)

The police

Prosecution

Court

ocial Welfare Centres

5.3 THE SYSTEM OF CRIMINAL SANCTIONS

5.4 PREVENTION

ANNEX I Compliance with of the Criminal Legislation of BIH with the Most Important Instruments Pertaining to Juvenile Delinquency

ANNEX II Criminal Sanctions for Juveniles in Republika Srpska and Federation of BIH and Frequency of Ordering and Implementation – Tables

ANNEX IIIProjects and Initiatives of Local and International Organisations in BiH in the Field of Juvenile Justice

ANNEX IVGlossary

Annex VList of Laws and International Instruments Consulted for Juvenile Justice Review

INTRODUCTION

This Review of Practice and Legislation in the Field of Juvenile Justice in Relation to the International Standards is the first of its kind in Bosnia and Herzegovina (BiH). It has been researched and compiled by Save the Children UK, with the financial support of UNICEF and SC UK, after the need for such an overview was highlighted in the context of the Rule of Law Task Force in 2002. The Analysis complements the study, Young People in Conflict with the Law in the Light of Topical Problems Related to Juvenile Justice in BiH, produced by the Open Society Fund BiH and UNICEF in 2002.

Information specific to the situation in BiH is included in the Analysis, as well as references to international standards and examples of good practice in the JJ field. Information was gathered from October 2002 to March 2003 through desk research and interviews, and data was requested from relevant ministries and agencies. This was, at times, a lengthy process because of the need to obtain permissions and compile information. Further analysis and views on the situation were obtained through interviews and contacts with some 35 practitioners and policy-makers across the country. Additional input was made by Ramiz Huremagić in terms of research into legislative instruments (Annex 1) and by Judge Jasmina Kosović. Judge Dragan Uletilovic and Nikhil Roy are appreciated for their contribution in consultation during the research. Comments were also added by members of the Juvenile Justice Sub-Issue Set, a working group of the Rule of Law Task Force, prior to publication.

By its nature, this Analysis is a snapshot of the various elements of JJ in BiH at a particular point in time. Arrangements and initiatives with respect to JJ vary widely across BiH, and there is an absence of routine analysis and compilation of data. It was not possible to obtain full details on the situation by making contact with each of the many ministries, prosecutors’ offices, courts, police stations, centres for social welfare, prisons and other institutions which work in different ways with children in conflict with the law. We sought, instead, to gather what was readily available, along with details about the JJ situation and initiatives in major urban areas. It was clear in this process that practice varies very widely and it has not been possible to draw conclusions about average or usual practice. As a result, the Analysis focuses on problems noted by respondents.

Legislative instruments governing JJ are extensive and vary widely across the country. Therefore, only relevant entity level legislation in the Federation of BiH and the Republika Srpska has been considered in this analysis. Upcoming changes in the Criminal Procedure and Criminal Codes as well as other legislation will inevitably bring some changes to policy and practice. This analysis, however, draws on the legislation which was in place in late 2002 (see Table of Statutes).

In highlighting some of the gaps in translating this legislation into practice, we hope this situation analysis will contribute towards promoting child-centred solutions which are feasible to implement. Specific reference has not been made to the Brčko district, but its different criminal laws and their implications in practice could be the subject of a later useful study.

With respect to international instruments, this Analysis refers primarily to United Nations conventions which underpin work in the field of juvenile justice. BiH is also party to European conventions, and various Council of Europe recommendations which, although not binding, nevertheless remain relevant and important.

A final word is necessary on issues of terminology. Throughout this document we have referred to terminology currently in use in BiH, while recognising that there are problems with some of the terms used. The changing nature of terminology in the JJ sector worldwide reflects developments in the understanding of the behaviour of children who come into conflict with the law. As such, these children are now seen as having harmed the community through their behaviour rather than seen as having criminal behaviour or committing criminal acts.

We are particularly grateful to the many people who contributed to this study for their willingness, time and insight. The immense interest in, and concern for, children coming into conflict with the law which was shown by all those we contacted is an indication of the broad consensus on the need for reform in the JJ system.

We look forward to this analysis providing a basis for the addition of further information so as to complete the picture, and serve as a foundation for developing reform initiatives in the Juvenile Justice sector in BiH. As examples in this document show, the most effective and cost-efficient approaches in terms of dealing with youth crime and young offenders are those that are community-based and simultaneously focused on rehabilitation and reintegration, rather than the more costly provision of residential and institutional care.

- List of acronyms used in the text

ABA CEELI / American Bar Association and East European Law Initiative
BiH / Bosnia and Herzegovina
CC / Criminal Code
CoE / Council of Europe
CPC / Criminal Procedure Code
CRA / Communication’s Regulatory Agency
CRS /

Catholic Relief Service

DfID / Department for International Development
EC / European Commission
EUPM / European Union Police Mission
FBiH / Federation of Bosnia and Herzegovina
IBHI / Independent Bureau for Humanitarian Issues
IJC / Independent Judicial Commission
IMC / Independent Media Commission
JTC / Judicial Training Centre
MUP / Ministry of Internal Affairs
NGO / Non-governmental organization
OHCHR / Office of the High Commissioner for Human Rights
OHR / Office of the High Representative
OSCE / Organisation for Security and Cooperation in Europe
OSF / Open Society Fund Bosnia and Herzegovina
PIC / Peace Implementation Council
PNOR / Intensified Supervision by parents
PNOS / Intensified Supervision by a Guardian Body/CSW
RoLTF / Rule of Law Task Force (OHR)
RS / Republika Srpska
SC UK /

Save the Children UK

UN / United Nations
UNCRC / United Nation’s Convention on the Rights of the Child
UNDP / United Nation’s Development Programme
UNICEF / United Nation’s Children Fund
UNIPTF / United Nation’s International Police Task Forces
UNMBiH / United Nation’s Mission to Bosnia and Herzegovina

CHAPTER 1

CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA

1.1 BASIC CHARACTERISTICS OF CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA (BiH)

A Child's Age in the Criminal Legislature of BiH

In Bosnia and Herzegovina (BiH), the Criminal Codes of the Federation of BiH (FBiH) and of the Republika Srpska (RS) define the child in conflict with the law as a minor who at the time of the offence is 14 to 18 years old. Under this definition, a “younger juvenile” is a person who, at the relevant time, is 14 to 16 years old, and an "older juvenile” is a person who, at the relevant time, is 16 to 18 years old.

- Children below the age of 14 are not held criminally liable before the law. These definitions are reflected in the measures and sanctions that may be used in the case of juvenile offenders (see Annex II, Types of Criminal Sanctions for Juveniles in BiH):

- For children up to the age of 14, the proceedings are ceased and criminal sanctions cannot be carried out. Parents or carers are notified about the offence in question along with social welfare services.

- For children aged 14 to 16 years (defined in legislation of both entities as a "younger juvenile"), sentences involving Educational Measures may be given, and in the Federation of BiH, Educational Recommendations may also be ordered.

- For children aged 16 to 18 years (defined in the legislation of both entities as an "older juvenile"), a prison sentence of duration from one to ten years may be ordered in addition to educational measures.

It should also be mentioned that legislation in both entities provides for the possibility of:

- educational measures (with close supervision or in institutions) for young adults between the ages of 18 and 21, if he or she has committed the offence as a juvenile

- educational measures (with close supervision or in institutions) for a young adult (i.e. a person who had turned 18 at the time of the offence and is under 21 at the time of the trial), where the court can reasonably assume that the educational measures will achieve the same result as punishment.

With the lower limit of the age of criminal responsibility set at 14, BiH falls in line with a group of European countries that includes Hungary, Italy, Croatia, Slovenia, Bulgaria, Germany, Rumania, Serbia and Montenegro, and Russia.

The issue of the lower age of criminal responsibility is a critical aspect to be considered in the process of law reform. The level at which the lower age limit is set does not by itself indicate whether a system of juvenile justice is predominantly repressive or directed towards rehabilitation. The age of criminal responsibility as defined by the law cannot indicate how the child is treated once he or she “gets into” the system.[1]

International standards:

The UNCRC in Article 40:

States Parties shall seek to promote establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the criminal law, and, in particular:

1. The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law.

The Guidelines for Periodic Reports to the Committee on the Rights of the Child that should be submitted by State Parties request information on the “establishment of a minimum age below which a child can be presumed not to have the capacity to infringe the penal law.”

The Beijing Rules demand under Rule 4 that:

“In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”

Examples from international practice:

In Scotland, where the minimum age is one of the lowest in the world (8 years), there is a progressive “children’s hearing” system, which enables children under 16 to avoid contact with the formal justice system for all but the most serious offences. In addition, the whole system is oriented towards non-custodial solutions.

In Romania, on the other hand, where the minimum age is 14, a child of that age can be brought to court and sentenced to detention.

The Age at which Criminal Offences are most Frequently Committed

In BiH, it is estimated that criminal offences are most frequently committed between the ages of 14 and 17, although it has been noted that younger children are increasingly coming into conflict with the law.[2] This rise in the number of children up to the age of 14 who have experienced conflict with the law is of exceptional importance, since research papers[3] point to a higher likelihood of recidivism of juvenile offenders who begin violating the law at a younger age. In the context of this analysis, it was not possible to follow up the aforementioned assessments to clarify whether the age limit is shifting toward younger age groups.

Status Offences – the Status of the Child and a Criminal Offence

In many countries, certain criminal acts constitute offences when committed by children, but the same acts are not treated as such when committed by adults. These so-called "status offences" are mainly related to situations where a child runs away from home or he or she is deemed to be out of control, or in cases of destitution, vagrancy, or even begging.[4]

Often, such status offences lead to “measures” which result in the children being put in prison or an institution. In BiH, legislative provisions do not connect an offence to the status of the child.[5] Children under the age of 14 cannot be sentenced by a court, whereas it is within the scope of social welfare services to provide services to homeless children vagrants or to children from economically vulnerable families.

In the process of law reform, the issue of status offences should be taken into consideration recognising the existing good solutions.

International standards:

“ …Legislation should be enacted to ensure that any conduct not considered an offence or not penalised if committed by an adult is not considered an offence and not penalised if committed by a young person”.

UN Guidelines for the Prevention of Juvenile Delinquency, Riyadh Guidelines

Gender Differences

The majority of minors who violate the law in BiH are boys. It is estimated that the ratio of boy to girl offenders is around 19 to 1. Girls tend to breach the law between the ages of 14 to 17, most commonly, as for boys, with offences against property.