Published by Save the Children UK,
Bosnia and Herzegovina Programme
Researched and prepared by:
Annex I prepared by:
Prepared for publishing by:
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
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
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?
The importance of statistics
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
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
2.1.1 WORK OF INTERNAL AFFAIRS BODIES (POLICE)
Organisation of Work
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
Organisation of work
Completion of the preparatory proceedings
Public prosecutors in the situation of non-implementation of institutional measures in practice
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
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’
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
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
Ministries and other government bodies (at various administrative levels in BiH)
ocial Welfare Centres
5.3 THE SYSTEM OF CRIMINAL SANCTIONS
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 VList of Laws and International Instruments Consulted for Juvenile Justice Review
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 textABA 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
Catholic Relief ServiceDfID / 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 UKUN / 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
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.
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:
- 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. 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 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.
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. 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.
“ …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
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.