Expert: System of confinement of juvenile offenders requires close attention

2014 2014-01-13T17:02:31+0300 2014-01-13T17:03:48+0300 en http://spring96.org/files/images/sources/nepaunagadovyja_pravaparushalniki.jpg The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
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As part of a campaign of monitoring places of detention in Belarus, lawyer Pavel Sapelka highlights conditions in juvenile correctional educational and medical institutions, and the reception centers for minors.

 

INTRODUCTION

Monitoring places of detention will be incomplete if limited to studying only those prisons, which are listed as such in the criminal-executive legislation.

In Belarus, alongside with the traditional prison system with its prisons, colonies and detention centers there is its counterpart adapted for the purposes of holding juvenile offenders. There exist specific "colonies" – special educational or medical institutions, "pre-trial prisons" – remand houses, and “punishment cells” – rehabilitation rooms.

The following text analyzes the conditions of placing minors in special education and medical institutions, as well as reception centers for minors.

 

HISTORICAL ASPECT

Special schools were opened in the USSR in 1964 to serve as closed educational institutions for educating and correcting minors aged 11 to 14 years who persistently and systematically violate the rules of social behavior or committed socially dangerous acts before the age of criminal responsibility. Teenage offenders were sent to special schools by decision of juvenile committees as the most important measure of impact on minors in need of special education conditions and a strict pedagogical discipline. To partially compensate for the cost, the pupils’ parents were charged. The special schools were run by educational authorities; training and educational work in them were based on a consecutive combination of training with socially useful work (taking into account the age and physical peculiarities of inmates); general education was based on regular curricula. Pupils could be kept in special schools until they reached 14 or 15. If by that time the pupil could not be recognized as reformed, he was transferred to a special vocational school.

Special vocational schools were established in the USSR in the same year for educating and correcting minors (aged 14 years) who willfully and systematically violate the rules of social behavior. The special schools also received teenagers who committed crimes of no great public danger, if the nature of the offense and the identity of the perpetrator allowed releasing him from criminal punishment and replacing it with other measures of treatment. Juvenile offenders were sent to these schools by decision of special juvenile commissions or a court ruling. Under a general rule, pupils could be held in the special schools for no more than 3 years and in the case of exemplary conduct and conscientious attitude to work and study they were transferred to a general type school or assisted in employment. Methodology of educational work, as well as a system of rewards and punishments respected the offenders’ identities and the need to correct them. During their stay in the special schools pupils received a profession (specialty), were employed as interns and took a qualifying exam under general requirements of vocational education; they were also provided with an opportunity to continue their general education. The pupils could fully enjoy the benefits of legislation governing the employment of minors. Supervision of law enforcement in the schools was entrusted to the prosecuting authorities. [1]

 

GROUNDS FOR CONFINEMENT

In accordance with the Law of the Republic of Belarus No. 200-3 “On Principles of Prevention of Juvenile Delinquency" of May 31, 2003, special educational institutions should admit juveniles in need of special education aged eleven to eighteen. Special medical institutions receive juveniles in need of special education aged eleven to eighteen, who have special needs or who suffer from diseases approved by the Ministry of Healthcare, or who are, in accordance with the laws, on drug treatment records. The special educational and special medical institutions cannot hold minors suffering from diseases that hinder their confinement, training and education in these institutions.

A minor is in need of special education conditions, if he or she has been sentenced to the use of compulsory educational measures in a special educational institution or a special medical-educational institution, or sent to a special educational institution or special healthcare institution by a court’s decision.

A teenager can be sent to a special educational institution or a special medical-educational institution if:

1) he or she has been freed from criminal liability or the case was closed because of failure to reach the age of criminal responsibility, or if as a result of mental retardation, that is not associated with mental disorder (disease), while committing a socially dangerous act, he or she was not able to realize the actual nature or social danger of his or her actions;

2 ) during one year he or she has been three times held administratively liable for the intentional infliction of bodily injury, or petty theft or intentional destruction or damage of property, or disorderly conduct, or drinking alcohol, soft drinks or beer in a public place or appearance in a public place or at work intoxicated, or prostitution, or knowingly false report or driving while intoxicated or driving without license and after individual preventive activities was once again brought to administrative responsibility for committing one of these administrative offenses and demonstrated unwillingness to pursue a law-abiding life;

3) during one year he or she has three times committed acts that contain signs of administrative offenses referred to in the preceding paragraph, but has not reached at the time of committing such acts the age of administrative liability, and after individual preventive activities was once again brought to administrative responsibility for committing one of the administrative offenses listed in the previous paragraph and demonstrated unwillingness to pursue a law-abiding life.

The measures can be applied to minors by a court decision.

The confinement in special educational or special medical educational institutions may be terminated early in accordance with the Criminal Code, in case the teenager has mastered the content of education of children in need of special education conditions.

Otherwise, the confinement may be extended for up to two years (in aggregate).

After the period set by the court is over the minor should be discharged from the institution.

Alternatively, the minor can at his own request and with the consent of parents or guardians stay in the institution to complete training for up to six months, regardless of age, having the right to leave the institution at any by an ordinary application and with the consent of parents or guardians. Such minors should not be subjected to measures of pedagogical influence.

Thus, a minor aged 11 can be placed in a correctional institution after committing an offense or several offenses. Besides, he or she can be sent to an institution after committing a socially dangerous act before the age of prosecution or being not aware of its actual nature.

 

CONFINEMENT PROCEDURES

In accordance with Article 117 of the Criminal Code of the Republic of Belarus (“Conviction of a minor with the use of compulsory educational measures”), if as a result of a trial it is discovered that the correction of a minor who committed an offense that does not pose great danger to society, or who has committed a less serious crime is possible without the use of criminal penalties, the court may rule to apply to that person coercive educational measures. Compulsory education measures may also be applied to a minor in the case of an uncollectible fine with no signs of payment evasion.

The court may order compulsory educational measures in a special institution for up to two years, as long as the juvenile offender is under eighteen. The detention may be discontinued by a court, if the minor has reformed and there is no need for further application of the specified compulsory educational measures, as well as in cases of circumstances preventing the convict from being held in these institutions.

In this case, placement in a special institution is an alternative to criminal punishment, which is a common practice and does not violate the rights of juvenile offenders. Moreover, the criminal proceedings are administered in compliance with, at least, formal guarantees of a fair trial: a court consisting of three people with two lay judges), with obligatory participation of the defense – a professional lawyer, a representative of the guardianship and wardship authority.

Control over the application of corrective measures is exercised by the provisions of the Criminal Executive Code.

Monitoring the implementation by juvenile convicts, institutions and individuals of the claims resulting from the use of compulsory educational measures against juvenile offenders, as well as preventive surveillance are run by juvenile inspections (a division of the Interior Ministry) at their place of residence or at special educational or medical institutions.

Juvenile inspections keep records of juveniles sentenced to compulsory educational measures, explain to them the procedure and conditions of execution and serving these measures, monitor the implementation of their duties, including those related to the execution of the relevant compulsory educational measures, apply incentives and reprimands.

Within ten days after the entry into force of the sentence, a juvenile convict is invited to the inspecting authority for registration.

When placing the juvenile offender in a special educational or medical institution, he or she should be transported there by the state agency and accompanied by an employee of the juvenile inspection.

The period of detention in a special institution is calculated in months from the date of arrival in the said institution.

Discontinuation of compulsory educational measures in connection with attaining majority does not imply an expiry of conviction, if its period has not expired, as established by Article 121 of the Criminal Code.

A juvenile convict may be awarded a commendation for good behavior and attitudes to learning.

For offenses related to public order, educational and labor discipline, for leaving the special educational institution or special medical and educational institution without permission from these institutions, juveniles may receive an official warning, and the second formal warning after committing these violations may result in a written reprimand.

In 2001, compulsory education measures (in various forms provided by Art. 117 of the Criminal Code) were applied in relation to 5.2 % of the convicts. In 2002, these measures were applied to 4.8% of convicted juveniles, in 2003 – to 7.1 %, in 2004 – to 10.8%, in 2005 – to 14.6%, in 2006 – to 17.3%, and in 2007 – to 19 % of the total number of under-aged convicts [2].

In other cases, minors are placed in a special institution on the basis of a court decision handed down by the rules of civil procedure. The legitimacy of such measures will be discussed below, after analyzing the provisions of the law governing the procedure for confinement and conditions of detention in these institutions.

In accordance with the Code of Civil Procedure of the Republic of Belarus, the statement about putting a minor in a special educational or medical-educational institution is filed to the court by the juvenile commission; similar statements are required for the transfer to another special educational or medical institution and the termination of a minor’s stay in these institutions before the expiration of the term ordered by the court, as well as the extension of the time of detention.

Placement in a reception center for juveniles is requested by the local authority of the Interior; the statement is considered by the court within fifteen days from the date of receipt. Attached to the application are materials provided by the legislation and supporting the need for the minor’s detention in a special educational or medical care institution or in a reception center. Such statements are considered by the court within three days of their receipt.

When considering an application, the court is obliged to call on the convict’s case or materials on the refusal to institute criminal proceedings.

The involvement of the minor facing special proceedings, his or her legal representative, a representative of the juvenile commission, who initiated the criminal case, as well as representatives of the prosecutor and the guardianship authority is mandatory.

Minors under the age of sixteen, as well as legal representatives of minors who refuse to appear in court, can be subjected to detention by a court’s decision.

In accordance with the Code of Civil Procedure, minors who have reached the age of fourteen have the right to appeal personally to the court to protect their rights and interests protected by law and use at any time assistance from their lawyers and other representatives in court without the consent of parents, adoptive parents or guardians. The question of involvement of parents, adoptive parents or guardians of minors to assist them is resolved by the court.

The rights and legitimate interests of minors under the age of fourteen, as well as citizens adjudged incapable, shall be protected by their legal representatives – parents, adoptive parents or guardians.

Participation of a professional lawyer is allowed on general grounds stipulated in civil proceedings, but is not binding. In accordance with the Law “On the Legal Profession and Lawyers’ Activities in the Republic of Belarus”, legal assistance to minors – in their interests, to their parents (guardians, trustees) – is provided at the expense of the bar associations. However, a lawyer’s involvement in the trial requires an initiative of the court or persons involved in proceedings, which in practice leads to the fact that the cases in this category are usually considered without a lawyer.

Having considered the application on the merits, the court shall issue a reasoned decision, and in the cases provided by law – a definition to either meet the application or reject it.

The decision that entered into force is the basis for sending the minor to a special educational or medical-educational institution for a period specified by the court, or to transfer to another special institution, or to terminate his or her stay in these institutions before the expiration of the term of sentence, as well as for its extension.

The court ruling on placing a juvenile in a reception center, on extension of the term of detention in a reception center or the release are subject to immediate execution.

 

LEGAL STATUS OF INMATES AT SPECIAL INSTITUTIONS

The Law of the Republic of Belarus No. 200-3 of May 31, 2003 “On Basic Principles of Prevention of Child Neglect and Juvenile Delinquency” defines the rights of juveniles placed in institutions in charge of prevention of child neglect and juvenile delinquency.

Juveniles held in these institutions are entitled to:

-          notification of parents or guardians of minors on their detention in the institutions;

-          appealing against decisions of bodies and institutions engaged in the prevention of child neglect and juvenile delinquency to higher authorities, the prosecutor's office or the court;

-          humane treatment with no signs of degrading their dignity;

-          contacts with the family through phone calls and visits that are not limited in their number;

-          receiving parcels, packages, sending and receiving letters and telegrams in unlimited numbers;

-          free food, clothing, footwear and other essentials at the rates approved by the Government of the Republic of Belarus.

In accordance with the law, heads of special educational and medical and educational institutions:

-          organize educational and training processes, create and implement special conditions of education;

-          inform the bodies of internal affairs on the cases of leaving special institutions without the permission and, together with the internal affairs authorities, take steps to return the inmates to these institutions;

-          send to the juvenile commissions and the bodies of internal affairs a notice of termination of detention in these institutions no later than one month prior to their release, as well as the characteristics of such pupils and their recommendations on the need of individual preventive work and assisting them in employment and providing living conditions;

-          arrange personal inspection of pupils, inspection of their belongings, received and sent letters, parcels or other mail messages, inspection of these institutions, residential and other premises and property contained therein, identification and removal of items in accordance with the law;

-          submit applications to the court to transfer the inmates from special educational institutions to special medical institutions, on early termination of detention in these institutions before the expiration of the term of the court’s ruling, and the extension of this period;

-          use measures of pedagogical influence;

-          exercise other powers to prevent child neglect and juvenile delinquency, as provided by the legislation.

Measures of pedagogical influence, apart from the measures provided by the legislation on education (remark and reprimand) are:

-          prohibition of leaving the territory of the special educational institutions, special medical and educational institutions;

-          placement in a readaptation room.

Prohibition of going beyond the territory of a special institution suggests a ban on leaving it in an organized group to attend cultural or sporting events.

Readaptation confinement is placing a pupil in a separate premises for his or her isolation from the rest of the inmates in order to ensure his or her personal safety or the safety of others.

The pupil cannot be placed in the readaptation room for more than two days. The room shall provide conditions ensuring continuous monitoring of the inmate. The room’s sizes, lighting and temperature shall comply with the requirements of the applicable legislation. The inmate shall receive food ​​under the general rules in accordance with the order of the day.

In accordance with the Code on Education, the decision on the application of disciplinary measures to the pupil may be appealed by the inmate, the minor’s legal representative to a higher organization or the court within one month.

Conditions for placing juveniles in special educational institutions, special medical institution and the conditions of their detention are determined by regulations on the specific form of special educational institutions, special medical and educational institutions.

Governmental bodies, within their competence, shall exercise control over the activities of subordinate bodies, institutions and other organizations engaged in the prevention of child neglect and juvenile delinquency, in the manner prescribed by law.

Supervision of the correct and uniform application of the legislation on prevention of child neglect and juvenile delinquency by officials and citizens is exercised by the Prosecutor General’s Office of the Republic of Belarus and subordinate prosecutors within their competence.

 

RECEPTION CENTERS FOR MINORS

Special units of the Interior system in charge of implementing measures to prevent child neglect and juvenile delinquency are:

-          juvenile inspections;

-          reception centers for minors.

Reception centers for minors within its competence:

-          provide round the clock reception and temporary detention of minors in order to protect life, health and prevent re-offending;

-          carry out individual preventive work with detained minors, identify the causes and conditions that contribute to neglect, homelessness, or crime committed by juveniles, and inform the concerned authorities, institutions and other organizations;

-          transport minors to special educational institutions, special medical and educational institutions, as well as carry out other measures to accommodate juveniles in these institutions.

The reception centers for minors may receive minors who:

-          were sent by a court ruling to special educational institutions, special medical institutions;

-          await trial to consider the question of placing them in special educational institutions, special medical institution – on the basis of the court’s ruling when necessary to protect life or health; to avoid repetitive socially dangerous acts; in case they have no place of residence; in case of failure to appear in court or to undergo a medical examination;

-          willfully left special educational institutions, special medical and educational institutions; being neglected or homeless – to establish their identity and to transport them to special educational institutions, special medical and educational institutions, or to their parents or legal guardians;

-          in respect of whom criminal charges were dropped or criminal proceedings were terminated due to failure to reach the age of criminal liability, or who, because of mental retardation, that is not associated with mental disorder (disease), at the time of committing a socially dangerous act were not able to realize the actual nature or social danger of his or her actions; – in cases where it is necessary to protect the life or health of minors or prevent the commission of socially dangerous acts, as well as in cases where their identity is not established, or they have no place residence or permanent residence in the Republic of Belarus;

-          committed acts punishable under the Code of Administrative Offences; - in cases where their identity is not established, or they have no place of residence or permanent residence in the Republic of Belarus.

Minors may be placed in reception centers under a court’s decision.

In exceptional cases, juveniles may be placed in reception centers for minors on the basis of an order by head of the body of the Interior or his deputy. In this case, materials related to these minors within three days after they were placed in reception centers for minors shall be submitted to the court to decide on their future detention or release.

The detention of minors in reception centers shall be within 24 hours reported to the prosecutor and the local juvenile commission.

Minors awaiting a court’s decision on placing them in special institutions may be held in a reception center for the minimum period of time necessary for their accommodation, but not more than 30 days, if their identity is not established, or they have no place residence or permanent residence in the Republic of Belarus – no more than 60 days. In exceptional cases, this period may be extended on the basis of a court’s decision for up to 15 days.

The period of detention in the juvenile reception center does not include:

-          quarantine period declared by the health care authorities or a public health care organization;

-          the minor’s illness documented by a public health care organizations and prevents his or her return to the family or transportation to a special institution;

-          period of appealing against the sentence of the court on the placement of a minor in a special educational institution, or a special medical-educational institution.

 

TYPES OF SPECIAL EDUCATIONAL INSTITUTIONS

In accordance with the Education Code, regulations on the specific type of educational institution are approved by the Government of the Republic of Belarus or by the authorized state body. Special educational institutions and special medical institution can only be public.

Special educational institutions can be of the following types: closed special schools, and closed special vocational schools.

The Code stipulates that a special school of the closed type is a special educational closed institution that implements a program of educating children in need of special education, using educational curricula of general secondary education, special education and additional education, and is created for children aged eleven to fifteen.

A special vocational school of the closed type is a special educational institution that provides vocational training and a secondary education or additional education for children with special needs aged eleven to eighteen.

A special medical-educational institution is an institution providing general secondary education and vocational education for children with intellectual disabilities, as well as additional education in compliance with the principle of separation of living, training and education of both sexes; the list of disorders is approved by the Ministry of Health Care – this includes minors who are registered as drug addicts.

In accordance with the Code, special medical institutions can be of the following types: special medical-educational schools of the closed type, and special medical and educational vocational schools of the closed type.

Special medical educational schools of the closed type provide education to persons with mental disabilities, suffering from diseases or drug addiction aged eleven to fifteen.

Special medical-educational vocational schools of the closed type provide vocational training to the above categories of minors aged eleven to eighteen. Children with special education needs aged eleven to fourteen are accommodated in separate premises.

 

LEGAL ASPECTS AND COMPARATIVE ANALYSIS

Analysis of conditions of detention in special educational and health care institutions suggests viewing this type of confinement as a form of liability and imprisonment; at the same time it is characterized by the following conditions:

-          minors cannot leave the institution without permission;

-          minors are subject to personal inspection;

-          the inmates’ personal belongings, their correspondence or other messages are subject to inspection;

-          the territory of institutions, residential and other premises and all property contained therein are subject to examination aimed at identifying and seizing prohibited items;

-          in case of violation of the established rules, the period of detention in the facility may be extended;

-          inmates can be subjected to interventions, including separation from the rest of the pupils.

Therefore, decision to enforce detention in such institutions must be accompanied by the observance of all the conditions that guarantee a fair trial. Given the peculiarities of civil procedures in relation to juvenile offenders, they should be entitled to, at least, no less scope of rights process when deciding on placing them in an educational institution than in criminal proceedings, namely: to provide for a collective review of these cases, to allow the mandatory participation of a professional lawyer representing a minor and exemption from court costs in an appeal against a court decision; it is also necessary to lower the age of civil procedural capacity to 11 years.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”) [3] provide that “restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;”

“The well-being of the juvenile shall be the guiding factor in the consideration of her or his case,” further reads the document.

“No juvenile shall be removed from parental supervision, whether partly or entirely, unless the circumstances of her or his case make this necessary. Separation of children from their parents is a measure of last resort, it may be resorted to only in cases where the facts of the case clearly warrant this grave step (e.g., child abuse).”

The quasi-criminal liability of minors established by law in Belarus is unique as compared to the legislative regulation of this issue in Russia and Ukraine.

In accordance with Federal Law of June 24, 1999 No. 120-FZ “On the Basics of the System of Prevention of Child Neglect and Juvenile Offences” (with amendments), the special educational institutions of the closed type can receive minors aged eleven to eighteen in need of special conditions of education, training or special pedagogical approach in cases where they:

1) are not subject to criminal liability in connection with the fact that at the time of committing a socially dangerous act they have not reached the age of criminal responsibility;

2) have reached the age stipulated by Para. 1 or 2 of Article 20 of the Criminal Code of the Russian Federation, and are not subject to criminal liability in connection with the fact that due to mental retardation, that is not associated with mental disorder, at the time of committing a socially dangerous act they could not full realize of the actual nature and social danger of their actions (inaction) or to control them;

3) have been convicted of a grave crime and released from punishment by the court in the manner prescribed by Par. 2 of Article 92 of the Criminal Code of the Russian Federation.

The detention of juveniles in special educational institutions of the closed type can only be ordred by judgment or decision of a judge.

In accordance with the Ukrainian Law of January 24, 1995 No. 20/95-VR “On Bodies and Services for Children and Special Facilities for Children”, rehabilitation schools for children with special education needs are subordinate to the central body of executive power, which ensures the formation of state policy in the sphere of education and science. These institutions may receive perpetrators of a criminal offense under the age of 18 or an offense allowing to apply criminal responsibility.

Thus, in these countries juveniles can be placed in special institutions only for committing a crime or socially dangerous act, which is not considered a crime only because of the failure to reach the age of criminal responsibility.

 

CONCLUSIONS

The existing system of confinement of juvenile offenders in Belarus requires prompt attention and legislative improvements. Restrictions on the freedom of the child is legally possible not only in relation to a crime, but also for repeatedly committed administrative offenses. Minors are not guaranteed a fair trial when considering their sending to institutions in civil proceedings. There is the possibility of a non-judicial detention of minors in the correctional facilities run by the Ministry of the Interior.

[1] The Great Soviet Encyclopedia: in 30 volumes – Moscow: “Sovetskaya entsiklopediya”, 1969-1978.

[2] Analysis of practices of the courts’ decisions to apply criminal penalties in the Republic of Belarus in 2007 (according to court statistics)

[3] adopted by the General Assembly Resolution No. 40/33 of November 29, 1985

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