Social Fieldwork Research (FRANET)
Procedural safeguards for children who
are suspects or accused persons in
criminal proceedings
Estonia,
2021
Contractors: Estonian Human Rights Centre, Praxis Center for
Policy Studies
Authors: Mari-Liis Sepper, Merlin Nuiamäe, Liina Laanpere
DISCLAIMER: This document was commissioned under contract as background material for a comparative
analysis by the European Union Agency for Fundamental Rights (FRA) for the project Procedural safeguards for
children who are suspects or accused persons in criminal proceedings | European Union Agency for
Fundamental Rights (europa.eu)
. The information and views contained in the document do not necessarily reflect the views or the
official position of FRA. The document is made publicly available for transparency and information
purposes only and does not constitute legal advice or legal opinion.
Table of Contents
PART A. EXECUTIVE SUMMARY .................................................................................................... 1
PART B. INTRODUCTION ............................................................................................................... 3
PART C. RESEARCH FINDINGS ....................................................................................................... 6
• C.1 Implementation of Directive (EU) 2016/800 ...................................................................... 6
a. Transposition of the Directive (EU) 2016/800 ......................................................................... 6
b. Scope of the Directive’s application and relevant age categories .......................................... 7
c. Special training ......................................................................................................................... 7
i. Legal overview ...................................................................................................................... 7
ii. Special training received by interviewees ........................................................................... 8
d. Effectiveness of measures / Monitoring ................................................................................. 9
• C.2 Age assessment and the presumption to be a child in case of remaining uncertainty ..... 9
a. Legal overview ......................................................................................................................... 9
b. How is the age of a person suspected or accused of a crime assessed and determined in
practice?.......................................................................................................................................... 9
c. Discussion of findings ............................................................................................................. 11
• C.3 The rights to information, having the holder of parental responsibility informed and
audio-visual recording of the questioning.............................................................................. 11
a. The right to information ........................................................................................................ 12
i. Legal overview .................................................................................................................... 12
ii. Information about procedural rights and safeguards in practice ..................................... 12
iii. Information about the general conduct of the proceedings ............................................ 15
b. Right to have the holder of parental responsibility informed ............................................... 16
i. Legal overview .................................................................................................................... 16
ii. Informing the holders of parental responsibility............................................................... 17
iii. Having a nominated/designated person informed .......................................................... 18
iv. Involvement of parents or designated persons in the criminal proceedings ................... 18
c. Audiovisual recording of questioning and due verification of written records ..................... 19
i. Legal overview .................................................................................................................... 19
ii. Implementation in practice ............................................................................................... 19
d. Discussion of findings ............................................................................................................ 19
• C.4 The rights to be assisted by a lawyer and legal aid .......................................................... 20
a. Legal overview ....................................................................................................................... 20
b. Assistance by a lawyer and legal aid ..................................................................................... 20
c. Effective participation of a lawyer ......................................................................................... 22
2
d. Confidential and private consultations and meetings ........................................................... 24
e. Cooperation with the child’s holder of parental responsibility ............................................. 25
• C.5 The right to an individual assessment .............................................................................. 25
a. Legal overview ....................................................................................................................... 25
b. Individual assessment and exceptions in practice ................................................................ 26
c. How and for what purposes are the results of the individual assessment used by national
authorities in practice? ................................................................................................................. 29
d. Challenges.............................................................................................................................. 30
e. Discussion of findings............................................................................................................. 30
• C.6 Deprivation of liberty as a last resort and safeguards for children who are deprived of
their liberty ............................................................................................................................. 31
i. Legal overview .................................................................................................................... 31
ii. Deprivation of liberty as a last resort measure and the application of measures
alternative to detention ............................................................................................................ 32
b. Medical examination ............................................................................................................. 34
i. Legal overview .................................................................................................................... 34
ii. The medical examination in practice................................................................................. 34
iii. How and for what purposes are the results of the medical examination used by national
authorities in practice? ............................................................................................................. 35
c. Special treatment in detention .............................................................................................. 36
i. Legal overview .................................................................................................................... 36
ii. The special treatment in practice ...................................................................................... 36
d. Contact with family members during deprivation of liberty ................................................. 38
e. Discussion of findings............................................................................................................. 38
• C.7 The rights to effectively participate in and be accompanied during the trial .................. 38
a. Legal overview ....................................................................................................................... 38
b. Right to effective participation in practice ............................................................................ 39
i. Enabling the child’s effective participations - Modifications of settings and conduct ....... 39
ii. How are children heard and their views taken into account? .......................................... 41
c. The right to be accompanied by the holder of parental responsibility ................................. 43
d. Discussion of findings ................................................................................................................ 43
PART D. GENERAL ASSESSMENT ................................................................................................. 44
• D.1 Challenges ........................................................................................................................ 44
• D.3 Promising practices .......................................................................................................... 45
PART E. CONCLUSIONS ............................................................................................................... 46
3
ANNEX 1 – Overview of national organisations working with children who are suspects or accused
persons in criminal proceedings ................................................................................................. 48
ANNEX 2 – Tables ....................................................................................................................... 49
4
List of Tables
Table 1 Sample professionals
Table 2 Providing information on procedural guarantees (answers by the police officers)
Table 3 Providing information on procedural guarantees (answers by the lawyers)
Table 4 Providing information on procedural guarantees (answers by the prosecutors and judges)
Table 5 Providing information on procedural guarantees (answers by the other professionals)
5
PART A. EXECUTIVE SUMMARY
The report presents the findings of the study on application of procedural safeguards for children who
are suspects or accused persons in criminal proceedings in Estonia. These safeguards are prescribed
in Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on
procedural safeguards for children who are suspects or accused persons in criminal proceedings. The
Directive (EU) 2016/800 was transposed into Estonian legal system in 2019 by amendments to four
laws – the Code of Criminal Procedure (Kriminaalmenetluse seadustik), the Imprisonment Act
(Vangistusseadus), the Probation Supervision Act (Kriminaalhooldusseadus), and the Code of
Misdemeanour Procedure (Väärteomenetluse seadustik).1 The main amendments concerned the right
to individual assessment and medical examination, audiovisual recording of questioning, the right to
informing of the holder of parental responsibility and their participation in the proceedings. According
to the explanatory memorandum to the transposition bill, Article 6 (assistance by a lawyer), Article 10
(limitation of deprivation of liberty), Article 11 (alternative measures), Article 14 (right to protection
of privacy), Article 16 (right to participate in trial), Article 18 (legal aid) and Article 19 (remedies) of
the Directive already existed in the Code of Criminal Procedure and did not require amendments.2
This report gives an overview of the law in force in Estonia as of April 2021 and the findings of 20
interviews conducted with various professionals who encounter the child suspects and accused. The
report follows the structure of the questionnaire used to interview the experts. It covers the topics of
age assessment, the right to information, legal aid, individual assessment, safeguards for children who
are deprived of their liberty and the right to effectively participate in the trial.
The age assessment of children using other means than documents or public registers does not seem
to be a concern in Estonia. There were very few professionals who had heard of any cases where the
child´s age could not have been determined without the help of experts. Based on the interviewees’
responses, it seems that child suspects and accused typically have their documents or data in the
public registers (e.g. Population Register), and age assessment is done routinely by the officials who
come into contact with the children.
The groups of professionals gave differing answers regarding how children are informed of their rights
in Estonia. The right which was most often mentioned was the right to have a lawyer. The professionals
also reported different views on who the main person informing the children is. The police officers
were perhaps most confident that they are the primary source of the information on rights for the
child suspect. The written declaration of rights was mentioned many times and it seems to be a well-
established practice to show or read the declaration to a child. The accounts on whether children
understand the information vary. The legal professionals were more certain that this depends on the
child, while the interviewed other professionals were slightly more critical as to the accessibility of the
information given to the children.
There do not seem to be unified guidelines outside of the law which the professionals would follow
when in contact with a child in criminal proceedings. The professionals seem to have a considerable
freedom to decide how to conduct the proceedings, as long as they follow the law in force.
1
Estonia, Riigi Teataja, Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide
kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 4 December 2019.
2
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku ja
teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, 11 July 2019.
A state paid lawyer is always appointed to accused or suspected children by law. The lawyer usually
meets with the child before the first questioning by the police, and they can always have private and
confidential meetings, if necessary. The questioning and court hearings cannot happen without the
presence of a lawyer, however, there have been cases where the police have pressured the child to
write a sincere confession without the lawyer being present. According to the interviewees, the
lawyers can always effectively participate in all stages of the proceedings and there are no challenges
regarding that.
The individual assessment is understood very differently by different groups of professionals,
depending on the area of their work and which stage of the criminal proceedings they are familiar
with. The interviewees named several different assessments when asked about an individual
assessment. Based on the findings, some form of assessment or collecting of information on the child
is carried out by the police. If the case is taken to court, a pre-trial report is prepared upon the request
of the prosecutor. If the officials so decide, the child may be subjected to a forensic psychological
assessment. Also, a risk assessment of a child was mentioned as one form of assessments which is
carried out for children on probation.
According to all interviewees, deprivation of liberty of a child is used as a last resort and used very
rarely. The most common alternative measures to deprivation of liberty include placing a child in a
closed childcare institution, house arrest, electronic surveillance, community service, different types
of therapy and social programmes. According to the interviewees, everyone (including the child, their
parents, or the lawyer) has the right to request a medical examination throughout the procedure,
however, children or their parents may not be aware of that right. Medical examination is always
performed when a child arrives in prison, however, there are challenges related to lack of medical
staff in detention houses and closed childcare institutions.
The interviewed experts’ experiences and opinions vary regarding children having access to health
care services, physical and mental development measures, education, and training, as well as
programmes that foster their personal development and reintegration into society. While most agree
that there is appropriate access to education and training, as well as urgent health care services and
physical development measures, there is room for improvement in the provision of mental health care
and mental development measures. Furthermore, most importantly, there is a need for programmes
that help with reintegrating children into society, which are currently lacking or rely on the child’s own
motivation to participate.
The child is offered a chance to speak their mind at the courtroom if their procedure is of a type that
there is a court hearing with the defence and prosecution invited to express their views. The
courtrooms are the same for all – adults and children alike. The judges make an extra effort to make
sure that the child understands what is going on and what is talked about during the hearing. The child
is accompanied at the court by a lawyer and a parent.
There are conflicting opinions among the professionals on whether the court hearing is declared
closed, some interviewees claimed that the hearing is closed, some said that the hearing is declared
closed only if there is a need for it.
2
PART B. INTRODUCTION
The present research studied the application of procedural safeguards for children who are suspects
or accused persons in criminal proceedings in Estonia. These safeguards are prescribed in Directive
(EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural
safeguards for children who are suspects or accused persons in criminal proceedings.
The study aimed to learn from the professionals involved in criminal proceedings of children how the
procedural safeguards of children are respected in practice in the period after the expiry of the
transposition deadline of the Directive, i.e. after 11 June 2019.
For data collection purposes, in total, 20 eligible interviews were carried out in the timeframe of
March 2021 to June 2021. The sample is described below.
All the interviews were conducted via internet due to the COVID-19 pandemic.
o PREPARATION OF FIELDWORK, IDENTIFICATION AND RECRUITMENT OF PARTICIPANTS
Two interviewers from Praxis Center for Policy Studies have prior experience in interviewing experts,
one of the two is a trained sociologist, the other a lawyer.
Recruitment was managed by the lead of the consortium – Estonian Human Rights Centre. The experts
were contacted via email and asked for their consent to be interviewed. Recruitment of the
interviewees took place also during the interviews with the professionals. The professionals were
asked to point out colleagues whose experience could be useful for the study.
It was particularly challenging to find defence lawyers who would have the necessary experience with
working with children and who would agree to an interview.
o SAMPLE AND DESCRIPTION OF FIELDWORK
The sample size was determined by the Fundamental Rights Agency who is tasked to carry out a
comparative research on procedural safeguards of children in criminal proceedings. 20 interviews
were to be conducted.
The sample was further formed taking into account the following criteria: profession of the person
(e.g. lawyer, prosecutor etc), the region where the expert works, the extent of experience with the
criminal proceedings of children. The goal was to reach out to experts who had considerable
experience with children in criminal proceedings.
There are many more women in the sample than men because more women specialise in juvenile
matters – gender stereotypes and segregated occupational choices are behind this phenomenon. Also,
in Estonia many judges (in 2020 in Estonia 157 women and 84 men were judges3) and prosecutors are
women, and in the police force the gender balance is better than in most European countries. Already
in 2006 Estonia had the highest proportion of women in the police force (33%) in Europe. The reasons
behind this are historically low salaries and/or low prestige of these professions which allows women
to have a career in these institutions and experience less gender related barriers.
Initially, the analysis was supposed to compare the findings of interviews with children with the
findings of experts´ study to establish regional differences and to verify and validate the findings of
3
The data from the 2020 yearbook of Estonian courts: https://aastaraamat.riigikohus.ee/taiskogust-taiskoguni/
3
the two studies. However, this criterion of the sample was dropped during recruitment of children
due to difficulties of finding any children who would correspond to the requirements and who would
agree to participate in the study. Therefore, this analysis does not feature any regional particularities
or commonalities.
The sample was sufficiently large to achieve information saturation. With all professional groups, after
2-3 interviews there was little new information that came up in the last interviews.
The professional classification of the sample professionals is following:
Police officers:
Requested: 4, completed: 4
Defence lawyers:
Requested: 5, completed: 4
Judges/prosecutors:
Requested: 5, completed: 5
(Non-legal) Specialists (or below referred often as “the other professionals”):
Requested: 6, completed: 7
Table 1: Sample professionals
Group Expertise in juvenile criminal justice Gender
Police 10 years of experience with children´s cases.
M
officer
Police In the field of juvenile criminal proceedings 7 years.
F
officer
Has been working with children since 2006. First, in the field of law enforcement, from the
Police
beginning of 2020, in criminal police in the field of crimes committed by and against F
officer
children.
Police Interviewees are investigators who deal with children suspected and accused in criminal
F
officers proceedings, and conduct pre-trial proceedings.
Defence As a judge 15 y of experience with some encounter with juvenile cases. Now since 28 y a
F
lawyer lawyer specialising in family law, this includes juvenile cases.
Defence 20 years as a lawyer, specialising in cases with children.
F
lawyer
Defence The interviewee has worked as a lawyer for about 20 years. A few years ago, she started to
F
lawyer deal more with juvenile criminal law.
Defence Experience as a lawyer in juvenile criminal cases for 3 years.
F
lawyer
Has worked as a criminal judge for 11 years. Specialising in children suspects/accused for
Judge F
several years. Every month she comes in contact with a child at the court.
Prosecu Started working with children in 2010. More specifically, in her work she deals with child
F
tor suspects and accused children as well as victims.
Experience as a judge specialising in children for 24 y – this involves cases where the
Judge F
accused or the victim is a child.
Prosecu Has worked in the prosecutor's office since 2019. In the field of juvenile criminal justice,
F
tor the interviewee has workedsince the beginning of 2021.
Prosecu 15 years of experience at the Prosecutor's Office with children who are accused of crime.
F
tor
(Non- Has had professional experience since 2014 when she started working in a youth unit in a
legal) prison. She also deals with young people primarily as a multidimensional family therapy
F
Speciali (MDFT) supervisor-therapist in an educational institution, where children with mental
st – disorders and behavioural problems are referred to.
4
therapis
t
(Non- Has been working as a supervisor of the multidimensional family therapy programme since
legal) 2015.
Speciali
F
st –
therapis
t
(Non- Has 5 years of experience as a police inspector. and ,ore than a year as a probation officer
legal) in the juvenile justice area.
Speciali
st – F
probati
on
officer
(Non- Conducts forensic examinations since 5 years.
legal)
Speciali
st – F
clinical
psychol
ogist
(Non- For 5 y has worked as a probation officer for children and young people in a prison.
legal)
Speciali
st – F
probati
on
officer
(Non- 14 years of experience of working with children in different units at the police, prison and
legal) the prosecutor's office.
Speciali
st –
consult F
ant at a
prosecu
tor´s
office
(Non- Has 3 years of experience in the field of juvenile justice. The interviewee has more
legal) experience with children against whom crimes have been committed and less experience
Speciali with children who have committed crimes themselves.
st –
official F
at a
child
protecti
on unit
The average length of interviews was about 80 minutes.
The cooperativeness and openness of the interviewees varied – some were very open and ready to
talk about their experiences, including the challenging cases and practices, while others were more
laconic and appeared to maintain an official policy line when answering. The atmosphere was mostly
calm and professional. There were no interviewees with visible signs of distrust towards the
interviewer.
Several interviewees expressed that they are very interested in the results of this research project to
grasp the so-called big picture of juvenile criminal system in Estonia.
5
o DATA ANALYSIS
The responses of the 20 interviewees were broken down to smaller occupational groups to be
compared under each topic of the interview (e.g. access to information about procedural guarantees,
experience with deprivation of liberty, etc) in order to establish patterns, overlaps, or inconsistencies
in answers provided. The patterns of answers in the professional groups were then compared between
the groups. If there were no significant differences between the professional groups, the findings were
presented discussing the professionals as such without the references to the subgroups (e.g. police
officers or lawyers).
Since the questionnaire was very detailed and covered a wide range of topics, no coding was used to
analyse the data.
o BRIEF OVERVIEW OF THE REPORT’S CONTENTS
The report will present the study results organised by topics discussed at the interviews. Each topic is
an individual chapter divided into subparagraphs. The key findings are found in the end of the chapter
side by side with the suggestions given by the interviewees.
The report features following topics: age assessment, right to information, right to individual
assessment, right to a lawyer, deprivation of liberty and, right to be heard in court.
The conclusions, including challenges and promising practices, and reoccurring suggestions are
presented in the end of this report.
PART C. RESEARCH FINDINGS
C.1 Implementation of Directive (EU) 2016/800
a. Transposition of the Directive (EU) 2016/800
The Directive (EU) 2016/800 was transposed in 2019 by amendments to four laws – the Code of
Criminal Procedure, the Imprisonment Act (Vangistusseadus), the Probation Supervision Act
(Kriminaalhooldusseadus), and the Code of Misdemeanour Procedure (Väärteomenetluse seadustik).4
The amendment to the Code of Misdemeanour Procedure provided that underage subjects (children
aged 14 to 17) to misdemeanour proceedings have the rights provided for in the Code of Criminal
Procedure in two cases: when being detained or during court proceedings.5 The amendment to the
Probation Supervision Act clarified the right to individual assessment when preparing a pre-trial
report, which is a report containing a summary of the personal characteristics, social circumstances,
biographical facts and a psychological-social prognosis of the suspect or the accused. It is prepared by
a probation officer from the probation department of the place of residence of the suspect or accused
person at the request of the court or the prosecutor.6 The changes to the Imprisonment Act outlined
the exception to the requirement of segregation of children and adult detainees (in case it is contrary
to the interests of the child), as well as the purpose of the medical examination.7 The amendments to
the Code of Criminal Procedure clarified the rights of a child defendants, including the right to an
4
Estonia, Riigi Teataja, Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide
kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 4 December 2019.
5
Estonia, Riigi Teataja, Code of Misdemeanour Procedure (Väärteomenetluse seadustik), § 19 (11), 22 May
2002.
6
Estonia, Riigi Teataja, Probation Supervision Act (Kriminaalhooldusseadus) § 23, § 24, 17 December 1997.
7
Estonia, Riigi Teataja, Imprisonment Act (Vangistusseadus), §12 (5), § 14 (11), 14 June 2000.
6
individual assessment and a medical examination, as well as the right to informing of the holder of
parental responsibility and their participation in the proceedings.8
According to the explanatory memorandum to the transposition bill, Article 6 (assistance by a lawyer),
Article 10 (limitation of deprivation of liberty), Article 11 (alternative measures), Article 14 (right to
protection of privacy), Article 16 (right to participate in trial), Article 18 (legal aid) and Article 19
(remedies) of the Directive already existed in the Code of Criminal Procedure and did not require
amendments.9
Until 2018, juvenile offence matters were heard in juvenile committees, regulated by the Juvenile
Sanctions Act (Alaealise mõjutusvahendite seadus).10 This act was repealed, and the committees were
eliminated in 2018, when amendments to the Penal Code (Karistusseadustik), the Code of Criminal
Procedure and other laws entered into force, changing the treatment of juvenile offenders. These
amendments aimed to ensure faster and more effective response to offences committed by children
and to establish a system of special treatment for child defendants. The principles of the Directive
were also taken into account in preparing the implementation of these changes.11
b. Scope of the Directive’s application and relevant age categories
In Estonia, proceedings against children who are suspected or accused of a crime are considered
criminal proceedings, regulated by the Code of Criminal Procedure (Kriminaalmenetluse
seadustik).12 In Estonian legislation, a child is defined as every human being below the age of 18 years,
and the capacity for criminal responsibility starts from the age of 14.13 The Directive did not change
anything in this respect.
c. Special training
i. Legal overview
The explanatory memorandum to the bill transposing the Directive explains that because significant
changes were made in the juvenile criminal justice field already in 2018 based on the principles of the
Directive, the changes introduced by the Directive are not substantially new to practitioners and do
not lead to fundamental changes in training activities and other development activities already
planned.14
According to the 2018 prosecutors’ agreement “Special treatment of juvenile offenders in criminal
proceedings”, in order to achieve its objectives, the Prosecutor's Office ensures the specialisation of
prosecutors in juvenile and young adult (age group 18-21) criminal matters, placing significant
emphasis on personal characteristics in the selection of prosecutors, and provides special training.15
8
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003.
9
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku ja
teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, 11 July 2019.
10
Estonia, Riigi Teataja, Juvenile Sanctions Act (Alaealise mõjutusvahendite seadus), 28 January 1998, repealed
on 1 January 2018.
11
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku
ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, 11 July 2019.
12
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003.
13
Estonia, Riigi Teataja, Penal Code (Karistusseadustik), § 33, 6 June 2001.
14
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku
ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, 11 July 2019.
15
Estonia, Alaealistele spetsialiseerunud prokuröride kokkulepe, Kuriteo toime pannud alaealiste
erikohtlemine kriminaalmenetluses, p. 16, Narva-Jõesuu, 21 February 2018.
7
There is no comprehensive overview about specific training offered to the relevant authorities publicly
available. However, the “Child-friendly proceedings” website of the Ministry of Justice outlines some
of the training offered to the attorneys of the Bar Association. Recent training has included topics such
as questioning children and the psychology of child development. These training courses were
mandatory for state legal aid attorneys who represent children in criminal matters.16
In the period of 2019-2023, the Ministry of Justice is implementing a project in cooperation with the
Social Insurance Board, the Prosecutor’s Office, as well as the Oslo Police District and the Norwegian
Mediation Service, funded by the Norwegian Financial Mechanisms 2014-2021. The aim of the project
is to support the specialised juvenile justice approach. One of the project activities is competency
development of professionals working in the juvenile justice system.17 For this purpose, in July 2020,
the Ministry of Justice announced a tender for the development of a training programme. As a result
of the training programme, the professional knowledge of police officers, prosecutors, child
protection workers and other professionals should be further developed and cooperation between
parties involved in the various stages of the juvenile criminal justice should become more effective.18
ii. Special training received by interviewees
Most of the interviewed police officers working with children were either themselves certified to work
with children or knew about this practice. The Estonian Academy of Security Sciences (Estonian police
academy) organises training courses which last about three weeks, and which give police officers the
right to question children. One of the interviewees explained that the police structure has a standard
training with lecturers from different backgrounds, including child protection workers, psychologists,
and prosecutors. The training teaches to assess the child’s health and mental condition, teaches to
communicate with and listen to children.
Only one of the interviewees (police officer) was not aware of any special training regarding accused
or suspected children.
All of the lawyers knew and had attended special training on how to interact with children and on
children´s rights. They all pointed out that the Estonian Bar Association diligently conducts trainings.
In 2020, there were three training sessions offered by the Bar Association: children's rights,
communication with children and psychosocial training. The trainings were interdisciplinary. Among
the trainers are the staff of the Chancellor of Justice's office, the author of the handbook on
questioning children, psychologists, and others. Training topics include the UN Convention on the
Rights of the Child, child development and psychology, how to consider the age, and the special needs
when a child is questioned.
Lawyers have a duty to attend the trainings to maintain and improve their qualifications. One of the
interviewees said that without attending these trainings it is not allowed to represent children from
2021 onwards in criminal or in civil cases.
The prosecutors seem to have good training programmes to keep the knowledge of professionals
working with children up to date. Several of the interviewed prosecutors said that they have received
several different trainings every year or that there have been many training courses at the
prosecutor's office in the last few years, and some of them also concerned the rights of suspected or
accused children.
16
Estonia, Ministry of Justice (Justiitsministeerium), Lapsesõbralik menetlus, Koolituste kontaktid.
17
Estonia, Ministry of Justice (Justiitsministeerium), Establishment of Specialised Youth Justice Approach.
18
Estonia, Ministry of Justice (Justiitsministeerium), Justiitsministeerium soovib kaasajastada alaealiste
kohtlemist süüteomenetluses, 15 July 2020.
8
Two interviewed prosecutors said that they have received specific training on the rights of children.
Two said they have been trained on how to communicate effectively – roleplaying through
communication situations with children being played by actors.
Several interviewees (prosecutors) mentioned an all-Estonian roundtable which is held for all
prosecutors dealing with children once a year. The roundtable always includes some training. It was
also said that so-called joint trainings are increasingly taking place, in which different parties, including
the police, who work with children take part together.
One of the two judges pointed out that finding training on this topic is up to the judges themselves,
the Judicial Training Council does not systematically offer training on this topic. The interviewed judge
had participated in following trainings: “Interviewing children” (training programme for experts
working with victims) and “Child psychology”.
„Q: Did [the training] address the question of how to communicate effectively with children?
A: (EE) Jah, mängime isegi olukordi läbi, kus näitlejaid mängivad lapsi ja koolitusel osalevad ka
prokurörid ja kaitsjad. Väga kasulik koolitus.
A: (EN) Yes, we even play through situations with actors playing children, and prosecutors and lawyers
participate in the training as well. Very useful training.“
Judge, Estonia
Four of the seven interviewed other professionals had not received any special training and were not
aware of these trainings. One had participated in one training a long time ago (on rights of children in
criminal proceedings). One claimed that there are many trainings. They also said that as people
specialising in children are well aware of children's rights, the trainings are very specific, e.g. trainings
on children who are addicts, children with autism spectrum disorders etc. One of the professionals
had been trained on how to communicate effectively with children.
d. Effectiveness of measures / Monitoring
No information is publicly available on how Estonian state institutions assess and/or monitor the
effectiveness of the rights of and measures imposed on children in view of the Directive’s obligations.
C.2 Age assessment and the presumption to be a child in case of remaining uncertainty
a. Legal overview
Age assessment or the presumption of minority is not mentioned in the Code of Criminal Procedure,
the bill transposing the Directive, its explanatory memorandum, or any other relevant documents.
However, according to the Child Protection Act (Lastekaitseseadus), if the age of a person is unknown
and there is reason to believe that the person is below the age of eighteen years, the person shall be
deemed to be a child until proven otherwise.10 The Child Protection Act is applied to all officials who
are in contact with children in their activities.11 As no amendments regarding age assessment or the
presumption of minority were deemed necessary when adopting the Directive, it follows that the
Estonian state authorities assessed the existing provision in the Child Protection Act as sufficient to
comply with the Directive.
b. How is the age of a person suspected or accused of a crime assessed and determined in
practice?
9
None of the four police officers interviewed had come across a case where it was difficult to assess
the age of the child or where any extra effort was required. Three of the interviewees said that this
data is available in the registers and databases which are used by the police.
One of the police officers described what would happen if a situation would occur where the age of a
child is unknown. In this case, the child is asked their age, if the child is able to speak or point to
pictures, etc. If the child is handed over to the police, the person transferring the child will be asked
for information, and the police information database will also be used. If the identification document
does not exist or the name is not known, the registers are used on the basis of available information
and the information is connected with the population register or another database. The database used
is also indicated in the procedural document. Acquaintances and family members can also be
interviewed to identify the person in the proceedings. The police can also try to contact the parents
to get the child’s document from them.
“Q: For young persons whose age cannot be verified by official documents: Who determines their age
how and when?
A: (EE) Juhul kui peaks selline olukord juhtuma, siis lapselt küsitakse vanust, kui laps on suuteline
rääkima või osutama piltidele. Kui laps antakse üle politseile, siis küsitakse üleandjalt informatsiooni,
kasutatakse ka politsei infobaasi.
A: (EN) Should such a situation occur, the child will be asked their age, if the child is able to speak or
point to pictures, etc. If the child is handed over to the police, the transferring person will be asked for
information and the police information database will also be used.”
Police officer, Estonia
Another interviewee said that the age of people is usually already determined in criminal proceedings
when they come in contact with a police investigator. As soon as a person encounters the police, their
identity is determined based on a document. If there is no document, an identity report is drawn up
before the proceedings begin. In this case, data from registers and databases are used.
Unlike the other professionals, the lawyers had heard of cases where the child´s age could not be
assessed without the help of experts. One of them talked about a case in the 1990s, when there was
an abandoned child, whose parents emigrated to Russia, the grandparents died, and the child had no
documents. The child´s age was determined by a child psychologist. Another lawyer knew of a case
where the police had to perform an expert examination to determine the correct age of a child sex
worker in a brothel who claimed to be an adult.
Two of the interviewed lawyers said that if the child has no documents, then it is possible to check the
population register, which also includes a photo identifying the person. Two lawyers mentioned that
the police and the prosecutor's office can determine the age with an appropriate expert examination.
One of the lawyers said that the problem with age assessment can arise if the child is an immigrant.
None of the interviewed prosecutors nor judges had ever experienced a case where the age of the
child could not be assessed. Some of them tried to theorise how the age would be assessed in this
case. One said that in such circumstances doctors would be consulted who are able to determine the
child's age based on other characteristics. One interviewee said that there are often situations where
the young person does not have their document with them during the questioning, but the police can
identify the person through the information system.
“Q: For young persons whose age cannot be verified by official documents: Who determines their age
how and when?
10
A: (EE) Et selles mõttes, et tihti on selliseid olukordi, kus näiteks noor on ülekuulamisel süüdistatava
või kahtlustatava rollis ja tal ei ole dokumenti kaasas. Aga siis mis ma olen tähele pannud, on ikkagi
see, et nad tuvastavad selle isiku politsei infosüsteemi kaudu, et nime kaudu, eks ole. Ja siis tihti sealt
saadakse teada selle isiku vanus. Aga kuidas täpselt siis on olukorras, kus meil ei ole sellist võimalust
ja kui see süsteem ei ütlegi ning me ei tea, kes see isik on ja mis ta vanus on. Et tõenäoliselt siis ikkagi
sellele peab järgnema mingisugune pikem protsess, et võetakse ühendust siis alustuseks mingisuguse
piirkonnaga, kust see laps tuleb, et äkki seal on informatsiooni ja siis kuidagi hakatakse vaatama, kuhu
jõutakse. Praktikas mina küll ei tea, et väga niisuguseid olukordi oleks olnud.
A: (EN) There are often situations where, for example, a young person is in the role of an accused or
suspect during a questioning and does not have a document with them. But then what I've noticed is
that they still identify the person through the police information system, by name, right. And then the
age of that person is known. But what exactly is the situation where we do not have this opportunity
and when the system does not say, and we do not know who that person is and what their age is. That
will probably have to be followed by some longer process to get in touch with the area where the child
is coming from, maybe there will be information and then somehow they start to see where they are
going. In practice, I do not know that there have been very many such situations.”
Prosecutor, Estonia
One interviewee (judges and prosecutors) pointed out that representatives of the juvenile justice
system are usually already in contact with the local children whose personal details are known. The
police can always identify their age and person.
None of the other professionals had any experiences with cases where the age of children cannot be
verified on the basis of official documents. Most of them said that once they come in contact with
children, their personal identification code and age is already known. The other professionals mostly
did not know how and by whom the identification takes place in case there are no identification
documents. Two of them suggested that it is done by the police and/or child protection workers and
that the age is checked from the population register. One of the professionals told of how they start
the conversation when doing a forensic examination by getting to know the child and determining
whether the child understands their own identity and age. The other pointed out that the practice of
the prosecutor's office is such that the file arrives, in which all the information is available. There can
be no such situation that the child’s age is missing.
One of the interviewees drew attention to their working context, pointing out that they work in a
small municipality where the names of most children are known.
c. Discussion of findings
The age assessment of children using other means than documents or public registers does not seem
to be an issue in Estonia. There were very few professionals who had heard of any case where the
child´s age could not have been determined without the help of experts. Based on the interviews, it
seems that the children usually have their documents or it is possible to access their data in the public
registers (e.g. the population register), and the age assessment is done routinely by the officials
encountering children. Most of the experts said that once the child comes into contact with them,
they have all the necessary personal data on the child. There does not seem to be any practice of
asking the child for their age – this information is available for the professionals from the file of the
child.
C.3 The rights to information, having the holder of parental responsibility informed and audio-visual
recording of the questioning
11
a. The right to information
i. Legal overview
The general right to information of suspects and accused was outlined in the Code of Criminal
Procedure before the transposition of the Directive and also applied to child defendants. According to
§ 351 of the Code of Criminal Procedure, the suspect or accused must be immediately provided
information orally or in writing on their rights in plain and intelligible language, and the fact that the
rights were explained is confirmed by signature. A suspect or accused who is detained or taken into
custody must be immediately provided with a written declaration of rights. If the suspect or accused
is not proficient in the Estonian language, they are provided with the declaration of rights in their
mother tongue or in a language in which they are proficient.19
The transposition bill of the Directive supplemented this provision in 2019 with a subsection stating
that rights of a suspect and accused who is a minor are also to be introduced to their legal
representative or another designated person, meaning they are to be provided with the same
information about the rights as the child.20
In addition, a template of the declaration of rights of children was created during the transposition
process, in addition to the previously existing general declaration of rights of suspects and accused
persons.21 The declaration explains the rights listed in § 34, § 341 and § 351 of the Code of Criminal
Procedure in simple, child-friendly language, and also outlines additional rights, such as the right to
be informed about the progress of the proceedings.22
ii. Information about procedural rights and safeguards in practice
This section discusses the key findings from the answers of the four categories of experts´ (police
officers, lawyers, judges and prosecutors and other professionals) regarding how children are
informed about their rights, who does it, when and in which form. More information on individual
answers can be found in the tables 2-5 in the Annexes. The tables also contain the data on whether
the experts perceive the children to understand the information and which methods they use to verify
whether a child understood what they were told.
All the police officers mentioned that the suspected or accused child is informed of their right to a
state paid lawyer. The other rights the police officers mentioned varied (see Table 2 in the Annexes).
Unlike the other experts, the police officers only mentioned the police as the primary informer of the
child of their rights.
“Q: From your experience, are suspected or accused children informed about their procedural rights,
including the right to be assisted by a lawyer?
A: (EE) Kahtlustatavale lapsele räägitakse, milles teda kahtlustatakse, et tal on õigus keelduda
ütlustest või neid anda, et ta ei kanna vastutust, kui keeldub ütlustest. Talle selgitatakse, et kõike, mida
ta ütleb võidakse kasutada tema vastu, et menetluses osaleb kaitsja ning talt ei küsita nõusolekut, kas
19
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 351 (1), (2), (3), 12
February 2003.
20
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 351 (11), 12 February
2003.
21
Estonia, Riigi Teataja, Minister of Justice (Justiitsminister), Õiguste deklaratsiooni näidisvormi kehtestamine,
17 July 2014.
22
Estonia, Minister of Justice (Justiitsminister), Alaealise õiguste deklaratsioon, Annex 3 to the Regulation
“Õiguste deklaratsiooni näidisvormi kehtestamine” of 17 July 2014 (amendment entered into force 30
December 2019).
12
ta tahab kaitsjat, sest riik on selle määranud, et vanem ei saa teda kaitsta, sest pereliikmel ei ole juristi
haridust. Seletan talle isegi kaitsja leidmise protsessi. Kuidas just konkreetne kaitsja talle valiti.
A: (EN) The suspected child is told what they are suspected of, that they have the right to testify or to
refuse to testify, that they will not be held liable if they refuse to testify. The child is explained that
anything they say may be used against them, that a lawyer is involved in the proceedings, and that the
child is not asked for their consent if they want a lawyer because the state has appointed the lawyer,
that the parent cannot defend them because a family member does not have a law degree. The process
of appointing a lawyer is also explained. How a particular lawyer was chosen for them.”
Police officer, Estonia
The child is provided with information about their rights at the first interrogation by the police, none
of the police officers mentioned that the rights are explained at the first encounter. However, often
the interrogation is the first meeting between the child and the police.
The answers to the question as to how the rights are explained varied a great deal. Some of the
interviewed police officers said that the child is informed orally, one mentioned that the informing
takes place gradually during the course of the procedure. The declaration of rights was explicitly
mentioned just once. Several of the interviewees claimed that the informing process takes into
account special needs, such as a disability of a child. Most of the police officers said that children are
informed in simplified language which does not contain complicated legal terminology. The police
officers emphasised that the level of understanding of the information on rights depends on the child.
Only one police officer was aware of number of methods to verify whether the child understood their
rights. They mentioned using the reference method – more complex expressions or parts of words are
associated with easier words that are known to the child, also the method of reflecting information
(reflecting back to the police officer what was understood). The others mentioned simply repetition
or asking the child whether they understood as the means to check the child´s understanding.
The lawyers emphasised the child´s right to have a lawyer and that the child cannot waive this right.
This right seems to be the key right which is explained to the child. One of the lawyers claimed that,
in essence, the rights of adult and child defendants are the same. All the lawyers mentioned the
declaration of rights explicitly or indirectly (e.g. “rights in writing to read”). The written declaration is
not the only means of informing the child. All the interviewees said that the rights are also explained
to the child by the police and in some cases by the lawyer or the judge.
„Q: Can you share any good examples of information provided in a simple or child-friendly way – using
straightforward language or images for example?
A: (EE) Uurija menetlustoimingul alati korrektselt selgitab õigusi. Antakse kirjalikult õigustest lugeda
ja küsitakse, kas noor saab aru, kas on küsimusi. Uurija kontrollib, kas laps loeb ikka, kui nt laps kiirelt
paberi tagasi annab. Palub, et laps loeks ikka päriselt läbi.
A: (EN) The investigator always correctly explains the rights during the procedural act. They are given
the rights to read on paper and asked if the young person understands, whether there are any
questions. The investigator checks whether the child actually reads it. If, for example, the child returns
the paper quickly, they ask the child to actually read it.”
Lawyer, Estonia
All the lawyers said that the children are told about the rights in simple language and usually the
person telling about the rights asks the child whether they understood what was said.
According to the lawyers, the children mainly understand the information on rights and the legal
professionals invest sufficient effort in explaining the rights to the children.
13
Only one of the lawyers shared an experience concerning a case from 2020 in which a child abused
someone physically at school, and the child had been questioned at the police station without anyone
explaining the child their rights. The initial statements and explanatory letter confessing to the offence
were taken from the child at the station, and only then the proceedings were officially initiated. The
lawyer doubted whether such an explanatory letter or statement could be used as evidence in the
proceedings.
The judges and the prosecutors also demonstrated some variety in their answers about how children
are informed. Some said children are informed orally and in writing, the others were not sure who
does it and how. Four of the judges and prosecutors mentioned the declaration of rights.
Only one of the five judges and prosecutors listed a number of additional rights that children have in
comparison to adult defendants, demonstrating a good knowledge of the rights of children. The judges
and prosecutors do not see themselves as having a key role in informing the children.
„Q: What specific rights are children informed about?
A: (EE) Selgitamegi, mis need õigused siis on kriminaalseadustiku seadustikus § 34. Ja täiendavalt on
täiendatud seda paragrahvi § 34 lg 11. Et ikka selgitame, mis seal täiendavalt on, et lisaks teavitada
seaduslikku esindajat või muud isikut, õigust seadusliku esindaja või muu isiku viibimiseks menetluse
ajal toimingute juures ja kohtuistungil.
A: (EN) We explain what these rights are in § 34 of the Code of Criminal Procedure. And in addition,
this provision has been supplemented with the section § 34 (11). We explain what is further there, such
as the right to inform the legal representative or other person, the right of the legal representative or
other person to be present during the proceedings and at the hearing.”
Judge, Estonia
The rights mentioned most often by the judges and prosecutors were the right to a lawyer and the
right to have the parent present. Similarly to the rest of the professionals, this group of experts
claimed that children´s understanding of their rights depends on the particular child (their
development, their previous encounter with the legal system etc).
“Q: From your experience, are suspected or accused children informed about their procedural rights,
including the right to be assisted by a lawyer? If so, by whom, in what form and manner, and at which
stage of the proceedings are children informed?
A: (EE) Lapsi teavitatakse. Formaalses mõttes teavitatakse. Toimikustes näeme, et lapselt on võetud
allkiri alaealiste õiguste deklaratsiooni lehele, mida seadus ette näeb. Sisuline teavitus jääb meile [st
kohtunikele] teadmata.
A: (EN) Children are informed. In a formal sense, they are informed. In the case files, we see that the
child has signed the page of the declaration of the rights of minors, which is required by law. The
substantive part of informing remains unknown to us [i.e. the judges].”
Judge, Estonia
Out of the seven interviewed other professionals, four had only limited knowledge with how children
are informed of their rights in practice. Compared to the other experts, this group of professionals
were more critical about the way the informing of the children is done. One claimed that the mental
maturity of children is not always taken into account when explaining the rights. Another expert said
that not enough information is provided to the children. Two of them were also critical about the
question as to whether the children understand what they are told about the rights. In this group,
14
however, only two interviewees had decent knowledge on the rights themselves, with the majority
having little or no knowledge.
iii. Information about the general conduct of the proceedings
All four police officers said that the children are informed about the course of the procedure. One of
them said explicitly that this is done in a child-friendly manner.
Some said that the police investigator explains the course of the procedure, some police officers said
that this is mainly the role of a lawyer, and one police officer listed experts possibly involved in
explaining the conduct of the procedure: police investigators, child protection worker, prosecutor,
psychologist.
One interviewee explained what is told to a child: the basis, on which the suspicion was compiled
(previously collected information), why they are in the role of a suspect, what their rights are in this
regard. The interviewee pointed out that the lawyer and the police explain different things according
to their role in the proceedings, e.g. the lawyer explains the consequences of refusing to testify (in this
case the criminal case may end up in court).
The judges and the prosecutors found that the primary role of explaining the conduct of the
proceedings to a child lies with the prosecutors.
„Q: Are children informed about the general aspects of the conduct of criminal proceedings - i.e. the
course and purposes of proceedings, the role of the parties taking part, etc.?
A: (EE) Mis on nagu selline see tehniline pool, ütleme siis, et kui on asi sealmaal, et on ütlused antud
ja tõendid kogutud ja siis tuleb hakata mõtlema, et kuidas siis nüüd sisuliselt seda asja lahendada, siis
selle poole teen mina. Ma seletan ära. Sõltuvalt noorest, et kes on varem kokku puutunud meiega, siis
ma ei pea ära seletama, et kes on prokurör ja nii edasi. Kes on esmakordne, siis ma seletan lihtsamalt
lahti, et kes ma olen, mis mu amet on, mis meist edasi saab, mis asi toimik üldse on, millised võimalikud
lahendused on, mis tema arvab, et, et sellise poole ma teen ära siis, kui on aeg sealmaal, et ma pean
nad enda juurde kutsuma. Tihtipeale ma siis eelnevalt telefoni teel, seletan siis emale või isale, et ei
ole vaja nagu karta ja ei ole vaja hambaharja ja pesu kokku võtta ja sellisel kujul tulla. Et mis nagu
toimuma hakkab ja mis see ajakulu näiteks on, et sellised asjad ma räägin telefoni teel ja muud
sisulised asjad ma räägin koha peal, et kas ma näen, et ta saab aru, kas ma näen, et tal on mingi ärevus
ja ta ei suuda tollel päeval näiteks minuga kontaktile üldse tulla. Siis ma seletan lahti, et nii täna meil
ei tule midagi välja, teeme kalendrid lahti, vaatame, millal on mingi muu aeg. Et selle poole teen mina
ja seletan mina.
A: (EN) When it comes to the technical side of this, let's say that if the case is so far that the testimony
has been given and the evidence has been gathered, and then you have to start thinking about how to
solve this thing now, that’s the side that I do. I explain. It depends on the young person, if they have
been in contact with us before, I do not have to explain who the prosecutor is and so on. If they are in
the proceedings for the first time, then I explain in simpler terms, who I am, what my job is, what will
happen, what the file is, what the possible outcomes are, what they think, this is what I do when the
time is so far that I have to call them out. Often I then call the mother or father in advance, explain
that there is no need to be afraid and there is no need to pack a toothbrush and clothes and come like
that. What is going to happen and how much time it will take, such things I explain on the phone and
other substantive things I talk about on the spot, so that I see that they understand, or if they have
some anxiety and maybe cannot achieve contact with me at all that day, for example. Then I explain
that nothing will come out of it today, we open the calendars, we pick another suitable time. This is
the side I do and explain.“
Prosecutor, Estonia
15
Only one of the experts in this group said that it is presumed that the lawyer has explained all the
rights and the course of the proceedings to the suspect or the accused. One interviewee said that the
general aspects of conducting criminal proceedings are explained by various experts: the investigative
officer, the lawyer, and the prosecutor. One interviewee also mentioned lawyers in addition to the
prosecutors and expressed an opinion on the shortcomings of the present situation. They said that
training lawyers who defend children is a good development, however, lawyers often see their client
for the first time in court. Nevertheless, the preparatory work before the court proceedings should be
done by the lawyer, for example how to behave at the court hearing.
The interviewed judges and prosecutors gave different descriptions of what is explained to the child
about the conduct of the proceedings. One of the judges and prosecutors explained that in case of
sensitive data, the prosecutor explains to the child before the hearing in more detail who is waiting
for them in the courtroom and why these people must be there, to reduce anxiety and fear the child
might be feeling. The same interviewee said that the prosecutor usually explains to the child general
aspects of the criminal proceedings, including the course and the objectives of the proceedings and
the roles of the parties involved; for those children who meet the prosecutor for the first time, the
interviewed prosecutor explains in simpler terms who is a prosecutor, what work they do and what
will happen next, and what are the possible outcomes of the proceedings.
Another interviewee explained the content of the information as follows: the child is explained the
content of the suspicion, what the offence is that the child has committed, how it is punished, how
the proceedings are conducted, what the consequences may be, what sanctions can be applied.
Two of the four interviewed lawyers said that nobody goes into detail about explaining the conduct
of the proceedings to child suspects and accused. The reasons behind this practice, according to the
interviewees, is that it is in the interest of the officer conducting the proceedings to find out what
happened, because the solutions can be very different, and at the beginning of the proceedings, the
police officers do not know whether the case will become a "case". One of the two lawyers said that
there is no point in explaining all the nuances to everyone, first the facts are clarified and then
everyone is dealt with individually in terms of further proceedings. One lawyer also pointed out that
all parties, meaning the investigator, the prosecutor, and the lawyer, explain to the child who they
are, what they are going to do and why it is necessary.
Three of the seven other professionals did not know how children are informed about the conduct of
the proceedings. Three of them thought that the explanations are given by the prosecutor. Two of the
interviewees said that this information is given to a child by the prosecutor as well as the police officer.
One of the interviewees thought that children are fairly well informed about the general aspects of
conducting criminal proceedings, even though they themselves did not know who is responsible for
informing them. The same interviewee pointed out that the probation officers of the youth unit also
provide explanations to the children about the course and purpose of the proceedings.
When asked what information children are given about the proceedings, the interviewed other
professionals pointed out that the course and the objectives of the proceedings and the roles of the
parties are explained. One of the interviewees said that the prosecutor’s office explains pre-trial
proceedings and the court proceedings to the child.
b. Right to have the holder of parental responsibility informed
i. Legal overview
The right of a child to have the holder of parental responsibility informed was added to the Code of
Criminal Procedure with the bill transposing the Directive.23 A new provision was created (§ 352)
23
Estonia, Riigi Teataja, Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide
kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 4 December 2019.
16
regarding the “notification of and participation in proceedings by legal representatives or other
persons”. In the Estonian legislation, “legal representative” of a child means a parent who has the
right of custody over the child24, or a guardian if the child is under guardianship25. The provision
requires the authority conducting proceedings to inform the legal representative of a child defendant
of the rights and obligations of the child, except in the situation where this is not in the interests of
the child or may significantly damage the criminal proceedings.
ii. Informing the holders of parental responsibility
According to the interviewed police officers, the parents are informed of the criminal proceedings
against their child. When a suspect is detained at the crime scene, then transported to the police, the
parents are immediately informed so that there is no moment when the parents do not know where
their child is.
According to one interviewed police officer, the suspected children are generally called to the police
station by phone through their parents. The parent is told that the child needs to be questioned as a
suspect. Meaning that the parent learns about the suspicion before the child. One interviewee pointed
out that the notification depends on the situation and the children – e.g. whether they have a
disability, whether the child has recidivism, impulsivity, whether it is the child's first case where they
are a suspect. Parents are not informed if the parent is involved in the crime, or if informing them
would in any way impede the preliminary investigation. If it is not possible to inform the parent, then
according to the interviewees, the next contact person is the local government’s child protection
worker. Information is shared with parents throughout the proceedings, but this also depends on the
extent to which the parent shows interest in the proceedings.
One police officer said that typically the parent is questioned as a witness. This was mentioned also
by other experts. One interviewee listed the rights of the child that are mentioned to the parent. These
are: the right to the assistance of a lawyer, the suspect has the right to testify, but they may also refuse
to do so.
The lawyers confirmed that the parent is informed by the police about the criminal case and the
parents are involved in the proceedings. One of the lawyers said that it is a legal obligation to involve
parents. The nuances about the notification and the information passed on to the parent that the
interviewed lawyers pointed out differ somewhat.
One interviewee said that in practice, one parent is notified, both parents are not informed. The
parent indicated in the Population Register is called. One of the interviewees said that the prosecutor
explains to the parents of the suspected or accused child the different options of different procedures
– settlement procedure, alternative procedure, etc. It is done orally. One interviewed lawyer said that
they do not know whether the investigator explains the child's rights to the parent, but the lawyer
does that.
According to one lawyer, the parent is not informed if the child is abused by the parent. Also in case
the child would be in any way in danger if the parents are informed, or if the parents are known to be
addicts. Parents are also not informed if the child lives in a substitute home and has no contact with
the parents.
The judges and prosecutors gave similar information about the informing and involvement of the
parents as did the lawyers and the police officers:
• During the pre-trial investigation, the legal representative participates in the proceedings.
24
Estonia, Riigi Teataja, Family Law Act (Perekonnaseadus), § 120, 18 November 2009.
25
Estonia, Riigi Teataja, Family Law Act (Perekonnaseadus), § 179, 18 November 2009.
17
• The holder of parental responsibility is not informed if it is contrary to the interests of the
child or the criminal proceedings or if they have been deprived of parental rights.
• The parents attend the hearing as does the child, and it is explained to them that the
proceedings may result in legal consequences also for them. For example, in case of a civil
action, it is possible to order the parents to pay damages.
• The police and the investigator are the first to provide information to the holder of parental
responsibility, and later the lawyer and the prosecutor.
The other professionals confirmed that the police will certainly inform the holder of parental
responsibility of the rights of the child as a suspect or an accused. One of the interviewees described
in more detail that the holder of parental responsibility is informed already at the first meeting. This
is usually done by the police or the prosecutor, and the signature of the holder of parental
responsibility is also taken confirming they have understood the information provided to them.
iii. Having a nominated/designated person informed
According to the interviewees, the parental data is checked from the Population Register. If parental
rights are revoked, it is written in the register, as well as who is the guardian. According to one
interviewee (lawyer), it is possible to inform a relative or a child protection specialist instead of the
parents. Another interviewee (other professional) specified that in cases where the child's parents are
not present in the child's life, then often the child protection worker or grandparents or, in some cases,
the support person are informed.
iv. Involvement of parents or designated persons in the criminal proceedings
Some professionals knew more than others about the parental involvement in the criminal
proceedings. According to most of the interviewed lawyers, in the pre-trial phase, the parents are
questioned as a legal representative. They are asked to describe the child, if there have been any
problems with them at home. They are called to the court, and they are in the room during the
hearing. They are asked for an opinion, although the court is not bound by it.
The interviewees (lawyers) gave different information about the interrogation. One said that the
parent has the right to be present at the questioning (if the child agrees).
The other lawyer said that the lawyer is present when a suspicion is presented, the parent is not there.
Parents are also subject to civil liability, in this case the parents may be civil defendants. In the past,
usually only the mother was determined as the civil defendant, now both parents. Parents are present
when the criminal proceedings are terminated, the lawyer is not, and the lawyer will receive a message
stating that the case is closed. Upon termination of the case, an agreement is also concluded as to
what obligations are to be assigned to the child. The lawyer does not know this unless the parent
informs them.
According to one interviewee from the group of judges and prosecutors the holder of parental
responsibility may be involved in the whole procedure as much as they wish. Theoretically, they have
the opportunity to be present at the questioning. Also, the interviewee has never seen parents not
allowed to the court hearing.
Several interviewees pointed out that the more the parents are interested in what is going to happen
to the child, the more they are informed and involved in the proceedings. Meaning that the officials
will not go out of their way to involve parents who show no interest towards the child and their future.
One of the interviewees (other professional) explained that the parents are fully involved in the
proceedings, but for families about whom it is known that the parent has not taken sufficient care of
the child, family therapy is prescribed, during which the parent is taught parental care. If community
service is imposed on a child, then the parent is not involved much, in this case the parent is involved
only when the probation officer makes a home visit or contacts the parent.
18
c. Audiovisual recording of questioning and due verification of written records
i. Legal overview
The transposition bill of the Directive added the sentence “If necessary, the questioning of a suspect
who is a minor shall be recorded” to the Code of Criminal Procedure.26 It is not explained in the law,
or the explanatory memorandum of the bill, what is meant by “necessary”. In the declaration of rights
of children, it is stated that: “Your interrogation will only be recorded if the circumstances of the
criminal case so require. This is decided by the person conducting the proceedings.“27
The "Child Interrogation Handbook", issued in 2016 in co-operation between the Ministry of Justice
and the Ministry of the Interior, explains the necessity and importance of video recording an interview
with a child, but referring only to child victims and witnesses in criminal proceedings.28 The regulation
in force in Estonia before the transposition of the Directive did not include anything regarding the
audiovisual recording of questioning of children who are suspects or accused, and this was not done
in practice.29
ii. Implementation in practice
All the police officers claimed that the child suspects are not audiovisually recorded during
questioning. One pointed out that the law stipulates that the testimony of a child victim or witness is
recorded. One more interviewee confirmed that the audiovisual recording is used when the child is a
victim. If the child is in the role of suspect or accused, the questioning is recorded in writing.
All the lawyers said that there is no audiovisual recording of the questioning. Instead, the minutes are
recorded in writing and signed. The lawyer’s goal is to make sure that the minutes are accurate and
written according to the child´s statements.
According to the prosecutors and judges, the questioning and the court hearings of children are not
audiovisually recorded.
None of the other professionals knew about the audiovisual recording of the proceedings.
d. Discussion of findings
The different groups of professionals gave very different answers regarding how the informing of
children of their rights is done in Estonia. The right which was mentioned the most is the right to have
a lawyer. The professionals also reported differently who is the primary person to inform the children.
The police officers were perhaps most confident that they are the primary source of the information
on rights for the child suspect. The written declaration of rights was mentioned many times and it
seems to be a well-established practice to show or read the declaration to a child. The accounts on
whether children understand the information vary. The legal professionals were more certain that this
depends on a child, the other professionals were slightly more critical of how accessible the
information is to children.
There do not seem to be unified guidelines outside of the law which the professionals would follow
when in contact with a child in criminal proceedings. The professionals seem to have a considerable
freedom to decide how to conduct the proceedings as long as they follow the law in force.
26
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 75 (4), 12 February
2003.
27
Estonia, Minister of Justice (Justiitsminister), Alaealise õiguste deklaratsioon, Annex 3 of the Regulation
“Õiguste deklaratsiooni näidisvormi kehtestamine” of 17 July 2014 (amendment entered into force 30
December 2019).
28
Liivamägi-Hitrov, A., Kask, K. (2016), Lapse küsitlemise käsiraamat, Ministry of Justice, Tallinn.
29
Jalast, G. (2019), Kriminaalmenetluses kahtlustatavate või süüdistatavate laste menetluslikke tagatisi
käsitleva direktiivi ülevõtmise analüüs, Master’s Thesis, Tartu University, Law Department in Tallinn.
19
C.4 The rights to be assisted by a lawyer and legal aid
a. Legal overview
The right of suspected or accused children to be assisted by a lawyer existed in the Code of Criminal
Procedure before the transposition of the Directive. Any suspect or accused person has the right to
the assistance of a lawyer, but the participation of a lawyer is mandatory for the entire course of
criminal proceedings if the person was a minor at the time of commission of the criminal offence.30
According to the State Legal Aid Act (Riigi õigusabi seadus), in criminal proceedings, a suspect or an
accused person, who has not chosen a defence lawyer by agreement and in whose criminal case the
participation of a defence lawyer is required by law, receives state-funded legal aid regardless of their
financial situation.31
The right to a defence lawyer is also stressed in the guidelines of the Chancellor of Justice “The rights
of children at first contact with the police”32 and in the 2018 prosecutors’ agreement “Special
treatment of juvenile offenders in criminal proceedings”33.
If criminal proceedings are conducted without the participation of a lawyer even though the
participation of the lawyer is mandatory, it is considered to be a material violation of criminal
procedural law, which is a ground for annulment of a court judgment.34 This has been confirmed by
the Supreme Court – in case 1-17-8281, the Supreme Court found that because an underage
defendant was not appointed a lawyer for county court proceedings and was only represented by his
mother, the county court judgment had to be annulled due to material violation of criminal procedural
law.35
b. Assistance by a lawyer and legal aid
According to most interviewees, the assistance of a lawyer is obligatory for accused or suspected
children, and it is free of charge for them (paid by the state). This is in line with the law and as
reported by the interviewees, there are no challenges regarding access to free legal aid for accused
or suspected children.
The process of appointing a lawyer to a child is usually done by the police. The police use a procedural
information system where they can place an order for a state provided lawyer for a child. Three of
the other professionals reported that the quality of state legal aid can vary – while some do a great
job, there have been complaints from the children and their parents that the lawyer did not do their
job effectively enough. This also came out from some of the interviews with accused or suspected
children in a separate study conducted by Praxis and the Estonian Human Rights Centre for FRA. The
children were not happy with their lawyer’s work. However, the children (and their family) do have
the option to hire a lawyer themselves for which they have to pay for.
According to the interviewees, children and their families are informed about their right to legal aid
relatively quickly after they are detained by the police. Most interviewees reported that the lawyer
starts participating in the criminal proceedings related to children before the first questioning of the
30
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 34 (1) 3), § 45, 12
February 2003.
31
Estonia, Riigi Teataja, State Legal Aid Act (Riigi õigusabi seadus), § 6 (2), 28 June 2004.
32
Estonia, Chancellor of Justice (Õiguskantsler), Laste õigustest esmasel kokkupuutel politseiga, 22 August
2017.
33
Estonia, Alaealistele spetsialiseerunud prokuröride kokkulepe, Kuriteo toime pannud alaealiste
erikohtlemine kriminaalmenetluses, Narva-Jõesuu, 21 February 2018.
34
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 339 (1) 3), § 362, 12
February 2003.
35
Estonia, Supreme Court (Riigikohus), Case No 1-17-8281, p. 10, 7 February 2018.
20
child, or that the lawyer will be present at the first questioning. Usually, the child and their lawyer
meet before the police questioning and they talk in private.
According to the law, a child cannot be questioned without the presence of a lawyer. However, three
out of four lawyers reported that there have been cases where the police investigators have
pressured the child to give a sincere confession without the lawyer present. This, however, cannot
be used in court as evidence. According to some interviewed lawyers, the police do it under the
pretext that they want to understand what happened and whether the child should become a
suspect or not. This also came out from some of the interviews with children in the children´s study,
that they were pressured to write a confession without the lawyer present.
All interviewees said that the court hearings always take place with a lawyer representing the child
defendant and there have been no challenges regarding that.
“Q: Compared to criminal proceedings for adults, do national authorities apply particular measures
to ensure that children suspected or accused of crime are always actively assisted by a lawyer
throughout pre-trial and trial proceedings?
A: (EE) Need juhtumid, millega on see üles tõusnud, nad on saanud kaitsjalt abi, olen neid kaitsjaid ka
näinud. Vanemate hoiak on olnud pigem selline, et kaitsja noh, ütleme istus ja haigutas selle aja maha
või olen kohtus olnud, kus kaitsja tõi päris kummalise kõrvalise asja ainsa argumendina välja. Ütleme,
et noorel oli pikk ja keeruline register, aga kaitsja tõi argumendina, et viimati ta tabati ju ainult seal
mingit alkoholi natuke pruukimast, et see ei ole proportsionaalne nüüd karistus, kui ta saadetakse
kinnisesse kooli, aga varasemad ei puutu asjasse. Noh ma ei ole jurist ja ma ei oska öelda kui asjalik
see on, aga tegu oli ikkagi väga kõrgete riskidega noorega. Aga kohus lahendas sellega kuidagi ära
ja ütles, et see ongi noore kaitseks, omas ilusas juriidilises keeles. Nii et olen kokku puutunud, et
kaitsjad tegelevad. Olen kokku puutunud vanemate kriitikaga, et see on ainult formaalne.
A: (EN) The cases in which it has arisen, they have received help from a lawyer, I have seen these
lawyers as well. The attitude of the parents has been more that the lawyer, well, let's say, sat down
and yawned the whole time, or I have been in court, where the lawyer raised a rather strange
extraneous matter as the only argument. Let’s say, the young person had a long and complicated
criminal history, but the defence lawyer argued that the last time they were caught it was just for
drinking some alcohol, that it is not a proportionate punishment now if they are sent to a closed
school, the previous [offences] are irrelevant. Well, I'm not a lawyer and I can't say how relevant it is,
but it was still a young person with very high risks. But the court somehow solved this and said that
it was for the protection of the young person, in its own beautiful legal language. So I have been
exposed to lawyers dealing with cases. I have heard criticism from parents that it is only a formality.
MDFT therapist-supervisor, Estonia
“Q: From your experience, at which particular point in time do lawyers usually get involved in criminal
proceedings involving children (i.e. upon first contact with the police/authorities with the child, before
the child’s initial questioning or only in later stages of the proceedings)?
A: (EE) Advokaat kutsutakse esimesele menetlustoimingule. Sellega muidugi on sellised huvitavad
mõtted, et mul on mõnel korral olnud niimoodi, et laps on juba politseiasutuses olnud ja teda on
erinevad isikud juba nii-öelda ära kuulanud ja ta on juba jõudnud kirjutada seal mingisugused
puhtsüdamlikud kahetsused ja ülestunnistused. No seaduse alusel tegelikult sellist asja ei tohiks olla.
Peaks olema advokaat koheselt kohal kui on lapsel esimene kokkupuude politseiasutusega. Uurijad
ei tohiks temaga ennem rääkida, kui advokaat on seal, aga nende jälle vastuväide on olnud see, et
aga me ei teadnud, sest võib-olla laps ei olegi või ei muutugi kunagi kahtlustatavaks ja me tahtsime
21
lihtsalt teada, et mis juhtus. Et noh, seal on selline nagu vahe - kas nüüd oli teada, et ta tõepoolest
on või satub kahtlustatavaks või mitte. Et selles mõttes võib-olla see periood on nagu noh... Kas talle
on siis selgitatud, et mis tema need õigused on. Ta on sellise puhtsüdamliku ülestunnistuse teinud
paberile, et kas see nüüd on midagi. Noh, nad tahavad muidugi seda puhtsüdamlikku ülestunnistust
ka lisada toimiku materjalidesse, mis iseenesest ei tohiks, eks ole. Et jah, muidugi on erinevaid uurijad
ka, eks ole. Osad uurijad on, et mina üldse ei räägi mitte midagi, istu siin nii kaua, kui advokaat tuleb,
siis räägime. Aga teised on väga sellised avatud, et ikka uurime ise asjad ära ja siis vaatame mis hetkel
siis meie heaks näeme, et advokaat tuleb kutsuda, eks ole.
A: (EN) The lawyer is invited to the first procedural act. With this, of course, there are such interesting
things, I have sometimes had cases where the child has already been in the police station and has
already been questioned, so to speak, by various people, and has already managed to write some
sincere regrets and confessions there. Well, by law, in fact, such a thing should not happen. A lawyer
should be present as soon as the child has their first contact with the police. Investigators shouldn't
talk to them until the lawyer is there, but their objection has been that we didn't know, because
maybe the child isn't or will never become a suspect, and we just wanted to know what happened.
That, well, there's such a difference – whether it was known that they really are or become a suspect
or not. In that sense, maybe this period is like, well ... Have they then been told what their rights are.
They have made such a sincere confession on paper, whether this is something now. Well, of course,
they also want to include this sincere confession in the materials of the file, which in itself should not
happen. I mean, yes, of course there are different investigators, too. Some investigators say I'm not
talking about anything at all, sit here as long as the lawyer comes, then we'll talk. But others are so
open, in a way, that we investigate things ourselves and then we’ll see at what point a lawyer needs
to be called, right.”
Lawyer, Estonia
c. Effective participation of a lawyer
According to most interviewed other professionals, effective participation in the context of criminal
proceedings against children means that the lawyer does everything in their power to protect the
child’s rights without discrimination. Most of the other professionals also brought out that it is
important that the lawyer hears all the circumstances of the case and takes into account the child's
background, developmental characteristics, social characteristics, age, etc., and genuinely delves into
the proceedings in order to find the best solution. According to one other professional, the lawyer
should be involved in the process at the earliest possible stage to represent the rights of their client
and to assess the specifics of the offence. According to the police officers, it is important that the
lawyer understands the specifics and the rights of the children and ensures that the child’s rights and
obligations are respected. Most police officers also mentioned that the lawyer should explain the
child’s rights and obligations in a child-friendly language and create a feeling of security in the child
and reassure that they are not alone. Furthermore, according to most police officers, the lawyer
should be friendly, proactive and motivated to help the child.
„As a police officer, what do you understand by the term “effective participation of a lawyer” in the
context of criminal proceedings against children?
A: (EE) Kaitsja peab lapsele seletama lapse keeles lahti tema õigused ja kohustused, ta peab teda
toetama. Tõhus on see, kui menetlus on lapsesõbralik. Me [kaitsja ja menetleja] ei unusta hetkekski,
et tegemist on alaealisega.
A: (EN) The lawyer must explain the child's rights and obligations to the child in the child’s own
language, the lawyer must support them. It is effective if the procedure is child-friendly. We [lawyer
and prosecutor] do not forget for a moment that we are dealing with a minor.“
22
Police officer, Estonia
According to the judges and prosecutors, the effective participation of a lawyer in the context of
criminal proceedings involving children means that the lawyer thinks about what the best solution for
the child is. Some of the judges and prosecutors mentioned that it is important for the lawyer to
actively listen to the child and to take on the role of an educator and guide the child. This requires the
lawyer to have empathy. One prosecutor reported that often officials cannot establish good contact
with the child.
„Q: As a judge, what do you understand by the term “effective participation of a lawyer” in the context
of criminal proceedings against children?
A: (EE) Kaitsja tõhus osalemine laste asjades on ressursimahukas. Kaitsja jaoks on see sisuliselt
kasvataja rolli asumine. Kõigepealt on oluline saada lapsega kontakt, et ta kuulaks kaistjat, et
advokaat saaks selgitada […], kuidas kohtus käituda, mis on last ees ootamas. See nõuab kaitsjalt
empaatiavõimet.
A: (EN) The effective participation of a lawyer in children's cases is resource-intensive. For the lawyer,
it essentially means taking on the role of an educator. First of all, it is important to achieve contact
with the child so that they listen to the lawyer, so that the lawyer can explain […] how to behave in
court, what the child can expect. This requires the lawyer to have the ability to empathise.”
Judge (3), Estonia
According to the interviewed lawyers, their role is to ensure that the proceedings involving children
are conducted honestly and fairly. One of the interviewed lawyers mentioned that it is important for
the lawyer to observe how the child describes the event so that it can be recorded accurately and ask
clarifying questions. Furthermore, another lawyer emphasised that it is important for the lawyer to
ponder which measures are the most suitable for the benefit of the child.
In conclusion, based on all interviews with professionals, three main aspects stand out regarding
effective participation of a lawyer: 1) the lawyer must duly consider the child’s background, 2) the
communication with the child must be clear and child-friendly, and 3) the lawyer must be proactive
and motivated to help the child.
According to most interviewed professionals, the most important part of following the best interests
of the child is to take into account the child’s background. This could mean getting to know the child’s
life situation, school life, mental ability, coping, and health characteristics. One of the interviewed
other professionals emphasised that the lawyer should consider the child’s needs. For example, the
meetings should be organised at a convenient time for the child. Two of the interviewed other
professionals mentioned that following the best interests of the child means that the proceedings
should not be traumatic for the child, but safe. One of the experts in the group of other professionals
said that it is important that the sentencing should be forward-looking and developmental, not
punitive so that the child could get back to law abiding life as fast as possible.
„Q: What does it require in your opinion to address the best interests of the child?
A: (EE) Kindlasti seda, et kogu see protsess ja kõik need protseduurilised osad, et ükskõik siis kas
süüdistatava või kahtlustatava lapse puhul, et see ei tooks kaasa lisakahjustusi või täiendavaid
mingeid traumeerivaid seikasid tema jaoks. Et see oleks turvaline ja et ta mõistaks ka, et tõesti see
turvalisus oleks enam kui sõnades öeldut.
A: (EN) Certainly that the whole process and all those procedural parts, for the accused or suspected
child, do not cause additional harm or any additional traumatic circumstances for them. That it would
be safe, and that [the child] would also understand that the safety is really more than just said in
words.“
23
Clinical psychologist, Estonia
Overall, the interviewed police officers did not provide much detail when answering what does
following the best interests of the child mean.
According to three of the interviewed judges and prosecutors, addressing the best interests of the
child means that the lawyer delves into the child’s case and background and does not simply examine
the file. One judge and one prosecutor also emphasised the importance of communication with the
child – to follow the child’s best interests, officials must explain everything to the child as well as
possible and ensure that the child could understand and is willing to open up and cooperate. One
interviewed prosecutor mentioned that addressing the best interests of the child requires co-
operation between different institutions. In addition, it is important that the procedural evidence is
there, made available by the investigator.
According to one of the interviewed lawyers, following the best interests of the child in criminal
proceedings means that the lawyer encourages the child to speak the truth and to accept the
punishment to help them stay away from crime in the future. Another lawyer emphasised the need
to look at the big picture, meaning the child´s background, family and attending school. One
interviewed lawyer argued in the context of the best interests of the child that the procedure for the
remuneration for the lawyer’s work should be changed. Also, that the lawyer should be present at the
termination of the criminal case, so that the lawyer as an expert could also be asked what is the best
sanction for the child.
„Q: What does it require in your opinion to address the best interests of the child?
A: Noh, siin on see kõik eks ole, mis sellega kõik seondub. Et noh, kui nad on alaealised, eks ole, siis on
võimalus nende suhtes kriminaalkaristust mitte kohaldada ja kasutada nende suhtes siis
mingisuguseid kasvatuslikku laadi meetmeid. Et noh, tuleb ikkagi vaadata kogu seda pilti, et noh, kust
see laps on üldse tulnud, milline on tema perekond, kas tal on juba probleeme koolis käimisega. Ja siis
noh, kuni sinnani välja, et kui mingil hetkel võib tulla see taotlus saata laps kinnisesse lasteasutusse,
et siis kas see on tema parimate huvide kohane või siis võiks ta ikkagi jääda koju ja käia tavakoolis. Ja
noh, sellised asjaolud kõik, et tuleb vaadata kogu tema elu.
A: Well, here is all that is connected with it. That, well, if they are minors, there is the possibility to not
subject them to criminal punishment, but to subject them to some form of educational measures. That,
well, you still have to look at the whole picture, where this child has come from, what their family is
like, whether they already have problems attending school. And then, well, until it comes to that point
that there might be an application to send the child to a closed childcare institution, then whether it is
in their best interests or could they still stay home and go to a regular school. And well, all these
circumstances must be looked at throughout their life.“
Lawyer, Estonia
According to almost all the interviewees (except some other professionals, and one prosecutor, who
did not have experience/knowledge regarding this question), lawyers can always effectively
participate in all stages of the proceedings and there are not any challenges regarding that.
d. Confidential and private consultations and meetings
According to all interviewees, children are always allowed to consult their lawyer in private and
confidentially, also in cases where children are deprived of their liberty. Some interviewees added that
there are no time limits for a meeting between the child and their lawyer in the detention centre.
However, it can be more complicated if the place (e.g. prison) where the child is held is far away from
where the lawyer is located. In a case like this, the child must be ordered to go to meet the lawyer. If
24
necessary, the lawyer can also visit the child in prison. However, some interviewed children in the
children´s study reported that they had a hard time contacting their lawyer (the lawyer did not give
them their phone number, or the lawyer was busy when the child needed them).
e. Cooperation with the child’s holder of parental responsibility
According to the interviewed lawyers, they usually are in contact with the child’s parents when the
parents are interested. In general, parents are notified when a lawyer has been appointed to the child
and they are given the lawyers contacts (name, email, phone number). If necessary, the lawyer will
consult with the parent and talk about the circumstances, the further proceedings and whether the
case goes to court or is resolved in another way. The interviewees did not point out any problems
regarding cooperation with the child’s holder of parental responsibility.
f. Discussion of findings
In conclusion, a state paid lawyer is always appointed to accused or suspected children by law.
Children and their families can hire their own lawyer for which they have to pay for themselves. The
lawyer usually meets with the child before the first questioning by the police and they can always have
private and confidential meetings. The questioning and court hearings cannot happen without a
lawyer present. There have been cases where police have pressured the child to write a sincere
confession without the lawyer present. This confession, however, cannot be used in court as evidence.
According to the interviewees, the lawyers can always effectively participate in all stages of the
proceedings and there are no challenges regarding that. Effective participation in the eyes of the
interviewees means that the lawyer has the child’s best interests in mind and that they make sure the
child understands everything.
C.5 The right to an individual assessment
a. Legal overview
The right to individual assessment was included in the Code of Criminal Procedure with the
transposition bill of the Directive. The rights of suspects and accused persons are outlined in § 34 of
the Code of Criminal Procedure, this article was supplemented with a subsection regarding specific
rights of children, including the right to an individual assessment. The provision states that a child
defendant has the right to have a pre-trial report prepared for their individual assessment at the latest
before bringing the charges, except in the case this is not in their interests. It is not specified who
assesses whether it is in the defendant’s interests or how. It also provides that the conclusions of the
individual assessment must be taken into account upon making procedural decisions.36
This right to a pre-trial report existed before the transposition of the Directive and was outlined in the
Probation Supervision Act. It serves as an individual assessment report, containing a summary of the
personal characteristics, social circumstances, biographical facts and a psychological-social prognosis
of the suspect or the accused.37 However, the specifics regarding children were further clarified with
the transposition bill in 2019. It was added that upon preparation of a pre-trial report on a child
suspect, their vulnerability, and the results of any individual assessments made earlier shall be taken
into account. In case the facts constituting the basis for the report change substantially during the
proceedings, an additional report shall be prepared at the request of the body conducting
proceedings.38 It was also added that when collecting information for the pre-trial report, the officer
36
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 34 (11) 3), 12 February
2003.
37
Estonia, Riigi Teataja, Probation Supervision Act (Kriminaalhooldusseadus) § 24 (1)-(2), 17 December 1997.
38
Estonia, Riigi Teataja, Probation Supervision Act (Kriminaalhooldusseadus) § 24 (6), 17 December 1997.
25
is required to meet the person who has been designated by the child defendant in case their legal
representative is not available.39
The importance of an early pre-trial report is also stressed in the 2018 prosecutors’ agreement
“Special treatment of juvenile offenders in criminal proceedings”, which states that pre-trial report
should be ordered at the earliest possible stage of the proceedings. Before ordering a pre-trial report,
the investigative body collects the necessary information about the child from the school, parents and
the local government. If necessary, data are also collected from health care institutions.40
b. Individual assessment and exceptions in practice
The four groups of professionals gave very different accounts on the individual assessment. It is clear
from the answers that they meant different documents and referred to them with different names. It
is possible that during criminal proceedings, several assessments by different professionals are carried
out, depending on the type of the proceedings and the needs of the investigation and the procedure.
According to three police officers (one did not know), an individual assessment takes place and is
conducted by the police. The aim is to get as much information about the child as possible. Data on
the child is collected from the parent, the school (from either a teacher or a psychologist), the child
protection or social assistance department of the local government, the family doctor, hospitals, if the
child has been in a hospital. The parent is questioned as a witness, they give a description of the child,
usually also about the child's education, behaviour, hobbies, computer use. If the child has a low socio-
economic background, this does not affect the assessment. If the child is a migrant, additional sources
of information may be included.
One of the police officers explained that the pre-trial report of probation officers is more related to
the prosecutor and their decisions in the proceedings. The prosecutor usually orders the assessment
from the probation officer.
It is not entirely clear from the answers of the police officers whether the child can request the
assessment. One of the interviewees said that the child and their lawyer can make all kinds of
applications, but they may not be aware of the individual assessment in order to request it. However,
they have encountered cases where it is asked from the police to collect background information
about the child, for example from neighbours or other acquaintances. Another police officer said that
the assessment may be requested by the lawyer and the child, but is usually done as a preliminary
step by the officer conducting the proceedings.
One of the interviewed police officers said that if the case is terminated due to lack of elements of the
crime and this is known before the hearing, no effort will be made with the individual assessment. The
same interviewee was the only one to point out that the assessment is updated as children and their
circumstances may change rapidly.
“Q: Is the assessment updated throughout the proceedings whenever elements that formed its basis
significantly change?
A: (EE) Kindlasti uuendatakse. Kuna laps areneb kiiresti. Isegi paari kuuga võib noore käitumine
muutuda. Iga pisiasi võib noort mõjutada. Individuaalset hinnangut uuendatakse, kui lapse pere kolib
või lapse peres midagi muutub, nt mõni sugulane sureb. Ma isegi märkan lapse juures muutusi, ta
hakkab nt uusi sõnu kasutama.
A: (EN) Definitely updated. As the child develops rapidly. Even in a few months, a young person's
behaviour can change. Every little thing can affect a young person. The individual assessment is
39
Estonia, Riigi Teataja, Probation Supervision Act (Kriminaalhooldusseadus) § 24 (3), 17 December 1997.
40
Estonia, Alaealistele spetsialiseerunud prokuröride kokkulepe, Kuriteo toime pannud alaealiste
erikohtlemine kriminaalmenetluses, Narva-Jõesuu, 21 February 2018.
26
updated if the child's family moves or something changes in the child's family, e.g. a relative dies. I also
may notice a change in the child, e.g. the child starts using new words.”
Police officer, Estonia
Two of the four interviewed lawyers claimed that there is no assessment of the child´s needs. One of
them pointed out that even if an assessment is performed in the proceedings, the lawyer does not see
the document. The lawyer sees the case file at the end of the pre-trial investigation (sees the
documents added into the file by the prosecutor). The other of the two lawyers said that the lawyer
may request the assessment.
Two lawyers claiming that there is an individual assessment gave following information about the
assessment:
• In case of serious crimes, such as murder, a forensic psychiatric examination is carried out,
which also assesses personality traits.
• In case of, for example, a fight or theft, etc., a characterisation is asked from the school or
workplace.
• The assessment takes place when the file is forwarded to the prosecutor. The prosecutor calls
out the child and talks to them.
• The parent is asked about the family relationship, the relationship between the parent and
the child, whether the parent has authority, whether the child listens to the parent.
• The police may ask for background information from the regional child protection.
• If the child has already been suspected of a crime, data from the youth police will also be
collected.
• Pre-trial report is mandatory for children. The probation officer must gather all the preliminary
information, visit the child's home, talk to the child etc. The lawyer’s task is also to say it if
they see that there is no assessment. The interviewee thinks that the report is prepared only
in cases that go to court.
• After the pre-trial report has been prepared, it is not likely that new information would be
added in there. If the lawyer finds something, an additional document is created, which the
prosecutor evaluates in the light of new information.
According to the prosecutors and judges, the probation officers prepare written pre-trial reports
outlining the child's life course, date of birth, place of birth, family members, educational background,
previous offences, school and grades. In the case of children with disabilities, there is more
information in the report, because they have been under the attention of the social system for a longer
time.
“Q: Do specialised experts assess the individual characteristics and situation of children suspected or
accused of committing a criminal offence? If so, who specifically is conducting such an individual needs
assessment, what does it include and at which stage of the proceedings is it usually conducted?
A: (EE) See individuaalne hindamine, mida meie nimetame kohtueelseks ettekandeks, toimub
olukorras, kus kriminaalasi on tulnud prokuratuuri ja mina siis prokurörina vaatan sinna sisse ja
otsustan, kas see läheb tõenäoliselt kohtusse edasi või mitte või kas ma näiteks lõpetan selle menetluse
hoopis ära. Ja kui ikka on näha, et asi läheb kohtusse, siis ma alati tellin selle kohtueelse ettekande
kriminaalhooldusosakonnalt. Seda teeb kriminaalhooldusametnik, kes võtab aluseks seal erinevad
iseloomustavad materjalid, mis on nii koolilt ja linnavalitsuselt välja küsitud selle lapse ja pere kohta.
Samuti siis peetakse seal lapsega omavahel vestlus ja kogu see lugu võetakse niimoodi kokku.
Analüüsitakse lapse varasemat elukäiku ka, et kust mingi tegu võib olla alguse saanud. Ja siis sellest
tulenevalt tehaksegi järeldused, et mis meede oleks lapse puhul sobilik ja mis mitte.
27
A: (EN) This individual assessment, which we call a pre-trial report, takes place in a situation where a
criminal case has come to the prosecutor's office and I then look into it and decide, as a prosecutor,
whether it is likely to go to court or not, or whether, for example, I can terminate the proceedings
instead. And if I see that the case goes to court, I always order that pre-trial report from the probation
department. This is done by a probation officer, who takes as the basis the various characterising
materials that have been asked from school and the city government about this child and the family.
Also, there is a conversation with the child and the whole story is summed up in this way. The child's
previous life course is also analysed, where any act may have started. And then, as a result, conclusions
are drawn as to which measure would be appropriate for the child and which would not.”
Prosecutor, Estonia
The information in the report is collected through the questioning of the legal representative (parent
or guardian). In addition, a query is sent to the school, public registries, and the criminal record is
checked. The family doctor and the psychiatrist of the child may be contacted. If necessary, the child
is also assigned a complex forensic examination, which shows whether the child is capable of guilt,
whether they are able to face court trial and serve the sentence.
The report is prepared at the final stage of the pre-trial proceedings – it is ordered by the prosecutor.
One interviewee said that in case of children, individual assessment is a legal obligation, it is not
necessary to apply for it. Another interviewee said that in case of smaller offences where the
prosecutor terminates the proceedings, the report is generally not ordered.
„Q: In your experience, are there any criminal cases against children in which such an individual
assessment is not typically conducted? If so, which and for what particular reasons?
A: (EE) Jah, üks asi on tulnud ette [kus hindamist ei olnud]. Põhja-Prokuratuuris on alaealiste osakond,
st spetsialiseerunud prokurörid, kes teevad head tööd, teavad kõiki alaealiste erisusi, neil alati
hindamised tehtud. See üks asi oli selline, kus menetleja oli narkoasjadele spetsialiseerunud prokurör,
kes ei teadnud alaealiste erisust. Kohus saatis selle asja prokuratuuri tagasi, sest hindamine oli
tegemata. See näide on absoluutne erand – 10 a jooksul on mul see vaid üks kord ette tulnud. Kohus
ettekande olemasolu kontrollib, see on kohtu jaoks oluline. See on kohtule ainuke allikas, kust lapse
kohta infot saada.
A: (EN) Yes, one case has come up [where the assessment was not prepared]. The Northern District
Prosecutor's Office has a juvenile department, i.e. specialised prosecutors who do a good job, know all
the specificities of juvenile cases, and they always do the assessments. In this one case, a prosecutor
specialised in drug related crimes did not know the specificities of cases involving minors. The court
referred the case back to the prosecutor's office because no assessment had been made. This example
is the absolute exception – it has happened, in my experience, once in 10 years. The court checks the
existence of the report, it is important for the court. This is the only source for the court to obtain
information about the child.”
Judge, Estonia
Several prosecutors and judges said that no new report is submitted during the proceedings in case
new information emerges. The report is in writing and is always part of the court file.
One of the interviewed prosecutors suggested that the prosecutors take on the assessment of
children's individual needs, involving other experts such as child protection workers and probation
officers. If necessary, roundtables will also be organised, which include psychologists, prosecution
consultants, and other important parties. Such an individual assessment by the prosecutor usually
28
takes place at the stage when the investigator has finished their work and the prosecutor starts their
work.
The other professionals discussed various assessments when asked about the individual assessment
in the context of criminal proceedings. Only one of the seven interviewees knew that the police
officers conduct an individual assessment. They said that an assessment is part of the police
investigator's work instructions, there is no need for the lawyer to request it. The police question the
child's parent, ask the local government for information about the family, contact the school or the
last educational institution for information, including about the child's educational success and
behavioural patterns. The police also check the information on referrals to doctors and psychiatrists.
If the file contains information that is more than few months old, the prosecutor may submit new
information requests.
Two interviewees discussed the forensic examination. One of them claimed that the needs and
vulnerabilities, personality and maturity, social and family background of suspected or accused
children are not normally assessed. It is only done when necessary. According to the second
interviewee, the forensic psychology reports assess the child's emotional state at the time of the crime
and at the time of the interview. The child's social background and other characteristics are assessed
by forensic psychiatrists and psychologists, for example, on the basis of the documents in the file,
and/or they ask for additional testimonials, for example from school, child protection, etc. They do
not directly assess the child's needs, but make a recommendation in the context of needs for
treatment if it can be seen that the child would benefit from living in a controlled environment (e.g. a
closed childcare institution).
One interviewee discussed a risk assessment of a child who is on probation. This assessment is carried
out by a probation officer only at the decision of an official. This is usually done for cases that go to
court (so not for all children involved in criminal proceedings as suspects/accused) and if the
prosecutor orders it (the assessment is added to the court files). This risk assessment includes an
analysis of the crime, previous crimes, biography, circle of acquaintances, education, language skills,
drug and alcohol use, health status, etc. If necessary, the police, social worker, support person, local
government child protection specialist, etc. are also involved in the risk assessment carried out by
probation officers.
One interviewee discussed an individual assessment of children and young people carried out by a
probation officer at the request of the prosecutor's office. An individual assessment usually includes
home visits, interviews with the child and the parents. Sometimes this includes conversations with the
school psychologist, social worker, etc.
The seventh interviewee discussed the individual assessment performed by the child protection
workers, i.e. the complying with the case plan of a child. This is done for all children who are exposed
to child protection for various reasons, including children suspected or accused of a crime. The case
plan evaluates the child's social network, family background, education and health situation.
c. How and for what purposes are the results of the individual assessment used by national
authorities in practice?
Only two police officers could tell the purpose of the individual assessment. The possible purposes
are following:
• Facilitate the decision on whether the child remains at liberty or should they be detained.
• Facilitate the decision on which sanctions should be applied to the child.
• Facilitate the decision on how the child's behaviour should be influenced.
• Facilitate the decision on whether the child should be placed in a closed childcare institution.
29
• The findings are used throughout the proceedings – the assessment is used to make decisions
about the outcome of the proceedings.
Three lawyers gave their insights to the purposes of the assessment:
• This is the basis for making a sentencing decision, either for the court or for the prosecutor in
a settlement procedure.
• If a child has a disability, efforts are made to avoid arrest and imprisonment. Placement in a
special care home is preferred if the disability so requires.
• The assessment provides guidance on whether a penalty is necessary or other means of
influence (sanctions) are required.
• The assessment does not affect the decision to detain. If the child has been detained, they
have already been detained. If they are at liberty in the middle of the proceedings, then there
is no reason to be detained in the middle of the proceedings.
The prosecutors and the judges saw the purpose of the assessment in the following:
• This is the basis for making a sentencing decision.
• The court uses the report to understand why the child committed the act and, secondly, what
to do about it – what is best for their social status and family background.
“Q: How and for what purposes do national authorities use the outcomes and findings of this individual
assessment? What measures are put in place to address the specific needs of the child?
A: (EE) Kohtunik saab istungile eelnevalt ülevaate alaealisest – millisest perest ta on, kuidas tal koolis
läheb - et lahendada menetlus alaealisele parimal moel ja määrata alaealise huve arvesse võttes
sobivaim karistus.
A: (EN) The judge receives an overview of the minor in advance of the hearing – what kind of family
they are from, how they are doing at school – in order to resolve the proceedings in the best way for
the minor and to determine the most appropriate sentence taking into account the minor's interests.”
Judge, Estonia
The other professionals reported following purposes of the assessment:
• The risk assessment is added to the court files, to help in sentencing and determine measures
of influence. Based on the risk assessment, a maintenance plan is completed. A summary is
made by the Ministry of Justice, which provides relevant instructions, e.g. for child protection,
for planning certain activities.
• To assess which measures the child could be referred to. It also assesses whether a child is
eligible to participate in a therapy programme (e.g. multidimension family therapy MDFT).
• The assessment is used during pre-trial proceedings and is written into the indictment.
Prosecutors consider the assessment of probation officers when imposing sentences and
measures.
• The assessment is used to refer to family therapy or to provide background information to the
therapist.
d. Challenges
According to the interviewees there are no hurdles for certain distinct groups of children.
e. Discussion of findings
The individual assessment is understood very differently by different groups of professionals
depending on the area of their work and which stage of the criminal proceedings they are familiar
30
with. Based on the findings, some form of assessment or collecting of information on the child is
carried out by the police. For cases that are taken to the court, a pre-trial report is prepared, if the
prosecutor requests one. If the officials so decide, the child may be subjected to a forensic
psychological assessment. For children who are on probation, risk assessment is carried out.
C.6 Deprivation of liberty as a last resort and safeguards for children who are deprived of their
liberty
a. Deprivation of liberty as a last resort measure
i. Legal overview
The Code of Criminal Procedure provides that in case of a child defendant, the court may order that
detention is replaced by placement in a closed childcare institution.41 This option was added with the
amendments that entered into force in 2018, before the transposition of the Directive.
The service of closed childcare institutions is regulated by the Social Welfare Act.42 A closed childcare
institution service is a round-the-clock service provided to a child whose liberty has been restricted by
a court order. The purpose of the service is to support the child's psychological, emotional, educational
and cognitive development in order to achieve lasting changes that will enable the child to successfully
cope in a normal environment without behaviour that would harm their life, health and development
and the life and health of other persons.43
In addition to using the service as an alternative to detention during criminal proceedings, children
aged 14-18 can be placed in the closed childcare institution by the court as a sanction for committing
a criminal offence under § 87 of the Penal Code. In addition, local government authorities can submit
an application to the court to place a child in the closed childcare institution if the child's behaviour
endangers their own life, health or development or the life or health of other persons and this risk
cannot be eliminated by any less restrictive measures.44
The Code of Criminal Procedure also includes other preventive measures which can be used as
alternatives to detention, such as prohibition on leaving the place of residence or electronic
surveillance.45 According to the 2018 prosecutors’ agreement “Special treatment of juvenile offenders
in criminal proceedings”, replacing detention with electronic surveillance is used if the child’s
presumed conduct does not pose an immediate risk of continuing serious crime, if the child’s home
environment is sufficiently stable, and when it enables continuing social activities, such as going to
school. When electronic surveillance is applied, appropriate additional behavioural control is also
specified. In addition to the preventive measures, non-procedural options can be used to guide the
behaviour of children, such as referral to family therapy or another programme, or support for
relocation to attend a different school.46
In a 2019 master’s thesis, for which 15 experts (police officers, prosecutors, judges, etc) in the field of
juvenile criminal justice were interviewed, it was noted that neither prohibition on leaving the place
of residence or electronic surveillance have found regular use when it comes to children, as they are
either not proven effective or there are other obstacles (e.g. the child does not have a home or the
41
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 131 (32), 12 February
2003.
42
Estonia, Riigi Teataja, Social Welfare Act (Sotsiaalhoolekande seadus), Division 71, 9 December 2015.
43
Estonia, Riigi Teataja, Social Welfare Act (Sotsiaalhoolekande seadus), § 1301 (2), 9 December 2015.
44
Estonia, Social Insurance Board (Sotsiaalkindlustusamet), Kinnise lasteasutuse teenus.
45
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 128, § 1371, 12 February
2003.
46
Estonia, Alaealistele spetsialiseerunud prokuröride kokkulepe, Kuriteo toime pannud alaealiste
erikohtlemine kriminaalmenetluses, Narva-Jõesuu, 21 February 2018.
31
parents are not able to control the behaviour of the child at home). Interviews with specialists showed
that the replacement of detention with placing the child in a closed childcare institution has been
widely used and that this measure is mostly positively assessed, as children receive at least basic
education in the institution.47 The interviewed experts agreed that detention is used as a last resort
for children, only if all possible options for influencing the child have been tried in the past and have
not proven effective. Interviewed judges provided positive feedback about the quality of applications
for arrest warrants, explaining that the applications regarding children are thoroughly motivated by
the prosecutors, and the relevant court hearings can last for several hours, because all parties ask
questions and the whole life of the child is thoroughly examined, making detention a very carefully
considered decision.48
Arrest warrants and other court orders on preventive measures can be appealed in accordance with
the appeal procedure set out in Chapter 15 of the Code of Criminal Procedure.49
ii. Deprivation of liberty as a last resort measure and the application of measures
alternative to detention
According to all interviewees, deprivation of liberty of a child is used as a last resort measure and
used very rarely. For example, an interviewed judge brought out that in Tallinn area, prosecutors
request the court to arrest a child only once or twice a year. In case of a serious crime (like murder
or when very serious damage to health has been caused) though, the child is arrested even if it is the
child’s first crime. In case of second level crimes, the prosecutor does not lightly request the arrest
of the child. Deprivation of liberty is considered only when all other measures have failed. However,
the issue that some interviewees (mainly judges, prosecutors, police, and lawyers) highlighted is that
many of these alternatives only emerged a few years ago, so the use of alternative measures is still
in its infancy. The interviewed experts mentioned the following alternative measures in use:
• prohibition to leave the place of residence (house arrest);
• electronic surveillance or ankle monitor (this is typical of cases where a child has already
committed criminal offences repeatedly, has a suspended sentence and commits a new
offence during probation);
• placing the child in a closed childcare institution;
• community service;
• shock imprisonment (usually a short-term detention applied with the intent to make the
person realise the consequences of their criminal acts);
• counselling;
• social programmes like for example “ringist välja” (out of the circle) (“ringist välja” is a
network-based model introduced in 2020 by the Ministry of Justice and the aim of the
programme is to identify risks and opportunities related to young people in particularly
47
Vlassova, V. (2019), Alaealistele kohtueelses menetluses kohaldatavate tõkendite süsteemi arenguvajadus,
Master’s Thesis, Tartu University, Law Department in Tallinn, p. 56-59.
48
Vlassova, V. (2019), Alaealistele kohtueelses menetluses kohaldatavate tõkendite süsteemi arenguvajadus,
Master’s Thesis, Tartu University, Law Department in Tallinn, p. 53-55.
49
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 383-392, 12 February
2003.
32
complex cases and to ensure young people's legal compliance through cooperation between
specialists from several institutions and their families;
• addiction treatment;
• MDFT or multidimensional family therapy;
• paying the victim financial compensation for damage caused by the crime.
Based on the interviewees’ answers, placing the child in a closed childcare institution seems to be the
most popular/used option as an alternative measure. However, one interviewed lawyer mentioned
that there are too few closed childcare institutions with too few spaces for children. There seems to
also be fluctuations in the quality of closed childcare institutions based on the interviews with children.
The interviewed experts mostly do not think that there are distinctions made between different
groups of children.
“Q: What are, in your opinion, typical circumstances when a child is either deprived of his/her liberty
or alternative measures are used?
A: (EN) Tüüpiliselt asjad, kus võetakse [lapselt] vabadus on need, kus lapsel on juba enne 14. eluaastat
pandud toime kehalised väärkohtlemised, siis, kui ta on varasemalt kohtu all olnud, kui varasemad
katseajad on määratud kohtuga, aga ta ei lõpeta oma kuritegelikku tegemist. Teda on igatepidi juba
erinevate institutsioonide poolt mõjutatud, aga ta ei lõpeta kuritegelikku tegevust. Sellist stampi ei ole,
et nt 3. kord [jääb vahele] ja pannakse vanglasse.
A: (EE) Typically, the cases in which deprivation of liberty is imposed [on children], are those where
the child has already committed physical abuse before the age of 14, when they have previously been
tried in court, when previous probation periods have been ordered by a court, but they did not stop
their criminal activity. In short, they have already been influenced by various institutions in every
way, but do not stop criminal activity. There is no such rule, for example, [that getting caught for] the
3rd time means placing in prison.”
Police officer, Estonia
“Q: From your experience, could you briefly specify the alternative measures that are applied?
A: (EE) No alternatiivseid meetmed, kui me räägime näiteks menetluse lõpetamisest prokuratuuri
poolt, võib-olla siis lihtsalt see, et kas üldkasulik töö, mingisugune sotsiaalprogramm või nõustamine.
Näiteks siis mitmedimensiooniline pereteraapia või siis „Ringist välja“ mudeli kasutamine, mis on ka
praegu väga populaarne. Samuti siis näiteks mingi sõltuvusravi või mingite ainete tarbimise keeld, eks
ole. Ka mingisuguse kahju heastamine, et laps siis kas ise või siis vanema kaudu tuleb heastada
kuriteoga tekitatud kahju. Ja noh muidugi saab määrata ka muid asjakohaseid kohustusi, mida seadus
otseselt välja ei too, aga mida me saame määrata. Kas mingi väiksese essee kirjutamine ja igasugu
niisuguseid erinevaid asju võib siis ka kohaldada lapsele, mis antud juhtumi osas sobiks.
A: (EN) Well, alternative measures, if we are talking, for example, about the termination of the
proceedings by the prosecutor's office, perhaps simply community service, some kind of social
programme or counselling. For example, multidimensional family therapy or the use of the "Out of the
Circle" model, which is still very popular today. Also, for example, some addiction treatment or a ban
on the use of certain substances, right. Also compensating some kind of damage, so that the child,
either by themselves or through a parent, has to compensate the damage caused by the crime. And,
of course, there are other relevant obligations that are not directly set out in the law, but which we
33
can impose. Whether writing a short essay, or all sorts of different things can then also be imposed on
the child, whatever is appropriate for the case.”
Prosecutor, Estonia
b. Medical examination
i. Legal overview
The right to a medical examination of children deprived of liberty was added to the Code of Criminal
Procedure with the transposition bill of the Directive. The added provision states that the child “shall
undergo a medical examination without undue delay upon deprivation of liberty in the cases
prescribed by law or if necessary, and at their request, the request of their counsel or the person
[designated by them] or on the initiative of the body conducting proceedings, and the conclusions
thereof shall be taken into account upon making procedural decisions”.50
The explanatory memorandum clarifies that if a child has been deprived of liberty but is not placed in
a detention centre but released within the prescribed period of time (within 48 hours), and no request
for medical examination is made or the examination cannot be carried out, the person conducting the
proceedings must still ensure that the child is provided with medical treatment if necessary.51
If a child is placed in the detention centre, the medical examination outlined in the Imprisonment Act
is applied, which was clarified with the following subsection during the transposition of the Directive:
“The objective of the medical examination of detained suspect who is a child is to assess, in particular,
their overall mental and physical condition. The findings of the examination shall be communicated to
the body conducting the proceedings. If there are any new circumstances, an additional examination
shall be conducted”.52
There are no specific legal remedies in case the right to a medical examination is violated.
ii. The medical examination in practice
According to most of the interviewees (except interviewees who did not know or lacked the
experience), everyone, including the child, their parents or the lawyer, have the right to request a
medical examination throughout the procedure, However, according to one lawyer, children or their
parents may not be aware of that right.
According to two other professionals, medical examination is always guaranteed if a child arrives at
the detention house or prison. One interviewed police officer reported that if medical examination is
needed in the detention house, an ambulance will be called. Furthermore, one police officer
considered the lack of medical staff in the detention house an issue. So when a medical examination
has to be done, or when, for example, the child is emotionally upset, an ambulance has to be called,
and if needed, the child is taken to a hospital for a medical examination.
According to a police officer, when a child goes to prison, the child is not asked for consent for a
medical examination, but is automatically examined by a prison doctor. Usually the prison doctor
records any injuries, asks the child about medications, use of alchohol and drugs, information about a
50
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 34 (11) 4), 12 February
2003.
51
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku
ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, p. 4, 11 July 2019.
52
Estonia, Riigi Teataja, Imprisonment Act (Vangistusseadus), § 14 (11), 14 June 2000.
34
family doctor etc. If a child is placed in a detention house for up to 48 hours, they will fill in a
questionnaire (however, this was mentioned only by one police investigator, so it is not clear wheter
it is always done in practice), including on whether they have any illness(es) for which they need to
take medication.
According to judges, all detainees are guaranteed medical care. One judge explained that when the
serving of the sentence starts, everyone will undergo a medical examination. However, they do not
know if it is the same for suspects who have been arrested. According to two prosecutors, the medical
examination certainly includes a physical examination, but if it turns out that the child may have a
mental health problem, it will also be addressed.
„Q: When children are deprived of their liberty, do they (or their lawyer, or the holder of parental
responsibility) have the right to request and trigger a medical examination?
A: (EE) Kõigile kinnipeetavatele on tagatud arstiabi. See tuleb üldisest paragrahvist. Kui vahistamisel
täisealised toovad tihti välja, et ei ole põhjendatud tõkendi kohaldamine, kuna tal on see või teine
tervisehäda, siis ma nende vahistamismääruses selgitan, et kõigile kinnipeetutele on tagatud vajalik
arstiabi – see tuleb vangistusseadusest.
A: (EN) All detainees are guaranteed medical care. It comes from a general legal provision. When
arrested, adults often point out that detention is not justified because they have this or that health
problem, then I explain in their arrest warrant that all detainees are provided with the necessary
medical care – it comes from the Imprisonment Act.“
Judge, Estonia
„Q: When children are deprived of their liberty, do they (or their lawyer, or the holder of parental
responsibility) have the right to request and trigger a medical examination?
A: (EE) See on selline huvitav asi, et kuidas see praktikas toimib ma ei tea. See tuli jah, et on õigus nagu
tervisekontrollile, aga näiteks meil arestimajas eraldi mingeid meditsiinitöötajad ei ole. Kui on muidugi
vahistamine ja ta saadetakse vanglasse, siis seal kindlasti see meditsiinipersonal on. Tegelikult see
õigus nagu justkui on, aga kuidas see praktikas tegelikult rakendub. Kas me peaksime kutsuma
mingisuguse kiirabi endale siis siia, kes nagu ütleb, et jaa, et laps on nagu korras või siis perearsti välja
kutsuma, et ta näiteks on käinud ja kõik on korras olnud. See on selline keeruline küsimus tegelikult, et
kuidas see praktikas rakendub.
A: (EN) It's such an interesting thing that I don't know how it works in practice. It came, yes, that there
is a right to a medical examination, but, for example, we do not have any medical staff in the detention
house. If, of course, there is an arrest and the child is sent to prison, then there is definitely medical
staff. The right is there, but how is it actually put into practice. Should we call some kind of ambulance
ourselves here, who says that yes, the child is fine, or call a family doctor, for example, that they have
been here and everything is fine. It's such a difficult question, in fact, how it works in practice.“
Police officer, Estonia
iii. How and for what purposes are the results of the medical examination used by
national authorities in practice?
According to two interviewed other professionals, one police officer, two judges and two lawyers,
medical examinations done in prisons are used to provide the child with appropriate medical care
(including mental health care) or take into account other special needs (e.g. if a person has lactose
intolerance or prefers vegetarian food), if necessary. Another interviewed other professional
emphasised that medical examination can also be used in court proceedings, for example, to take into
35
account how much a child is able to understand. According to one prosecutor and a lawyer, the
medical examination, especially mental health examination, plays an important role when sentencing
or making a decision (determining an appropriate or punitive measure for the child). One interviewed
police officer also mentioned that if it is known that the child has mental health issues, a psychiatric
examination will be ordered, after which the doctor can declare the child incapable of guilt if
applicable.
c. Special treatment in detention
i. Legal overview
The right to specific treatment of children in case of deprivation of liberty was added to the Code of
Criminal Procedure with the bill transposing the Directive.53 Neither the bill nor the explanatory
memorandum offer any further clarifications about the content of that specific treatment.
In the declaration of the rights that is provided to child defendants to inform them about their rights,
it is explained that special treatment in custody means that if the child is detained, they have the right
to be kept separately from adults, but not if it is against their interests. If the child is deprived of their
liberty, they still have the right to participate in family life, education, training and programmes
designed to help them.54
In connection with that right, the Imprisonment Act was also amended. The segregation of children
and adults was already provided for in the Act, but the amendment added that exception to the
requirement of segregation may be made if segregation of a child from adults is contrary to the
interests of the child.55 It is not specified who assesses the interests of the child or how.
There are no specific legal remedies in case the right of a child to specific treatment is violated. All
prisoners, detained persons and persons held in custody have the right to file complaints to the prison
service or the Ministry of Justice. If the prison service or the Ministry of Justice has rejected the
complaint, it is possible to file a complaint with the Administrative Court.56
ii. The special treatment in practice
According to most of the interviewees, children suspected or accused of a crime are held separately
from adults, including when in police custody, pre-trial detention, and post-trial detention. This is in
line with the law and the findings of the children’s study. However, one interview with a child serving
their time in prison revealed that they were kept separately from adults in the cell, but they were
together with adults in prison sectors when they were in pre-trial detention for six months.
The interviewed experts’ opinions and experiences regarding access to health care while detained vary
a little bit – while most interviewed experts think that children have an adequate to a good level of
access to health care when deprived of their liberty, some do not agree. For example, one police
investigator mentioned that access to medical care in a detention house could become an issue –
detainees cannot be given medication, for example, painkillers, when there is no doctor present. One
interviewed lawyer mentioned that medical care in Tallinn prison is below any standard (for example,
in case of back pain, painkillers are given but no actual treatment is provided). One interviewed other
professional also reported that there are problems with access to medical care in closed childcare
53
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 34 (11) 5), 12 February
2003.
54
Estonia, Minister of Justice (Justiitsminister), Alaealise õiguste deklaratsioon, Annex 3 of the Regulation
“Õiguste deklaratsiooni näidisvormi kehtestamine” of 17 July 2014 (amendment entered into force 30
December 2019).
55
Estonia, Riigi Teataja, Imprisonment Act (Vangistusseadus), § 12 (5) , 14 June 2000.
56
Estonia, Riigi Teataja, Imprisonment Act (Vangistusseadus), § 11 (5), 14 June 2000.
36
institutions – they have a lack of medical specialists on site. If possible, children are sent to support
services or to see a family doctor outside a closed childcare institution, but this is always not possible
due to logistics. This correlates to the findings of interviews with children, who reported a lack of
mental health care in the closed childcare institution and a lack of doctors on site. According to one
child, they have only a nurse on site who gives the children their medication. However, according to
one interviewed lawyer's experience, they do have doctors and nurses on-site and organised medical
monitoring in closed childcare institutions, which can highlight the differences in the quality of closed
childcare institutions.
According to all the interviewees who had knowledge and experience regarding this question (for
example, some other professionals did not know), access to education and training is provided in both
prison and a closed childcare institution. However, according to one interviewed judge, there is no
schooling during detention (before sentencing). This correlates to an interview with a child who was
detained for 6 months and did not continue school at that time. However, later when they were
sentenced and transferred to another prison to serve their sentence, they did start school again.
Furthermore, according to some interviewed other professionals, lawyers, prosecutors and judges,
children in prison are also guaranteed access to various programmes that promote their development
(MDFT therapy, art, light and music therapy, psychological help, etc.), but their participation largely
depends on the child’s own will and consent to participate and behave well. However, one lawyer
argued that there are no special physical or mental development measures in prisons other than
having access to the gym and books to read.
Most interviewees agreed that there are problems in providing follow-up services to young people
who have left prison or closed childcare institutions. There are some programmes that promote
children’s reintegration into society, but their effectiveness is questionable. Many interviewed
experts, mostly other professionals, emphasised that children need more support in getting back on
track.
„Q: In your experience, when children are deprived of liberty, do they - to an appropriate level - have
access to physical and mental development measures?
A: (EE) See füüsilise ja vaimse arengu meetmed kui me nüüd räägime vangistusest, siis meil on väga
pikad vangistused nende väga raskete kuritegudega. Ja siinkohal jääb tegelikult sellisest arengust
lastel ikkagi väga puudu. Kui ta tuleb meil 14. aastasena vanglasse ja lahkub meil sealt 22. aastasena,
siis ta tegelikult ei ole vaimselt jõudnud sinna 22. aastase tasemele. Seda on näha nii erinevatel elu
etappidel. Seda on näha näiteks nende otsustusvõimes – nad ei suuda teha iseseisvaid otsuseid väga
palju. See on tihtipeale näha neil näiteks seksuaalelus. Nad ei olegi näinud seda osa kus sa noh ma ei
tea, tüdrukutega flirdid ja seal ongi sellist noh, kurameerimist. See osa on täiesti puudu neil seal elust.
Tegelikult selline täiesti normaalne areng on puudu. See on see, miks ma seal vastasin ei (küsimuse
kohta, mis puudutas vangistatud laste ligipääsetavust füüsilise ja vaimse arengu meetmetele).
Erikoolis on natukene lihtsam.
A: (EN) These measures of physical and mental development, if we now talk about imprisonment, then
we have very long imprisonments for these very serious crimes. And here, in fact, children still miss
such a development. When he comes to prison at the age of 14 and leaves at the age of 22, he has not
really reached the level of a 22-year-old mentally. This can be seen at so many different stages of life.
This can be seen, for example, in their decision-making capacity – they are not able to make very many
independent decisions. This is often seen in their sexual life, for example. They haven't seen the part
where you, I don't know, flirt with girls and such a thing as courtship. This part is completely missing
from their lives there. In fact, a normal development is lacking. That is why I answered previously no
37
(question on access to physical and mental development measures for children deprived of liberty). It's
a little easier in a special school.“
MDFT supervisor-therapist, Estonia
d. Contact with family members during deprivation of liberty
According to most interviewees who have experience with children deprived of their liberty, children
mostly always (if not banned by the prosecutor’s office or when the child has violated prison rules)
have the opportunity to contact and meet with their family members when deprived of liberty (in
prison and in a closed childcare institution). According to most interviewees, it is possible for children
to call family members immediately after arrest, however, some argued that if a child is arrested, all
meetings are generally excluded until a certain stage of investigation is reached.
The communication takes place either by face-to-face meetings or phone calls. In closed childcare
institutions, they generally have visiting days and certain times when children can make phone calls.
According to some interviewees – one police officer, one other professional, one prosecutor – face-
to-face meetings were banned during the COVID-19 pandemic.
e. Discussion of findings
According to all interviewees, deprivation of liberty of a child is used as a last resort measure and used
very rarely. Deprivation of liberty is considered when all other measures have failed. The most popular
alternative measures to deprivation of liberty include placing a child to a closed childcare institution,
house arrest, electronic surveillance, community service, different types of therapy and social
programmes, etc. According to the interviewees, everyone (including the child, their parents or the
lawyer) has the right to request a medical examination throughout the procedure, however, children
or their parents may not be aware of that right. Medical examination is always done when a child first
arrives in prison, however, there are issues like lack of medical staff in detention houses and closed
childcare institutions. According to the interviewees, medical examinations are used to take into
account the child’s special needs and to help determine an appropriate or punitive measure for the
child. The interviewed expert’s experiences and opinions vary regarding children having access to
health care services, physical and mental development measures, education, and training, as well as
programmes that foster their personal development and reintegration into society. While most agree
that there is appropriate access to education and training, as well as urgent health care services and
physical development measures, there is room for improvement in the provision of mental health care
and mental development measures. Furthermore, most importantly there is a need for better
programmes that help with reintegration into society, that are currently lacking and rely on the child’s
own and their family’s motivation to participate.
C.7 The rights to effectively participate in and be accompanied during the trial
a. Legal overview
According to the explanatory memorandum to the bill transposing the Directive, Article 16 of the
Directive did not require any amendments to be made in the Estonian legislation. The Code of Criminal
Procedure provides that the accused person has the right to examine the criminal file through their
lawyer and participate in the judicial hearing.57 There are no specific provisions for children or any
guidelines about measures to enable children to participate in the trial “effectively”.
57
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 35 (2), 12 February
2003.
38
At the request of the Ministry of Justice, a website on child-friendly proceedings was created, which
contains information and contacts for children and parents who come into contact with the legal
system. The website also includes information about how a court hearing is conducted and how to
behave during the hearing, in child-friendly language.58
The transposition bill of the Directive added a section to the Code of Criminal Procedure concerning
the right for the child’s parent, other legal representative or relevant person to participate in the
proceedings at the request of the child defendant, more specifically, to accompany the child during a
court hearing, or during the performance of procedural acts, if this is in the interests of the child in
the opinion of the body conducting the proceedings, and does not impede the criminal proceedings
by means of causing delays or in any other manner.59
The explanatory memorandum to the bill explains that the right to have the child's legal representative
or other person to be present does not outweigh the need to carry out certain procedural steps
without delay and to conduct the criminal proceedings without undue delay. It is also clarified that
the person conducting the proceedings must be prepared to explain the reasons for denying the
request to the child in a way the child understands. Any affected person may file a complaint pursuant
to § 228 of the Code of Criminal Procedure (the general appeal procedure against procedural
violations).60
b. Right to effective participation in practice
i. Enabling the child’s effective participations - Modifications of settings and conduct
The police officers were not asked about the right to participate in the trial.
According to the lawyers, the children are generally heard in the ordinary courtroom. The answers
about the procedure varied. One lawyer claimed that the procedure is the same for adults and for
children.
Hearing is public or closed depending on the circumstances. One interviewee said that the court
hearings are generally public, unless there are grounds to declare them closed. It also depends on the
age of the child.
One interviewee said that if the child is a defendant on trial, the child must be present. This contradicts
with the claim made by another interviewee who said that sometimes the judges allow using video if
the child is detained in another city – this was reported as a good practice.
„Q: Based on your experience, in comparison with proceedings against adults, are there any
modifications concerning the settings and conduct of the proceedings to make it possible for the child
to effectively participate in the trial? If so, which in particular? Please elaborate.
A: (EE) Viimastel aastatel on tavapärane, et kui laps soovib kaasa tugiisikut, siis teda istungile
lubatakse.
Istungil võimaldatakse ka üle videosilla ütlusi anda, kui laps on kannatanu või tunnistaja. Kui laps on
kohtu all süüdistatavana, siis peab laps ise [istungil] kohal olema.
58
Estonia, Ministry of Justice (Justiitsministeerium), Lapsesõbralik menetlus, Juhtumi lahendamine kohtus.
59
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 352 (3), 12 February
2003.
60
Estonia, Ministry of Justice (Justiitsministeerium), Explanatory memorandum to the bill “Karistusseadustiku
ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste
direktiivi ülevõtmine)”, 11 July 2019.
39
A: (EN) In recent years, it has been customary that if a child wants to be accompanied by a support
person, they will be allowed to attend the hearing.
It is also possible to testify over a video bridge, if the child is a victim or witness. If the child is a
defendant on trial, the child must be present [at the hearing].”
Lawyer, Estonia
The prosecutors and the judges confirmed that courtrooms are the same for everyone, there are no
separate rooms for children. The children's rooms at the courts are only for questioning child victims.
One interviewee gave a reason why the child is tried in the same courtroom as the adults: the authority
of the court is used to influence the offender, including the child. Children who are brought to justice
for their offence have usually committed offences several times and are being persuaded by the
seriousness of the proceedings to get back on track. That is why the hearings are held in the usual
rooms and using the usual routine.
The main difference for the children is that the court does more explanatory work in children's
hearings than in adult hearings. It is important that the child understands, and that the right solution
is found. There is a more relaxed atmosphere in the court and the communication is not so official. If
the rules stipulate that it is necessary to stand up to speak in court, then such a rule is not followed in
case of children, and the procedure is less formal, the child may remain seated. If the child is not
arrested before the hearing, they will not sit behind the barrier, but in the first bench.
The prosecutors and the judges gave different answers to the question about the hearing. One said
that the hearings are declared closed if necessary. Two said that the hearings are usually closed in
case of children, but parents can be in the room, the child´s lawyers are always present. One pointed
out that in the best interests of the child, not only are the court hearings closed, but in the court
calendar, information about the hearings does not include the child's full name but only initials to
protect their identity (from media interest). This is based on the Code of Criminal Procedure, which
provides that “the time of a court hearing is published on the website of a court indicating the number
of the criminal matter, the name of the accused who is an adult, and the initials of the accused who is
a minor”.61 This provision existed before the transposition of the Directive.
“Q: Based on your experience, in comparison with proceedings against adults, are there any
modifications concerning the settings and conduct of the proceedings to make it possible for the child
to effectively participate in the trial? If so, which in particular?
A: (EE) Tavaliselt on lapse huvides kohtuistungid kinnised, kohtukalendris istungite kohta infos ei ole
lapse terve nimi vaid initsiaalid, et kaitsta tema isikut (meedia huvi eest), kindlasti on istungil kaitsja.
Vajadusel ka tsiviilkostja. Istungil on lapse seaduslik esindaja, ta võib osaleda ka siis, kui istung kinnine.
A: (EN) Usually, in the best interests of the child, court hearings are closed, in the court calendar,
information about the hearings does not include the child's full name but only initials to protect their
identity (from media interest), there is definitely a lawyer present at the hearing. if necessary, also a
civil defendant. The child's legal representative can attend even if the hearing is closed.“
Prosecutor, Estonia
According to the other professionals, there are no special courtrooms for children. Hearings are
declared closed when necessary, meaning not always. The children suspected or accused of a crime
can consult with their lawyer or support person before and during the hearing, but the child may not
always dare to do so according to the interviewees.
61
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 1691, 12 February 2003.
40
According to one interviewee, the organisation and the conduct of court proceedings may be more
flexible in case of children, meaning that the hearings can be organised immediately, even when not
planned beforehand, so that the child´s procedure will not experience any delays.
ii. How are children heard and their views taken into account?
The lawyers concentrated in their answers on how the child is talked to. None of the lawyers seemed
concerned about the child being able to state their views. One interviewee pointed out that the cross-
examination is not applied to children pursuant to the law.
„Q: Based on your experience, in comparison with proceedings against adults, are there any
modifications concerning the settings and conduct of the proceedings to make it possible for the child
to effectively participate in the trial? If so, which in particular?
A: (EE) Noh, seadusest tulenevalt alaealiste puhul ristküsitlust ei kohaldata. Et osapooled ikkagi
püüavad küsida väga selgeid küsimusi, kus on võimalus vastata nagu väga selgelt. Et selliseid keerulisi
küsimusi ei ole mõtet esitada ja ei ole mõtet ka esitada mitmeid küsimusi järjestikku ühes osas. Siis
lapsel tegelikult jääb meelde ainult esimene küsimus ja vastab sellele ära ja kõik. Et seda ikkagi
kohaldatakse ja on ka neid koolitusi ju, et kuidas küsitleda alaealist. See on spetsiifiliselt just nendele
isikutele, kes lastega tegelevad.
A: (EN) Well, by law, cross-examination is not used in case of minors. The parties try to ask very clear
questions, where there is an option to answer very clearly. There is no point in asking complex
questions, nor is there any point in asking several questions in a row in one part. Then the child actually
remembers only the first question and answers it and that’s all. This is still applied and there are also
these trainings after all, how to interview a minor. This is specifically for those persons who work with
children.“
Lawyer, Estonia
Several lawyers pointed out that the parties try to ask very clear questions and the judges explain in
relatively simple language what will happen in the proceedings, what rights and obligations the
participants have.
The prosecutors and judges all except one emphasised that the questioning of a child depends on the
type of proceedings, such as whether it is a simplified procedure or a settlement procedure. For
example, in a settlement procedure, the accused will not be heard at court at all. This view was
contradicted by another interviewee who claimed that in a settlement procedure, more questions are
usually asked from the children. One interviewee rounded it up by saying that there are many different
types of criminal proceedings and child will not always have the chance to speak at the court. For
example, if the circumstances are known, then conciliation procedure is used and the substantive
discussion of the matter does not take place in court – it is examined whether the punishment
agreement between the accused and the prosecutor is in accordance with the law – the child is not
heard in this procedure.
“Q: Based on your experience, in comparison with proceedings against adults, are there any
modifications concerning the settings and conduct of the proceedings to make it possible for the child
to effectively participate in the trial? If so, which in particular? Please elaborate.
A: (EE) Kriminaalmenetluses on palju erinevaid liike menetlusi. Kui asjaolud on teada, siis on
kokkuleppemenetlus ja kohtus asja sisulist arutelu ei toimu – vaadatakse, kas karistuskokkulepe
süüdistatu ja prokuröri vahel on seadusega kooskõlas – selles menetluses last üle ei kuulata.
Lühimeneluses toimub asja otsustamine kirjalike materjalide põhjal ja ka selles menetluses lapse
ülekuulamist kohtus ei toimu. Klassikaline menetlus – Eesti seadustes nimega “üldmenetlus” , mida on
kõigist kohtusse tulevatest kriminaaasjadest ehk 10%, alaealiste asjadest moodustavad
41
üldmenetlused alla 5%, sest tavaliselt on lapsed lihtsustatud menetlustes. Neis üldmenetluse asjades
toimub lapse ülekuulamine kohtus – st seda toimub haruharva. Pigem küsitakse kohtus lapselt tema
suhtumist oma teosse ja vaadatakse tulevikku – küsitakse, mida ta tahab tulevikus õppida, mida edasi
plaanib teha.
A: (EN) There are many different types of criminal proceedings. If the circumstances are known, then
conciliation procedure is used and the substantive discussion of the matter does not take place in court
– it is examined whether the punishment agreement between the accused and the prosecutor is in
accordance with the law – the child is not heard in this procedure. In alternative procedure, the case is
decided on the basis of written materials, and in this procedure the child is not questioned in court
either. Classical proceedings – in Estonian law, called “general procedure”, which is 10% of all criminal
cases brought to court, or less than 5% of juvenile cases, because children are usually in simplified
procedures. In these general proceedings, the child is questioned in court – i.e. very rarely. The court
asks the child about their attitude towards their offence and views of the future – asking what they
want to learn in the future, what they plan to do in the future.”
Judge, Estonia
Unlike the lawyers, one of the interviewees in this group of professionals claimed that at the beginning
of the cross-examination, the judge draws attention to the fact that the defendant is a child, and all
questions should be unambiguously understood by the child. Meaning that the child can be cross-
examined.
“Q: Based on your experience, in comparison with proceedings against adults, are there any
modifications concerning the settings and conduct of the proceedings to make it possible for the child
to effectively participate in the trial? If so, which in particular? Please elaborate.
A: (EE) Enne ristküsitlust juhin prokuröri ja kaitsja tähelepanu sellele, et tegemist on alaealisega ja
küsimused peaksid olema sõnastatud alaealisele ühemõtteliselt arusaadavalt.
A: (EN) Before the cross-examination, I draw the attention of the prosecutor and the lawyer to the fact
that the defendant is a minor and that the questions should be phrased in a way that is unambiguously
understandable for the minor.”
Judge, Estonia
According to the estimations of one interviewee in this group of professionals, in Estonia, the classical
proceedings called “general procedure”, make up about 10% of all criminal cases brought to court,
and less than 5% of juvenile cases, because children’s cases are usually processed in simplified
procedures. In these general proceedings, the child is questioned in court. The court asks the child
about their attitude towards their offence and their views of the future – asking what they want to
learn in the future, what they plan to do with their life. The circumstances of the offence are no longer
discussed much, it has already been investigated by that time. Also, the child's view or story emerges
from their written statements. This will be taken into account in court.
Three other professionals discussed hearing the child´s perspective in court. According to one
interviewee, the children are allowed to speak at the hearing and are heard, and there is no so-called
grilling or aggressive questioning, which is more common in adult hearings. From the experience of
another interviewee, the adolescents are very tongue-tied in court, as their anxiety is high. As a rule,
they limit themselves to "don't know" answers or shrugging. One of the other professionals knew that
the child's participation in the hearing depends on the type of proceedings. In case of alternative
procedure, as a general rule, the parties are not involved in the hearing, but if the child wants to say
something and come to the hearing, for example, the lawyer requests it. In settlement proceedings,
agreements are made in advance and approved by the court. In this case, there is no longer any
expression of opinions in the courtroom.
42
c. The right to be accompanied by the holder of parental responsibility
Both the lawyers and the prosecutors and the judges agreed that the parents are present at the
hearing. In recent years, it has been customary that if a child wants to be accompanied by a support
person, they will be allowed to attend the hearing. There seem to be no obstacles for the child to
discuss with their lawyer during the hearing, also breaks are allowed.
None of the other professionals discussed this matter.
d. Discussion of findings
The child is offered a chance to speak their mind in the courtroom if their procedure is of a type that
there is a court hearing with the defence and prosecution invited to express their views. The
courtrooms are the same for all – adults and children alike. The judges make an extra effort to make
sure that the child understands what is going on and what is talked about during the hearing. The child
is accompanied in court by a lawyer and a parent.
There are conflicting opinions among the professionals whether the hearing is declared closed. Most
claim that it is done if there is a need for it, or there is a legal ground that demands it (the child
defendant not being the ground itself).
43
PART D. GENERAL ASSESSMENT
D.1 Challenges
The interviewees were asked about the challenges regarding the procedural guarantees of children.
Great many different issues and problems were mentioned with only few overlaps, meaning that very
few of the challenges were mentioned by several interviewees. The challenges are grouped together
according to the topic discussed.
Challenges related to lawyers, their work or right to have a lawyer
The quality of the free legal aid assigned by the state may vary – while some lawyers do an excellent
job, there have been complaints from the children and their families that the lawyers are not
motivated to help the child and do not keep the child’s best interests in mind, nor were they proactive
in their work as the defence lawyer. It was also mentioned that in Estonia there is a lack of specialised
lawyers who work with children. This was also confirmed by the interviews with children.
Challenges related to institutions where children deprived of liberty are held
The institutions where the children who are deprived of their liberty are held lack social programmes
and other measures to support the development of a detained child. This finding was confirmed also
by the interviews with children.
Access to medical care in detention houses, prisons and in closed childcare institutions is a challenge.
There is a lack of medical staff in the detention houses, in case a child needs medical aid, ambulance
must be called. Generally, the closed childcare institutions do not have doctors on site, but rather
nurses who give the children their medications. When a child needs to see a family doctor or a
therapist or psychologist, they need to be taken outside the premises. While most interviewees agreed
that there is appropriate access to urgent medical care in prisons, some argued that proper medical
care is lacking (for example, giving only a painkiller for back pain, but not actually providing treatment).
Many children held in closed childcare institutions have psychiatric conditions and they need special
care and support which is often lacking in these institutions.
There do not seem to be enough vacancies at the closed childcare institutions (KLAT – in Estonian
kinnise lasteasutuse teenus). If the prosecutor's office wants to refer the child to the closed childcare
institution as a sanction, sometimes there is a queue, or there are no places. No similar service at the
upper secondary school level exists.
Challenges related to the conduct of criminal proceedings
The children do not always understand the information that officials pass on to them. There is a lack
of plain language information for children. As there are many Russian-speaking children, the
interpreters should be trained to communicate with children in the criminal proceedings.
Simultaneous interpretation is offered, but this is not child-friendly. The child has the right to be
questioned by the police in their mother tongue, but the written statement is currently in Estonian.
Presently, the interpreter translates the statement, and the child has to trust the interpreter.
On some occasions, the police pressures children to admit their guilt before the lawyer has arrived.
This finding was confirmed by the results of the children´s study.
Electronic surveillance as a restrictive measure on person´s liberty before the court trial should be
counted in the imprisonment time. At the moment, it is not.
44
Challenges related to social programmes and support offered to children by non-legal professionals
It was claimed that often the child is only dealt with and supported after a court decision (e.g. referred
to a programme or probation where a risk assessment is performed, etc.). The support and social
programmes should start earlier. Although there are preventive programmes, participation in them is
generally not monitored.
Many officials who work with children (especially child protection specialists) are often more willing
to send children to a special school (closed childcare institution) than to change the circumstances of
the child’s life. Insufficient training of the officials may be the cause of this.
D.3 Promising practices
All children are assigned a lawyer by the state free of charge. This practice seems to work without
problems and there seem to be no cases of children where the lawyer is not present in the
proceedings.
The expert interviews revealed that the police officers and the prosecutors who come in contact with
children in criminal proceedings have received special training and have specialised in working with
children.
The procedure is from the police perspective as child-friendly as possible and standardised across
Estonia. Proceedings are conducted not just for the sake of conducting proceedings, but the officers
aim to get the child on crime-free track by involving their support network. Estonian police structures
use alternative methods such as conflict mediation, restorative group discussions (rehabilitation
rounds) which are held to help the parties speak their minds without initiating formal proceedings.
Using a new Multidimensional Family Therapy programme, designed for the whole family, not just the
child, has given good results. These measures are either piloted or used for the purpose of a child-
friendly procedure.
Rapid intervention is a good practice. In smaller cases, the investigation is terminated and sent to the
prosecutor's office within two weeks. The criminal proceedings of children are shorter than the
proceedings involving adults. During the last 10 years, prosecutors have gained more rights, which
means that fewer and fewer cases go to court. It is attempted to solve most cases out of court for the
benefit of the children (shorter procedure).
If the juvenile justice system encounters a child who is considered dangerous, a round table will be
organised to discuss the case, with the police, the prosecutor's office, the Social Insurance Board, the
local government, and, if possible, child psychiatrists will be involved. The round table discusses why
the young person committed the offence, what is the best solution, whether an alternative measure
can be applied or, if punishment is unavoidable, what punishment it should be so the child would not
become a criminal, what support should be provided to the child when they are released from the
prison.
In general, it was said that there is a good co-operation between the prosecutor, the lawyer and the
judge. The court will meet halfway, if necessary, for example, allowing a video hearing if the child is in
custody in a different city. The court does not have to allow this by law.
In Estonia, there are few children who are offenders, therefore, an individual approach can be used
when child comes in contact with the criminal justice system. Even before the court, children are dealt
with in the prosecution with the goal that they do not become criminals, to help them on the law-
abiding path. The expert interviews emphasised that children are extremely rarely detained in prisons.
45
PART E. CONCLUSIONS
The Directive (EU) 2016/800 was transposed into Estonian legal system in 2019 by amendments to
four laws. The findings of the study show that there are practices that are solid, and which help the
child to navigate in the criminal justice system. For example, a state paid lawyer is always appointed
to accused or suspected children by law. The questioning and court hearings cannot, as a rule, happen
without a lawyer present. According to the interviewees, the lawyers can always effectively participate
in all stages of the proceedings and there are no challenges regarding the involvement of a lawyer.
The age assessment of children using other means than documents or public registers does not seem
to be a concern in Estonia. There were very few professionals who had heard of any cases where the
child´s age could not have been determined based on data from public registers.
Procedural Safeguards Directive lists eleven rights of which suspected or accused children should be
promptly made aware of. The groups of Estonian professionals gave very different answers regarding
how the informing of children of their rights is done in Estonia. The written declaration of rights was
mentioned many times and it seems to be a well-established practice to show or read the declaration
to a child. The accounts on whether children understand the information vary. The professionals also
reported differently who is the primary person to inform the children. The police officers were perhaps
most confident that they are the primary source of the information on rights for the child suspect.
The individual assessment is understood very differently by different groups of professionals
depending on the area of their work and which stage of the criminal proceedings they are familiar
with. Based on the findings, some form of assessment or collecting of information on the child is
carried out by the police. If the case is taken to court, a pre-trial report is prepared, if the prosecutor
requests one. If the officials so decide, the child may be subjected to a forensic psychological
assessment. If the child is on probation, a risk assessment is carried out.
All interviewees agreed that the deprivation of liberty of a child is used as an absolute last resort and
in general imposed on children in Estonia very rarely. The interviewed experts’ experiences and
opinions vary regarding children having access to health care services, physical and mental
development measures, education, and training, as well as programmes that foster children´s
personal development and reintegration into society while in detention. While most agree that there
is appropriate access to education and training, as well as urgent health care services and physical
development measures, there is room for improvement in the provision of mental health care and
support for child´s development. Furthermore, there is a need for programmes that help with
reintegration into society.
The children are kept away from prisons as well as courtrooms. The accused children only rarely end
up having a court trial. Estonian police and the prosecution took pride in emphasising that effort is
made to settle the case before the court or to apply the so-called softer measures. When a child does
enter a courtroom, they are offered a chance to speak their mind. The courtrooms are the same for
all – adults and children alike. The judges make an extra effort to make sure that the child understands
what is going on during the hearing.
Abovementioned differing views and answers on topics discussed at the interviews could be explained
by various things. There do not seem to be unified guidelines outside of the law which the
professionals would follow in most cases when in contact with a child in criminal proceedings. The
professionals have a considerable freedom to decide how to conduct the proceedings as long as they
follow the law in force. Also, several experts had never participated in certain stages of the criminal
proceedings and were unaware of the actual conduct of the proceedings in these phases. Some of
46
their answers reflected that they were unsure about the practice. This may alter the findings since the
answers of more experienced juvenile justice experts are contradicted by the less experienced ones.
The findings of the study show that despite number of good practices there are still some
shortcomings in guaranteeing children their procedural rights as provided in the Procedural
Safeguards Directive. The experts themselves brought up several challenges (see above). In some form
or another, these were all about supporting the child better in all stages of the proceedings and after
the proceedings.
47
ANNEX 1 – Overview of national organisations working with children who are
suspects or accused persons in criminal proceedings
Police and Border Guard Board (Politsei- ja Piirivalveamet) – investigative body conducting pre-trial
proceedings. The Police and Border Guard Board employs youth police officers, whose task is to
reduce the risk of young people and children being put at risk, including the prevention, deterrence,
detection and processing of children's offences. The work of youth police officers is primarily
organised on a school basis, each school has its own youth police officer. In addition, the youth police
officer serves their local government area in cooperation with the regional police officer of the same
area.62
https://www.politsei.ee/en
Prosecutor’s Office (prokuratuur) – government agency tasked with ensuring the legality and
effectiveness of pre-trial criminal proceedings and representation of the state prosecution in court, as
well as other tasks prescribed by law.63 The Prosecutor's Office has prosecutors specialised in juvenile
and young adult criminal matters, who are provided special training.64
https://www.prokuratuur.ee/en/prosecutors-office/contacts
Courts (kohtud) – there are no specialised courts for child defendants, their criminal cases are heard
in the county courts (first instance), circuit courts (second instance, on the basis of appeal), and the
Supreme Court (the highest instance, on the basis of appeal).65
https://www.kohus.ee/en/estonian-courts/contacts
Bar Association (Advokatuur) – Estonian Bar Association is the professional association of attorneys,
which among other tasks organises the provision of state legal aid. If a person participating in legal
proceedings has been granted state legal aid, an attorney appointed by the Bar Association represents
and provides legal counselling to the person.66
https://advokatuur.ee/eng/contact
Social Insurance Board (Sotsiaalkindlustusamet) – the Child Protection Department of the Social
Insurance Board is responsible for providing support to local authorities in performing child protection
functions, improving the quality of child protection work on local level, and developing a capable
national and regional child protection system. The Child Protection Department performs tasks
assigned to the Social Insurance Board by the Child Protection Act.67 The Social Insurance Board also
organises the provision of the closed childcare institution service.68
https://sotsiaalkindlustusamet.ee/et/kontakt
Local Governments – The local government organises child protection at the local level and creates
the necessary conditions to ensure the rights and well-being of children in its city or rural
municipality.69 The local government of the child defendant’s place of residence is notified of the
62
Police and Border Guard Board (Politsei- ja Piirivalveamet), Noorsoopolitseinikud.
63
Prosecutor’s Office (Prokuratuur), About the Prosecutor’s Office.
64
Estonia, Alaealistele spetsialiseerunud prokuröride kokkulepe, Kuriteo toime pannud alaealiste
erikohtlemine kriminaalmenetluses, p. 16, Narva-Jõesuu, 21 February 2018.
65
Estonian Courts (Eesti kohtud), Estonian Court System.
66
Estonian Bar Association (Eesti Advokatuur), State Legal Aid.
67
Social Insurance Board (Sotsiaalkindlustusamet), Child Protection Department.
68
Estonia, Riigi Teataja, Social Welfare Act (Sotsiaalhoolekande seadus), § 1305 (1), 9 December 2015.
69
Estonia, Riigi Teataja, Child Protection Act (Lastekaitseseadus), § 17, 19 November 2014.
48
criminal proceedings if informing the child’s legal representative is impossible or not in the interests
of the child or may significantly damage the criminal proceedings.70
Chancellor of Justice – since 2011 the Chancellor of Justice performs the functions of the Ombudsman
for Children in Estonia. Among other tasks, the Ombudsman for Children ensures that all state
institutions and officials who make decisions having an impact on children would respect children's
rights and have the best interests of children in mind when making these decisions. The Ombudsman
also resolves complaints related to children’s rights in their relations with the individuals and
authorities that perform public functions.71
https://www.oiguskantsler.ee/en/advisers
Estonian Union for Child Welfare (Lastekaitse Liit) – non-profit umbrella organisation that
contributes to ensuring children’s rights and shaping a child-friendly society.72
https://www.lastekaitseliit.ee/en/contacts/
ANNEX 2 – Tables
Table 2 Providing information on procedural guarantees (answers by the police officers)
Who About which rights? When? How and in Do they How it is
informs the which form understand checked
children? are they the whether the
informed? information? children
understand?
Police The participation of a lawyer is Explanation Each To a certain Investigators
mandatory for a child. of rights is investigator extent, the usually receive
The right to have a parent part of the reads these explanation of special training.
present, teacher or other questioning. rights to the rights is adapted
support person. There are more child. to the needs of
rights for children. the child.
Not clear Not clear If, the child is Sometimes Child is asked
from the - The content of the from the deaf or has a children whether they
answers. suspicion answers. hearing understand understood the
- the right to testify or impairment, their rights even explanation.
the minutes better than
to refuse to testify,
and the adults.
- anything they say
declaration of
may be used against
rights will be
them
printed.
- the lawyer is
The
provided,
declaration is
- the right to consult
available in
with the lawyer
many
before questioning.
languages.
An interpreter,
such as a sign
language
interpreter,
will be at the
interrogation if
necessary.
Police - The right to the At the 1st Step by step, The child is not There are many
assistance of a interrogation they are talked to in legal techniques and
lawyer. or earlier. informed of language, but as tricks. Use of
their rights. a child. reference
70
Estonia, Riigi Teataja, Code of Criminal Procedure (Kriminaalmenetluse seadustik), § 352 (1), 12 February
2003.
71
Chancellor of Justice (Õiguskantsler), Protection of the rights of children and youth.
72
Estonian Union for Child Welfare (Lastekaitse Liit), About the organisation.
49
- the right to have a First, the child Children do not moments –
parent present at the is told orally fully more complex
hearing. about their understand, but expressions or
rights, what is according to the parts of words
happening, interviewee, are associated
what is going they do their with easier
to happen best to make words that are
next. the children known to the
If the child understand to child. Reflecting
does not speak the maximal information is
Estonian, an degree. the most
interpreter will effective
be present technique – the
during the officer receives
questioning. immediate
Children with feedback on
disabilities are whether the
in the police child
with their legal understood.
representative.
Police Always informed of their main Usually they The Depends on the if necessary,
investigators rights, including their right to a do it, i.e. the information is child whether the information
lawyer. Information is given to investigators, generally the they are able to is provided in a
the child both in writing and when the same for all understand. In simplified way.
orally. child comes children, but addition, such They use
to them for No distinction legal talk may reflection
questioning. is usually made not always be techniques
between understandable when
different to a so-called communicating
groups of person from the information to
children. street, let alone children in
children order to see
whether the
child
understands.
Table 3 Providing information on procedural guarantees (answers by the lawyers)
Who informs About which When? How and in which Do they How it is
the children? rights? form are they understand the checked
informed? information? whether the
children
understand?
The police The officer Not clear Preliminary More recently, The officers
officer communicates from the information will there might be conducting the
with the child answer. definitely be given some children proceedings
themselves, but orally. The police who do not speak absolutely
definitely also officer calls and Estonian or explain in their
with the child’s explains. If the child Russian. The own words. Ask
parent, if is already present forms of the the child several
possible. It is and the declaration are times if they
explained to the proceedings are in available in understood. It is
parent that the progress, a Estonian and only when the
child will be declaration of the Russian. Also child says that
called out, they rights of the suspect available in they understood
have the right to has been developed Finnish and that they are
a lawyer and that in the Code of English. allowed to sign.
if the parent so Criminal Procedure,
wishes, it is also which is shown to
possible to hire a everyone with
lawyer. absolute certainty.
Indirectly They do not have Not clear The child must be How many of The rights are
implied that the the right to waive from the given the them read it, how also explained to
police informs the lawyer. Not answer. declaration of many understand children orally.
the child. all rights are rights. A 2-3 page it (albeit it is in verifying by
clarified document densely asking the child if
50
immediately, full of text is given simple terms) – they understood,
such as privacy, and they are given not sure. or asking: "Tell
etc. It is of no use the opportunity to me in your own
to explain read it – a signature words what you
everything at will be requested to understood”.
first contact, as confirm that the
the case may not suspect/accused
even reach the has received the
court. Generally, document. A
only the basic foreign language
things are talked versions are also
about: you have available in all
the right to a police stations: in
lawyer, the right Estonian, Russian,
to remain silent, English, Latvian, etc
everything you
say can be used
against you.
The police The children are immediately The investigator will Teenagers The police
investigator informed of their if the child is be the first to generally investigators
and the lawyer procedural to be inform the child of understand the have also
rights, including questioned their rights, and if a information received special
the right to by the lawyer is already provided to them. training on how
receive investigator present, the lawyer At the same time, to communicate
assistance from a as a suspect will also do their the interviewee with children.
lawyer. The own explanatory doubts whether They explain in a
rights and work. Information they understand language that
obligations of about the rights is all the details, but children can
suspects and usually given to the generally they understand. By
accused persons child orally, but understand the asking them
are the same for there is also a main aspects. what they
adults and printed rights sheet understood or
children. that the child can did not
read for understand, and
themselves. to ask them to
explain in their
own words.
The police It is usually Depends how The way the rights Children The investigator
officer explained to the the child are clarified understand, but always explains
child that comes into depends on where children get tired the rights
criminal contact with and how the child faster. They can correctly in the
proceedings now the police comes into contact hold attention for proceedings. The
begin, you have with the police. If 45 min. For young person is
the right to a the child is called to example, if given written
lawyer, then the the police as a lawyers meet rights to read
suspicion is read suspect (e.g. there with a child just and asked if they
out in the is an incident at before the understand or if
presence of a school that is given procedural act, it there are any
lawyer and the to the police to becomes difficult questions. The
child gives investigate) and to to keep their investigator
testimony in the give evidence, they attention. checks whether
presence of a go with a lawyer If there is 1 the child actually
lawyer. and do not give any episode of crime, reads it, if, for
Privacy and statements without it will take about example, the
declaring the explaining the 1 hour [to read child returns the
court hearing rights. out the paper quickly.
closed are not If the situation is at suspicion], but if They ask the
discussed with home or on the there are several child to actually
the child. street, it also episodes, it will read it.
depends on the take much longer.
police patrol
whether they give
the child the
declaration of rights
on paper or act
differently.
51
Table 4 Providing information on procedural guarantees (answers by the prosecutors and judges)
Who informs About which rights? When? How and in Do they How it is
the children? which form understand the checked
are they information? whether the
informed? children
understand?
The police and The right to privacy is not Different They will Usually, children The court asks
the judge very much addressed , stages of the probably be respond that the accused or
although the Directive procedure given a they understood. the party to the
suggests that hearings declaration of proceedings
relating to children rights. It is part whether all the
should be closed, but in of the court rights are
practice it depends on file. It has understood.
the content of the never Depending on
charges (pre-trial happened that the child’s level
proceedings – closed, the declaration of maturity, they
trial – depends on the is not in the are asked if they
content). file. So far, have understood
special needs and it is tried to
of a child have explain in even
not played a simpler terms.
role in
informing
about rights.
If the first Right to have a parent First contact The Depends on their Various parties
contact is present. Children are with the information is level of ask the child
during informed of the same police. provided to the development, regularly
questioning, rights that apply to child both how old they are, whether they
the police adults, based on the orally and in their previous understand. One
informs the declaration of rights. writing. In experience and tactic for
child. If the This includes, but is not most cases, the their level of checking if a
child is limited to, the right to a officer has the anxiety. child understood
detained lawyer and the right to habit of is to ask them to
immediately have parents present. handing over explain in their
after an event The investigator does the declaration own words what
on the street, not explain in detail of rights to the they have just
then the about the court hearing. child and also been told.
patrol officer That is for the explaining
must provide prosecutor to explain if orally what the
the child with the case goes to court. different
an initial aspects mean.
introduction
of the rights.
The lawyer
and the
prosecutor
can also
explain the
rights to the
child.
The police According to the law, In a formal It depends on the it probably
officer there are differences sense, they are child whether depends on the
compared to adult informed. The they understand. investigator
defendants, e.g. the case files show By the time they whether the
obligation to inform the signed get to court, it's rights are
parents. declaration of pretty clear why explained in
the rights of they're in court, child-friendly
children, which it's clear. It does language.
is required by not usually seem
law. The in court that the
substantive child does not
part of the understand why
informing they are there.
remains By then,
52
unknown to explanatory work
the judge. has been done.
The police, the - The right to have a They are The It largely The children's
prosecutor, legal representative informed of questioning depends on the age,
and the present. their rights takes place in child how much comprehension
lawyer - The right to a pre- and the presence they understand and ability are
trial report, so- obligations of a lawyer, the information taken into
called individual as the first who also passed on to account and the
assessment. thing during explains to the them. It is very information is
- The right to a the child their difficult to tried to be
medical questioning. rights and explain things to presented in the
examination if they obligations. some children, simplest and
are detained. Prosecutors do especially if they most
- The children are also the same. The have a mental comprehensible
informed that their information is health problem. way. The child is
hearings may be provided to the asked to explain
declared closed. child both in their own
orally and in words what they
writing, and have just heard.
the child's
signature is
taken that they
have been
informed.
The police Children have the same First, the The In most cases, The investigator
investigator, rights as adults, the only investigator investigator children and the
the difference is that there explains the explains the understand what prosecutor try to
prosecutor, must be a lawyer present rights to the rights orally is happening to speak the child's
the judge when the child is child. during the them. Depends language. Rights
questioned. The child The questioning. on the child's are not simply
does not have the right prosecutor Explanation is development, read out in legal
to waive the lawyer. also explains possible in ability to language.
The rights which are the both the both languages understand. If The prosecutor
same as for the adults: rights and – both the child has any checks the
e.g. the right not to the options Estonian and health problems, understanding
testify against in the Russian. The they may not by asking the
themselves or family. proceedings. child is given understand that child if they
The child is told that the If the case the minutes, well. Usually understood.
parent will be informed, goes to which include children do not
the child is invited to be court, the the rights. hide their
questioned with the judge emotions.
parent. explains.
Table 4 Providing information on procedural guarantees (answers by the other professionals)
Who informs About which When? How and in which Do they How it is
the children? rights? form are they understand the checked
informed? information? whether the
children
understand?
The police The children are The first The children are Some of the The information
most often contact with informed about information is in provided is
informed that the police. their procedural too difficult relatively little
they have the rights, but there is language for adapted to the
right to a lawyer, often a lack of children, which child's specific
the obligation to explanation in a can lead to needs or
contact a parent language that the situations where background. It is
or a guardian, child or the young the child agrees often due to lack
the right to have person to things that are of skills, meaning
someone understands. not in the child's the professionals
present during Informing is done best interests. do not always
questioning (e.g. sooner rather than Many young notice or think
child protection later, and this people say that about such
worker or informing is done by they understand things.
psychologist), the police when the the information, At the moment,
etc. (the child is caught. The just to get on with it tends to
interviewee information is the process and remain at the
53
relies on usually provided get out of the level of simply
children's own orally. situation or not to asking the child if
statements, she look stupid. they have fully
is not 100% sure understood the
which additional information.
rights the
children are
actually
informed about.
Does not have Does not have Does not Does not have The children do Does not have
enough enough have enough enough experience not understand enough
experience in experience in experience in in this area to very well what experience in
this area to this area to this area to answer. police officers, this area to
answer. answer. answer. prosecutors or answer.
However, knows judges tell them
of 2 cases where about their
the child was not procedural rights
informed of their and the course of
rights. the proceedings.
Children are
anxious, in the
interviewee's
experience, and
the information
that is passed on
to them does not
reach them well.
The police, and The rights and Not clear The children are According to the The interviewee
the prosecutor obligations from the informed about interviewee, has no
arising from the answers. their procedural whether children experience in
law are largely rights at the police, understand the adapting the
the same for and the prosecutor information information
everyone. For does the same. This provided to them provided to the
example, is done both in depends on, in child's specific
children are writing and orally, particular, how needs or
informed that and the child’s old they are, what background.
everything they signature is taken, their level of
say may be used to show that they education is or
against them. In have understood it. whether the child
addition, has a mental
children are disorder.
informed of their
right to a lawyer
and that they
may withdraw
their testimony.
In addition,
explanations are
given regarding
whether, when
and where the
child must
appear
The The interviewee The The interviewee has The interviewee The children are
interviewee has no interviewee no experience. has no asked how they
has no experience. has no experience. understood the
experience. experience. information. The
mental age of
children is not
always taken into
account when
providing
information.
The The interviewee The The interviewee has The interviewee The interviewee
interviewee has no interviewee no experience. has no has no
has no experience. has no experience. experience.
experience. experience.
The police, the Rights that are Not clear The police are doing Not clear from Prosecutors have
lawyer, the explained: the from the a pretty good job – the answers. been trained on
child right to refuse to answers. meaning, the how to
testify, to refuse lawyer is already communicate
54
protection to testify against appointed, the with the child.
specialist relatives. lawyer has been at When an
the questioning. interpreter is
The policemen involved, it is
inform the children difficult for
of their rights in young people to
writing. There is a understand what
page about is being said,
children's rights in because
the file, which is in simultaneous
several languages, interpretation is
because there are used. In this case,
many Russian- a Russian-
speaking children. speaking
consultant
explains what
the interpreter
has said in the
language of
young people, in
short sentences.
The consultant
checks from the
child's eyes
whether or not
they understand,
if they are
keeping track.
The The interviewee Interviewee Interviewee has no It depends on the it may be difficult
interviewee has mentioned has no experience on this. child and their to understand
thinks that to a child on one experience background. whether the
children are occasion that on this. child is not
mainly they are entitled interested and
informed to the assistance does not
about their by a lawyer. understand the
right to seriousness of it
assistance by a or simply did not
lawyer and understand the
other information. The
procedural interviewee has
rights by the used the help of
police and the a therapist, if she
prosecutor. has felt that her
competence is
lacking.
55
CHILDREN AS
SUSPECTS OR
ACCUSED PERSONS
IN CRIMINAL
PROCEEDINGS
―
PROCEDURAL
SAFEGUARDS
JUSTICE
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Foreword
Every child has a right to be protected even when they are accused or
suspected of committing a crime. The basic principles of justice apply to adults
and children alike. But our research shows that truly upholding children’s
rights in the justice system is far from simple.
Too often, children who are suspects or accused persons in criminal proceedings
face specific obstacles. They are treated poorly, lack access to understandable
information and receive only limited legal support. They are perceived and
treated as young adults, not as children.
This goes against the grain of EU and international law which clearly stipulate
children’s rights protecting their best interests. The EU Charter of Fundamental
Rights guarantees the rights of a child (Article 24), as well as the respect for
the right to a fair trial, the presumption of innocence and related defence
rights (Articles 47 and 48).
Directive (EU) 2016/800 introduces additional safeguards for children who
are suspects or accused persons in criminal proceedings. This report presents
the agency’s findings on how select Member States implement the directive
in practice.
The report builds on over 220 interviews with defence lawyers, judges,
prosecutors, police officers, social workers, educators and children in nine
Member States, covering broad ground in terms of geography and legal
traditions. They show that practical implementation varies across countries
and highlight some good practices, such as child-friendly templates for
better communication, task forces for repeat offenders or artistic expression
courses in prison.
But EU countries could do more to fully uphold children’s rights in criminal
proceedings.
Children should be treated as children. Practices and procedures need to be
adjusted to meet their needs: starting from how they are informed about
their rights, how they are questioned and how they participate in their trial.
This also includes the support of family members during the whole process,
ensuring that the children’s privacy is protected.
Detention should only be used as a means to educate children, protect them
and help successfully reintegrate them into society.
Our findings reveal how children’s rights are dealt with in criminal proceedings
across the EU. We hope the insights will support authorities and policymakers
in gaining a better understanding of the fundamental rights challenges
encountered and potential remedies to address these.
The ultimate goal is to protect children, allow them to learn and give them the
best chance to succeed in life. Let us take this report as a guide to address the
shortcomings that hinder our criminal justice systems from doing just that.
Michael O’Flaherty
Director
1
Country codes
AT Austria EL Greece LT Lithuania SE Sweden
BE Belgium ES Spain LU Luxembourg SI Slovenia
BG Bulgaria FI Finland LV Latvia SK Slovakia
CY Cyprus FR France MT Malta
CZ Czechia HR Croatia NL Netherlands
DE Germany HU Hungary PL Poland
DK Denmark IE Ireland PT Portugal
EE Estonia IT Italy RO Romania
Contents
Foreword ��������������������������������������������������������������������������������������������������������������������������������������������������������������� 1
Key findings and FRA opinions ��������������������������������������������������������������������������������������������������������������������������� 7
ENDNOTES ����������������������������������������������������������������������������������������������������������������������������������������������� 14
Introduction �������������������������������������������������������������������������������������������������������������������������������������������������������� 15
ENDNOTES ���������������������������������������������������������������������������������������������������������������������������������������������� 23
1 DIRECTIVE (EU) 2016/800: SCOPE OF APPLICABILITY, AGE ASSESSMENT AND MONITORING �� 25
1.1. SCOPE OF THE DIRECTIVE’S APPLICATION AND AGE CATEGORIES ������������������������������������������ 25
1.2. AGE ASSESSMENT AND THE PRESUMPTION OF CHILDHOOD IN CASE OF UNCERTAINTY ���� 27
1.3. MONITORING IMPLEMENTATION OF THE DIRECTIVE ���������������������������������������������������������������� 30
ENDNOTES ����������������������������������������������������������������������������������������������������������������������������������������������� 31
2 INFORMATION RIGHTS: THE RIGHT OF CHILDREN AND THEIR PARENTS OR
GUARDIANS TO BE INFORMED ABOUT PROCEDURAL RIGHTS ������������������������������������������������������ 33
2.1. INFORMING CHILDREN OF THEIR RIGHTS AND CONDUCT OF THE PROCEEDINGS ���������������� 33
2.2. INFORMING THE HOLDER OF PARENTAL RESPONSIBILITY ������������������������������������������������������ 43
ENDNOTES ���������������������������������������������������������������������������������������������������������������������������������������������� 49
3 ACCESS TO A LAWYER: THE RIGHT TO BE ASSISTED BY A LAWYER AND LEGAL AID ��������������������� 51
3.1. THE RIGHT TO BE ASSISTED BY A LAWYER AND LEGAL AID ���������������������������������������������������� 52
ENDNOTES ���������������������������������������������������������������������������������������������������������������������������������������������� 63
4 PARTICIPATORY PROCEDURAL RIGHTS: CHILDREN’S RIGHTS TO EFFECTIVELY
PARTICIPATE IN PROCEEDINGS AND TO BE ACCOMPANIED DURING PROCEEDINGS �������������������� 65
4.1. THE RIGHT TO PARTICIPATE IN PROCEEDINGS �������������������������������������������������������������������������� 65
4.2. THE RIGHT TO BE ACCOMPANIED BY THE HOLDER OF PARENTAL RESPONSIBILITY ������������ 70
ENDNOTES ���������������������������������������������������������������������������������������������������������������������������������������������� 75
5 CHILD-SPECIFIC RIGHTS: THE RIGHT TO AN INDIVIDUAL ASSESSMENT AND THE RIGHT
TO PRIVACY IN CRIMINAL PROCEEDINGS ���������������������������������������������������������������������������������������� 77
5.1. THE RIGHT TO AN INDIVIDUAL ASSESSMENT ���������������������������������������������������������������������������� 77
5.2. THE RIGHT TO PRIVACY IN CRIMINAL PROCEEDINGS �������������������������������������������������������������� 83
5.3. AUDIOVISUAL RECORDING OF QUESTIONING OF CHILDREN ���������������������������������������������������� 86
ENDNOTES ���������������������������������������������������������������������������������������������������������������������������������������������� 89
6 RIGHTS OF CHILDREN DEPRIVED OF LIBERTY: DEPRIVATION OF LIBERTY AS A LAST
RESORT AND TREATMENT OF CHILDREN IN DETENTION ����������������������������������������������������������������� 91
6.1. DEPRIVATION OF LIBERTY OF CHILDREN AS A LAST RESORT �������������������������������������������������� 91
6.2. MEDICAL EXAMINATION OF CHILDREN DEPRIVED OF THEIR LIBERTY ������������������������������������ 98
6.3. TREATMENT OF CHILDREN DEPRIVED OF THEIR LIBERTY ������������������������������������������������������� 101
ENDNOTES �������������������������������������������������������������������������������������������������������������������������������������������� 109
7 PROFESSIONALS’ TRAINING ON CHILDREN’S RIGHTS IN CRIMINAL PROCEEDINGS ��������������������� 111
7.1. TRAINING FOR PROFESSIONALS DEALING WITH CHILDREN ��������������������������������������������������� 111
ENDNOTES ��������������������������������������������������������������������������������������������������������������������������������������������� 119
Conclusion ��������������������������������������������������������������������������������������������������������������������������������������������������������� 120
3
Abbreviations
CJEU Court of Justice of the European Union, formerly EAW European arrest warrant
European Court of Justice (ECJ)
ECHR European Convention on Human Rights
CoE Council of Europe
ECtHR European Court of Human Rights
CPT European Committee for the Prevention of
EU European Union
Torture and Inhuman or Degrading Treatment
or Punishment FRA European Union Agency for Fundamental Rights
CRC Convention on the Rights of the Child UN United Nations
4
Glossary
Accused Any natural person whom competent criminal authorities (i.e.
person the prosecutor, investigative judge or the police) formally charge
with having committed a criminal offence. The term commonly
refers to persons subject to more advanced stages of pre-trial
proceedings and/or persons committed to trial.
Arrest The action of apprehending persons suspected of involvement
in a crime by the law enforcement authorities and placing them
into police custody.
Charge An official notification given to an individual by the competent
authority when they are suspected or accused of having committed
a crime. Also referred to as an ‘accusation’.
Child Any natural person below the age of 18.
Defendant Any natural person subject to criminal proceedings that relevant
authorities initiate because of a suspicion or charge of committing
a crime. The term herein includes suspects or accused persons
(see definitions of ‘suspect’ and ‘accused person’ in this glossary).
Deprivation Arrest or any type of confinement in a restricted space by
of liberty authorities, including when the police apprehend and question
a person without a judicial decision or warrant. The person may
be set free after questioning. However, deprivation of liberty
applies if they were not allowed to leave police custody for some
length of time.
Holder of Any adult with the responsibility and rights to promote and
parental safeguard the welfare of a child suspected or accused of
responsibility committing a crime.
Judge Any public official with the authority and responsibility to make
decisions on criminal cases in a court or legal matters.
Lawyer Any person authorised to pursue professional legal activities,
including advising people about the law and representing them in
court and other legal proceedings. This includes defence lawyers
as persons authorised to advise and represent defendants, in the
context of this report.
Non-legal Any professional qualified to work in the field of juvenile justice
specialist with knowledge and expertise in a field other than law. This
includes social workers, court assistants, probation officers and
psychologists.
Parent Any adult legally recognised as the mother or father of a child
by virtue of birth or adoption. They are normally the holders
of parental responsibility when their children are suspected or
accused of committing a criminal offence.
5
Pre-trial Deprivation of a defendant’s liberty imposed before the conclusion
detention of a criminal case in the context of judicial proceedings by a
judicial authority (i.e. judge, investigative judge or court). Not
to be confused with police detention, which takes place before
bringing a suspected person before a judge.
Prosecutor A public official representing the state, who institutes and conducts
legal proceedings against a defendant regarding a criminal charge.
Questioning Any oral interview or interrogation of a person by the police, a
prosecutor or a judge during which they are asked questions about
their knowledge of or possible involvement in a criminal offence.
Suspect Any natural person who has been thought of as committing
a criminal offence, even before being made aware, by official
notification or otherwise, that they are a suspect. The term is
commonly used in initial stages of criminal investigations/pre-
trial proceedings.
Witness Any natural person who has been summoned to give testimony.
Unlike a suspect, such a person can be compelled to take the oath
to ensure that any statements made to the judge are truthful.
However, a witness can refuse to give a statement as evidence
when there is the possibility of self-incrimination.
6
Key findings and FRA opinions
Articles 47 and 48 of the Charter of Fundamental Rights of the European
Union guarantee various defence rights in criminal proceedings. Article 24
of the Charter obliges Member States to take into account the views and
well-being of children – persons below the age of 18. Children’s best interests
must be their primary consideration, and they must allow children to maintain
contact and relationships with their parents.
This report presents the findings of research by the European Union Agency
for Fundamental Rights (FRA) on the implementation of Directive (EU)
2016/800 on procedural safeguards for children who are suspects or accused
persons in criminal proceedings (hereafter ‘the directive’).1 Basic principles
of justice apply to adults and children alike. However, international and
European Union (EU) law require additional protection and safeguards for
children that preserve their potential for development and reintegration into
society because of their age and vulnerabilities.
The directive aims to bolster protection for children suspected of being
involved in criminal proceedings. This goes further than the procedural
rights that previous directives guarantee all suspects and accused persons,
regardless of age, such as the right to a lawyer, to be informed about rights
or to be present at the trial. This report aims to support EU institutions and
Member States in ensuring the effective implementation of the directive.
The European Commission requested this research for its assessment of the
implementation of the directive in the Member States.
This report examines specific legal provisions, and the views and experiences
of practitioners in nine Member States and children in eight Member States
on the implementation of the directive, based on interviews. The research
focuses on specific articles on the rights of child suspects and defendants,
rather than the full scope of the directive. The practical implementation
of the rights of children who are suspects or accused persons in criminal
proceedings varies across the Member States covered, FRA’s data indicate.
However, some common challenges emerge.
The research covers nine Member States – Austria, Belgium, Bulgaria, Germany,
Estonia, Italy, Malta, Poland and Portugal – and draws on the experiences of
between 20 and 27 interviewees in a single country. Therefore, the findings
do not claim to be representative of the situation in each Member State or
the EU as a whole. Nevertheless, the results provide a unique insight into
the views of practitioners and children who have first-hand experience
of how the directive is applied in practice, and help us to understand the
fundamental rights challenges they encountered.
7
Ensure that children are informed about their rights
promptly in a way they can understand
FRA OPINION 1 Article 4 of the directive grants children the right to be
informed about their rights promptly in writing, orally or
Member States should consider
both, and about general aspects of the conduct of the
best practices – such as using
proceedings in simple and accessible language. Recital 18
multiple child-friendly formats and
of Directive (EU) 2016/800 refers to Directive 2012/13/
including behavioural guidelines –
EU. Directive 2012/13/EU specifies that authorities should
when establishing rules about
inform suspects of their rights before the first questioning.
giving information to children who
Children should receive information on the procedural
are suspects or accused persons in
steps and the role of the authorities involved in the
criminal proceedings, as the directive
criminal proceedings that concern them, according to
requires. In addition, best practices
recital 19 of Directive (EU) 2016/800.
provide guidance for professionals
on how to verify that children All the Member States the fieldwork covers try, to some
understand their rights and the general extent, to respect the rights of children and holders of
conduct of proceedings, including the parental responsibility to receive information on the
outcome. Authorities should take into procedural rights and steps in criminal proceedings,
account the intellectual abilities and according to the research findings. However, children
language skills of the child, adapting and adults often receive information in the same way,
communication according to the needs for example in a standard letter of rights, interviewees
and vulnerabilities of the persons in some Member States acknowledge. This does not
concerned. These include their level take account of children’s specific needs and capacities,
of maturity, cultural and linguistic or the need to inform children of their rights in a way
barriers, their level of literacy and they can understand despite their level of maturity or
any disabilities. linguistic problems.
Interpreters are not always available, interviewees
also report. When available, they are not always able
to communicate in a child-friendly way or speak the local dialect that the
child understands, even if they can interpret into a specific language. Most
interviewees also note that the questioning of child defendants is seldom
audiovisually recorded, despite the directive requiring such recording when
it is proportionate and in the child’s best interests.
Most children interviewed do not remember either being recorded or
receiving information that they could easily understand. They rarely recall
anyone checking if they had understood the information about their rights
or considering specific vulnerabilities when they were given the information.
Some state that they only received more understandable information after
the first questioning, much later in the proceedings, through lawyers or
social workers.
8
Facilitate the effective participation of children and
their parents at all stages of criminal proceedings
and ensure that children’s privacy is protected
Article 47 of the Charter of Fundamental Rights of the
FRA OPINION 2
European Union stipulates that everyone whose rights Member States should strengthen
and freedoms guaranteed under EU law are violated has efforts to adapt the conduct of criminal
the right to an effective remedy before an independent proceedings against children, to allow
and impartial tribunal and is entitled to a fair and public them to fully participate. Children
hearing. Article 16 of the directive grants children the should have an effective right to be
right to be present at and effectively participate in accompanied by parents and other
their trial, in particular through the opportunity to be persons of their choice, especially
heard and express their views. Article 15 and recital 57 when this amounts to psychological
grant children the right to be accompanied by those and social support during the
with parental responsibility or another appropriate adult proceedings, in line with provisions in
during court hearings and other stages of proceedings. the directive. Parents can also provide
Article 14 and recital 56 stipulate that children’s privacy defence lawyers with insights into the
should be protected for the duration of the proceedings family’s and children’s background.
by favouring non-public hearings to facilitate children’s Authorities should assist parents in
reintegration into society. supporting their children, for example
by giving them clear information about
Children and their parents have the right to be present and
the proceedings and providing them
effectively participate in hearings and trial proceedings.
with interpretation services when
These can also be held in private in almost all the Member
necessary.
States that the research covers, findings show. Judges
are usually attentive to the personal circumstances of Regardless of the outcome,
child defendants and their points of view, making sure participation in criminal proceedings
that children can express themselves and understand is a challenging experience that can
the proceedings, according to respondents, including have a long-lasting impact on the
most children. lives of both children and parents.
Rule of law concerns, such as keeping
However, private proceedings are the exception rather
proceedings transparent in order to
than the norm in some Member States. Details of
ensure public oversight and trust in
proceedings against children appear in the media in
justice, should not prevent judges
some Member States. Furthermore, parents’ involvement
from holding closed hearings, at least
is mixed, varying considerably from case to case. The
when children are suspected of having
children’s social and family background, cultural and
committed particularly serious crimes.
language barriers, and the passive role granted to parents
The media should follow strict ethical
in the proceedings are possible reasons for parents’
codes regarding publishing details
absence in certain cases.
of criminal proceedings involving
children.
9
Ensure that all children have effective legal
assistance at all stages of the criminal proceedings
FRA OPINION 3 Article 6 of the directive requires that children who are
suspects or accused persons in criminal proceedings have
Member States should take steps
the right to access a lawyer without undue delay. Children
to ensure that children have private
should be able to meet privately and communicate
consultations with their lawyers
confidentially with their lawyer, including before police
before investigations, as required by
questioning, and have their lawyer participate effectively
law, by providing appropriate space in
during questioning. Moreover, when a child becomes
police stations and courts. Authorities
a suspect or accused person during questioning as
should allow adequate time for
a witness, the questioning should be suspended until
these consultations so that lawyers
the child is informed of this and is assisted by a lawyer,
have sufficient time with the child
according to recital 29. Children should have legal
to prepare their defence, especially
assistance available free of charge, according to Article 18.
when the child has communication
difficulties. Legal defence and the presence of a lawyer is mandatory
at all stages of criminal proceedings, from the moment of
As far as possible, authorities are
the first questioning by the police, in most Member States
encouraged to find ways that allow
that the research covers. Nonetheless, in some Member
detained children to consult privately
States the police informally question children and, in some
with their lawyers without the
cases, extract confessions without a lawyer, several children
presence of police officers.
and practitioners report. Several children also report being
The police should always inform maltreated by police in the absence of a lawyer, including
children clearly of their right to verbal abuse and, on occasion, use of violence.
remain silent and to have legal
Member States generally guarantee consultations with
assistance when they are interviewed
lawyers. However, these consultations are not always
or questioned about a crime. No
confidential in practice, findings suggest, because children
questioning should take place without
deprived of liberty are usually supervised by police officers.
the presence of a defence lawyer after
In addition, the authorities do not always provide adequate
charges have been brought.
time and space for such consultations, professionals
Member States should take immediate interviewed point out. In practice, they sometimes take
and effective steps to stop any place in hallways, lifts, cells or courthouse basements.
misconduct against child suspects
Legal assistance and contact with lawyers are of crucial
by state agents. All alleged cases
importance during criminal proceedings, according to
of misconduct should be thoroughly
children interviewed. This is because lawyers provide them
investigated and punished.
with essential information about their rights and the general
conduct of the proceedings and, in many cases, listen to
their point of view.
10
Ensure that individual assessments of the
psychological and socioeconomic situation of
children are carried out effectively and in due
time before court hearings
FRA OPINION 4
Article 7 and recitals 35–40 of the directive provide that Member States should strictly
children should undergo an individual assessment to abide by their obligation to conduct
identify their specific needs during the proceedings at the individual assessments of various
earliest possible opportunity, and appropriate measures aspects of children’s lives through
should be taken. Relevant specialists should assess, in multidisciplinary teams of specialists.
particular, the child’s personality and maturity; the child’s The assessments should be conducted
economic, social and family background, including living as early as possible, no later than
environment; and any specific vulnerabilities of the committal to trial and before any
child, such as learning disabilities and communication decision is taken to detain a child at
difficulties. The assessment should be systematically the pre-trial stage. The results of such
updated when circumstances change. The children should assessments should be available to
be closely involved in such assessments. judicial authorities before the main
hearing or when the liberty of children
Individual assessments of children are often carried out
is at stake, to assist them in the
in all the Member States studied where the law requires
decision-making process.
such assessment, the findings reveal.
Authorities should always actively
Some countries adopt a multidisciplinary approach in
engage the children in their individual
which teams assess children to find the best solution and
assessment to fully respect core
appropriate means of support for them. In other countries,
principles of the United Nations (UN)
an individual social worker or psychologist carries out
Convention on the Rights of the Child
the assessment. Judges appreciate such assessments,
(CRC), namely the right of the child
as they are the only way for them to access information
to participate, and the obligations
about the individual circumstances of children, findings
stemming from the directive on
show. The information is often not directly relevant to
children’s rights. Authorities should
the alleged crime but can help judges reach a decision
make sure that children understand
on sentencing.
what an individual assessment is, its
However, such assessments are often not ready on purpose and how the results might
time for the hearing or are not up to date, interviews be used.
suggest. Professionals sometimes have to choose
between conducting a thorough (good-quality) but longer
assessment, and delivering an assessment quickly, without having spent
enough time on each individual case, given their heavy workload. Interviewed
children suggest that they did not have an individual assessment, did not
remember any individual assessment, or recalled some consultations with
psychologists but did not know the purpose of such consultations, and they
rarely saw a direct impact on the proceedings.
11
Ensure that children are deprived of liberty
only in exceptional circumstances and provide
rehabilitation measures
FRA OPINION 5
Articles 10–12 and recitals 45–53 provide that children
National judicial authorities should
should be deprived of liberty for the shortest possible time
consider non-custodial measures
in each case and that deprivation of liberty is applied as
as much as possible in view of the
a last resort. Member States should favour non-custodial
serious negative impact of detention
measures and, when children must be deprived of liberty,
on children. In addition, Member States
they should have special treatment in detention. They
should respect their obligations under
should be separated from adults, unless this is not in
the directive by ensuring that children
their best interests, and have additional rights, such as
are separated from adults unless this
the right to a medical examination on admission and
is not in their best interests.
subsequent healthcare, and access to educational and
Member States should ensure that resocialisation programmes and leisure activities. They
all children in detention have full should be allowed to exercise their right to family life.
access to physical and psychosocial
Most children are deprived of liberty as a last resort across
healthcare services after their initial
the Member States studied, findings show. Deprivation of
medical examination in accordance
liberty is applied only for more serious crimes and after
with their individual needs.
carefully considering alternative measures.
In addition, authorities should
Punitive measures applied to children should also focus
ensure that children in detention
on educating and rehabilitating them, as interviewed
have sufficient access to education,
professionals acknowledge.
leisure activities and reintegration
programmes. These should equip them FRA’s research identifies shortcomings when children
for a return to normal life. are deprived of their liberty. Not all Member States can
ensure the separation of children from adults in police
custody and detention. Detained children do not always
have access to appropriate healthcare, education or sports and other leisure
activities. Contact with family members is generally ensured and allowed,
although the restrictions introduced to combat the coronavirus disease 2019
(COVID-19) pandemic have negatively affected this right by limiting the in-
person contacts.
Interviewed children who had been deprived of their liberty experienced
particularly serious stress connected to their placement in police custody
and detention.
12
Provide training for professionals working with
child defendants
Article 20 of the directive requires that staff of law
enforcement authorities and detention facilities dealing
FRA OPINION 6
with children receive specific training, including on Member States should ensure that
child psychology and child-friendly communication professionals involved in criminal
techniques. Furthermore, pursuant to recital 63, Member justice proceedings with children
States should ensure that judges and prosecutors have receive mandatory multidisciplinary
specific abilities in this regard or that they can acquire training on a range of issues related
such abilities through access to specialised training. In to legal aspects, the psychological
addition, Member States must promote the provision of and social development of children,
training to criminal lawyers dealing with children, and and ‘soft’ skills and child-friendly
encourage training initiatives for professionals in support communication practices to help them
and restorative justice services. better communicate with children.
Training on intercultural skills and
Specific training on criminal cases involving children is
cultural diversity would also help
stipulated in law and offered in most Member States
practitioners to communicate more
studied, research findings show. However, this training
effectively with children from migrant
is usually offered on a voluntary basis, and not everyone
backgrounds.
receives it. A number of professionals interviewed for
this research had not received this training.
Children’s frequent negative accounts of how professionals treated them
during proceedings strongly support the need for training of professionals in
contact with children. Moreover, such training typically focuses on legal issues
rather than child psychology, social development or how to communicate with
children, interviewees report. Yet many interviewees find communicating
with children in a criminal justice setting challenging and would appreciate
training in this area, for example. Some professionals also admit to having
particular difficulties communicating with children from migrant backgrounds
because of language and cultural differences.
13
Endnotes
1
Directive (EU) 2016/800 of the European Parliament and of the Council of
11 May 2016 on procedural safeguards for children who are suspects or accused
persons in criminal proceedings, OJ 2016 L 132.
14
Introduction
WHY THIS REPORT?
The criminal justice system “addresses the consequences of criminal behaviour
in society and has the objective of protecting people’s right to safety and
the enjoyment of human rights”.1 Rules of criminal law and evidence allow
authorities to detect and investigate criminal wrongdoing. These rules should
help them identify those suspected or accused of criminal wrongdoing. At
the same time, the rules should guarantee a fair legal process, which is
a fundamental right in law.
When children, meaning persons below the age of 18, are suspected or
accused of committing a crime, European Union (EU) Member States must
implement safeguards beyond the traditional fair trial requirements. This is
because children are entitled to special care and assistance, as Article 25 of
the Universal Declaration of Human Rights proclaims. So does the preamble
of the United Nations (UN) Convention on the Rights of the Child (CRC), which
all EU Member States have ratified.
Child defendants must therefore be treated differently from adults and receive
greater protection and care under international and EU law.2 Relevant key
purposes and guiding principles of criminal justice involving children include
ensuring the best interests and well-being of the child, such as their effective
participation, education and rehabilitation.
Directive (EU) 2016/800 (hereafter ‘the directive’) established specific
procedural rights in judicial proceedings for children suspected or accused
of having committed crimes.3 These rights should be respected and fulfilled
across the EU to ensure the same level of protection for all child defendants.
This also reinforces mutual trust between EU Member States’ justice systems.
The directive is one of the measures adopted in the framework of the 2009
Roadmap for strengthening the procedural rights of suspects and accused
persons, regardless of age, in criminal proceedings.4 This aimed to codify
existing procedural rights, stemming from the European Convention on
Human Rights (ECHR) and the jurisprudence of the European Court of Human
Rights (ECtHR), at EU level.
The European Union Agency for Fundamental Rights (FRA) conducted
research to assess how a selection of Member States implement EU law on
procedural rights specific to child defendants in practice, at the European
Commission’s request. The results will contribute to the Commission’s report on
the implementation of the directive.5 The opinions deriving from the research
seek to help improve the implementation of these rights at national level.
15
SCOPE AND PURPOSE
The main objective of the research is to examine how national authorities
involved in criminal proceedings apply the procedural rights and safeguards
that EU law guarantees to children suspected or accused of having committed
a crime. Such authorities include police officers, prosecutors, judges and
non-legal specialists such as social workers, probation officers, researchers
or educators.
The research methodology entailed a series of interviews with practitioners
who have extensive experience in this area and with children who have been
suspects or accused persons in criminal proceedings.
The research focuses on specific aspects of the directive that were selected
after close consultation with the European Commission and legal practitioners.
It does not comprehensively cover all rights and safeguards that the directive
may have an impact on. For example, it does not cover the provision in
the directive concerning the swiftness and urgency with which criminal
proceedings involving children are treated (Article 13 (1)), or the remedies
under national law in the event of a breach of the directive’s rights (Article 19).
Furthermore, although the directive also applies to children another Member
State requests and arrests using the European arrest warrant (EAW) (Article 17),
this report does not cover such cross-border proceedings. For them, see in
part FRA (2019), Rights in practice: Access to a lawyer and procedural rights
in criminal and European arrest warrant proceedings.
This report mainly addresses EU institutions and Member State authorities,
including their national police and criminal justice authorities. It sets out to
help the European Commission assess the practical application of the rights
and safeguards that the directive enshrines. It also aims to produce evidence
that can assist Member States in their efforts to enhance their legal and
institutional responses to the fundamental defence rights of children who are
subject to national criminal proceedings in line with the directive. For more
details regarding the particular Member States this report covers, please see
the relevant Franet country studies.
The report builds on a combination of desk research and qualitative fieldwork
research involving interviews with legal and non-legal experts working in
the field of juvenile criminal justice, as well as with children who have been
suspected or accused of crime. It does not examine the incorporation of the
directive into national legal provisions, as the Commission’s implementation
report on the directive will analyse that topic. However, this report presents
a brief overview of the national laws of the nine Member States this research
covers in relation to the particular aspects of the children’s procedural rights
and safeguards each chapter discusses.
16
This report is the latest in a series that FRA has published. Some deal with criminal justice
FRA activity procedural rights in general, that is, those not specific to children, and including the procedural
rights of victims of crime. Others focus specifically on children’s rights in relation to the
justice system and certain fields, such as trafficking. To date, this series includes the following
publications.
• FRA (2022), Handbook on European law relating to the rights of the child – 2022 edition.
• FRA (2021), Presumption of innocence and related rights – Professional perspectives.
• FRA (2019), Rights in practice: Access to a lawyer and procedural rights in criminal and
European arrest warrant proceedings.
• FRA (2019), Victims’ rights as standards of criminal justice – Justice for victims of violent
crime, Part I. This report outlines the development of victims’ rights in Europe and sets out
the applicable human rights standards.
• FRA (2019), Proceedings that do justice – Justice for victims of violent crime, Part II. This
report focuses on procedural justice and whether or not criminal proceedings are effective,
including in terms of giving a voice to victims of violent crime.
• FRA (2019), Sanctions that do justice – Justice for victims of violent crime, Part III. This
report focuses on sanctions and scrutinises whether or not the outcomes of proceedings
deliver on the promise of justice for victims of violent crime.
• FRA (2019), Women as victims of partner violence – Justice for victims of violent crime,
Part IV. This report focuses on the experiences of one particular group of victims, namely
women who endure partner violence.
• FRA (2019), Children deprived of parental care found in an EU Member State other than
their own: A guide to enhance child protection focusing on victims of trafficking. This
guide sets out the relevant legal framework governing the protection of children who
are deprived of parental care and/or are found in need of protection in an EU Member
State other than their own. This includes child victims of trafficking and their treatment in
criminal proceedings.
• FRA (2018), Children’s rights and justice – Minimum age requirements in the EU. This
report outlines Member States’ approaches to age requirements and limits regarding child
participation in judicial proceedings. It also covers procedural safeguards and the rights of
children involved in criminal proceedings, and issues related to depriving children of their
liberty.
• FRA (2017), Child-friendly justice – Perspectives and experiences of children involved
in judicial proceedings as victims, witnesses or parties in nine EU Member States. This
project was based on interviews with justice professionals and police. Interviews were also
conducted with several hundred children to learn about their treatment when involved as
victims, witnesses or parties in criminal and civil judicial proceedings. The focus was on
cases of sexual abuse, domestic violence, neglect and severe custody conflicts.
• FRA (2016), Criminal detention and alternatives: Fundamental rights aspects in EU cross-
border transfers. This report provides an overview of Member States’ legal regulations
in terms of framework decisions on transferring prison sentences, probation measures,
alternative sanctions and pre-trial supervision measures to other Member States.
• FRA (2016), Rights of suspected and accused persons across the EU: Translation,
interpretation and information. This report reviews Member States’ legal frameworks,
policies and practices regarding the right to information, translation and interpretation in
criminal proceedings.
• FRA (2016), Handbook on European law relating to access to justice. This publication
summarises the key European legal principles regarding access to justice, focusing on civil
and criminal law.
• FRA (2014), Guardianship for children deprived of parental care: A handbook to
reinforce guardianship systems to cater for the specific needs of child victims of
trafficking. This handbook provides guidance on how to establish and run national
guardianship systems, including children’s support in criminal proceedings.
17
The research was qualitative in nature and a limited number of interviews were conducted
How to in each Member State covered (see Table 1). Therefore, the findings cannot be considered
interpret representative of the situation in the Member States studied, nor can they be generalised
the research to other Member States. Nevertheless, the interviews illuminate some of the practical
findings challenges of implementing the directive.
The report includes a number of ‘promising practices’. The selection was based on
information that interviewed practitioners provided, and suggestions by the interviewed
children and their gatekeepers. They provide policymakers and practitioners with examples
of initiatives in different Member States that address a number of common challenges that
the research identified. Elements from these examples could be adapted for use in other
national contexts.
The report builds on previous FRA research on procedural rights and child-
friendly justice.6 The agency’s two main reports on child-friendly justice
from 20157 and 20178 analysed the treatment of child victims and witnesses
in cases of sexual abuse, domestic violence, neglect and severe custody
conflicts. It addressed the general procedural rights of suspects and accused
persons in criminal proceedings that are not child specific in its 2016 reports
on the rights of suspected and accused persons regarding translation,
interpretation and information in criminal proceedings,9 and on criminal
detention and alternatives in EU cross-border transfers,10 its 2019 report
on access to a lawyer and other procedural rights in criminal proceedings11
and its 2021 report on presumption of innocence and related rights.12 The
2016 reports analysed differences in legislation and policies, but the 2019
and 2021 reports, and the current report, focus on the actual application of
these policies in practice.
This report focuses on the rights and safeguards that the directive introduced.
Chapter 1 examines the directive’s scope of application. It deals with age
as a precondition for benefiting from the rights the directive provides, its
assessment in practice and the presumption that someone is a child in
cases of uncertainty. It also touches on the monitoring of the application of
measures the directive introduced.
Chapter 2 addresses implementing the rights the directive provides. They
are the rights to information and to have the holder of parental responsibility
informed.
Chapter 3 looks at applying children’s rights to be assisted by a lawyer and
to have effective access to legal aid.
Chapter 4 discusses the practical application of participatory procedural
rights, such as the rights to effectively participate and to be accompanied
in the proceedings.
Chapter 5 concerns child-specific rights, such as the right to an individual
assessment, privacy in criminal proceedings and having questioning recorded
audiovisually.
18
Chapter 6 presents the findings on the deprivation of liberty of children and
whether it is used as a last resort. It also presents findings on safeguards such
as children’s rights to a medical examination, special treatment in detention
and contact with family members.
Chapter 7 presents the findings on the special training of professionals
involved in juvenile criminal justice and the monitoring of juvenile criminal
proceedings, and the effectiveness of the measures applied.
METHODOLOGY AND CHALLENGES
This report is based on data collected through desk research in nine Member
States and accompanying interviews that FRA’s multidisciplinary research
network, Franet, conducted in 2021.13 It covers the practical application of
selected rights and safeguards for children that the directive enshrines.
Interviews with professionals took place in nine Member States (Austria,
Belgium, Bulgaria, Estonia, Germany, Italy, Malta, Poland and Portugal) from
February to September 2021.
Interviews with children took place in eight Member States (as above, except
for Malta, as local researchers had concerns about the protection of children’s
privacy) from May to August 2021. Franet also carried out the research with
children, except in Germany, where an in-house FRA expert conducted the
interviews.
The agency’s resources required limiting the research to selected Member
States. The nine Member States selected cover the main European legal
traditions (common and civil law systems), include a range of cultures and
geographical regions and have different population sizes. This is consistent
with FRA’s practice established in past projects.
FRA consulted practitioners associated with the Council of Bars and Law
Societies of Europe,14 Terre des Hommes,15 the Ludwig Boltzmann Institute of
Fundamental and Human Rights,16 Defence for Children International,17 Child
Circle18 and the Byron College Child Advisory Board on restorative justice19
while developing the research design and methodology. FRA is grateful for
their input and contribution to identifying issues in the practical implementation
of the rights and safeguards that the directive stipulates.
Overall, 229 respondents were interviewed to gain insights on how national
criminal proceedings implement and apply in practice the rights and safeguards
that the directive enshrines. They included 180 criminal justice professionals:
40 judges and prosecutors, 36 police officers, 44 lawyers and 60 specialists
from different disciplines working in the field of juvenile justice, such as
social workers, juvenile court assistants and psychologists. Respondents also
included 49 children from selected Member States (see Table 1), of whom
seven have been suspected or accused of a crime and 42 have already
received a judgment.
19
TABLE 1: NUMBER OF INTERVIEWEES PER MEMBER STATE AND TARGET GROUP
(Non-legal) Total number of
Member State Police officers Lawyers Judges/prosecutors Children
specialists interviewees
AT 4 5 5 6 6 26
BE 4 5 5 6 6 26
BG 4 5 5 6 6 26
DE 4 5 5 6 6 26
EE 4 4 5 7 6 26
IT 4 5 5 6 6 26
MTa 4 5 – 11 – 20
PL 4 5 5 6 7 27
PT 4 5 5 6 6 26
Total 36 44 40 60 49 229
Source: FRA, 2022
Note:
SCOPE OF INTERVIEWS WITH PROFESSIONALS a
Interviews in Malta did not include
judicial authorities or children. This
The criminal justice professionals – police officers, defence lawyers, judges, was mainly for data protection
prosecutors and professional juvenile justice specialists – were asked reasons, as only a limited number
of judges and prosecutors deal with
predefined questions in semi-structured interviews. Questions covered
children, and relatively few children
five issues: individual needs assessment, assistance by a lawyer, right to are involved in criminal proceedings.
information, right to effective participation in a trial and deprivation of liberty.
The interviewers did not share the questionnaire with respondents in advance.
Interviewers could ask follow-up questions or request clarifications. They
encouraged respondents to speak freely and draw on their personal
professional experiences and observations of other professionals’ practices.
Interviews with professionals were mostly by teleconference owing to
national responses to the coronavirus disease 2019 (COVID-19) pandemic.
SCOPE OF INTERVIEWS WITH CHILDREN
The children’s semi-structured interviews did not cover some thematic areas,
such as monitoring, training and privacy, as the children did not have direct
insights into those areas. However, contact persons provided additional
factual information about the training of professionals in contact with the
child in question, for example. Children were asked to speak openly about
their experiences and how they were informed, treated and assisted during
criminal proceedings as suspects or accused persons. They were also asked
to provide their views on how to improve proceedings.
Researchers used appropriate recruitment channels (gatekeepers) to
identify and contact children for interviewing, based on FRA’s established
practice when interviewing children. This included ensuring children’s
safety and well-being, for example through providing interviewees with
information about available support services appropriate for children in
these situations. Gatekeepers provided complementary, factual background
information about the criminal proceedings involving children, with the
child’s permission. The children’s experiences and perspectives are
complementary to the practices the professionals described, and serve
to create a more comprehensive picture.
20
Significant efforts were made to conduct the interviews face to face to
establish a trusting relationship and allow children to speak openly about
their experiences (including feelings and opinions). This created a space
where children would feel safe and comfortable. Overall, 44 interviews were
in person and three were online; the format depended on the COVID-19
measures in the relevant country. Interviews were mainly audiorecorded
or, in some cases, documented in detailed notes, according to the wishes of
the interviewed children.
Only specifically trained and experienced researchers conducted the interviews.
FRA appointed the Franet research teams (contractors/researchers) to recruit,
select and propose interviewers. FRA assessed the proposed interviewers
and approved them or recommended replacing one or more, based on their
appropriate research experience of interviewing children and working with
children. The evaluation of experience and suitability used their CVs, clean
criminal records and necessary background checks.
An in-house expert with experience in child’s rights and in interviewing
children, including children involved in criminal proceedings, conducted the
interviews in Germany.
The child interviewees represented as diverse a range of personal backgrounds,
ages and genders as possible, given the number of interviews. They also had
different experiences of the seriousness of the crime, levels of social support
and pre-trial measures. This diversity helped to create a comprehensive
picture.
However, over-representation of certain groups was unavoidable: boys;
children from a minority ethnic or migrant background; and children in difficult
living situations, including living separately from at least one parent, in care
and/or in a household of low socioeconomic status. This reflects the over-
representation of children with these characteristics in criminal proceedings
in the countries studied, according to gatekeepers/professionals. Children
involved in multiple proceedings and/or cases of serious crime are over-
represented, as experiences at trial and in detention were of interest and
within the directive’s scope.
21
The age at which engagement with criminal justice starts ranges from 13 to
17, according to interviewees. The youngest interviewees were 15 and the
oldest were 21 when asked to recall their experiences during the research.
Eighteen of the 49 interviewees had already turned 18 when interviewed
about their experiences as child suspects or accused persons.
Overall, 49 interviews with children in conflict with the law who had experienced criminal
Child proceedings were systematically conducted and analysed across eight EU Member States.
interviewees – The target group was children with experience as suspects or accused persons of criminal
background proceedings after the deadline for incorporating the directive into national law (11 June
characteristics 2019). Children are from the same regions as the interviewed professionals. The children’s
characteristics are as follows.
• Thirteen participants are girls (26.5 %) and 36 are boys (73.5 %).
• More than one third (19, 39 %) of interviewees are from a migrant background
or belong to an ethnic minority in their countries. Particularly high proportions of
interviewees in Germany (100 %), Bulgaria (66.6 %), Austria (50 %) and Belgium
(50 %) have such backgrounds. No interviewees are from a migrant or ethnic minority
background in Poland and Portugal, whereas the proportion is 16.6 % in Estonia and
28.5 % in Italy. Children from the Russian-speaking minority group in Estonia, Roma
children in Bulgaria, and children who have fled from Syria or Afghanistan in Austria
and Germany are among the group of interviewees, in line with national demographics
and criminal statistics.
• Over three quarters (39, 79.5 %) come from a difficult living situation.
• Most interviewees (81.6 %) live in urban areas in all participating Member States,
except in Portugal (50 %) and Estonia (60 %), where half or more are from rural areas.
• A large proportion (36, 74.5 %) of the participating children in conflict with the law
were involved in criminal activities that can be described as serious. A multitude of
criminal offences and acts involving violence were considered serious crimes. Theft,
misdemeanours and public disturbances such as demonstrations were considered
‘other’ crimes. More than half of the interviewees (31, 63.3 %) were involved in
multiple proceedings.
22
Endnotes
1
See the United Nations Office on Drugs and Crime (UNODC) web page on crime prevention and criminal justice. See also UNODC (2015),
Doha Declaration on integrating crime prevention and criminal justice into the wider United Nations agenda to address social and
economic challenges and to promote the rule of law at the national and international levels, and public participation, July 2015.
2
See in particular European Parliament (2012), Charter of Fundamental Rights of the European Union (2012/C 326/02), OJ 2012 C 326,
Article 24; United Nations (UN), General Assembly (1989), Convention on the Rights of the Child, 20 November 1989; Council of Europe
(CoE), Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011;
and UN (1948), Universal Declaration of Human Rights, 10 December 1948.
3
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132.
4
Council of the European Union (2009), Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights
of suspected or accused persons in criminal proceedings (Text with EEA relevance), OJ 2009 C 295, 4 December 2009.
5
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132.
6
FRA (European Union Agency for Fundamental Rights) (2015), Child-friendly justice – Perspectives and experiences of professionals on
children’s participation in civil and criminal judicial proceedings, Luxembourg, Publications Office of the European Union (Publications
Office); FRA (2017), Child-friendly justice – Perspectives and experiences of children involved in judicial proceedings as victims,
witnesses or parties, Luxembourg, Publications Office.
7
FRA (2015), Child-friendly justice – Perspectives and experiences of professionals on children’s participation in civil and criminal judicial
proceedings, Luxembourg, Publications Office.
8
FRA (2017), Child-friendly justice – Perspectives and experiences of children involved in judicial proceedings as victims, witnesses or
parties, Luxembourg, Publications Office.
9
FRA (2016), Rights of suspected and accused persons across the EU: Translation, interpretation and information, Luxembourg,
Publications Office.
10
FRA (2016), Criminal detention and alternatives: Fundamental rights aspects in EU cross-border transfers, Luxembourg, Publications
Office.
11
FRA (2019), Rights in practice: Access to a lawyer and procedural rights in criminal and European arrest warrant proceedings,
Luxembourg, Publications Office.
12
FRA (2021), Presumption of innocence and related rights – Professional perspectives, Luxembourg, Publications Office.
13
For more information, see FRA’s web page on Franet.
14
For more information, see the Council of Bars and Law Societies of Europe web page.
15
For more information, see the Terre des Hommes International Federation web page.
16
For more information, see the Ludwig Boltzmann Institute of Fundamental and Human Rights web page.
17
For more information, see the Defence for Children International web page.
18
For more information, see the Child Circle web page.
19
For more information, see the web page of the Byron College Child Advisory Board on restorative justice.
23
1
DIRECTIVE (EU) 2016/800:
SCOPE OF APPLICABILITY, AGE
ASSESSMENT AND MONITORING
This chapter discusses the scope of applicability and the monitoring of the
directive, its rules and practice regarding age assessment. The directive
provides safeguards for children, but national authorities determine whether
the person in question is a child or an adult. Age assessment also determines
whether the person has reached the minimum age of criminal responsibility
in accordance with national law.
The directive lays down common minimum rules concerning rights of children
who are suspects or accused persons in criminal proceedings or subject to
the EAW.1
It sets out the procedural rights of children until the final determination of
whether they committed a criminal offence This includes, where applicable,
sentencing and the resolution of any appeal. The directive does not affect
Member State rules that determine the age of criminal responsibility.2
The directive also applies to children who become suspects or accused persons
during questioning by the police or another law enforcement authority.3
1.1. SCOPE OF THE DIRECTIVE’S APPLICATION AND AGE
CATEGORIES
The directive sets minimum standards for procedural rights at each stage of
proceedings involving children. It applies from their questioning as witnesses
until the final determination of their criminal liability, including sentencing
and appeal procedures.4 This prevents the use of potentially incriminating
statements against the child in court if they are later held as a defendant.
It also applies to children who are requested and arrested pursuant to an
EAW.5 However, this report does not deal with this aspect because so few
children are subject to the EAW according to initial consultations with experts.
All directives adopted in implementing the criminal procedural roadmap also
apply to children.6 However, this directive strengthens the rights of children
as vulnerable defendants, while also referring to rights that other directives
cover. These include the rights to:
― information7
― an individual assessment8
― a medical examination when deprived of liberty9
― access a lawyer10 and legal aid11
― be presumed innocent and be present at the trial.12
25
The directive’s scope does not cover proceedings against children for minor
offences before authorities other than criminal courts that lead to sanctions
other than deprivation of liberty. For example, it does not cover minor public
order offences or road traffic offences. However, the directive does apply to
appeal proceedings before criminal courts and against sanctions for minor
offences, even when deprivation of liberty is not at stake. It always applies
when the child is deprived of liberty, irrespective of the stage of the criminal
proceedings.13
Recital 17 of the directive specifies that it does not cover proceedings specially
designed for children that could lead to protective, corrective or educative
measures. It is unclear whether its scope excludes such proceedings that
include deprivation of liberty as a corrective measure.
Article 3 (1) of the defines ‘children’ as all persons below the age of 18, in line
with the UN CRC. However, Member States are allowed to set the minimum
age of criminal responsibility. This is in line with the UN CRC,14 the Council
of Europe (CoE) legal standards15 and its Committee of Ministers’ guidelines
on child-friendly justice.16
A young person should be considered a child when their age cannot be
determined or there is doubt, as the directive provides.17 This is in line with
General Comments Nos. 10, 12 and 24 of the UN Committee on the Rights of
the Child on the child’s right to be heard and children’s rights in the juvenile
and child justice systems.18
Article 2 (3) of the directive extends its application to older persons who were
younger than 18 when they became suspects or accused persons in criminal
proceedings. This is provided that applying the directive or its provisions is
appropriate in light of their maturity and vulnerability. Member States may
not apply the directive to persons older than 21, and it explicitly excludes
provisions involving the holders of parental responsibility.19
Recital 12 of the directive also encourages Member States to apply the child-
specific procedural safeguards to people between the ages of 18 and 21 who
were children when they allegedly committed the crimes. This is in line with
the UN Committee on the Rights of the Child general comments recommending
that children who allegedly committed a crime and turn 18 during the trial or
sentencing process continue to benefit from child justice systems.
26
The UN Committee also “commends States parties that allow the application of
the child justice system to persons aged 18 and older whether as a general rule
or by way of exception. This approach is in keeping with the developmental
and neuroscience evidence that shows that brain development continues
into the early twenties”.20
1.2. AGE ASSESSMENT AND THE PRESUMPTION OF
CHILDHOOD IN CASE OF UNCERTAINTY
Legal overview
The scope of application of the special rules and procedures designed for
children depends on the age of the person concerned.21 The process of
determining their age should be based on all available evidence, recital 13
states. This evidence includes documentary research, statements by the
person and checks of civil status. A medical examination may be conducted
when other evidence is inconclusive or unavailable.
Sometimes a highly precise age cannot be established using an age assessment
procedure. Article 3 of the directive includes a presumption of childhood to
cover situations such as these “where it is uncertain whether the person
has reached the age of 18”.
In this regard, the directive’s approach follows the guidance of the UN
Committee on the Rights of the Child. An age assessment should use the
least intrusive method and resort to medical methods only in exceptional
cases, according to the UN Committee on the Rights of the Child’s General
Comments Nos. 10 and 24. The child or young person should have the benefit
of doubt when results are inconclusive. However, the UN Committee stresses
that Member States should avoid using bone and dental analysis, as these
methods are often unreliable and can be traumatic for the child.22
Findings: national laws, professionals’ perspectives and children’s
experiences
The directive applies to persons below the age of 18, with extensions for
children who reach the age of maturity during the procedures.23 Article 2 (5)
of the directive allows Member States to set the minimum age of criminal
responsibility.24 The directive then applies at national level to those who are
deemed criminally responsible. The age assessment procedures are important,
as they not only indicate if the special procedural rights and safeguards apply,
but also determine if a suspect can be charged with a criminal offence.
The age of criminal responsibility differs across the Member States studied.
It is 14 in most, namely Austria,25 Bulgaria,26 Estonia,27 Germany,28 Italy29 and
Malta.30 In the other three, it is 18 (16 for serious offences) in Belgium,31 17
(15 for serious offences) in Poland32 and 16 in Portugal.33
The age of criminal responsibility ranges from 12 to 17 across all EU Member
States. Most (15) set it at 14.34
When interviewed, the children were between 15 and 21.
Most Member States studied do not have legal provisions on age assessment
procedures involving suspects and accused persons who may be children.
National legislation rarely regulates age assessment in detail, if it refers to
it at all.
27
For example, age assessment is part of a general obligation to collect personal
information when children are suspected of committing a crime in Bulgaria.35
Judges can order an investigation to confirm the defendant is a child in Italy.36
Medical examinations to establish the age of children in criminal proceedings
should only be carried out as a last resort according to legal provisions in
Austria.37
A person should be legally treated as a child in cases of uncertainty, it is
widely presumed. If a person’s age is unknown and there is reason to believe
it is below 18, the person is deemed a child until proven otherwise, most
Member States’ legislation provides. This applies in Austria,38 Estonia,39
Germany,40 Italy,41 Malta42 and Portugal.43 No legal provision explicitly granting
the presumption of childhood exists in Belgium, Bulgaria or Poland.
How is the age of a person suspected or accused of having committed a crime
assessed and determined in practice?
The age of child suspects is more straightforward to identify when records
are available, interviewees across all Member States note. For children such
as asylum seekers or Roma children, identifying their age may require extra
steps if such records are not available.
Official documents such as birth certificates, passports, identity cards or
residence permits help identify the age of a child when this is in question,
say interviewees in Belgium, Bulgaria, Germany, Italy, Malta, Poland and
Portugal. These interviewees are mainly police officers.
Authorities checked their age when they became suspects, interviewed
children in Germany, Poland and Portugal consistently claim. Other forms of
identification, such as a health insurance card, were accepted, as they did
not all have identity cards. Interviewed children were asked for their age,
their identification was checked or they were not asked at all in Austria,
Belgium, Bulgaria and Italy.
When they were not asked their age, children assume that it was checked
using other means or the authorities somehow already knew. The authorities
in Estonia checked the official registry, children report.
When the age of a suspect remains unclear, checking police databases for
information about the age of the suspect is general protocol, according to
police officers interviewed in Austria, Bulgaria, Estonia, Germany and Malta.
The databases may be connected to population registers, the civil registry,
medical insurance, municipalities, etc.
28
Police officers in Bulgaria and Estonia contact the child’s acquaintances to
establish the age when official documents are unavailable. In Portugal, other
people can verify a suspect’s identity and age, according to one prosecutor.
The other person vouches for the accuracy of the personal data that the
suspect provides.
The age of one suspect was unknown because they had no birth certificate or
information in an official register, a Bulgarian prosecutor recalls. On request,
the civil court issued a decision that the suspect was an adult and not a child.
Medical assessments are one method of establishing the age of a suspect in
eight Member States studied (all but Poland), according to the professionals
interviewed. Sometimes it is viewed as the last resort, when all avenues for
identifying the age of the suspect have been exhausted.
It is the prosecutor’s responsibility to order a medical age assessment in
Austria, Belgium, Germany, Italy and Portugal. This can take the form of
examining the bone structure (e.g. wrist, collarbone, hand) and teeth of
a defendant, for example. Data from medical assessments may not be
precise, interviewed police officers and prosecutors admit in Austria, Belgium,
Germany and Portugal.
A social worker from Malta elaborated on a different form of age assessment:
a psychosocial approach. A psychosocial age assessment takes some cultural
“For example, in some cultures
traditions into account, is more child-friendly, and looks at the child’s
(e.g. tribes) the citizens will receive
background and mental state in particular. This process takes a long time.
a mark on their skin when they
However, it is far better from a human rights perspective than the previous
become of age. The people in
medical assessment using X-rays and dental examinations, the interviewee
charge of verifying the age of the
considers.
alleged minor have a schedule
of tribal marks for them to check
Interviewed children with refugee status may have had their age assessed
the meaning behind the mark.
during the asylum determination procedure.
Thereby, a particular age could be
ascertained.”
The suspect is presumed to be a child when serious doubts remain,
Social worker, Malta.
professionals from all nine Member States agree. This accords with the
principle of in dubio pro reo: a ruling should be in favour of the accused
person when there is doubt.
29
1.3. MONITORING IMPLEMENTATION OF THE DIRECTIVE
Legal overview
Member States must send the Commission available data showing how
they implement the rights under the directive, according to Article 21 of
the directive. This must be done by 11 June 2021 and every three years
thereafter. This includes data on the numbers of children represented by
a lawyer, individual assessments and audiovisual recordings of questioning,
and children deprived of liberty, recital 64 stipulates. These should be gathered
from judicial and law enforcement authorities, and healthcare and social
welfare services.
Member States should establish monitoring mechanisms and periodically
review and evaluate child-friendly measures, the CoE Committee of
Ministers’ guidelines on child-friendly justice encourage.44 State parties
should systematically collect data for evaluating and developing juvenile
justice policies, the UN Committee on the Rights of Child similarly urges. 45
These data include those the directive refers to.
Findings: national laws and practices on monitoring the directive’s
application
No information is publicly available on data collection or legal provisions
for monitoring and assessing the implementation of the rights of accused
children in criminal proceedings in most of the EU Member States studied.
The exceptions are Germany and Italy, according to information from FRA’s
researchers.
In Germany, the Federal Statistical Office publishes annual criminal justice
statistics. These can be used to monitor the rights of children who are subject
to criminal proceedings.46 Despite this, academics have criticised the lack
of an explicit legal obligation to evaluate the incorporation of the directive
into national law.47
In Italy, the Ministry of Justice collects data on the number of children involved
in criminal proceedings and deprived of personal freedom in penal institutions
for minors (istituti penali per i minorenni, IPMs), first reception centres (centri
di prima accoglienza, CPAs) and local communities.48 The national statistical
institute publishes these data on its website.49
30
Endnotes
1
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 1 (a) and (b).
2
Ibid., Arts. 2 (1), 2 (5) and 3 (1).
3
Ibid., Art. 2 (4).
4
Ibid., Arts. 1 (1) and 2 (1) and (4).
5
Ibid., Arts. 1 (2), 2 (2) and 17; Court of Justice of the European Union (CJEU), C‑367/16, Dawid Piotrowski, 23 January 2018, paras. 36–37.
6
Council of the European Union (2009), Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights
of suspected or accused persons in criminal proceedings (Text with EEA relevance), OJ 2009 C 295, 4 December 2009.
7
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 4.
8
Ibid., Art. 7.
9
Ibid., Art. 8.
10
Ibid., Art. 6.
11
Ibid., Art. 18.
12
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the
presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ 2016 L 65, Chapter 2.
13
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 2 (6) and recitals 14–16.
14
UN, General Assembly (1989), Convention on the Rights of the Child (CRC), 20 November 1989, Arts. 1 and 40; UN, Committee on the
Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 37,
p. 12; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system,
CRC/C/GC/24, 18 September 2019, paras. 29–30, p. 7; UN, Committee on the Rights of the Child, General Comment No. 12 (2009): The right
of the child to be heard, CRC/C/GC/12, 20 July 2009.
15
CoE, European Convention on the Exercise of Children's Rights, CETS No. 160, 1996, Art. 1 (1).
16
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Chapter II, Section A, p. 17.
17
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 3, last sentence.
18
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 39, p. 12; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 33–34, p. 7.
19
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 2 (3).
20
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 38, p. 12; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 31–32, p. 7.
21
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 2.
22
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 39, p. 12; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 33–34, p. 7.
23
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 3 and recital 1.
24
Ibid., Art. 2 (5).
25
Austria, Juvenile Courts Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 18 November 1988, paras. 1 (1–2) and 4 (2).
26
Bulgaria, Penal Procedure Code (Наказателен кодекс), 2 April 1968, Arts. 31 (2) and 32 (1).
27
Estonia, Criminal Code (Karistusseadustik), 6 June 2001, para. 33.
28
Germany, Criminal Code in the version published on 13 November 1998 (Federal Law Gazette I, p. 3322), as last amended by Article 2 of
the Act of 19 June 2019 (Federal Law Gazette I, p. 844) (Strafgesetzbuch in der Fassung der Bekanntmachung vom 13. November 1998
(BGBl. I S. 3322), das zuletzt durch Artikel 2 des Gesetzes vom 22. November 2021 geändert worden ist), 15 May 1871, Section 19.
29
Italy, Criminal Code (Regio Decreto 19 ottobre 1930, n. 1398: Approvazione del testo definitivo del Codice Penale), 1 July 1931, Art. 97.
30
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 35 (1).
31
Belgium, Youth Protection Act (Loi relative à la protection de la jeunesse, à la prise en charge des mineurs ayant commis un fait qualifié
infraction et à la réparation du dommage causé par ce fait), 8 April 1965, Art. 36 and 36bis; Dumortier, E., Christianens, J. and Nuytiens, A.
(2017), ‘Belgium’ in: Decker, S. H. and Marteache, N. (eds.), International Handbook of Juvenile Justice, Cham, Springer, pp. 239–265.
32
Poland, Penal Code (Kodeks Karny), 6 June 1997, Art. 10.
33
Portugal, Criminal Code (Código Penal), 23 September 1982, Art. 19.
34
See the Child Rights International Network (CRIN) web page on minimum ages of criminal responsibility in Europe.
35
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, Art. 387.
36
Italy, Youth Criminal Procedural Code (Codice processo penale minorile), 22 September 1988, Art. 8 (1).
37
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener (Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, Section/para. 37a (1).
38
Ibid., Section/para. 1 (2).
39
Estonia, Child Protection Act (Lastekaitseseadus), 19 November 2020, para. 3(2).
40
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 1 (3).
41
Italy, Youth Criminal Procedure Code (Codice processo penale minorile), 22 September 1988, Art. 8(2).
31
42
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGB.
43
Portugal, Code of Criminal Procedure (Código de Processo Penal), 17 February 1987, Arts. 61 (5) and 250 (5) (c).
44
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
pp. 34 and 94–95.
45
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, paras. 113–115, p. 19; UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) –
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras. 98–99, pp. 25–26.
46
Germany, Draft Act to strengthen the procedural rights of accused persons in juvenile criminal proceedings (Entwurf eines Gesetzes zur
Stärkung der Verfahrensrechte von Beschuldigten in Jugendstrafverfahren), Drucksache 19/13837, 9 October 2019, p. 42.
47
Höynck, T. and Ernst, S. (2020), ‘Das Gesetz zur Stärkung der Verfahrensrechte von Beschuldigten im Jugendstrafverfahren: Die Umsetzung
der Vorgaben der EU-Richtlinie 2016/800 und ihre Auswirkungen auf das deutsche Jugendstraf-(verfahrens-)recht’, Zeitschrift für
Jugendkriminalrecht und Jugendhilfe, Vol. 3, pp. 245–258; see p. 258.
48
For more information, see the web page of Italy’s Ministry of Justice (Ministero della Giustizia) on statistics of the penitentiary
administration.
49
For more information, see the Italian National Institute of Statistics (Istituto Nazionale di Statistica) web page on documents concerning
minors.
32
2
INFORMATION RIGHTS: THE RIGHT OF
CHILDREN AND THEIR PARENTS OR
GUARDIANS TO BE INFORMED ABOUT
PROCEDURAL RIGHTS
This chapter discusses children’s right to be informed of their procedural rights
once they are suspects or accused persons, according to the directive. It also
discusses their parents or guardians’ right to be informed of these rights.
This chapter sets out some of the issues related to the provision of information.
These include whether information is given in a child-friendly way, what
information is provided and when, and whether children understand the
information they receive.
This chapter also examines how holders of parental responsibility are informed
of rights. The directive uses the term ‘holder of parental responsibility’. This
report will use the same term and/or ‘parent’ and ‘guardian’ for readability.
2.1. INFORMING CHILDREN OF THEIR RIGHTS AND
CONDUCT OF THE PROCEEDINGS
Legal overview
Member State authorities should promptly inform children suspected or
accused of having committed a crime of their procedural rights, Article 4 (1)
of the directive stipulates. These include their rights to access a lawyer and be
accompanied by their parents or another adult. They should also be informed
of the general aspects of the conduct of the proceedings.
33
Other directives on criminal procedural rights still apply in proceedings against
children. This includes Directive 2012/13/EU on the right to information in
criminal proceedings and Directive 2013/48/EU.1 Directive 2013/48/EU covers
the right to access a lawyer in criminal proceedings and in EAW proceedings. It
also covers children’s rights to have a third party informed and to communicate
with third persons and consular authorities when deprived of liberty.
Directive (EU) 2016/800 provides additional guarantees. Information should
be given in writing, orally or both, and in simple and accessible language,
according to Article 4 (2) and recital 18. This should consider the provisions
of other directives and the specific needs and vulnerabilities of children. All
defendants must be informed of the accusation against them in sufficient
detail, considering the stage of criminal proceedings.2
National authorities must, as far as possible, explain to child defendants the
next procedural steps and the roles of the authorities involved, recital 19
of the directive provides. The letter of rights provided to a child deprived
of liberty should include clear information on their rights, Article 4 (3) and
recital 21 of the directive prescribe.
Children have the right to be informed of their procedural rights, the ECtHR
emphasises. If the police do not inform child defendants of their rights to
receive legal assistance and to have a family member or other adult present to
assist them during questioning, this violates Article 6 of the ECHR.3 Authorities
must take an active approach to informing children of such rights.4
Children should be provided with information promptly and adequately,
the CoE’s guidelines on child-friendly justice recommend. This includes
information on their rights; the system and procedures involved, including
review proceedings; existing support mechanisms, protective measures and
alternatives to court settings; the charges against them; and reasons for
detention.5 This applies to their first involvement with the justice system
and throughout the process. Information must be adapted to the child’s age
and maturity, in a language that they understand, and gender and culture
sensitive.6
Children must be informed promptly and directly of the charges against them,
the UN CRC requires. This should be done through their parents, if suitable.
To participate in the proceedings effectively, the child must be informed of
the charges, the juvenile justice process and possible measures, according to
General Comments No. 12 and No. 24.7 Possible measures include diversion
measures, such as community service, supervision and guidance by, for
example, social workers.
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to information
Member States generally provide for child defendants’ rights to information.
However, gaps in effective implementation of the directive remain, research
findings reveal. These gaps are both in the legal framework (some Member
States) and in practice (all Member States).
The findings point to trends in this regard in all nine Member States. For
example, most child defendants receive information about several of their
procedural rights to varying degrees. However, it is not necessarily in a child-
friendly manner and early on in the proceedings. Information should be “in
simple and accessible language”, Article 4 of the directive stipulates.
Furthermore, not all rights are explained to the same degree. For example,
the right to privacy is explained less than procedural rights.
34
This seems to be largely implemented in practice for more novel aspects of
the directive. For example, information on the child’s right to have the holder
of parental responsibility informed is provided. However, there are certain
challenges in this area, the research reveals.
National laws
Gaps remained regarding the incorporation of the directive in some Member
States at the time of the desk research. For example, as no special rules exist
on the right to information when the accused person is a child, Article 4 of the
directive was not fully incorporated into Bulgarian law.8 In Poland, there is no
obligation to inform child or adult suspects of many of the rights described
in Article 4 (1) of the directive in criminal procedures.
The current legal framework in Belgium makes a few references to the
information rights included in the directive. A suspect has the right to talk to
a lawyer before police questioning, have a lawyer present during questioning,
have a written record of interrogations and ask the police to investigate,
among others.9
Implementing the right to information of child defendants in law and in practice
National authorities must inform children who are suspects and accused
persons of their rights, as Article 4 of the directive sets out.
During questioning, the police inform child defendants of their procedural
rights orally, in writing (letter of rights) or both, even if national laws do
not fully incorporate the directive, the police in all Member States say. How
children suspected or accused of a crime receive information about their
procedural rights depends on whether or not they are deprived of liberty.
For example, in Austria, children who remain at liberty are summoned for
police interrogation by letter. It contains information on the child’s procedural
rights. Children who are deprived of liberty are informed orally on arrest that
they are under suspicion of committing a crime, and that they have the right
to mandatory assistance from a lawyer and the right to have a person of
trust present. This is generally the case across Member States.
Explaining rights to children in a child-friendly way
There is little difference in the way police inform children and adults of their
procedural rights, findings show. Children receive information about their
rights, although not always in a child-friendly manner, the police officers
interviewed say. This is in contrast to what the children interviewed say.
35
The letter of rights is not adjusted to children’s
needs, as a police officer in Belgium points out. “No, those documents are not at all adapted to a child […] It’s hard
enough for an adult to understand these rights, let alone a child. Children
Some Member States are trying to improve how will not at all understand what it says.”
they convey information about procedural rights. Police officer, Belgium.
However, they do not yet account adequately for
children’s needs.
For example, Poland introduced a new letter of rights template for suspects
and accused persons in 2020. This considers the need to ensure that people
who do not have assistance from a defence lawyer or legal representative
understand the letter of rights.10 Despite this, a template in simple language
for children should be introduced in accordance with the directive’s guidelines, PROMISING PRACTICE
the Ombudsman for Human Rights indicates.11
Child-friendly
Many of the children interviewed knew about some of their rights and the
general functioning of proceedings before their first contact with public
declaration of
authorities, they said. Most of them share a common understanding of some rights in Estonia
basic rights. These include their rights to legal assistance (but not necessarily
Authorities in Estonia created
legal aid), to have parents informed and to remain silent.
a template for declaring the rights
of children, while they were
They did not find out about their rights in criminal proceedings from criminal
incorporating the directive into law
justice professionals, children say. Rather, they know by other means, such
in 2019. It is a new declaration,
as personal or peers’/activists’ experience, the internet or television.
separate from the general declaration
of rights of suspects and accused
persons. It explains procedural rights
“I know that I can have an official lawyer. I knew that from before, but in simple, child-friendly language. It
they did not tell me.” also outlines additional rights, such
Child, Bulgaria. as the right to be informed of the
progress of the proceedings.
Sources: For more information,
see Estonia, Minister of Justice
( Justiitsminister), Establishment
of form of declaration of rights
(Õiguste deklaratsiooni näidisvormi
kehtestamine), 17 July 2014; and
Annex 3, Declaration of the rights
of the minor (Alaealise õiguste
deklaratsioon).
36
Most children interviewed received little information about their rights or
the conduct of the proceedings during their first police contact.
Children would appreciate receiving as much information as possible as early
as possible, they state consistently. In particular, they would like to know
about the accusation, incriminating evidence, key procedural rights and the
next steps in the proceedings.
Informing children with particular vulnerabilities of their rights
Authorities in most Member States recognise at least that they need to help
children understand their rights if they do not speak the national language.
This includes children from migrant backgrounds. However, language barriers
make it challenging to provide information as the directive requires, most
interviewed authorities in Germany highlight.
Interpreters are not always available, interviewees report. When they are
available, they often do not speak in a child-friendly way or in a dialect that
the child understands, one social worker emphasises. Poland has a similar
systemic problem in accessing interpreters, according to interviewees.
Some Member States try to tackle vulnerabilities other than language barriers,
as professionals detail. For example, the police in Estonia use simplified
language without legal jargon to inform children with special needs of their
rights, say several professionals interviewed.
In Bulgaria, an educational specialist or psychologist is present during
questioning if the investigative authority decides it is needed, police officers
mention. This may be if the child has a mental health problem, for example.
The specialist/psychologist can be either external or from the police.
The Austrian police’s behaviour changes depending on the social background
of a child, one lawyer observes. Children from middle-class families with
a strong social network who attend school are treated better than street
children, the lawyer argues.
The police are often impatient with children
with a migration background who do not
“We already have general experience and see differences in how the
immediately understand information about
police deal with the young people, so we already have that. It happens
their rights, a probation officer notes. The police
from time to time […] these are individual cases, but you notice them
sometimes pressure such children to sign that
because of the severity: the young people report racist insults, clearly
they understand their rights, the officer claims.
derogatory behaviour towards them. This is very often reported by
young people of a migration background. The young people also often
report very traumatic experiences with the police, especially when
the Cobra [tactical unit under the control of the Ministry of the Interior]
is involved. But it has to be said that these are mostly offences that
also involve weapons and things like that, so it is not surprising to
a certain extent. But the interventions of the Cobra are also very violent,
yes? So, we do have young people here who really suffer significant
consequences of the Cobra’s treatment.”
Social worker, Austria.
37
Treatment is worse for those with certain
backgrounds or characteristics, such as children “I received the summons. After an eternity, I received an appointment
from a low socioeconomic or migrant background, at the police where they didn’t actually listen to me, because of my
as perceived by some children. status as a refugee. I wanted to be treated equally, but they didn’t do it.
I made my statement, and they didn’t note everything that I said, and
they didn’t really care about it. At some point, I received a letter from
the prosecutor’s office, in which they imposed community service on me
to close the proceedings. I expected to be invited for a hearing, so that
they can listen to my side of the story, but they didn’t allow it. They just
stamped me as a foreigner and refugee who, irrespectively of the truth,
should receive their punishment.”
Child, Germany.
Authorities do not always take account of
vulnerabilities such as illiteracy (a child from
“They gave me lots of sheets to sign, a lot of paper. They did not tell me
Bulgaria) or language barriers (a child from
what was on them. Why? They knew I was illiterate, that’s why. They
Afghanistan living in Germany who received
just said, ‘Sign here’ and I signed. They told me some things, but I could
written information), interviewees claim.
not remember.”
Child, Bulgaria.
Verifying that children understand their rights
As well as providing information in a child-friendly way, professionals try to
ensure that children actually understand their rights, they claim in interviews.
“I am actually very bad in reading
For example, in Bulgaria, all interviewed police officers say they try to ensure
and writing. The only thing I am able
that the child understands the information. They do so by using simple
to do is a bit of speaking. And they
language, asking children whether they understand and inviting them to
gave me a lot of paper. I really don’t
ask questions.
know what they were writing […]
Because of that I was very annoyed
and didn’t know anything. Then
I just got the letter, saw how many
pages there were and just signed it
and left.”
Child, Germany.
38
In Estonia, a number of methods are used to verify whether children
understand their rights, one police officer mentions. The reference method,
for example, associates complex terms with easier words that the child knows.
Other police officers mention simple repetition or asking the child whether
they understood. Children are told their rights using simple language and
are usually asked whether they understood, all interviewed lawyers say.
Malta has more child-friendly and age-appropriate means to inform child
suspects and accused persons of their rights, such as drawings, as one social
“The matter of explanation depends
worker describes.
on the age and cognitive ability of
the child […] Sometimes drawings
Professionals disagree on the actual comprehension and awareness of the
and other different tools and means
children involved in criminal proceedings in some Member States.
are used when interacting with
children.”
Police officers in Germany doubt if children understand the information
Social worker, Malta.
provided in the first stage of the proceedings. They partly attribute this
to the amount of information and the stress that the children experience.
However, lawyers interviewed doubt that the police try to provide information
in a comprehensible way.
In Austria, the police try to ensure that child defendants understand their
procedural rights, lawyers acknowledge. However, other lawyers doubt if
children can effectively understand the information provided.
Foreign children in Italy are often confused, especially those who do not have
a close relationship with their lawyers, one lawyer argued. Some children
believe that proceedings are finished when the court releases them after
a validation hearing. However, that is only a type of preliminary hearing. They
find out about the next steps months or even years later, if proceedings are
particularly lengthy.
Children in Poland usually claim that they do not
receive any information about their rights because
“Children under our care have difficulties in understanding the text
they do not understand the information. This was
they are reading. It is not because of their age, but rather their poor
one interviewee’s experience working for a non-
education. In my opinion, most of them don’t read the letter of rights at
governmental organisation in Poland, providing
all. If they did, they would not understand half of it.”
legal assistance and support to children.
Psychologist, Poland.
PROMISING PRACTICE
Effective provision of information at CPAs for children who are
arrested in Italy
The CPA in Italy has a role in providing information to of their right to remain silent, to have the holders of parental
children, several professionals and children interviewed responsibility contacted and informed, and to medical
mention. Professionals working at the CPA include assistance.
penitentiary police officers, educators, social assistants and
The CPA provides information orally or in writing. It uses
psychologists trained to communicate with children. They
multimedia, such as DVDs in multiple languages, to explain
explain the situation to children who arrive at the CPA. They
things to foreign children. The CPA in Genova developed
describe the type of facility, the purpose of the validation
a graphic booklet using the well-known story of Pinocchio to
hearing, the crime they are charged with, etc.
explain juvenile criminal proceedings to children detained in
The children are informed of their right to appoint a lawyer the centre. The booklet is available in various languages.
or be assisted by a public defender. They are also informed
39
Children do not fully understand what the police are explaining to them,
some children report. Almost no child interviewed remembers easily “They didn’t explain anything, they
understanding any letters or written information from the authorities. Any gave me a letter with all these rights
leaflets or infographics that help explain basic steps in the proceedings in on it and they said, ‘You have to
a more child-friendly way are usually provided at a later stage. Juvenile court read that’. The first time I’ve asked
and social assistants mostly provided these materials. for some information because I did
not really understand some of the
Children rarely recall anyone checking whether they understood the things in it and the police officer
information about their rights, or considering specific vulnerabilities when said, ‘It’s all in there’, so I replied, ‘OK
giving them the information. This contradicted the interviewed professionals. never mind, it will manage’. Now,
I already know them a bit by heart,
because my lawyer has explained it
Which rights are explained/not explained?
all to me.”
Regarding the content of the information children receive, some procedural Child, Belgium.
rights are always communicated and explained to children, such as the right
to appoint a lawyer, evidence in most Member States indicates. Other rights
are implemented in practice, but not always communicated to children. For
example, none of the children interviewed mentions the right to have hearings
held behind closed doors to protect the defendant’s privacy.
Judges in Italy explain technical aspects to children during the first hearing,
or the child observes them in use, according to interviewees from various
professional groups. In Malta, professionals disagree whether or not children
are informed of the right to privacy and to hold proceedings involving children
behind closed doors (see Section 5.2).
Lawyers interviewed in Poland were unsure whether children receive
information on the right to privacy. The letter of rights does not include
this information, they claim. The judges, prosecutors, police officers and
non-legal specialists were unsure whether children receive information on
their right to privacy and to have their case heard in camera, that is, with
no public presence.
The rights to remain silent, to be assisted by
a lawyer and to have their parents informed
“When they arrested me, they said ‘anything you tell me will be used
are explained, children consistently claim. The
against you’ and that I can bring my lawyer or my father there. I can tell
police briefly inform children orally or in writing
the authorities what I want and what I don’t want. And they also asked
of the accusation and the next steps in criminal
me if I wanted an interpreter and I said no. I didn’t want anyone to be
proceedings in most cases.
there, not even my father and the lawyer.”
Child, Austria.
Some of the interviewed children were informed
of other procedural rights, they mention. For example, they knew their
rights to be accompanied by a person of trust at the trial and to participate
in the trial. They also knew their rights to exclude the public from the trial
and regarding detention. However, typically the appointed lawyer informed
children at a later stage in the proceedings.
Children were unaware of child-specific rights such as the right to have
questioning audiorecorded (see Section 5.3) or to an individual assessment
(see Section 5.1). Children were sure that they were not informed of those
rights in many cases.
40
Advising child defendants of their rights: the key role of lawyers
Member States should ensure that lawyers assist children, according to
Article 6 of the directive. Defence lawyers’ pivotal role at the earliest stages of
proceedings is advising child defendants of their rights and gaining the child’s
trust, professionals and children interviewed highlight. FRA highlights similar
evidence in reports on the rights of suspects and accused persons.12 Parents
and social workers also help children understand their rights, they highlight.
For example, lawyers and social workers
accompanying children in Malta should explain
“We do not have any specific system for checking [that a child knows the procedural rights to them and check they
their rights], everything is very subjective […] We mostly rely on the understand the information the police provide,
lawyer, qualified lawyers are appointed, they are our biggest guarantee. many interviewees agree. In Bulgaria, a lawyer
And parents too.” must be present; that is the main guarantee that
Prosecutor, Bulgaria. children are properly informed of their rights,
a prosecutor mentions.
The police or judicial authority in Portugal will just
read the defendant their rights when the lawyer
“There is no big difference between young people and adults. The rule is is present, according to some interviewees. The
to read the paper. The magistrates say ‘If you have any doubts ask your lawyer will explain the rights later, the police say.
lawyer’.”
Lawyer, Portugal. Lawyers providing information on procedural rights
and safeguards is vitally important, according to
interviewees in all other countries the research
covers.
Defence lawyers are the main sources of detailed information on their rights,
according to children and professionals. Appointed juvenile court or social
“No, police officers do not care assistants, or social workers, are sources at a later stage in proceedings,
about it. The lawyer informed me, they mention.
and, unfortunately, I had already
previous contacts with the police,
Information about the general conduct of proceedings
and so I was aware […] I had other
troubles before; but that night, as Authorities must also inform children of the general conduct of the proceedings,
far as I remember, they [the police] according to Article 4 of the directive. Depending on the circumstances, they
did not tell me anything. I did not should also explain to children the role of the authorities involved, according
know, maybe they assume the to recital 19.
lawyer informs you etc.”
Child, Italy. Member States must inform children promptly of general aspects of the
conduct of the proceedings, the second part of Article 4 of the directive
states. However, in contrast to information about rights, this is only partly
implemented in practice – at least by the police, judges and prosecutors.
41
Professionals in several Member States are uncertain about the provision
of information on the conduct of proceedings in practice. For example, in
Germany, several interviewed professionals were unsure whether the police
provide information about the general conduct of the proceedings, or juvenile
court assistance and/or lawyers do so later.
Children in Poland are not informed of the general conduct of the proceedings,
as the law does not require it, most interviewees say. The exceptions were
some police officers.
The Directorate-General for Reintegration and Prison Services (Direção-Geral
de Reinserção e Serviços Prisionais, DGRSP) in Portugal provides professional
guidelines on how to act and what to do during interventions with children.
They are used while conducting individual assessments or assisting children
during trials.
The directive was incorporated into Portuguese law in 2019. The guidelines
were then modified to clarify the need to explain the general conduct of the
proceedings and the role of each professional. This applies when the DGRSP
professional is asked to be present at the trial. However, this does not occur
often, interviewees claim.
In many Member States, providing such information
is typically left to defence lawyers, probation
“Explaining what happens after the police interrogation is the
officers, social workers or juvenile court assistance.
responsibility of the lawyer […] Given that there has to be a lawyer, that
For instance, in Belgium, lawyers are expected
is also a bit of a task for a lawyer to explain all this.”
to provide information about the next procedural
Police officer, Belgium.
steps, different people’s roles, possible outcomes,
children’s rights during the proceedings and so on.
All the lawyers interviewed in Malta acknowledged that it is their responsibility
to inform the child of the process and explain it to them.
“Regarding information about
the proceedings before the court
There are reasons why children may not promptly receive comprehensive
hearing, it would be entirely up to
information about the general conduct of proceedings, some interviewees
the lawyer. For example, I’ve had
explain.
the majority of juveniles asking me
what the possible outcomes and
For example, in Estonia, nobody explains the details of the proceedings to
charges are.”
child suspects and accused persons, two of the four lawyers interviewed say.
Lawyer, Malta.
That is because, at the beginning of the proceedings, police officers do not
know whether they have a case. There is no point explaining the nuances to
everyone at an early stage without clarifying the facts, so they tell everyone
individually if they proceed further, one of those two lawyers says.
42
The uncertainty whether a complete criminal proceeding will take place is
concerning, as a judge in Germany echoes.
Lawyers and social workers provide information on the general conduct of
the proceedings, children indicate.
“There was a policeman who
laughed at us while putting the Lack of information increased children’s insecurity and stress during the
handcuffs on and said, ‘now, you proceedings. For instance, children did not know to whom to turn for support
go to jail!’ But when we arrived at or legal assistance, what came next and when, what could happen after
the first-reception centre, the staff a court hearing or what was expected of them.
carefully explained everything to us,
not the rights, but they explained Children in Belgium and Estonia have quick and consistent access to legal
the possibilities, what would happen assistance. Children in Austria, Germany, Italy and Portugal can become part
next. They made us an outline on of support programmes. These opportunities mean they know more about
a sheet of paper, maybe it was the proceedings, at least at a later stage. They also feel less insecure.
a psychologist, took a sheet of paper
and made us a diagram where it was Children in all eight Member States were unsure when their trials would
written like, ‘you are now here, at take place and what the outcome might mean for their futures. This means
the first-reception centre, you have they could not plan summer holidays, sports activities, the next school year
to undergo the proceedings, and or job applications.
then they will send you either to the
prison,’ they drew a line-up, ‘or to
the community centre, or to home 2.2. INFORMING THE HOLDER OF PARENTAL
custody, or something else, you are RESPONSIBILITY
free but you have restrictions’.”
Child, Italy.
Legal overview
Holders of parental responsibility must be informed of the child’s rights,
the accusation and the general aspects of the proceedings, according to
Article 5 (1) of the directive. The authorities should inform them as soon as
possible and in detail. This should be done in writing, orally or both, using
simple language. Parents might not be informed when:
― this would not be in the child’s best interests;
― they cannot be reached or their identity is unknown;
― doing so would jeopardise the proceedings.
Examples are when the parent is accused of participating in the crime, or
suspected of influencing witnesses or destroying evidence, as recital 23
of the directive states. In such cases, the child can nominate another adult
to be informed. When the child does not nominate an adult or the adult is
deemed unsuitable, authorities designate another person, considering the
child’s best interests.13
The child’s parents or legal representatives should directly receive all
information on the child’s rights, the system and the applicable procedures, the
CoE Committee of Ministers’ guidelines on child-friendly justice recommend.14
They should be informed of the charges, the child’s arrest and its reason. If
there are conflicting interests, the authorities should appoint another person
to represent the child. Informing the parents should not replace informing
the child, the guidelines note.
43
Informing parents or other legal representatives of charges against the child
is all that the UN CRC requires.15 However, parents should be present at all
stages of the proceedings and be informed of the charges and possible
consequences, General Comments Nos. 10 and 24 of the Committee on the
Rights of the Child explicitly state.16
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to have the holder of parental responsibility
informed
National laws
The right to have parents or guardians informed, Article 5, is one of the
more novel aspects of the directive. Most Member States studied amended
their criminal codes to comply. Parents/guardians have the same right to
information as the child suspect/defendant in six of the EU countries studied:
Austria, Estonia,17 Germany,18 Italy,19 Malta20 and Portugal.21
In Austria, the EU Criminal Law Amendment Act 2020 introduced § 38 (1a) of
the Juvenile Courts Act (Jugendgerichtsgesetz, JGG) to implement Article 5 of
the directive. The child’s legal representative must be given any information
the child receives in accordance with § 32a of the JGG as soon as possible,
§ 38 (1a) provides.
Germany introduced Section 67a of the JGG in the Act to Strengthen the
Procedural Rights of Accused Persons in Juvenile Criminal Proceedings (Gesetz
zur Stärkung der Verfahrensrechte von Beschuldigten im Jugendstrafverfahren)
to implement Article 5 of the directive.
There are still gaps in some Member States’ implementation of the directive.
For example, the investigative authority in Bulgaria must inform the parents
only when the accused child is detained, or the investigation is over and
the results are presented to the child.22 The law does not require the child’s
consent to inform the parents.23
The law in Poland does not guarantee that parents will be informed when
criminal proceedings against their child begin. Nor are parents guaranteed to
find out about children’s detention or to receive the letter of rights.24
Belgium’s legal framework does not mention parents’ right to be informed
of their child’s rights. However, it does refer to their right to be informed of
the procedure.25 This would indirectly inform them of their children’s rights.
Holders of parental responsibility may not be informed in most Member
States where FRA conducted interviews. Article 5 (2) and recital 23 provide
reasons for this, as outlined above. In Germany, reasons include if the child’s
well-being is endangered, the parent is suspected of involvement in the
crime or the parent cannot be reached in reasonable time.26
Informing the holders of parental responsibility in practice
Parents and children receive the same information in Member States where
the law requires informing parents, professionals interviewed indicate.
For example, parents in Bulgaria are always
informed regardless of any reasons not to do so,
“Our criminal procedure is very formal and we are obliged to call the
all prosecutors interviewed say.
parent no matter what relationship they have with the child. The
possibility not to notify the parent is not in our legislation.”
Prosecutor, Bulgaria.
44
Judges and prosecutors mention only one exception. They can delay the
provision of information when there are reasons to believe the parent is
involved in the criminal activity. This may happen with very serious crimes,
but only within the time frame the law specifies. Interviewees mention this
exception in all Member States studied.
Interviewee responses in Poland are mixed regarding whether parents are
informed.
Despite the lack of legal clarity in Belgium, professionals interviewed mention
certain relevant practices. For example, the police should inform parents if
their child is arrested, they all say.
The police do not have to explain the procedure or procedural safeguards
to parents when informing them of the arrest. However, police officers who
specialise in youth affairs, such as youth inspectors, usually provide more
information, a police officer and a prosecutor indicate. This information is
about not only the case, but also the child’s rights.
In Austria, one child’s parents were not informed of
their whereabouts, the child says. This is contrary
“They told me to sleep it off and sober up, because I was in an
to the practice most professionals describe.
intoxicated state. I believed what they were saying and thought I would
sleep in and then I could leave again tomorrow. The next day I was told
Improvements are needed to ensure that
that I was provisionally arrested and could be detained for 48 hours
parents understand the information they receive,
until a public prosecutor gave further instructions on whether I could go
interviewees highlight. This is particularly the
out or not. Inside, however, they did not treat me nicely or humanely,
case when parents have a migrant background
I must say. Everything I wanted to say to the police officers at the police
and do not understand the national language(s).
station there didn’t interest them at all. I also asked them there to inform
Formal language should be simplified because
my mother that I was here [in detention] and I found out later that they
of the large proportion of children from migrant
didn’t do that, although they told me that they had. My mother didn’t
backgrounds, the Ombudsperson for Children in
know where I was for over a week and since I had an addiction at the
Austria suggests. Multilingual information in simple
time, she assumed that I had passed away.”
language is helpful, they add.
Child, Austria.
Having a nominated/designated person informed
Children can nominate another adult to receive information about rights if
their parents cannot be informed, Article 5 (2) states.
45
Authorities will involve another adult person to protect the child’s interests
in most Member States where interviews took place. This happens if a child
does not nominate someone, the parents cannot be identified or the parents
cannot be informed without possible danger to the child. This can be another
relative. However, it is often someone from the social services or probation/
parole services.
The particular circumstances often determine who becomes involved. Youth
services and lawyers in Austria become responsible for the child’s protection
if the parents cannot be identified, according to professionals interviewed.
This also happens if parents are not informed because of the exceptions
described above.
The police must inform probation services if a child defendant is already on
probation. The probation officers are then support persons in the proceedings.
The child may nominate other persons of trust if their parents cannot take
part in the procedure. This can be a sibling or any other person.
The police may interrogate child defendants without a parent or person of
trust present in emergencies, prosecutors interviewed say. The defence
lawyer takes over parental responsibility in these cases. The interrogation
must be audiovisually recorded if no defence lawyer is available, judges,
prosecutors and lawyers interviewed mention.
In Italy, in the parents’ absence, other adult family members support children
and deal with public authorities. This includes elder siblings or grandparents.
Children or, after communicating with the children, their lawyers nominate
these adults. Children cannot take part in criminal proceedings if such an
adult does not legally represent them.
Similarly, children in Malta can nominate another family member to notify
instead of a parent, police officers confirm. If they do not, the police notify
the appointed social worker from the Foundation for Social Welfare Services.
In Bulgaria, the law does not require informing other persons of proceedings
against a child. However, grandparents and other relatives are informed
when children live with them rather than their parents, all police interviewed
mention. The director of an institution was informed in one case when a child
lived there, one judge also mentions.
Similarly, in Portugal, it is most often when child
defendants live in an institution that they indicate “Imagine that we have a grandmother who is very old and is legally
someone other than a parent and the competent responsible for this child, or that the child is adopted and has not been
judicial authority accepts them, according to with the adoptive family for a long time. In these situations, we always
interviewees. It is common to inform the institution find a person who is trusted by the child (teachers, godparents) [...] We
and appoint someone to accompany the child in always manage to find someone with whom the child feels confident [...]
these cases. Courts always try to find the best In those circumstances, and since it was the child who suggested [these
solution to inform and involve whoever will people] to us, it is with them that we work and whose names we provide
provide a child with the best support, one social to the court.”
worker explains. Social worker, Portugal.
46
Most of the children interviewed wanted their parents or other relatives
they live with to receive information about children’s rights when the police
first contacted the children. Police officers inform parents or other suitable
adults at this stage in most cases. This happens either just after the arrest
or, if the child is not arrested, through a letter addressing them and the child.
Police officers typically ask children for their parents’ telephone numbers.
However, not all children interviewed knew that they could name someone
to be informed instead of a parent or the relative they lived with.
Children mostly appreciated having their parents informed. In Belgium, a child’s
sister was designated as the holder of parental responsibility, as the mother
was living outside Belgium. However, the child would have liked their mother
to be contacted and told about their pre-trial detention.
Depending on the type of charges, sometimes parents could be not informed
so as “not to worry them too much” (child, Germany), children suggest.
However, their parents would learn about the more serious charges anyway.
It is better that they are informed in these cases, preferably by the children
themselves, children say.
Challenges in identifying parents or persons of trust to inform them
Few interviewees mention problems identifying parents in practice. However,
some parents do not live in the city or country in which the child is accused of
committing a crime, some interviewees in Bulgaria and Austria mention. The
police call the Youth Welfare Authority if the child cannot name a holder of
parental responsibility or person of trust. The Youth Welfare Authority must
represent the child defendant when the parents cannot do so.
Children in Belgium rarely use a support person, eight interviewees from
various professional groups indicate. They suggest various reasons for this.
For example, the right to a person of trust is not clearly embedded in law
yet. In addition, children may not receive information about this right and
may lack the social networks to find such a person.
The police do not provide timely information to
persons of trust or holders of parental responsibility
“I have had different experiences accompanying children and especially
appointed to unaccompanied minor refugees. This
adolescents in criminal proceedings. The official guardianship is usually
is a concern for a social worker in Germany and
responsible for [unaccompanied child refugees]. And I have sometimes
a probation officer in Austria.
experienced that the police did not inform the official guardianship in
time about the questioning, so that the young person was questioned
without the declaration of consent of the official guardian and thus
without assistance. And whether that is legally possible, I cannot judge
conclusively. I have not checked whether the police have a legal right to
do so.”
Social worker, Germany.
47
FRA (2014), Guardianship for children deprived of parental care: A handbook to reinforce
Concerns about guardianship systems to cater for the specific needs of child victims of trafficking.
persons of
trust or holders This handbook provides guidance on how to establish and run national guardianship
of parental systems. Most considerations apply to all guardianship situations. They relate primarily to
responsibility of guardianship systems for children deprived of parental care in general. Some are specific
to child victims of trafficking, such as issues relating to the child’s involvement in criminal
unaccompanied procedures against traffickers. [….still to add: specific reference to information…]
children
receiving FRA (2019), Children deprived of parental care found in an EU Member State other than their
information own: A guide to enhance protection of children without parental care focusing on victims of
trafficking.
This guide sets out the legal framework governing the protection of children deprived of
parental care and/or in need of protection in an EU Member State other than their own. The
latter includes child victims of trafficking. The guide suggests practical ways of responding
to these children’s protection needs. [….still to add: specific reference to information…]
FRA (2017), Child-friendly justice – Perspectives and experiences of children and
professionals – Summary.
The research includes extensive interviews with professionals and children involved in
judicial proceedings as victims and witnesses. This summary covers two reports. One
presents professionals’ views. The other focuses on the perspectives of children, outlining
their views on factors that impede their full participation and on efforts that can help
overcome such barriers.
48
Endnotes
1
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294.
2
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings,
OJ 2012 L 142, Art. 6 and recitals 26–29.
3
European Court of Human Rights (ECtHR), Panovits v. Cyprus, No. 4268/04, 11 December 2008, paras. 70, 73 and 77; ECtHR, Blokhin v.
Russia [GC], No. 47152/06, 23 March 2016, paras. 205–206.
4
ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March 2016, para. 206.
5
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Chapter IV, Section A.1, Guideline Nos. 1–2 and 5, pp. 20–21; Guideline No. 25, p. 25; and Guideline No. 28, p. 26.
6
Ibid., Guideline No. 2, p. 21.
7
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, paras. 47–48; UN, Committee on the Rights of the Child (2009), General Comment No. 12 (2009): The right of
the child to be heard, 20 July 2009, paras. 59–60.
8
Bulgaria, Ministry of Justice (Министерство на правосъдието) (2020), Table of compliance of Bulgarian legislation with Directive
(EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects
or accused persons in criminal proceedings (Таблица на съответствието на българското законодателство с Директива (ЕС)
2016/800 на Европейския парламент и на Съвета от 11 май 2016 година относно процесуалните гаранции за децата, които
са заподозрени или обвиняеми в рамките на наказателното производство).
9
Belgium, Criminal Procedure Code (Code d’Instruction Criminelle), 21 November 2016, Art. 47bis, §§ 1 and 2.
10
Poland, Regulation of the Minister of Justice of 14 September 2020 on defining the template for the letter of rights and duties of the
accused person in criminal proceedings (Rozporządzenie Ministra Sprawiedliwości z dnia 14 września 2020 r. w sprawie określenia wzoru
pouczenia o uprawnieniach i obowiązkach świadka w postępowaniu karnym), 21 September 2020.
11
Poland, Ombudsman for Human Rights, Letter to the Minister of Justice, 11 March 2019.
12
For example, see FRA (2021), Presumption of innocence and related rights – Professional perspectives, Luxembourg, Publications Office.
13
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 5 (2–3) and recitals 23–24.
14
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Chapter IV, Section A.1, Guideline No. 3, p. 21, Guideline No. 5, p. 21, Chapter IV, Section C, Guideline No. 28, p. 26, and Guideline No. 42,
p. 27.
15
UN, General Assembly (1989), Convention on the Rights of the Child (CRC), 20 November 1989, Art. 40 (2) (b) (ii).
16
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, para. 67; UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights
in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 53.
17
Estonia, Explanatory memorandum to the bill (Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide
kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 12 December 2019.
18
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974, (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974.
19
Italy, Decree of the President of the Italian Republic (Decreto del Presidente della Repubblica 22 settembre 1988, n. 488: Approvazione
delle disposizioni sul processo penale a carico di imputati minorenni), D.P.R. No. 448/1988, 22 September 2015, Art. 7.
20
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGE.
21
Portugal, Code of Criminal Procedure (Código de Processo Penal), 17 February 1987. Last amended by Law 57/2021, 16 August, Art. 58 (7).
22
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 386.
23
Ibid., Art. 389.
24
Poland, Penal Code (Kodeks Karny), 6 June 1997, Art. 145 (3) in conjunction with Arts. 261 and 300 (1).
25
Belgium, Youth Protection Act (Loi relative à la protection de la jeunesse, à la prise en charge des mineurs ayant commis un fait qualifié
infraction et à la réparation du dommage causé par ce fait), 8 April 1965, Art. 48bis, Art. 11, § 1er.
26
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 67 a, para. 3, No. 1.
49
3
ACCESS TO A LAWYER: THE
RIGHT TO BE ASSISTED BY
A LAWYER AND LEGAL AID
This chapter examines children’s procedural rights to defend themselves with
a lawyer’s assistance when accused or suspected in criminal proceedings.
Directive (EU) 2016/800 builds on the right to a fair trial enshrined in Articles 47
and 48 of the Charter of Fundamental Rights of the European Union and
Directive 2013/48/EU.1 It reinforces children’s procedural rights by making
a lawyer’s assistance mandatory, with limited exceptions.
This chapter provides an overview of European and international law on
children’s right to access legal defence. It also analyses research and interview
findings on the practical application of this right in the Member States the
research covers.
51
3.1. THE RIGHT TO BE ASSISTED BY A LAWYER AND
LEGAL AID
Legal overview
The right to a lawyer is probably the most important fundamental procedural
right ensuring effective participation in criminal proceedings. The ECHR
guarantees this right in Article 6 (3) (c), and the Charter of Fundamental
Rights of the European Union guarantees it in Article 48 (2). The ICCPR also
enshrines it in Article 14 (3) (b) (c).
The right to access a lawyer is the subject of Directive 2013/48/EU. Directive
(EU) 2016/800 refers to that directive and largely reproduces it, adding
some further safeguards for children. FRA (2019) Rights in practice: Access
to a lawyer and procedural rights in criminal and European arrest warrant
proceedings deals specifically with this issue. Mandatory assistance from
a defence lawyer is the most important measure during questioning, its
findings highlight.2
Children have the right to be assisted by a lawyer without undue delay, under
Article 6 (3) of Directive (EU) 2016/800 and Article 3 (2) of Directive 2013/48/
EU. Assistance must start from the earliest of the following:
― before police, other law enforcement or judicial authority interrogation;
― when authorities carry out certain acts, such as identity parades,
confronting the accused with witnesses or reconstructing a crime scene;3
― without undue delay after the deprivation of liberty;
― when the child is summoned to appear before a criminal court, but before
their court appearance.
This does not apply to preliminary questioning aiming to identify the
person concerned, or verify the possession of weapons or other safety
issues, recital 20 of Directive 2013/48/EU specifies. It also does not apply to
preliminary questioning before the subject is identified.
Children should be able to meet their lawyer in private and communicate
with them confidentially. This includes before police questioning. They should
also be able to have their lawyer participate effectively during questioning.4
When a child becomes a suspect or accused person during questioning as
a witness, questioning should be suspended until the child is informed of
this and assisted by a lawyer.5
Authorities may temporarily deny access to a lawyer with a reasoned decision
in exceptional circumstances. There are only two purposes for this. The first
is obtaining information essential to avert serious adverse consequences for
the life, liberty or physical integrity of a person. The second is preventing
substantial jeopardy to criminal proceedings.6
Member States’ national laws must ensure that children accused or suspected
of a crime have legal aid, where necessary, so that a lawyer effectively assists
them, Directive (EU) 2016/800 requires.7 Directive (EU) 2016/1919 further
regulates legal aid in criminal proceedings.8
Directive (EU) 2016/800 provides more protection for children than
Directive 2013/48/EU. It prohibits depriving them of liberty, other than
police detention, unless a lawyer assists the child. Children who do not have
assistance during trial hearings cannot have a criminal sentence imposed on
them. Children must have a lawyer’s assistance when brought before a judge
deciding their detention and during detention.9
52
Member States may derogate from the obligation to provide a lawyer’s
assistance in limited cases. This may depend on whether the alleged offence
is serious or not, how complex the case is or the possible punishments.10
When a lawyer’s presence or assistance is not mandatory, a valid waiver
must meet the requirements Directive 2013/48/EU sets out.11
Directive (EU) 2016/800 largely reflects the case law of the ECtHR on Article 6
of the ECHR regarding children accused or suspected in criminal proceedings.
The state should provide these children with greater protection, the ECtHR
holds. In addition, a lawyer should be appointed to provide children with
assistance. This is especially the case when children are arrested or otherwise
deprived of their liberty, save in very exceptional circumstances.12
A child confessing to the police without the presence and assistance of
a lawyer violates the ECHR, it finds.13 So does convicting a child in absentia
without legal representation at the hearing. Another violation is when the
offence the child is charged with prevents a juvenile court from trying them
and prevents the state from assigning a lawyer to them.14
Children should be given access to a lawyer when the police apprehend
them, the CoE Committee of Ministers’ guidelines on child-friendly justice
stipulate. A child taken into custody should not be questioned or asked for
a confession unless a lawyer or parent is present.15
The right to access a lawyer applies from the outset of custody, according
to the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT). It should include the right to talk
privately with a lawyer and to access legal advice on residence, detention
and deportation.
The police investigation’s legitimate interests may delay the detained person’s
access to a lawyer of their choice. However, the right to access a lawyer should
not be totally denied during this period. Access to a different independent
lawyer should be arranged in such cases, according to the CPT.16
Children charged with a crime have the right to the assistance of a lawyer
in preparing and presenting their defence, Article 40 (2) (b) (ii) of the UN
CRC provides. This assistance should cover every proceeding until all appeals
and/or reviews are exhausted, the UN Committee on the Rights of the Child
underlines. It should be free of charge, and communications between a lawyer
and child should be confidential. The committee calls for expert training for
lawyers defending children (for further details, see Chapter 7).17
Findings: national laws, professionals’ perspectives on and children’s
experiences of the rights to be assisted by a lawyer and to legal aid
National laws
A lawyer’s assistance is mandatory for children accused or suspected of a crime
from their first contact with authorities in all Member States the research
covers, findings show. Austria, Germany and Malta have certain exceptions
for less serious crimes not involving a prison sentence. National courts annul
proceedings where a lawyer does not represent the child defendant.18 This
reinforces the application of the directive’s requirements.
53
Austria: Conducting the juvenile defendant’s main hearing in the District Court of
National Leopoldstadt without representation by a defence lawyer violated § 39 (1) Z4 of the JGG, the
case law on Supreme Court ruled. The Supreme Court set aside the judgment and referred the case to
mandatory legal the Leopoldstadt District Court for a new hearing and decision.*
representation
Estonia: No lawyer was appointed to represent an underage defendant in county court
proceedings and the defendant was only represented by his mother. Therefore, the county
court judgment was annulled because of the material violation of the criminal procedural
law, the Supreme Court ruled.**
Sources:
*Austria, Supreme Court (Obersten Gerichtshof der Republik Österreich), judgment 12 Os
118/20z, 12 November 2020.
**Estonia, Supreme Court (Riigikohus), Case No. 1–17–8281, 7 February 2018, p. 10.
In the Member States studied, legislation provides mandatory legal assistance
for children from the moment they become suspects. This is the case in
Belgium,19 Bulgaria,20 Estonia,21 Germany 22 and Poland.23 In Portugal, people
aged under 21 must receive a lawyer’s assistance in questioning during an
investigation.24
Children in Austria,25 Germany26 and Malta27 are generally represented by
a lawyer. However, the law lists a number of exceptions.28
In Austria, cases involving less serious crimes that do not require mandatory
assistance by a lawyer are listed as exceptions.29 These cases are juvenile
criminal proceedings for a misdemeanour.
In Germany, exceptions include situations in which the best interests and
circumstances of the child require otherwise. Others are when preliminary
questioning of children without a lawyer is needed to protect another person
or the integrity of investigations for serious offences; or when juvenile
detention ( Jugendarrest) may be imposed.30
In Malta, the right to a lawyer can be similarly restricted. This only applies in
cases with an urgent need to protect another person or to take immediate
action to prevent jeopardising investigations.31
National law in all countries studied provides free legal assistance to children
accused or suspected of a crime.32 In Austria and Portugal, a lawyer is appointed
free of charge when a child cannot afford one.33
Children who are accused persons in Poland are entitled to legal aid when
they cannot afford a lawyer. However, the children bear the cost if they are
found guilty.34 When children do not appoint a lawyer, the police or judicial
authorities must postpone questioning them before trial or at court hearings
so that a lawyer can attend as quickly as possible.
In Estonia, the state appoints a lawyer free of charge to represent children
who do not have one. This applies even when children have the resources
to hire a lawyer.35
In Italy, lawyers who can be appointed as legal aid lawyers for children
accused or suspected of a crime are called public defenders. They must first
complete specialised training or gain substantial professional experience in
criminal proceedings involving children.36
54
Legal assistance and participation by a lawyer in practice
Legal defence and the presence of a lawyer are mandatory at all stages of
criminal proceedings involving children accused or suspected of a crime,
interview findings confirm. There are limited exceptions for minor offences.
The rule applies from the first questioning by police or judicial authorities
before trial and at trial hearings. Nevertheless, informal questioning happens
before legal representation, interviewed children and lawyers report.
Authorities in Belgium cannot question children before trial or at court hearings
without a lawyer present, except in exceptional circumstances, as judges
note. Any questioning of children without a lawyer present is considered
null and void and can be challenged.
This is usually respected in practice, all interviewed professionals in Austria,
Belgium, Bulgaria, Estonia, Germany, Italy, Malta and Portugal confirm.
However, children report the opposite in each of the Member States studied.
In Italy, a specialised and trained public defender is always present in the
courtroom, a judge explains. The public defender replaces the appointed
lawyer if they do not show up. This ensures that children accused of a crime
are always assisted by a lawyer.
In Belgium, Bulgaria and Portugal, the right to
be assisted by a lawyer cannot be waived,
“It is automatic. If [a defence lawyer is not present], it is null and none of
professionals note.
that is worth it. The accused cannot be harmed by this failure of justice
[…] given their age, having less information and maturity, they have to
have more rights than other [people].” Effective legal representation of children
Prosecutor, Portugal.
Overall, lawyers can effectively assist and
represent children who are accused or suspected in criminal proceedings, and
they often do in practice, according to all groups interviewed in all Member
States studied. Lawyers receive information about the case, have access
to the case file and are present throughout all stages of the proceedings,
according to most of the interviewed judges, prosecutors and police officers
in the Member States studied.
55
Interviewed professionals across all Member States studied also appear
to have a similar understanding of what effective legal representation of
a child entails. This includes exercising defence rights, participating actively
in procedural actions, having a preliminary conversation with the child and
advising them on a defence strategy.
Having access to the case file and effective access and contact with the child
are important, interviewed lawyers emphasise. A lawyer’s early participation
is essential, a lawyer, a judge and a social worker in Germany state.
A lawyer’s job is to ensure that proceedings involving children are fair, lawyers
interviewed in Estonia say. It is important for the lawyer to observe how the
child describes the event and to ask clarifying questions, another Estonian
lawyer mentions. This ensures that the event can be recorded accurately.
Lawyers should also be able to communicate
effectively with children to establish a rapport,
“It is important, on the one hand, to somehow convey to the juvenile
understand their individual needs and pursue their
what it means to be a person who has sworn to professional secrecy
best interests. Building a trusting relationship,
and confidentiality […] That is a very important basis for being able to
treating children respectfully and examining
communicate confidentially, which one has to explain much more than
their social background and life circumstances
with adults.”
are important. This ensures the effective
Lawyer, Germany.
representation of children, as many lawyers and
children interviewed across the Member States
emphasise.
Effective legal assistance also involves supporting
children during proceedings and making sure
“The problem is fundamentally to make the young person realise
that they properly understand what is going on,
the seriousness of the act committed. They do not have the maturity
many lawyers note. Avoiding legal jargon helps,
to understand this. Insulting a police officer is nothing for them...
a German lawyer notes. Lawyers must also actively
Destroying something or painting street furniture is meaningless to
take on “the role of educator” and “have the
them. There is this role of explaining why it is prohibited and why the
ability to empathise”, according to an Estonian
act is a crime or not [...] It is necessary to find their language, put them at
judge, a Portuguese lawyer and several children
ease and try to establish communication … a bond of trust”.
interviewed.
Lawyer, Portugal.
56
It is important to take the children seriously, acknowledging their fears and
insecurities to reassure them that they are being listened to, one German
lawyer notes.
Providing effective legal assistance also depends on the lawyers’ personal
attitudes. Some lawyers actively support their child clients even after the
conclusion of proceedings, several interviewees in Estonia note. They continue
to support them during probation, for example. Others merely do their job
without getting too involved in the child’s situation.
Legal representation should pursue “what the child wants”, some professionals
interviewed in Belgium claim. Others argue that it should pursue what would
be objectively good for the child. Defending the child’s objective interest
against their will risks not establishing a trusting relationship between the
lawyer and child, a judge, a lawyer and a prosecutor argue.
Free legal aid for children
Children who do not appoint or cannot afford a lawyer obtain legal aid, as the
directive requires, all interviewees confirm. Lawyers are mostly appointed
regardless of experience or expertise in dealing with children, the findings
suggest. The exception to this is Italy. There, public defenders can defend
children only after receiving specialised training.
Challenges in ensuring quality assistance by state-appointed lawyers
Free legal assistance from state-appointed lawyers is a concern to many
interviewees, including lawyers, parents and children. For example, they
worry about the quality of legal assistance, as legal aid lawyers do not
typically specialise in representing children in criminal proceedings. The
quality of service that legal aid lawyers provide varies considerably, several
interviewees note. Some state-paid legal aid lawyers are not as committed as
privately paid lawyers, judges, prosecutors and non-legal experts interviewed
in Austria argue.
State-appointed lawyers in Italy and Bulgaria have close relationships with
the authorities and are not willing to be openly combative in court, two
“In the worst-case scenario, the so-
lawyers claim. This is especially the case in smaller places, where there are
called state-appointed lawyers sit
also few legal aid lawyers.
at the café beside the police station,
and the investigator, with whom
In addition, some parents do not trust state-appointed lawyers. They believe
they are friends or relatives, calls to
the lawyers are part of the ‘system’, as one non-legal expert in Bulgaria
appoint them.”
explains. Parents often presume that legal aid lawyers will not properly
Lawyer, Bulgaria.
represent their child, several interviewees note, including a probation officer
in Austria. Thus, they hire a private lawyer even if they cannot really afford it.
All children in Austria, Belgium, Bulgaria, Estonia, Italy and Portugal were
assisted by legal aid or privately hired lawyers, they report. Children speak
positively about their communication with their lawyer throughout the
proceedings. They say they felt well prepared because of the meetings
before the actual hearing.
57
However, there are also accounts of negative
experiences when lawyers were in a rush, did
“[…] my lawyer, I tell you honestly, this is the worst lawyer in the whole
not take enough time or were even “useless”.
world. She is a lawyer from the state. She never came to see me. Before
More importantly, these negative accounts were
the main trial she came, but before other activities she didn’t come. She
mostly about legal aid lawyers.
doesn’t tell me anything. She is not only like that with me, ask other
youths here. We talk to each other; we get along well. I even said to
Experiences with privately hired lawyers tend to be
the prosecutor, ‘please, I’d rather be alone than with that lawyer’. And
more positive, according to children interviewed.
then, thank God, my parents took a private lawyer. But other people
This is especially the case in Austria, Germany,
can’t afford a private lawyer. That’s the worst: you ask people ‘what’s
Italy and Poland. Private lawyers are trusted from
happening to me?’ And everyone says, ‘talk to your lawyer’. And
the beginning, as family members usually hire or
the lawyer doesn’t come. I’ve been here for three or four months [in
recommend them, interviewees state.
detention] and she doesn’t come. That’s not right, that’s not fair.”
Child, Austria.
Children interviewed in Germany did not have a lawyer supporting them or the
lawyer only stepped in at the trial stage. Children are often initially suspected
of less serious offences that do not require mandatory legal assistance. They
waive their right to be assisted by a lawyer even when police inform them
of it. This is because they or their family cannot pay a lawyer, do not know
how to find one or are not aware that they may be able to access legal aid.
Several interviewed children did not want a legal-
aid lawyer’s assistance.
“Yes, but I am not interested in it [public defender]. I rather have someone
[a lawyer] who cares for me […] But once I had a public defender, and it
was weird, we didn’t know each other at all. How should he help me when
we don’t know each other? We met each other for the first time at court
[…] that just doesn’t work.”
Child, Germany.
In Belgium, the same legal aid lawyer does not assist the child throughout
the procedure, many lawyers emphasise. An interviewed child confirmed
“One time, my lawyer proposed
this, noting a difference in the quality of assistance received. The child linked
something to the judge as an
this to some lawyers’ lack of commitment, particularly those replacing the
alternative measure and the judge
lawyer officially assigned to their case when they are unavailable. Lawyers
corrected the lawyer saying that
without specific training also vary in competence.
that kind of measure was not
available in my situation and that he
Confidential and private consultations should have known that.”
Child, Belgium.
Member States should ensure that children have the right to meet and
communicate with their lawyers in private, according to Article 6 (4) (a)
of the directive. All communication between children and their lawyers is
confidential, Article 6 (5) adds.
Lawyers generally have the opportunity to meet privately with children
accused or suspected of a crime, lawyers in all Member States studied report.
This includes children deprived of their liberty.
For example, children arrested in Belgium are entitled to a 30-minute
confidential consultation with their lawyer before police questioning,
interviewed professionals, including lawyers and police officers, confirm.
Interviewees consider this sufficient.
58
One Italian lawyer, in over four decades of professional experience, had seen
only two cases in which public prosecutors suspended all communication with
children, including with the lawyer, for 24 hours. Both involved the Mafia.
Article 6 (6) of the directive allows authorities to derogate from providing legal
assistance without undue delay, when it is proportionate to the circumstances
of a case and they have considered the child’s best interests.
Nevertheless, some interviewees mentioned
obstacles. Visiting children detained in facilities
“Yes [confidential consultation takes place], but it is sometimes in dire
that are far away is difficult, an Italian lawyer
circumstances. For example, we don’t always have the space for it […]
mentions. Some Belgian lawyers and a judge
the opportunity is there, but the infrastructure is not ideal.”
criticise the lack of rooms for private meetings.
Judge, Belgium.
Consultations sometimes take place in corridors
while standing, in lifts, in the cells or in the
basement of the courthouse, they indicate.
“I had to speak once in the passageway with the child. I said: ‘No, I don’t
do that, nothing like that. I want a space where we can speak in a normal
way.’”
Lawyer, Belgium.
The police do not always offer private meetings before questioning, lawyers
from Austria and Belgium and probation officers from Austria say. Lawyers
“When the lawyer comes, they [the
must request and sometimes even insist on private meetings.
police] start with the questioning
right away […] that also depends
In Austria, it is often impossible to meet privately with children deprived of
on the personality of the lawyers.
liberty before the trial starts, one lawyer comments. This is because guards
If they say ‘OK, I insist that I hear
accompany the children and are always present. In addition, there is usually
the allegations and that I can talk to
no room available to talk in private.
the client confidentially before the
questioning’, then of course that will
The police officers interviewed report the opposite. They say defence lawyers
be done.”
are offered up to 15 minutes’ private talk with arrested child defendants before
Lawyer, Austria.
the police examination starts. These consultations must often take place very
quickly, and having half an hour is not guaranteed, another lawyer states.
59
In youth detention centres in Italy, penitentiary officers are always around,
monitoring the facility’s security, a social worker reports. This compromises the
confidentiality of the conversations between lawyers and detained children.
in Poland, telephone communication between detained children and their
lawyers is difficult, some lawyers note. Detention facilities rarely make it
possible for detainees to call their lawyer confidentially, one lawyer observes.
Pre-trial contact between the lawyer and children can take place under
a prosecutor’s supervision and their correspondence can be censored, a Polish
judge notes. These meetings are monitored, police officers interviewed in
Poland admit.
Communicating with children was challenging during the COVID-19 pandemic,
according to many professionals, principally lawyers, across all Member States
studied. Telephone or video calls replaced in-person meetings between
detained children and lawyers. This troubles the interviewees. For example,
telephone conversations might be easily recorded, two lawyers in Bulgaria
point out.
In Italy, officers such as guards are allowed in the detention centres while
lawyers are not. A lawyer finds that unfair.
“Unfortunately, the pandemic had
a big impact, so for example the
Questioning without the presence of a lawyer local juvenile detention facility
was literally off limits to lawyers
Children should be assisted by lawyers when questioned, and lawyers
[…] prison officers entered in the
should be able to participate effectively during questioning, according to
morning and returned home in
Article 6 (4) (b) of the directive.
the evening to their families […]
we [as lawyers] find this hard to
understand that lawyers were
potentially more infectious than
those professionals.”
Lawyer, Italy.
FRA’s 2019 report on access to a lawyer revealed concerns among lawyers about the use
Informal of statements that suspects make without a lawyer present. They were especially worried
questioning about statements made outside formal questioning.
without
a lawyer That report discusses the practice of ‘informal questioning’ by the police. In informal
present questioning, suspects may not know that they are suspects, or what their rights are,
including the right to a lawyer. This can have a detrimental impact on the procedural rights
of suspects and the subsequent development of proceedings.
The practice can also occur with child suspects, judging from evidence FRA collected as part
of that research.
Source: FRA (2019), Rights in practice: Access to a lawyer and procedural rights in criminal
and European arrest warrant proceedings.
60
The laws of the Member States studied require a lawyer’s presence when the
police question a child, interviewees state. In exceptional cases children may
be examined without a lawyer’s assistance in some countries. For example,
averting an imminent danger or investigative considerations may require it,
an Austrian prosecutor notes.
Informal questioning of child defendants
Informal police questioning of children is an issue
of concern, interview findings indicate. It especially
“Police may well say that they do not need a lawyer, that they are only
worries professionals and children from Bulgaria,
going to talk and that it is a procedure under the police law and not
Estonia, Germany, Poland and Portugal, including
a criminal case […] Children tell that as a story, they do not understand
lawyers and non-legal experts. For example, police
that this is wrong, that this is done to scare and manipulate them.”
officers in Bulgaria reproduce statements from this
Social worker, Bulgaria.
questioning as witness evidence when testifying
in court, according to interviewed lawyers and
non-legal experts.
“We do make a distinction between a ‘talk’ and
questioning. The so-called talk is practically questioning,
it is misleading to call this questioning a talk, whereas it
is then reproduced by the police officer as a witness.”
Lawyer, Bulgaria.
In Portugal, such conversations have no formal
legal value, but are used to lead to a confession,
“Sometimes, they start talking to the defendants and extract
a lawyer argues.
information. The defendants are not told that they don’t have to talk [...]
Just recently it happened [...] They had been talking to the kid before
I arrived, and everything was already arranged for the kid to talk.”
Lawyer, Portugal.
The police in Estonia can pressure children to write
a sincere confession without their lawyer being
“[O]f course, there are such interesting things, I have sometimes cases
present, most lawyers and children note. The
where the child has already been in the police station and has already
pretext is that the police want to understand what
been questioned […] and has already managed to write some sincere
happened and whether the child should become
regrets and confessions there. Well, by law, in fact, such a thing should
a suspect or not, according to these lawyers.
not happen.”
Lawyer, Estonia.
“That’s when you admit you did it. Yes, before the interrogation. Already
in the car, the police suggested it. They said the punishment would be
reduced if you made a sincere confession.”
Child, Estonia.
“They came to my house and took me to the station. Then they started
grilling me and then I was forced to sign things and write a confession.
Then after that I met my lawyer and we started to give statements and
only then they told me my rights.”
Child, Estonia.
61
Children in Germany who are caught in the act “I would say that in 80 % of the cases the rights are not guaranteed. Full
are immediately questioned informally by the interrogations are conducted, and extended statements are provided
police without a lawyer present. This is a problem, without legal representation, also in cases of serious offences/felonies.”
a judge argues. Lawyers in Germany complain that Lawyer, Germany.
they are often only called after the suspected child is questioned and has
confessed. This is because the police officers did not know about the new
legal provisions incorporating the directive or they intentionally question
the child to get a confession.
‘Informal talks’ in Poland are similar, lawyers observe. Some police officers
tend to informally question or intimidate suspects or force them to plead guilty,
“I learned about the right to be
according to a lawyer and a judge. These conversations are not recorded,
assisted by a lawyer during the
and suspects are not advised of their rights beforehand.
questioning after the questioning
ended. And I learned it from other
Experience of violence at first contact with authorities people. So, I went to the questioning
alone and remained alone during the
In all Member States apart from one, children report physical violence when
entire proceedings. My only comfort
they were arrested or questioned. For example, they were pushed, hit, beaten
was the right to remain silent.”
or thrown on the ground. Twenty out of the 49 children interviewed across
Child, Poland.
all Member States report physical violence. Fifteen of those were questioned
without a lawyer present.
Police officers also verbally abuse children, many
children report. These violent incidents always
“[Tactical police unit] came in armed, like I was a criminal or something.
happen when the police arrest, search or question
My parents were asleep. They kicked the door open and then they all
children without a lawyer present, or when children
woke up and the [tactical police unit] pointed guns towards them. Then
are in detention. Particularly severe incidents in
one of them came to me and said, ‘I’ll handcuff you. If you don’t do
Austria and Italy include being held at gunpoint. In
anything, I’ll put the handcuffs away.’”
Belgium, Bulgaria, Germany, Poland and Portugal,
Child, Austria.
children were verbally and physically assaulted
while handcuffed, they report.
“When I was arrested, no one verified my age. I told them that I was minor
because they pointed a gun at me. Then I think that they were in doubt
whether I could be around 18 or 19 but, in the end, they believed me.”
Child, Italy.
“I have had moments when I had [their] knees in my neck. When we
would run away from the police, for example, and you would get floored,
or they really sit on your back to hold you down. A friend of mine once
was arrested in front of me and got a full punch in the face.”
Child, Belgium.
Physical force may be justified in certain police operations to ensure officers’
safety. However, violent experiences are very traumatic for the affected
children.
None of the children interviewed had officially reported these incidents at
the time. Some had mentioned them only to a social worker and, in a few
cases, their lawyer. Only a small proportion of the children who experienced
particularly severe violent incidents had received information about their
rights at first contact with authorities. The rest did not feel informed at all.
These negative experiences have a strong influence on children. This is clear
from what the children say and how they talk about these incidents. Children
talk about these violent incidents and how much they affect them throughout
the proceedings, when asked about their most important experiences of
engaging with different justice professionals.
62
Endnotes
1
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294, Art. 3.
2
FRA (2019), Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings,
Luxembourg, Publications Office, p. 57.
3
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 6 (4) (c); Directive 2013/48/EU of the European Parliament and
of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings,
and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular
authorities while deprived of liberty, OJ 2013 L 294, Art. 3 (3) (c).
4
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 6 (5); Directive 2013/48/EU of the European Parliament and of the
Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on
the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities
while deprived of liberty, OJ 2013 L 294, Art. 4.
5
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132 and recital 29; Directive 2013/48/EU of the European Parliament and
of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings,
and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular
authorities while deprived of liberty, OJ 2013 L 294, recital 21.
6
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 6 (8) and recital 31; Directive 2013/48/EU of the European
Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant
proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with
consular authorities while deprived of liberty, OJ 2013 L 294, Art. 3 (6) (a) and (b), and recital 32.
7
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 18, and recitals 25 and 26.
8
Directive (EU) 2016/1919 of the European Parliament and of the Council on legal aid for suspects and accused persons in criminal
proceedings and for requested persons in European arrest warrant proceedings, OJ 2016 L 297.
9
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 6 (6), second and last sentences, and recital 30.
10
Ibid., Art. 6 (6), first sentence, and recital 30.
11
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294, Arts. 9 and 10, and recitals 39–41
and 55. See also FRA (2019), Rights in practice: Access to a lawyer and procedural rights in criminal and European arrest warrant
proceedings, Luxembourg, Publications Office, pp. 39–40.
12
ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March 2016, paras. 198–199; ECtHR, Salduz v. Turkey [GC], No. 36391/02, 27 November
2008, para. 60.
13
ECtHR, Salduz v. Turkey [GC], No. 36391/02, 27 November 2008, paras. 56–63; ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March
2016, paras. 205–210; ECtHR, Panovits v. Cyprus, No. 4268/04, 11 December 2008, paras. 75–77 and 84–86.
14
ECtHR, Vaudelle v. France, No. 35683/97, 30 January 2001, paras. 58–66.
15
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Chapter IV, Section C, Guideline Nos. 28 and 30, p. 26.
16
CoE, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (2010), CPT standards,
CPT/Inf/E (2002) 1 – Rev. 2010, 8 March 2011, standards 31, 41 and 82.
17
UN, Committee on the Rights of the Child (2007), General Comment No. 10 – Children’s rights in juvenile justice, CRC/C/GC/10, 25 April
2007, paras. 49–50, p. 15; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 49–53, pp. 9–10.
18
For example, see Austria, Supreme Court (Obersten Gerichtshof der Republik Österreich), judgment 12 Os 118/20z, 12 November 2020; and
Estonia, Supreme Court (Riigikohus), Case No. 1-17-8281, 7 February 2018, p. 10.
19
Belgium, Salduz-bis Law on certain rights of persons interrogated, 27 November 2016; Belgium, Pre-trial Detention Act, Art. 2bis, § 5;
Belgium, Criminal Procedural Code (Code d’Instruction Criminelle), 21 November 2016, Art. 47bis, § 6 (6).
20
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 97.
21
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 34 (1) 3) and § 45; see also Estonia, Chancellor
of Justice (Õiguskantsler) (2017), On the rights of the child upon primary contact with the police (Laste õigustest esmasel kokkupuutel
politseiga), 22 August 2017; and Estonia, Prosecutor’s Office (Orokuratuur) (2018), Special treatment of juveniles suspected of crimes
during the criminal procedure (Kuriteo toime pannud alaealiste erikohtlemine kriminaalmenetluses), Narva-Jõesuu, 21 February 2018.
22
Italy, Decreto del Presidente della Repubblica 22 settembre 1988, n. 448: Approvazione delle disposizioni sul processo penale a carico di
imputati minorenni, D.P.R. No. 448/1988, 28 January 2015, Art. 11.
23
Poland, Code of Criminal Procedure (Kodeks postępowania karnego), 6 June 1997, Art. 79 (1) (1) and 79 (3).
24
Portugal, Code of Criminal Procedure (Código de Processo Penal), 17 February 1987, Art. 64 (d).
25
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 39 (1); Austria, National Council
(2020), Explanatory remarks to the EU Criminal Law Amendment Act 2020 (Strafrechtliches EU-Anpassungsgesetz 2020 – StrEU-AG 2020),
26 February 2020.
63
26
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette I p. 2099), 11 December 1974,
Section 68, paras. 1 and 2; Germany, Criminal Code in the version published on 13 November 1998 (Federal Law Gazette I, p. 3322), as last
amended by Article 2 of the Act of 19 June 2019 (Federal Law Gazette I, p. 844) (Strafgesetzbuch in der Fassung der Bekanntmachung
vom 13. November 1998 (BGBl. I S. 3322), das zuletzt durch Artikel 2 des Gesetzes vom 22. November 2021 geändert worden ist), 15 May
1871, Section 140.
27
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGF (2).
28
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 39 (1) Z4. Germany, Youth
Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette [BGBI.]) Part 1
p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December 1974, Section 68.
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGF (4).
29
See Austria, National Council (2020), Explanatory remarks to the EU Criminal Law Amendment Act 2020 (Strafrechtliches EU-
Anpassungsgesetz 2020 – StrEU-AG 2020), 26 February 2020.
30
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]), most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December 1974, Section 68.
31
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854, Art. 534AGF (4).
32
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 39 (2); Austria, Criminal
Procedure Code 1975 (Strafprozeßordnung 1975, StPO), Federal Law Gazette No. 631/1975 (as currently in force), 30 December 1975,
§ 61 (2) (3); Belgium, Salduz-bis Law, 27 November 2016; Belgium, Pre-trial Detention Act, Article 2bis, § 5; Belgium, Criminal Procedural
Code (Code d'Instruction Criminelle), 21 November 2016, Art. 47bis, § 6 (6); Bulgaria, Penal Procedure Code (Наказателно-процесуален
кодекс), 29 April 2006, last amended 18 May 2021, Article 94. Estonia, State Legal Aid Act (Riigi õigusabi seadus), 28 June 2004, § 6 (2).
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 68a. Malta, Code of Organization and Civil Procedure (Kodiċi ta’ organizzazzjoni u proċedura ċivili), 1 August 1855,
Art. 911 (1) (2), Chapter 12. Poland, Penal Code (Kodeks Karny), 6 June 1997, Arts. 78 and 627. Portugal, Legal Aid Act (Lei do Acesso ao
Direito e aos Tribunais), 29 July 2004, last amended by Law 2/2020, 31 March 2020, Art. 39.
33
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 39 (2); Austria, Criminal
Procedure Code 1975 (Strafprozeßordnung 1975, StPO), Federal Law Gazette No. 631/1975 (as currently in force), § 61 (2) (3); Portugal,
Legal Aid Act (Lei do Acesso ao Direito e aos Tribunais), 29 July 2004, last amended by Law 2/2020, 31 March 2020, Art. 39.
34
Poland, Penal Code (Kodeks Karny), 6 June 1997, Arts. 78 and 627.
35
Estonia, State Legal Aid Act (Riigi õigusabi seadus), 28 June 2004, § 6 (2).
36
Italy, Italian Criminal Procedure Code (Codice di procedura penale, D.P.R. 22 settembre 1988, n. 477), 22 September 1988 (last amended
on 31 August 2021), Art. 97.
64
4
PARTICIPATORY PROCEDURAL RIGHTS:
CHILDREN’S RIGHTS TO EFFECTIVELY
PARTICIPATE IN PROCEEDINGS
AND TO BE ACCOMPANIED DURING
PROCEEDINGS
This chapter examines the procedural rights of children that enable them
to participate effectively in criminal proceedings with the support of their
parents. Directive (EU) 2016/800 builds on the right to a fair trial enshrined
in Articles 47 and 48 of the Charter of Fundamental Rights of the European
Union and in Directive 2013/48/EU. This has considerably reinforced the
procedural rights of children.
This chapter provides a legal overview of European and international law on
the participatory procedural rights that children should enjoy in practice. It
also analyses research and interview findings on their practical application
in the Member States studied.
4.1. THE RIGHT TO PARTICIPATE IN PROCEEDINGS
Legal overview
The right to be present at the trial and to a new trial are both elements
of the right to a fair trial enshrined in Articles 47 and 48 of the Charter of
Fundamental Rights of the European Union. They correspond to Article 6 of
the ECHR.1 The ICCPR ensures these rights in Article 14 (3) (d) (5).
Children have the right to be present at their trial and participate effectively in
it, with the opportunity to be heard and to express their views, Article 16 (1)
of Directive (EU) 2016/800 stipulates.2 They should have the right to a new
trial or to another legal remedy when they are not present, according to
Directive (EU) 2016/343.
Authorities should take the needs of vulnerable persons into account, recital 42
of Directive (EU) 2016/343 explains. This includes those who are not able
to understand or effectively participate in criminal proceedings because of
their age. Children are vulnerable and should be given a “specific degree of
protection”, recital 43 states. This should entail “specific procedural safeguards”.
Those charged with a criminal offence are entitled to take part in the hearing,
both the Court of Justice of the European Union (CJEU) and the ECtHR make
clear. Defendants should be able to give evidence in their defence, hear the
evidence against them, and examine and cross-examine witnesses, among
other things. This is whether a lawyer represents them or not.3
65
National authorities should ensure that (a) children properly understand the
general conduct of the proceedings, (b) they can confer with lawyers and
support persons, (c) their rights to speak and to challenge any statement or
fact are upheld, and (d) the court room setting does not intimidate them.4
The ECtHR requires this.
Member States should ensure that children are given appropriate ways to
access justice and be heard in proceedings involving or affecting them, the
CoE guidelines recommend. They should give due weight to children’s views,
considering their maturity and any communication difficulties to make this
participation meaningful.5 Children should be entitled to exercise all their
rights so their ability to form their own views and the circumstances of the
case are considered properly.6
Children should be able to effectively participate in the trial by understanding
the charges against them and exercising their defence rights, the UN Committee
on the Rights of the Child confirms.7 Proceedings should be conducted in an
atmosphere that allows children to participate and express themselves freely.
The child’s age and maturity may require modified courtroom procedures
and practices. These include adaptations for children with disabilities, child-
friendly layouts of interview spaces and courts, and removing intimidating
legal attire.8 Using child-friendly language that the child understands is also
important.9
FRA’s 2021 report on the presumption of innocence and related rights discusses
in more detail the right to be present and effectively participate in a trial, and
to obtain a retrial when tried in absentia.10 Access to a lawyer is essential to
ensure the defendant’s effective participation and the effective exercise of
their defence rights, the report finds.11
The report identifies many obstacles to ensuring defendants’ effective
participation. These include illiteracy or low level of education, language
barriers and the complexity of legal proceedings. Others include intellectual
and/or psychosocial disabilities that are not obvious, and some defence
lawyers’ poor quality of representation and/or preparation.12 The report
also presents many positive measures that Member States take to protect
child defendants.13
66
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to effective participation in the trial
National laws on the effective participation of children
Children in most of the Member States studied have the right to be present
and to effectively participate in proceedings. They can comment on the
charges and evidence, examine witnesses, present evidence, make closing
statements, etc.
Austria prohibits trials of children in absentia. Hearings must be adjourned
when a child defendant is not present.14 Trials in Belgium, Bulgaria,15 Estonia16
and Malta17 can take place in absentia under limited conditions, and children
can apply for a retrial if they do. No decision can be taken in Belgium unless
the youth court judge hears the child involved, Article 52ter of the Federal
Youth Act stipulates.
Child defendants in Poland18 and Portugal19 have the right to be present and
participate in the trial. However, they can decide against it and the trial can
go ahead if they are properly notified.
In Germany and Italy, they can also waive the right to participate in the
trial, with certain exceptions. In Germany, a severe penalty or a reformative
measure cannot be imposed if the child is absent, and violating this is grounds
for appeal.20 In Italy, children might be required to participate when the court
needs this to assess their circumstances and accommodate their reintegration
into society.21 The court hears children when they ask for the opportunity.22
Professionals’ and children’s perspectives on effective participation of children
Children have the right to be present at their trial and participate effectively,
by having the opportunity to be heard and express their views, Article 16 (1)
of the directive stipulates. In practice, the authorities largely observe this right
and assist children’s effective participation, according to interviews across
the Member States studied. Exceptions are very rare, in the professionals’
experience. However, several children did not have this type of assistance
and had problems expressing their views, they report in interviews.
Children’s trials focus on rehabilitation and prevention, not only on imposing
penalties, many interviewed professionals across Member States note.
Creating a more friendly atmosphere at hearings
Overall, judges generally conduct proceedings against children in a flexible
manner, professionals interviewed agree, from all groups in all Member States
studied. Judges use plain language with children. They also make an effort
“Judges are extra careful about how
to communicate with children by encouraging them to speak and explaining
they phrase their interventions and
proceedings and their possible consequences.
monitor carefully how other parties
phrase their questions. I have heard
many times judges reprimanding
the lawyers about how they ask
questions and how they behave in
the court room during such cases.”
Psychologist, Bulgaria.
67
The children interviewed also report this and
appreciate it greatly. However, this is not always
“Yes, I was really lucky. I really had a top youth judge. I am really very
the case and differs a lot, they report.
grateful to her myself […] because of course I was imprisoned […] and
I unfortunately had someone else because my juvenile judge was on the
bench, so I was really disappointed […] My own youth judge is a really
good one. She looked at what I needed. She also said at one point that
being locked up was pointless.”
Child, Belgium.
Judges not only speak clearly to children, but also
require this quality of communication from other “I draw the attention of the prosecutor and the lawyer to the fact that
parties, as professionals interviewed made clear. the defendant is a minor and that the questions should be phrased in
a way that is unambiguously understandable for the minor.”
Judge, Estonia.
Judges want to learn about children’s circumstances
and background, interviewees also note.
“The trend is to deal with them as parents would do – peremptory tones
or sentences are never used; the child is made to feel at ease. They are
asked to tell the court about their life […] the court asks them to express
their points of view and to report about their life. The attempt is to make
the conversation as little inquisitorial as possible.”
Lawyer, Italy.
Judges recognise how stressful the trial must be for child defendants,
interviewees note. Hence, they try to avoid adding more pressure. Judges
in Poland explain that they try to communicate with child defendants in
a calm and relaxed way. The questioning of a child defendant is less formal
and more empathetic than that of an adult, one lawyer in Poland observed.
In general, judges care about child defendants and
have their best interests in mind, interviewees
“[M]agistrates I know speak about accused minors very differently
confirm.
[from] accused adults. They approach them in a more parental way; they
form relationships with the accused, and they actually try to support
them.”
Child protective services officer, Malta.
Children interviewed were typically heard directly at trial, which they
appreciated.
“I spoke and I think it helped.
I am even sure it helped, these
explanations that I gave.”
Child, Bulgaria.
“Well, yes for sure. It [speaking during trial] influences the situation
a lot. It is crucial […] I chose to ask for another possibility, to redeem
myself. Like any other child, because everyone makes mistakes, and we
need another chance.”
Child, Italy.
68
Many children are positive about the way judges treat and talk to them. Judges
show interest, listen, ask questions and try to understand. The children feel
“Yes, [the judge] listened to
heard, respected and taken seriously as a result. However, some children
everything, also had such
have mixed feelings about their treatment.
a recording device and repeated
everything I said into it and what
In Austria and Bulgaria, social workers and psychologists are also on hand to
he asked […] The judge was not so
facilitate questioning and serve as support persons, non-legal experts note.
respectful, but he was correct. When
In addition, judges and prosecutors receive specialised training, including
I had questions, the interpreter
on ‘soft skills’, several professionals in Austria (all groups) and some Italian
interpreted for me. The interpreter
lawyers mention. The training is important for understanding children’s
said to me, ‘if you don’t understand
specific needs and ensuring their effective participation.
something, you can ask me, and
I will tell the court.’”
Child, Austria.
The Estonian Ministry of Justice has a website on child-friendly proceedings. It includes
Best practice information and contacts for children and parents dealing with the legal system. The
website also includes information on how a court hearing is conducted and how to behave
during the hearing. The information is in child-friendly language.
Source: For more information, see the Estonian Ministry of Justice (Justiitsministeerium) web
page on child-friendly proceedings (Lapsesõbralik menetlus, Juhtumi lahendamine kohtus).
Challenges to effective participation
Barriers to effective participation are not uncommon. Judges in Belgium are
unfairly portrayed as a threat, one judge claims. This makes children afraid
“Judges are subject to working to participate. Staff shortage at the courts in Italy compromises the attention
stress, and the same applies to children receive, judges, lawyers and social workers believe, as there is
the administrative staff. These a huge judicial backlog.
professionals are at the limit of the
physical and human resources […] it
is impossible to request people to be
sensitive, careful, skilled, if they are
subject to such working stress.”
Educator, Italy.
69
Children in Belgium are not always taken seriously,
one non-legal expert claims. Judicial authorities in
“We don’t look at that person as a child. You cannot ask the judge
Italy are suspicious of children who do not confess
to distinguish something, which the law has not distinguished [...] If
but offer different account of the facts, one lawyer
I realise that a 17-year-old is especially confused and that they are not
says. A judge in Portugal admits to questioning
understanding what is happening, I try to make them understand. But
children in the same way as adults. They only make
that’s it.”
an extra effort for children with special needs.
Judge, Portugal.
Judges in Belgium and Germany can be impatient, some children say. They
interrupt, shout or do not believe the children.
“The juvenile judge was talking –
and when I thought she was
4.2. THE RIGHT TO BE ACCOMPANIED BY THE HOLDER OF finished, I thought that it was my
turn. When I started talking, she
PARENTAL RESPONSIBILITY
shouted ‘SHUT UP’ and so I kept my
mouth shut and suddenly she said,
Legal overview ‘Why don’t you talk, it’s obvious
Children have the right to be accompanied by the holder of parental that you had no interest in this
responsibility during court hearings, Article 15 of the directive provides. They cooperation’ or something like that,
may also be accompanied during other stages of the proceedings when this in those words, I don’t know all that
would serve the child’s interests and would not jeopardise the proceedings.23 any more, just the decision that
The child has the right to be accompanied by all persons who hold parental I must be put in detention ‘et voilà’.”
responsibility, recital 57 of the directive stipulates. Child, Belgium.
Children can choose another adult to accompany them if it would be against
their best interests to be accompanied by their parent (Article 15 (2) (a)).
They can choose another adult when the parent cannot be reached or their
identity is unknown (Article 15 (2) (b)) or when their parent’s presence would
jeopardise the proceedings (Article 15 (2) (c)). Recital 58 of the directive lists
some of these circumstances, for example if the parent participated in the
crime or interferes with witnesses.
Authorities should appoint another person when any of these issues regarding
the parent or nominated adult occur. They should also do so when the child has
not nominated an adult. Authorities should consider the child’s best interests
in all cases. The parent should accompany the child if these circumstances
change, according to Article 15 (3) of the directive.
Children should be accompanied by their parents or, where appropriate,
another adult they choose, the CoE’s guidelines similarly recommend. This
applies unless there is a good reason that such person should not accompany
them.24 This makes children more comfortable with the proceedings.25
Parents must have maximum involvement in criminal proceedings involving
their children, under Article 40 (2) (b) (iii) of the UN CRC. This ensures the
children have psychological and emotional assistance.26 Parents should be
present throughout the proceedings, the UN Committee on the Rights of
the Child stresses. However, the judge can decide otherwise at the request
of the child or their legal or other appropriate assistant, or if it is not in the
child’s best interests.27
70
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to be accompanied during the trial
All Member States studied have legal provisions allowing children to be
accompanied by the holders of parental responsibility, or other appropriate
adults, during court proceedings.28 However, some of the Member States
(Austria, Belgium, Bulgaria, Germany and Poland) give parents the right
of access to court proceedings instead of giving children the right to be
accompanied.
The right to be accompanied during criminal proceedings in practice
Children who are suspects or accused persons have the right to be accompanied
by parents or other adults, according to Article 15 of the directive.
Parents or designated persons (hereafter ‘parents’) can be involved in all
phases of criminal proceedings if they wish, interviewees in most Member
States confirm. This must be in accordance with national law, where the
roles/involvement of parents differ.
In practice, however, the degree of parental involvement varies significantly
from one case to another, according to interviewees from different professional
“Well, this is complicated, we have
groups across Member States. Many parents show no interest in taking part.
everything. We have parents who
come worried […] and say ‘we are
Two out of three children interviewed had at least one person accompanying
here to help’ […] ‘It was an isolated
them. This was one or both of their parents, a holder of parental responsibility,
case, it has never happened before’.
a friend and/or a social worker.
We see that they are active parents,
parents who care […] Other times we
All child interviewees were accompanied by either a lawyer or, in Germany,
have truly absent parents who even
a juvenile court assistant. Juvenile court assistants cannot refuse if called
object [...] who rebel [...]”
as a witness, while lawyers can. In Germany, the presence of both lawyers
Advisor, Portugal.
and juvenile court assistants at the trial was positive, according to children
interviewed.
Most practitioners support parents’ involvement in criminal proceedings
involving children. However, some interviewees doubted the desirability
of parents’ involvement during certain stages of proceedings, such as the
interrogation phase. For example, involving parents in the interrogation phase
is unhelpful, the police and some lawyers in some Member States find. It can
even hinder proceedings, they stress.
Involvement of parents during the interrogation phase
It is often preferable for parents not to be present
during an interrogation, some police officers
“My opening statement is always the same: ‘Sir, Madam you can be
in Belgium explain. They believe that children
here, but I don’t want to hear you. I am going to address your son or
can speak more freely without them. Parents
your daughter. [...] It’s also nice and easier for me and certainly also for
sometimes try to answer the questions or stop
your child that you don’t intervene’, because the parents sometimes
the child answering.
have the courage to do so, they think a lot further. ‘Yes, I did that’,
then the parents will say, ‘Yes, but he/she hit you first’. So that really
Parents are more informed and involved in
is a disturbing element, which sometimes causes young people to lose
proceedings when they are interested in what will
their bearings.”
happen to the child, several interviewees in Estonia
Police officer, Belgium.
point out. However, this means that officials will
not go out of their way to involve parents who
show no interest in the child and their future.
71
Parents are questioned as legal representatives in the pre-trial phase,
according to most lawyers interviewed. They are asked to describe the
child and if there have been any problems with them at home. Parents are
invited to the court and are present during the hearing. They are also asked
for their opinion, although the court is not bound by it.
Parents play an important role in the criminal proceedings, many interviewed
children mention. Their support throughout the proceedings is very important,
most children who lived with their parents said. Most parents accompanied
children to or picked them up from the police station.
Different specialised professionals provide support, namely educators,
psychologists and social assistants, many children mention. The psychological
“I think that if there was more
and social support children receive throughout the criminal proceedings and
support, I’m not saying that a lawyer
beyond is very important, according to nearly all children interviewed.
doesn’t help, right, but more
psychological support, I think that
In Germany, a social worker from one child’s neighbourhood helped during
half of the things [I did] wouldn’t
the proceedings by providing information about free legal aid, the child
even happen.”
mentions. In another case, the social worker was familiar with their cultural
Child, Portugal.
background, a child notes.
Involvement of parents during the trial phase
“So, the support from [ juvenile court
The presence of parents during the trial is important, interviewees from all worker] is very important. None of
professional groups consider. the young people in [city] get along
with any other social worker as well
The children’s well-being is the most commonly cited reason, as they usually as with him. He is of Arab origin
feel more comfortable and supported with their parents present. Parents in and he just has the right mentality.
Malta can provide moral support even when only informally involved in the I would really recommend any
proceedings, or they can choose not to intervene, one lawyer states. Parents young person who is involved in
can also aid the police investigation and defence strategy by providing mischief to see him. He is simply the
information and important insights into the family background. For example, best.”
parents in Poland can suggest a good defence witness, according to one lawyer. Child, Germany.
Parents’ presence signals to the judge that the child is well supported, several
interviewees in Austria argue. It is easier for the judge to impose alternative
measures to detention if there is a strong family network supporting the
child, one interviewee also observes. Judges in Malta welcome parents in
the courtroom, according to two non-legal professionals. The judges can
consult them and learn more about the child’s background.
Most of the children interviewed knew that their parents or another relative
or person of trust could accompany them in court. They often mention that
at least one of their parents was present. However, some children did not
want their parents to worry and preferred that they did not accompany them
to court. In particular, some of the children who had experienced several
“The involvement of witnesses [in
trials wanted their parents there when they were younger, but not when
the process], for example, bothered
they were older.
me. But the positive thing was
that you get support, for example
A few children did not know this was possible, but wished that they had known.
from the social worker and from
my mother, so people who support
you. I couldn’t have done it without
them.”
Child, Germany.
72
Cooperation of lawyers with parents
Lawyers are not always in favour of parents
being present during confidential consultation
“When you are talking about the parents, it’s another thing. You have to
or interrogation. Good cooperation with parents
see whether the parents have any particular interests in the child, if the
is important, interviewed lawyers across all
parents have any particular interest in the crime that went on, whether
Member States studied emphasise. However,
they are in control of the situation. It’s not the first time that we find
this may depend on the attitude of the parents,
a situation where we have to propose that the child is taken away from
they point out.
the parent and placed in a foster home or care home.”
Lawyer, Malta.
Lawyers’ professional loyalties lie with the child defendant, not their
parents, lawyers interviewed in Belgium, Germany, Italy and Portugal stress.
“The role of the lawyer is always
Confidentiality between the lawyer and their child client is also binding
to defend their client and, in this
regarding parents, they add.
case, the young person. It is often
necessary to defend young people
One lawyer in Belgium avoided cooperating with the parents of child
from their own parents [...] Our job
defendants because of professional confidentiality. Two other lawyers in
is to defend the young person [...]
Belgium reported carefully selecting what information they pass on to the
Sometimes this is very difficult
parents. A lawyer in Poland declined to give information to parents regarding
because afterwards, the father
their child, as the child turned 18 during proceedings, they mention.
says to me ‘I am the one who pays
you…’. But in those cases, if it is
Children are not always truthful and do not talk openly when their parents
really impossible to continue, I say
are present in meetings, many lawyers in Austria, Belgium, Germany, Italy,
‘then get another lawyer’. Often
Poland and Portugal agree. Parents tend to dominate the discussion, while
the lawyer abandons the case not
their children remain silent, two lawyers interviewed in Austria note. Lawyers
because of the young person.”
may need to ask parents to leave the room so they can speak alone with
Lawyer, Portugal.
the children, one Italian and some Polish lawyers observe. Children may feel
ashamed or embarrassed to share information in front of their parents, the
lawyers note.
Sometimes the parents’ presence may encourage children to be more open
and thus aid effective legal assistance, a few lawyers interviewed in Germany
and Poland argue.
There are also instances when parents are not involved in their children’s
criminal proceedings, professionals mention.
Children’s difficult family and social environment
is the most commonly cited obstacle to parents’
“If children grow up in a social environment that tolerates crime, they are
involvement.
naturally more inclined to commit such crimes themselves. And then, of
course, these milieus play a role in so far as, for example, in a household
However, parents from more privileged
in which, due to drug problems of the parents, addiction to narcotics and
backgrounds can sometimes neglect their children,
the like, the ability to educate is simply limited and, thus, the possibility
as they might have little time for them, according
to control the children is also only given to a limited extent.”
to one lawyer in Italy.
Judge, Germany.
The parents’ knowledge of the national language can influence their
involvement. Some interviewees in Austria and Belgium express concern
that written and oral information is not always in a language that parents can
sufficiently understand. This is because they do not have a good command
of the national language(s), they do not understand the legal technical
terminology or both.
73
For example, in Austria, interpreters are available for only the child defendants,
not their parents, a judge explains. Thus, parents who do not understand
German very well cannot effectively participate. In Bulgaria and Italy, parents
of Roma children tend to be less involved, interviewees observe. This might
be due to difficulties in understanding the national language or the formal
legal language used in court.
Several children’s parents were either illiterate or unable to understand the
national language or legal terms. None of the parents received translated
information or information in language they understand, according to these “I agreed [to my mother
interviewees. participating in the proceedings],
but she hardly understood them
Even if interpreters are always present in Belgium, prosecutors say they do […] my lawyer was with me […] He
not always trust the quality of the interpretation. read them [the documents handed
at the end of the trial] and told me
Parents have less incentive to participate actively if they perceive and where to write my names, where to
experience their rights and duties as holders of parental responsibility as sign, and so on… And for my mother,
insignificant. The relatively minor role parents have is little incentive to be because she could not write, I wrote
more involved, one judge from Bulgaria suggests. Their role is “relatively her names, too.”
passive” and little more than sitting “on the side lines”, the judge explains. Child, Bulgaria.
74
Endnotes
1
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of
the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ 2016 L 65, recitals 33 and 47; CJEU,
C-399/11, Stefano Melloni v. Ministerio Fiscal, 26 February 2013, paras. 49–50; CJEU, C-688/18, Criminal proceedings against TX and UW,
13 February 2020, paras. 34–35.
2
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 16 (2).
3
CJEU, C-688/18, Criminal proceedings against TX and UW, 13 February 2020, para. 36; ECtHR, Murtazaliyeva v. Russia [GC], No. 36658/05,
18 December 2018, paras. 91–95; ECtHR, Hermi v. Italy [GC], No. 18114/02, 18 October 2006, para. 59.
4
ECtHR, V. v. the United Kingdom [GC], No. 24888/94, 16 December 1999, paras. 86–88, 90; ECtHR, T. v. the United Kingdom [GC],
No. 24724/94, 16 December 1999, paras. 84–86 and 88; ECtHR, S.C. v. the United Kingdom, No. 60958/00, 15 June 2004, paras. 29 and 35.
5
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Chapter III, Section A.1., p. 17.
6
Ibid., Chapter III, Section A.2., p. 18.
7
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, paras. 45–46, p. 14; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in
the child justice system, CRC/C/GC/24, 18 September 2019, para. 46, p. 9.
8
Ibid.
9
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, para. 46, p. 9.
10
FRA (2021), Presumption of innocence and related rights – Professional perspectives, Luxembourg, Publications Office, p. 83, et seq.
11
Ibid.; see also Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for
children who are suspects or accused persons in criminal proceedings, OJ 2016 L 132, recitals 25, 30 and 33.
12
FRA (2021), Presumption of innocence and related rights – Professional perspectives, Luxembourg, Publications Office, p. 89, et seq.
13
Ibid., pp. 61–62.
14
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, §§ 32 (1) and (2).
15
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Arts. 423–426.
16
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 35 (2).
17
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Arts. 355AUI, 534AGO (1) and 366C.
18
Poland, Act of 6 June 1997: The Code of Criminal Procedure (Ustawa z dnia 6 czerwca 1997 r: Kodeks postępowania karnego), 6 June 1997,
Arts. 374, 167, 169 (1), 171 (1) and 175 (1).
19
Portugal, Code of Criminal Procedure (Código de Processo Penal), 17 February 1987, last amended by Law 57/2021, 16 August, Art. 333 (1).
20
Germany, Criminal Code in the version published on 13 November 1998 (Federal Law Gazette I, p. 3322), as last amended by Article 2 of
the Act of 19 June 2019 (Federal Law Gazette I, p. 844) (Strafgesetzbuch in der Fassung der Bekanntmachung vom 13. November 1998
(BGBI. I S. 3322), das zuletzt durch Artikel 2 des Gesetzes vom 22. November 2021 geändert worden ist), 15 May 1871, Section 338, para. 5.
21
Italy, Decreto del Presidente della Repubblica 22 settembre 1988, n. 448: Approvazione delle disposizioni sul processo penale a carico di
imputati minorenni, 22 September 1988, Art. 31.1; Mangione, A. and Pulvirenti, A. (eds.) (2020), La giustizia penale minorile: Formazione,
devianza, diritto e processo, Milan, Giuffrè Francis Lefebvre.
22
Italy, Decreto del Presidente della Repubblica 22 settembre 1988, n. 448: Approvazione delle disposizioni sul processo penale a carico di
imputati minorenni, 22 September 1988, Art. 31.5; Italy, Criminal Procedure Code (Codice di procedura penale, D.P.R. 22 settembre 1988,
n. 477), 22 September 1988 (amended on 31 August 2021), Art. 494.1.
23
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Arts. 15 (1) and (4).
24
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Guideline No. 58, p. 29.
25
Ibid., Explanation No. 121, p. 84.
26
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 54, p. 16; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, para. 57, p. 10.
27
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 53, p. 16; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, para. 56, p. 10.
28
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, Art. 38 (1); Belgium, Youth Protection
Act (Loi relative à la protection de la jeunesse, à la prise en charge des mineurs ayant commis un fait qualifié infraction et à la
réparation du dommage causé par ce fait), 8 April 1965, Art. 52; Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс),
29 April 2006, last amended 18 May 2021, Art. 392; Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February
2003, Art. 35² (3); Germany, Youth Courts Act (Jugendgerichtsgesetz), 11 December 1974, Art. 67; Italy, Youth Criminal Procedure Code
(Codice processo penale minorile), 22 September 1988, Art. 12; Malta, Chapter 9: Criminal Code – To amend and consolidate the Penal
Laws and the Laws of Criminal Procedure (Kapitolu 9: Kodiċi Kriminali – Biex jemenda u jikkonsolida l-liġijiet penali u l-liġijiet ta’ proċedura
kriminali), 10 June 1854 (as amended), Art. 534AGN; Poland, Penal Code (Kodeks Karny), 6 June 1997, Art. 76; Portugal, Code of Criminal
Procedure (Código de Processo Penal), 17 February 1987, Art. 61.
75
5
CHILD-SPECIFIC RIGHTS: THE RIGHT
TO AN INDIVIDUAL ASSESSMENT
AND THE RIGHT TO PRIVACY IN
CRIMINAL PROCEEDINGS
This chapter outlines the interviewees’ experiences and opinions relating
to the rights to an individual assessment, to privacy in criminal proceedings
and to have questioning audiovisually recorded.
Children who are suspects or accused of crime should be individually assessed,
the directive provides. This ensures that children’s specific needs concerning
protection, education, training and social integration are taken into account.
The scope of the assessment depends on the circumstances of the child
and the case.1
5.1. THE RIGHT TO AN INDIVIDUAL ASSESSMENT
Legal overview
National authorities must assess children suspected or accused of crime
individually to consider their specific needs, Article 7 of the directive states.
Each child must be assessed on personality and maturity, economic, social
and family background, and any specific vulnerabilities.2
Authorities should use the results of these individual assessments when
examining three areas, according to Article 7 (4) of the directive and
recitals 35 and 39:
1. any special measures, such as giving the child practical assistance or
protection;
2. the child’s criminal responsibility and the suitability of any precautionary
measures, for example provisional detention or alternative measures;
3. any penalty or educative measure when sentencing.
Only qualified professionals can carry out such assessments. They use
a multidisciplinary approach and closely involve the child and their parents
or other holders of parental responsibility.3
The individual assessment should be completed as early as possible and
before committing the case to trial. It may be conducted afterwards, but
should be available for the trial hearing.4
77
Its extent depends on the circumstances and availability of past assessments.
However, it should be updated when a significant change occurs.5 The
circumstances of the case and the child’s best interests may allow the omission
of an individual assessment, according to Article 7 (9) of the directive.
The CoE guidelines on child-friendly justice include similar recommendations.
Member States should use multidisciplinary approaches to assess the best
interests of children involved in judicial proceedings. They should take account
of the child’s legal, psychological, social, emotional, economic, physical
and cognitive situation.6 The UN Committee on the Rights of the Child also
encourages states to carry out individual assessments of children using
a multidisciplinary approach.7
Authorities must treat a child involved in criminal proceedings properly by
accounting for their age, level of maturity and intellectual and emotional
capacities, the ECtHR also stresses.8 Children whose cognitive and emotional
development requires special consideration deserve support and assistance
to protect their rights. This is especially the case when coercive measures
are in question.9 In particular, children with disabilities may require additional
safeguards.10
A case in which a child with a mental disorder was convicted of a crime
in absentia violated the Convention, the ECtHR found. It pointed out that
a psychiatrist’s report had not been prepared.11
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to an individual assessment
Children’s specific needs concerning protection, education, training and
social integration should be accounted for in criminal proceedings against
them, according to Article 7 of the directive. Domestic legislation in Austria,12
Belgium,13 Estonia,14 Germany,15 Italy,16 Malta 17 and Portugal18 enshrines child
defendants’ right to an individual assessment and it is obligatory.
In Bulgaria, the individual assessment is limited to a ‘social report (assessment)’.19
In Poland, the right to an individual assessment is not regulated per se,
but certain situations require a psychological evaluation regardless of the
suspect’s age. These are if there are justified doubts regarding the suspect’s
mental condition, personal characteristics and conditions, or past and current
lifestyle, according to the Code of Criminal Procedure.20 The court may order
a community inquiry concerning the suspect in these cases.
78
Individual assessment in practice
There is a lack of regulation in Poland and limited regulation in Bulgaria.
Despite this, the general assessment Article 7 of the directive requires is
widely used, interviewed professionals from all Member States confirm.21
The scope, purpose and methodology of the assessment seem comparable
across the nine Member States studied. However, its timing varies across
the Member States studied.
In Austria, Bulgaria and Germany, the individual assessment is conducted
during the investigation phase, professionals interviewed report.
In Austria, the Juvenile Court Assistance ( JCA)
carries out individual assessments. The JCA
“It always takes place when you realise that charges will be brought. has seats in the capitals of all nine provinces.
Then, as a rule, the prosecution gives the order for an individual The prosecutor or judge requests an individual
assessment. This is […] a bit of a longer process. It takes a while, because assessment. It must be conducted and the report
you can certainly imagine: the young person may not come there the must be available by the time of the main trial,
first time and the parents may not either – that always takes time. And, as this uses the assessment’s findings.
as a rule, we also try to complete the main hearing more quickly than
with adults. A quick end to the proceedings is usually more likely to be Similarly, the JCA in Germany automatically
crowned with success than if it takes time and drags on for years.” conducts the assessment when the police or
Judge, Austria. prosecutor informs it of the proceedings.
In Bulgaria, there are no specific provisions obliging authorities to conduct an
independent individual assessment of the accused child. However, different
tools are used during the proceedings to collect information about the child,
the professionals interviewed say. They most often mention the obligatory
forensic psychological and/or psychiatric assessment of accused children.
This is done at the launch of proceedings, or before charges are brought
when there is only an allegation.
In Belgium, Estonia, Italy and Portugal, more than one assessment is typically
conducted during different stages of proceedings, findings from the interviews
“I think typical of working with
with professionals suggest. The police in Belgium and Estonia usually perform
children is not only investigating the
or request the first assessment during the investigation. The police in Belgium
facts, but also the living situation
have a social department with social workers, police officers explain. Police
and upbringing. Those things are
officers focus on the offences in an investigation, while social workers focus
also looked into. About the home
on social aspects.
situation, school, free time, the
friends they hang out with, those
In Italy, the individual assessment is routinely conducted after children’s first
are the things which we ask the
contact with the judicial system, professionals state. In most cases, this is on
young person. A bit of a general
arriving at the CPA after the arrest. When children are not arrested, individual
framework.”
assessments can be conducted if judicial authorities decide that the children’s
Police officer, Belgium.
social and family context is critical. However, it is automatically carried out
for serious offences such as stalking and cyber-crimes, even when the child
is not arrested, a public prosecutor reports.
In Belgium, Estonia and Portugal, the second assessment is typically conducted
when the case is referred to a court, according to the professionals interviewed.
In Italy, however, judicial social assistants develop the second assessment
during the probation period. This is called the individual reintegration project.
It is based on all the information collected about the child throughout the
judicial proceeding.
79
In Malta and Poland, the individual assessment can take place at any time
during the proceedings, interviewees report.
A prosecutor or judge in Poland can order an individual assessment in the
form of a psychiatric/psychological report or community inquiry (see box
below). A judge interviewed in Poland orders the community inquiry in almost
every case. In contrast, one prosecutor claims never to order a community
inquiry where it is not obligatory. This discrepancy is a result of Polish law
having no mandatory individual assessment.
In contrast to what most professionals say, most children interviewed are
not familiar with the individual assessment. The exceptions are in Belgium
and Italy. This could mean that individual assessments did not happen or
that they were carried out in such a way that children could not see their
purpose or impact.
In Bulgaria and Poland, some children recall information about their situation
being collected in a meeting with a psychiatrist or psychologist.
Scope of the assessment
A wide range of professionals conduct individual assessments across the
Member States. In Austria, Belgium, Italy, Malta and Portugal, multidisciplinary
“All teams have specialists with
teams are generally engaged, professionals interviewed confirm. This is
social work, psychology and law
contrary to what several of the interviewed children report.
degrees […] Depending on the
type of crime and the child, the
In Bulgaria, Estonia, Germany and Poland, social workers, probation officers,
coordinator leans towards one
psychiatrists or psychologists typically conduct the assessments.
specialist or another. When there
are more complicated cases in
The assessment seeks to understand the child’s reasons for offending and
terms of personality, a psychologist
the risk they pose to themselves or others. It does so by learning about the
is appointed […] who has greater
child’s social background. This covers information about their family situation,
know-how to deal with these
educational background, the child’s physical and mental health, and where
cases. Now, for example, driving
relevant, any previous convictions.
under the influence of alcohol or
without a licence can be allocated to
Assessments include psychosocial assessment, socioeconomic data,
a specialist with a law degree [...]”
socialisation and financial conditions, a professional from Austria explains.
Advisor, Portugal.
They cover the children’s needs and vulnerabilities, personality, maturity,
and social and family background, experts interviewed claim. Assessments
in Belgium, Bulgaria, Estonia, Germany and Portugal apply this scope and
methodology, other professionals confirm.
Besides interviews, the individual assessments may include information from
other relevant sources, a social worker from Portugal adds. These include
schools, associations, sports clubs, family members and neighbours, depending
on the specialist’s evaluation of the case. A deeper and multidisciplinary
assessment is done during the first 60 days of a child’s detention to prepare
an individual rehabilitation plan. This must be updated annually.
80
In Poland, the typical individual assessment does not exist. Instead, there is a psychological
Assessment evaluation, interviewed professionals mention. Psychiatrists and psychologists undertake
in Poland it, focusing mainly on the child’s mental state. It can also include an assessment of a child’s
family situation and background, according to some interviewees.
Another form of assessment is the community inquiry. This focuses more on the child’s
social and family background and not as much on individual characteristics. The report
can also summarise the suspect’s criminal history, especially juvenile delinquency. The
community inquiry covers aspects such as the subject’s maturity, personality and situation
at school.
Updating the assessment
The individual assessment must be updated if the child’s circumstances change
considerably, Articles 7 (3) and 7 (8) of the directive require.
Although the individual assessment should be updated when circumstances
change, it seldom is, most professionals interviewed in all Member States
report. Proceedings against children are usually quick, a judge in Portugal,
a lawyer in Austria and two police officers in Bulgaria explain. Therefore
there is no need to update the assessment. Updating every assessment is
impossible because of the workload, interviewees in Belgium claim.
The initial assessment is sometimes updated,
a few interviewees say. For example, in Portugal
“Even in a few months, a young person’s behaviour can change. Every
an assessment was updated when one of the
little thing can affect a young person. The individual assessment is
defendant’s teachers delivered new information,
updated if the child’s family moves or something changes in the child’s
a social worker reports. A police officer in Estonia
family, e.g. a relative dies. I also may notice a change in the child, e.g.
also gave some examples of updating the existing
the child starts using new words.”
assessment.
Police officer, Estonia.
The assessment is also updated if a child reoffends and new proceedings
begin, a judge from Austria and a police officer from Bulgaria mention.
When the individual assessment is not done
Authorities may omit the individual assessment when the circumstances of
the case and the child’s best interests allow it, Article 7 (9) of the directive
provides. Individual assessment is a standard procedure in criminal cases
against children, interviewees tend to state. However, they were able to
point to some exceptions. Individual assessments are not done when:
― the child is accused of a less serious crime (Belgium, Bulgaria, Malta);
― the proceedings are discontinued either provisionally or finally (Austria,
Estonia, Germany, Italy and Portugal);
― the offender pleads guilty at the first court hearing (Malta);
― there is not enough time between the child’s arrival at the institution and
the first court hearing (Germany and Italy);
― a child who remains at liberty does not show up (Austria and Germany).
81
Challenges
Authorities face several challenges to effectively assess children’s particular
needs and circumstances. For instance, language barriers may compromise the
conduct and accuracy of individual assessments, according to professionals “Often, I have indeed noticed that
interviewed in Austria, Belgium, Bulgaria, Germany and Malta. Children from the children speak our language
refugee or migrant backgrounds are particularly vulnerable and often need better than the parents, who often
an interpreter. An interpreter could be helpful if children are fluent in the do not speak our language at all, but
language of the proceedings but it is not their mother tongue, a non-legal if there are certain emotional things
expert from Belgium observes. you want to say as a child, you see
that the barrier is in the language,
Nineteen interviewed children do not have the local language as their mother that they can do better in their
tongue. Of these, seven had not received an individual assessment. Only mother tongue.”
three of the remaining 12 received support through interpreters and/or Consultant, Belgium.
translated documents.
The human resources available for conducting individual assessments are
also a challenge, interviewees point out. This can compromise the quality of
or cause delays in the assessment, says a lawyer interviewed in Portugal.
In Belgium, Italy and Poland, lack of human and financial resources often
means excessive workloads and no specialist knowledge, interviewees report.
In Poland, non-specialists sometimes perform the individual assessments.
However, individual assessments for children with disabilities should be
performed by a qualified psychologist familiar with the child’s situation, one
police officer argues.
How and for what purposes are the results of the individual assessment used
by national authorities in practice?
Individual assessments should provide competent authorities with information
about the child’s characteristics and circumstances that might be useful in
three situations, Article 7 (4) of the directive stipulates:
1. when determining whether any specific measure should be taken to
benefit the child;
2. when assessing the appropriateness and effectiveness of any precautionary
measures regarding the child;
3. when taking any decision or course of action in the criminal proceedings,
including sentencing.
82
The individual assessment aims to avoid the child being involved in crimes
in future. In practice, the report typically covers the child defendant’s needs
and includes recommendations on how to proceed in the case. The results of
individual assessments inform the prosecutor’s and court’s decisions, including
the measures or sanctions to be taken against the child. It is mainly police
offers and judges who say this, in all nine Member States.
The findings might decide whether or not a case
is forwarded to the court, a prosecutor in Bulgaria
“In practice, as a prosecutor, I need this characteristic to assess the
explains.
personality of the accused. […] For example, if we see from this
characteristic that this child is in an unfavourable environment, moves
with some ‘bad guys’, etc., we will consider that the child is not
a socially dangerous person and may even conclude that what they have
committed is not a crime.”
Prosecutor, Bulgaria.
Ultimately, the assessment serves to better
understand the child, a lawyer and a judge
“These are really detailed and extensive reports. It is often tedious to
interviewed in Austria argue. The individual
read, but it pays off, because it really gives a comprehensive picture of
assessment allows the judge to access information
the young person(s). On the one hand, you can see where the young
about the child’s needs, such as anti-aggression
person’s developmental stage is, how they are integrated in the social
training, drug therapy, coaching to find a job or
environment, where the shortcomings or difficulties lie and where
occupational orientation.
dangers could arise. If this is available, then it is usually already very,
very well prepared.”
Judge, Austria.
Judges in Italy rely heavily on the findings of the
individual assessment, social workers interviewed
“I can say that judicial authorities generally have a deep trust towards
observe.
social services, and therefore use the assessment drafted by the
professionals. Sometimes, I must admit that judges are even milder
In Malta, the individual assessment helps
than social assistants: sometimes, the professionals believe that
determine whether children who are, for example,
children are not ready for the individual rehabilitation project yet,
also victims of crime require social assistance,
whereas the court decides to suspend the hearing asking the social
a social worker states. This includes crimes such
services to design the rehabilitation plan.”
as sexual abuse.
Psychologist, Italy.
Judges took the results of individual assessments into account, according to
interviewed children who knew they had been assessed.
“The judge took into account, in
a good way, what the witnesses
were saying about me and the 5.2. THE RIGHT TO PRIVACY IN CRIMINAL PROCEEDINGS
information that was received
from the sports club. School gave
a horrible [assessment of character Legal overview
and behaviour], but the sports club Children’s privacy should be protected by holding all criminal court hearings
gave a completely opposite one. in closed settings or allowing the courts to do so, according to Article 14
Everything was bad, but then the of the directive. Records of these proceedings should not be made public.
judge saw that I was not completely Protecting children’s privacy allows their reintegration into society, although
bad.” it does not keep judgments from being pronounced publicly. Member States
Child, Estonia. should encourage the media to regulate themselves in this regard.22
Criminal hearings attracting public interest must be conducted in private to
reduce the child’s feelings of intimidation and inhibition as far as possible, the
ECtHR holds.23 Alternatively, where appropriate, courts could provide for only
selected attendance rights and subsequent reporting.24 Children’s hearings
should take place in camera, the CoE Committee of Ministers’ guidelines on
child-friendly justice similarly recommend.25
83
Access to children’s data from proceedings should be limited and granted only
when necessary. None of the children’s information or personal data should
be made available or published, particularly in the media, the guidelines
further recommend. This includes images, descriptions of the child or their
family, audio and video records, etc. Anonymity or pseudonyms, using screens
or disguising voices, and deleting children’s names and other data from
documents can help ensure this.
Member States should protect children’s privacy through legislative measures
or monitoring self-regulation of the media, the guidelines further recommend.
Moreover, strict confidentiality rules should be in place for professionals
working with children, they propose.26
Every child accused in criminal proceedings “shall have his or her privacy
fully respected”, as the UN CRC requires.27 This applies from the initial police
questioning until the final court decision and any subsequent proceedings,
for example release from supervision.28
No information that could identify the child should be published, to avoid
stigmatisation, General Comments Nos. 10 and 24 state. As a rule, court
hearings should take place in closed sessions, they also state. Court records
should remain confidential and the professionals involved are bound to
respect this confidentiality. Children’s names should also be removed from
criminal records once they turn 18.29
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to privacy
National laws
The picture regarding national laws on the right to privacy of accused
children during criminal trials is mixed. Germany, Italy and Malta have strict
laws providing closed hearings for trials against children, with only limited
exceptions.30 In Germany and Malta, only the victim, their parents and lawyer,
social workers and probation officers can be present.31
Judges in Germany may admit other persons for exceptional reasons, such as
training. Hearings can be public when there are adult co-defendants on trial.
However, again, courts may exclude the public to protect child defendants.
In Italy, the only exception is that a child older than 16 can request a public
hearing. All other defendants must agree and there must be no accused
child younger than 16. The journalists’ code of conduct forbids disclosing
the names of children accused or suspected of a crime. They also cannot
share any other information that may identify the child, for example a child’s
address or school.32
In Malta, revealing such information is punished with a fine and even
imprisonment.33
In Austria, Bulgaria, Estonia, Poland and Portugal, courts can decide to hold
trial hearings against children in public or behind closed doors.34 In Austria
and Poland, the public may be excluded from the whole or some parts of
the hearing, but judgments are pronounced publicly.35 Both these Member
States prohibit publishing information from closed hearings.36
84
In Bulgaria, the court can open the hearing to the public if this would be
in the interest of society.37 In Portugal, courts can restrict or even exclude
public access to trials against children, according to the law incorporating the
directive. This can be either on their own initiative or at the child’s request.38
Hearings against children can be held in public, unless the court decides
otherwise, a 2021 amendment allows.39
Professionals’ perspectives
In Germany, Italy and Malta, closed hearings are the norm for trials against
children, according to the law. Such trials are not public, interview findings
confirm. The public is banned from such trials, according to most of the
professionals interviewed from all groups in those countries. Malta makes
an exception in “emergency situations”, according to some interviewees.
That is, children over 16 can be tried in the ordinary criminal court, where
hearings are public.
In Bulgaria and Portugal, courts have discretion
on whether to make hearings open to the public.
“A court room is chosen, to which there is no free access, because for
Closed hearings are the rule in practice, interview
children the proceedings are usually held behind closed doors, i.e.
findings suggest.
without public access, except for close relatives and, exceptionally, with
the consent of the parties, there may be other people.”
However, in Bulgaria, information about cases is
Judge, Bulgaria.
often leaked to the media, one defence lawyer
points out.
In Portugal, hearings against children were not open to the public even before
the changes from incorporating the directive, some judges interviewed note.
“The transposition of the directive
introduced a change. But it was
The situation is different in Austria, Estonia and Poland. In these countries,
something we were already
hearings may be open or closed to the public, depending on the case.
doing [...] Which is the question
of publicity, for the protection of
In Austria, public trials are important for the rule of law, many prosecutors,
the image [...] The idea is to avoid
judges and psychologists interviewed maintain. For this reason, courts
stigma for life [...]”
are occasionally reluctant to ban the public just because a trial involves
Judge, Portugal.
a child defendant. In practice, the public is excluded from hearings of young
defendants that involve crimes of a sexual nature or other sensitive issues,
most professionals note.
85
In Estonia, hearings involving accused children are usually closed, most
interviewed prosecutors and judges report. However, restricting public access
depends on, for example, the age of the accused child, interviewed lawyers
and one social worker claim. The restriction does not always happen in practice.
In Poland, lawyers have to ask the court to ban public access in cases involving
accused children, many interviewed lawyers from Poland confirm. This also
depends on their defence strategy.
5.3. AUDIOVISUAL RECORDING OF QUESTIONING OF
CHILDREN
Legal overview
When police or other law enforcement authorities question children during
criminal proceedings, they must record it audiovisually, under Article 9 (1) of
the directive, read in the light of recital 42. It applies where it is proportionate
to the circumstances of the case, and provided that the child’s best interests
are always a primary consideration. Relevant circumstances are, for example,
the presence or absence of a lawyer during questioning and whether the
child is deprived of liberty.
The questioning of a child defendant must be recorded in another appropriate
manner in the absence of audiovisual recording, according to Article 9 (2)
of the directive. Alternative methods include duly verified written minutes.
Video or audiorecording of pre-trial hearings in camera should be used and
considered as admissible evidence, the CoE Committee of Ministers’ guidelines
on child-friendly justice recommend.40
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to have the questioning adequately recorded
The research found no evidence that the right to have questioning
audiorecorded is fully incorporated into the legal systems of the Member
States. Traditional recording in writing may still be the norm.
86
Only Austria and Germany introduced an obligation to audiovisually record
the questioning of a child defendant if certain conditions are not met. In
Austria, the questioning should be audiovisually recorded if a defendant
does not have a defence lawyer, legal representative or other person of trust
present. Questioning can be recorded in writing only if technical problems
make audiovisual recording impossible.41
In Germany, the questioning of a child must be audiovisually recorded if
legal representation is mandatory at the time but the lawyer is absent.42 The
absence must be due to urgent circumstances requiring immediate action.43
Estonia44 and Malta also include this right in their laws. They repeat the
directive’s proportionality or necessity requirement. Malta also refers to the
child’s best interests.45
Belgium, Bulgaria, Italy, Poland and Portugal still rely on written minutes.
They do not yet have legal provisions explicitly granting child defendants
the right to have their questioning audiovisually recorded.
Audiovisual recording in practice
Even where Member States’ laws make it possible to audiovisually record
the questioning of child defendants, it is very rarely done, according to
interviewees.
In Austria, there has not been any need for audiovisual recording yet, as
others, such as lawyers, parents or persons of trust, are always present,
police officers argue. Audiorecording would make them feel like their work is
being monitored, they add. Moreover, police stations are still being equipped
and training officers, interviewed police officers state.
In contrast, equipment for audiovisual recording of interrogations is already
installed in interrogation rooms, all interviewees from Germany report.
However, it is hardly ever used because defence lawyers are always present,
police officers explain.
Child suspects in Estonia are not audiovisually recorded during questioning,
all interviewees say. Audiovisual recording is used when the child is a victim,
one police officer points out. The questioning is recorded in writing if the
child is a suspect or accused person.
Only some interviewees in Malta have experience with audiovisual recording
of questionings. They are mostly lawyers and police officers. However, this
is not an established practice, the varying answers from the police officers
indicate. Questioning of children is audiovisually recorded for more serious
crimes, two police inspectors explain.
The remaining Member States studied have no relevant legal framework.
Questioning of child defendants may be audiovisually recorded in very
exceptional cases, interviewed professionals confirm. For example, audiovisual
recording takes place in Italy when questioning is carried out in juvenile
detention facilities.
In general, the lack of recording is justified by
practical obstacles such as lack of equipment,
“If you look at the records of the questionings, it usually says that the
professionals across the Member States argue.
act is not recorded or filmed because there are no means to do so [...]
That should be the rule, but unfortunately, we don’t have the means […]
Yes, written minutes are used.”
Prosecutor, Portugal.
87
Recording could actually make the child defendant
less comfortable, lawyers in Austria and Italy argue.
“In my experience, videorecording of the interrogation is rarely used,
except for the most severe cases. Otherwise, I do not even ask for it,
because the written transcription is more than enough, and it makes the
children more comfortable […] I never complained as a lawyer about the
lack of videorecording, even if it could be useful to read the children’s
non-verbal communication.”
Lawyer, Italy.
Audiovisual recording is complex and time-
consuming, according to professionals in Bulgaria,
“[T]he video recording procedure itself is not simple, because this thing
Belgium and Italy.
has to be recorded on a magnetic carrier, the persons have to certify
that things are OK, this action is quite demanding for the court and the
pre-trial authorities, because there has to be full agreement with the
parties.”
Judge, Bulgaria.
Audiovisual recording of questioning is still a novel
concept, all professionals across all Member States
“Audiovisual interrogation really does have an added value. And that we
studied indicate. It will take more time for it to
as public prosecutors could then watch it. It is completely different to be
become accepted and more widely used. There are
able to see an interrogation, than when you only read it on paper. When
benefits of such a practice, mainly as a safeguard for
you have seen it on DVD, it’s different than when you read it. I also notice
child defendants, some professionals interviewed
that when I watch an interrogation, I get a totally different picture.”
understand.
Prosecutor, Belgium.
Most of the children interviewed confirm that their questioning was not
audiorecorded. In most cases, police officers took written minutes that
“I made my statement, and they
usually, but not always, the children could read and sign. Some children say
didn’t write down exactly what
they could not read the minutes before signing them. Some others had the
I said, they just didn’t care.”
impression that important parts of their statements were not documented.
Child, Germany.
88
Endnotes
1
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 7.
2
Ibid., Art. 7 (2).
3
Ibid., Art. 7 (7).
4
Ibid., Art. 7 (5) (6).
5
Ibid., Art. 7 (3) (8).
6
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe and explanatory memorandum, Strasbourg, October 2011, Guidelines Nos. 2 and
4, p. 18, and Guidelines Nos. 16–18, p. 23.
7
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 39, p. 12; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 33–34, pp. 7–8, and para. 109, p. 18.
8
For example, see ECtHR, T. v. the United Kingdom [GC], No. 24724/94, 16 December 1999, para. 84; and ECtHR, V. v. the United
Kingdom [GC], No. 24888/94, 16 December 1999, para. 86.
9
ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March 2016, para. 219.
10
Ibid.
11
ECtHR, Vaudelle v. France, No. 35683/97, 30 January 2001, para. 65.
12
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 43 (1) and 48 (1).
13
Belgium, Federal Youth Act of 2006, 15 May 2006, Art. 50.
14
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 34 (11) (3).
15
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 38.
16
Italy, Decreto del Presidente della Repubblica 22 settembre 1988, n. 448: Approvazione delle disposizioni sul processo penale a carico di
imputati minorenni, 22 September 1988, Art. 9.
17
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGG.
18
Portugal, Law no. 33/2019, of May 22, which makes the thirty-third amendment to the Code of Criminal Procedure, approved by Decree-
Law no. 78/87, of February 17, 22 May 2019.
19
Bulgaria, Ministry of Justice (Министерство на правосъдието) (2020), Table of compliance of Bulgarian legislation with Directive
(EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects
or accused persons in criminal proceedings (Таблица на съответствието на българското законодателство с Директива (ЕС)
2016/800 на Европейския парламент и на Съвета от 11 май 2016 година относно процесуалните гаранции за децата, които
са заподозрени или обвиняеми в рамките на наказателното производство).
20
Poland, Act of 6 June 1997: The Code of Criminal Procedure (Ustawa z dnia 6 czerwca 1997 r: Kodeks postępowania karnego), 6 June 1997.
21
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 7 (4), and recitals 35 and 39.
22
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 14 (4) and recital 56.
23
ECtHR, V. v. the United Kingdom [GC], No. 24888/94, 16 December 1999, para. 87; ECtHR, T. v. the United Kingdom [GC], No. 24724/94,
16 December 1999, para. 85.
24
ECtHR, V. v. the United Kingdom [GC], No. 24888/94, 16 December 1999, para. 87; ECtHR, T. v. the United Kingdom [GC], No. 24724/94,
16 December 1999, para. 85.
25
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011.
26
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Guideline No. 10, p. 22
27
UN, Convention on the Rights of the Child (CRC), 20 November 1989, Art. 40 (2) (b) (ii).
28
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 64.
29
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, paras. 64–67; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the
child justice system, CRC/C/GC/24, 18 September 2019, paras. 66–71.
30
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 48; Italy, Decreto del Presidente della Repubblica 22 settembre 1988, n. 488: Approvazione delle disposizioni sul processo
penale a carico di imputati minorenni, D.P.R. No. 448/1988, 28 January 2015, Art. 33; Malta, Act No. XVIII of 2020, an Act to further amend
the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi Kriminali, Kap. 9), 10 June 1854 (as amended), Arts. 531
and 534AGD.
31
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 48; Malta, Juvenile Court Act (Att dwar il-qorti tal-minorenni), 25 July 1980, Arts. 7 and 8 (1) (2).
32
Italy, Code of ethics relating to the processing of personal data in the exercise of journalistic activity (Codice deontologico relativo al
trattamento dei dati personali nell’esercizio dell’attività giornalistica), 29 July 1998.
33
Malta, Juvenile Court Act (Att dwar il-qorti tal-minorenni), 25 July 1980, Arts. 7 and 8 (1) (2).
89
34
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und
junger Erwachsener ( Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 42 (1); Bulgaria, Penal
Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 391; Estonia, Ministry of Justice
(Justiitsministeerium), Explanatory memorandum to the bill Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu
finantshuvide kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 12 December 2019, Explanatory memorandum (Eelnõu
seletuskiri); Poland, Code of Criminal Procedure (Kodeks postępowania karnego), 6 June 1997 (as amended), Art. 360 (1) (2); Portugal,
Code of Criminal Procedure (Código de Processo Penal), approved by Decree-Law 78/87 (Decreto-Lei n.º 78/87), 17 February 1987, as
amended by Law 102/2019, of 6 September (Lei n.º 102/2019, de 06 de Setembro), last amended by Law 57/2021, 16 August 2021,
Art. 87 (1) and (2).
35
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 42 (1); Poland, Code of Criminal
Procedure (Kodeks postępowania karnego), 6 June 1997 (as amended), Arts. 360 (1) (2) and 364.
36
Austria, Criminal Procedure Code 1975 (Strafprozeßordnung 1975, StPO), Federal Law Gazette No. 631/1975 (as currently in force),
30 December 1975, § 230a; Poland, Code of Criminal Procedure (Kodeks postępowania karnego), 6 June 1997 (as amended), Art. 362.
37
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 391.
38
Portugal, Code of Criminal Procedure (Código de Processo Penal), approved by Decree-Law 78/87 (Decreto-Lei n.º 78/87), 17 February
1987, as amended by Law 33/2019, of 22 May (Lei n.º 33/2019, de 22 de Maio), last amended by Law 57/2021, 16 August 2021, Art. 87 (1).
39
Portugal, Code of Criminal Procedure (Código de Processo Penal), approved by Decree-Law 78/87, 17 February 1987, as amended by
Law 102/2019, of 6 September (Lei n.º 102/2019, de 06 de Setembro), last amended by Law 57/2021, 16 August 2021, Art. 87 (1) and (2).
40
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
para. 59, p. 30.
41
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, § 36a (2) and (3).
42
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 70 c read in conjunction with Section 68 b.
43
Ibid., Section 68 b.
44
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 75 (4).
45
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGI.
90
6
RIGHTS OF CHILDREN DEPRIVED OF
LIBERTY: DEPRIVATION OF LIBERTY
AS A LAST RESORT AND TREATMENT
OF CHILDREN IN DETENTION
This chapter examines the views of professionals and children interviewed
regarding deprivation of liberty. Depriving children of their liberty has specific
requirements, considering their vulnerable position in these situations, which
the directive introduces.1 Deprivation of liberty should be used strictly as
a last resort, and other measures should take priority. Furthermore, children
deprived of liberty are entitled to a medical examination, special treatment
and enhanced contact with their family members.
FRA has published information on criminal detention standards. For example,
see the FRA Criminal Detention Database 2015–2019 on EU Member States’
detention conditions and FRA (2019), Criminal detention conditions in the
European Union: Rules and reality. These publications are not child specific.
However, they include some findings on the detention of children.
6.1. DEPRIVATION OF LIBERTY OF CHILDREN AS A LAST
RESORT
Legal overview
The general rule is that children can be deprived of their liberty before
trial, including in police custody, only when strictly necessary. This means
when non-custodial measures are inappropriate or ineffective, according to
Articles 10 and 11 and recitals 45 and 46 of the directive. The rule reflects
the UN Committee on the Rights of the Child’s recommendations in General
Comments Nos. 10 and 24.2
Authorities should always consider alternative measures before deprivation
of liberty. These include restrictions on movement and residence; restrictions
on personal contacts; reporting obligations; participation in educational
programmes; or, with the child’s consent, participation in therapeutic or
addiction programmes.
The decision to impose detention should be reasoned and taken without undue
delay. It should be subject to judicial and periodic review automatically, or
when children and their lawyers challenge the decision. Moreover, children
should be deprived of their liberty for the shortest possible time, considering
their situation and the circumstances of the case.3
91
These provisions of the directive
reflect the requirements of Article 6
of the Charter of Fundamental Rights
of the European Union and Article 5 of
the ECHR. They also reflect the need
to accommodate the children’s best
interests while they are deprived of
liberty, according to Article 24 of the
Charter. Children’s “arrest, detention
or imprisonment” must be used “as
a measure of last resort and for the
shortest appropriate period of time”,
Article 37 (b) of the UN CRC states.
The ECtHR applies the principle of
depriving children of their liberty as
a last resort consistently in its case
law on Article 5 of the ECHR. National
authorities must consider and assess
the effectiveness of alternative measures before depriving children of
their liberty, for example when ordering their pre-trial detention.4 Similarly,
children’s deprivation of liberty should be “a measure of last resort” and
used “for the shortest appropriate period of time”, the CoE’s guidelines and
recommendations suggest. Special efforts must be undertaken to avoid
pre-trial detention.5
States parties should delimit the pre-trial detention of children by effectively
using the above alternatives, the UN Committee on the Rights of the Child
stresses. The detention’s conditions and duration should be clear, delimited
by law and subject to regular review.6 Furthermore, mandatory minimum
sentences are incompatible with the principle of using detention as a last
resort, it argues.7
Findings: national laws, professionals’ perspectives on and children’s
experiences of deprivation of liberty and alternative measures
The Member States studied have prioritised alternative measures. These
include house arrest, placement in a suitable institution and educational
measures aiming to rehabilitate rather than incarcerate the child.
Member States’ laws rely on different principles for non-custodial measures.
Austria,8 Germany,9 Italy,10 Malta11 and Portugal12 invoke the principle of
proportionality. Children are not arrested, and pre-trial detention is not imposed
or maintained if less severe measures can achieve or have achieved the
same goal. Alternatives include home arrest, accommodation in an assisted
living facility and changing the adult with parental responsibility, if necessary.
These are combined with temporary probation assistance.
Legislation in Belgium13 and Poland14 refers to a range of measures, starting
with the most lenient and ending with criminal detention. The Federal Youth
Act explicitly anchors this idea in Belgium. In Bulgaria, children can be deprived
of liberty only in exceptional cases.15 In Estonia, a court may replace a child’s
criminal detention with placement in a closed childcare institution, the Code
of Criminal Procedure provides.16
92
Application of detention and alternative measures in practice
In Austria, Estonia, Germany, Italy, Malta, Poland and Portugal, deprivation
of liberty both before and after trial is applied only as a last resort, most
professionals confirm. Views are somewhat divided among interviewees
in Belgium and Bulgaria. Nevertheless, children’s deprivation of liberty is
exceptional and applied when there are valid reasons, most professionals
interviewed agree. This is contrary to some interviewed children’s views.
In practice, only children who commit severe crimes or repeatedly commit
crimes are deprived of liberty, professionals note. This too is contrary to the
“Well, as I started here in 2008 […]
experience of some interviewed children.
And it is already noticeable that
far fewer juveniles are taken into
custody. The juveniles who are Non-custodial measures
taken into custody are to some
The directive prioritises non-custodial measures.17 These include restrictions
extent very problematic, who
on movement and residence; restrictions on personal contacts; reporting
are very delinquent, who have
obligations; participation in educational programmes; or, with the child’s
already had many main hearings
consent, participation in therapeutic or addiction programmes.
before, where there have been
many graduated sentences: so,
An alternative measure is applied, both before and after trial, in most cases,
it usually starts with diversion,
prosecutors and judges across all Member States say. Non-custodial measures
probation, community service, then,
should be preferred, as detention means separation from family, school and
it increases to a conditional custodial
friends, two judges and four non-legal experts in Belgium point out.
sentence with instructions and then
another conditional sentence and,
The availability of these measures differs across the Member States studied.
at some point, if [they do] not stop
In Austria, Belgium and Germany, their availability also differs across regions.
delinquent behaviour, [they are]
Interviewees identified various measures, such as:
taken into custody.”
Prosecutor, Austria. ― not allowing the child to leave their place of residence (house arrest);
― electronic surveillance or an ankle monitor;
― placing the child in a closed childcare institution;
― community service;
― counselling;
― social programmes;
― learning programmes;
― addiction treatment;
― multidimensional family therapy;
― paying the victim for damage caused by the crime.
Electronic surveillance or ankle monitors are typical in Estonia when a child
commits criminal offences repeatedly, has a suspended sentence and commits
another offence during probation, interviewees mention.
Children may be placed under the supervision of another adult appointed to
hold parental responsibility before the sentence. Supervision by someone
“It is very rare for us to resort to
other than parents, such as inspectors or social workers, tends to be more
this most severe measure. We
successful for re-education, a prosecutor in Bulgaria explains. “[A]fter an
always aim to place the child under
illegal act has been committed by the child, it may be a little late to exercise
supervision of a parent, guardian,
parental supervision”, they state. In Bulgaria, the available alternatives are
official from the respective
not sufficient and the authorities have few options, the prosecutor and
institution. But the available remand
a judge also note.
measures do not provide many
options. The range of measures
Alternative measures to deprivation of liberty serve the public interest,
is, I would say, at both extremes:
a social worker from Malta explains. The court prefers measures aiming to
either the lightest possible measure,
give back to society, for example working with elderly people.
or detention. There is not much in
the middle. It is just that our law is
imperfect, not up to date.”
Judge, Bulgaria.
93
Belgium, Estonia and Germany and Italy have an in-
between measure, shock imprisonment, that can “We now have the short stay, which has not yet been legally anchored,
sometimes be successful, practitioners mention. It but that is a kind of pilot project where young people are placed briefly
deprives the child of liberty for a short time and and contextual guidance is then linked to it. And in my experience, this
then releases them. Non-custodial measures are is often used to give a good shock, even though researchers have said
used later in the proceedings. Children are locked 1,000 times that it doesn’t work. But in my experience, it does happen
up for two weeks pre-trial to achieve a quick often.”
reaction, two social experts in Belgium explain. Policy advisor on children’s rights, Belgium.
More than half of the children interviewed had experienced a non-custodial
alternative measure. This is “a way to help us to find a way out of the criminal “Yeah, but I think that’s really
history […] and it is much more useful than detention”, according to two a bit useless. It’s really a waste of
children in Germany. Most of the interviewed children welcome non-custodial time on the system you know. For
alternative measures. However, the effectiveness of these measures is only example, they say that you have to
guaranteed when a control system is in place, they highlight. go to school, but there is no one to
check that. I also had it once, then
Interviewees describe some alternative measures positively. These include I had to go to school, but I was just
participation in social competence and anti-aggression courses (as in Germany; outside in the park. And even if the
see Germany promising practice box). Accommodation in community centres police saw me, they’d just come and
(as in Italy) and participation in innovative life-planning processes (as in chat, and then they’d say it would
Austria, see Austria promising practice box) are also described positively. be better that I am back to school
tomorrow. But that was it. If there is
no consequence, why should I go to
school?”
Child, Belgium.
PROMISING PRACTICE
Germany: Social task force for an offensive through pedagogy
(Soziale Task Force für offensive Pädagogik, SToP)
Sozius Hilfen Berlin is an institute for the prevention of youth The first module, the ‘clearing’ phase, focuses on building
violence and development of future perspectives (Institut relationships with the offender and their family. It includes
für Jugendgewaltprävention und Perspektivenentwicklung). an initial assessment of the offender’s background and
It developed SToP to help young habitual offenders challenges.
(Intensivtäter). SToP focuses on preventing stigmatisation,
The second module, the ‘assistance’ phase, focuses on
criminality and violence.
creating a stable working relationship. This phase consists of
The programme is based on cooperation between family, individual and group sessions. It focuses on demonstrating
child protection services, police and other institutions that alternatives and improvements, aiming to integrate the
are in contact with the young offender. Specific professional young person into their social network.
intervention strategies focus on sustainably developing
The Senate Department for Youth, Education and Family has
new forms of living, life aims, and structures of thought and
financed the task force since 2008. SToP has been part of
action.
Berlin’s public prevention and security programme since 2017.
SToP has two modules.
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PROMISING PRACTICE
Austria: Promising practice to reduce pre-trial detention
Social Net Conferencing (Sozialnetzkonferenz, Soneco) in Siblings commit to taking them to school or to the gym after
Austria is an interesting initiative to reduce the time child school. In this sense, the plan consists of simple practical
defendants spend in pre-trial detention. It is only available to steps for everyday life. In addition, the child defendant must
children in pre-trial detention. The probation service Neustart meet with a probation officer two or three times a week.
offers and coordinates this.
The plan is agreed with the child defendant. The judge takes
Soneco consists of meetings between crucial members this plan into account when deciding whether to release the
of the child defendant’s social network and professionals. child from pre-trial detention or keep them in custody. The
Members of the child’s social network include parents, child defendant, probation officer and defence lawyer are
neighbours, friends, football coaches and priests. Examples present at the hearing.
of professionals are job coaches, residential facility staff,
Soneco is a positive initiative, the probation officers and
therapists and Youth Welfare Authority staff. The meetings
other experts interviewed agree. Recidivism rates are very
aim to develop alternative measures to pre-trial detention,
low when children are released from pre-trial detention
and they require the child’s consent.
earlier through Soneco, the probation officers interviewed
In the Soneco framework, a plan is developed for how say. Soneco is an important instrument for helping reintegrate
children’s entire social network can best support but also children deprived of liberty into society and prevent
control them. This is so that they can manage their everyday recidivism.
lives without reoffending.
For more information, see Neustart’s web page on probation
The plan involves committing to actions. For example, services.
parents commit to waking the child up every morning.
Detention
“I am dealing with the case of a child who is almost 18 who has In some cases detention of a child is unavoidable,
perpetrated a ninth crime, and he ended up directly in the juvenile all professionals interviewed agree. Some
detention facility. Maybe, if he had been detained before, he would not professionals even favour detention in certain
be in this situation now. What I would like to stress with that is that we cases.
should not [automatically] acclaim alternative measures because they
are not necessarily the right thing.”
Social worker, Italy.
There are cases when even the defence itself asks
for deprivation of liberty, a lawyer in Malta recalls.
“Community service would be preferred to restriction of liberty.
However, we had two cases where juveniles were beyond help
unfortunately. They were already in a cycle of crime. It was our plea
as defence to request the restriction of liberty because it was safer for
these two juveniles to be in prison rather than anywhere else.”
Lawyer, Malta.
In some cases, parents understand and support the
need to detain a child, a police officer in Bulgaria
“We try to only impose detention as an exceptional measure. But the
notes.
most interesting aspect is that we have had parents saying ‘We insist
you detain them’, because they think that this would help re-educate
them to some extent. It does not happen very often, but it happens.”
Police officer, Bulgaria.
95
In Austria, Estonia, Italy and Portugal, detention is only used when all
alternatives prove ineffective, some interviewees from all professional groups
“Do not get me wrong […] but
note. In Belgium, ‘last resort’ does not mean that all other measures must be
sometimes a deprivation is just
exhausted before detention, professionals interviewed indicate. Placement
necessary. If you are a doctor
in detention should be used with caution, but is sometimes necessary, they
and someone is having a heart
argue. It is not necessary to try alternative measures first, one social expert
attack, you don’t first try to have
interviewed argues.
a conversation with the patient
about healthy eating habits, but
When children are deprived of liberty you immediately start resuscitating.
Actually, it’s the same with the
Professionals were asked to elaborate on typical cases when children are
response to juvenile delinquency.
deprived of liberty before and after trial. Various factors increase a child’s
Sometimes it’s necessary to go for
chances of being detained, professionals across all Member States note.
detention and there’s no point in
― The seriousness of the crime came up in Austria, Belgium, Bulgaria, resorting to alternatives at that
Estonia, Malta, Poland and Portugal. In Bulgaria and Poland, there is a social point.”
expectation to detain someone accused of committing a serious crime Member of the supervisory body for
that attracts public attention, lawyers add. FRA (2021), Presumption of closed facilities, Belgium.
innocence and related rights – Professional perspectives briefly discusses
the relationship between social expectations and administering justice.
This includes applying detention.18
― Reoffending and failure to comply with conditions for remaining at liberty
is a factor in Austria, Belgium, Bulgaria, Estonia, Italy, Malta and Portugal.
― Lack of cooperation with authorities and probation services affects the
outcome in Austria, Belgium, Bulgaria and Poland.
In practice, other factors also expose the child to a higher risk of being detained
pending trial, interviewed professionals indicate. These are:
― low socioeconomic background (Austria, Belgium and Germany),
― no or a weak social network, and problematic family relations (Austria,
Belgium, Bulgaria, Germany and Poland),
― not having legal residence status (Austria, Belgium, Bulgaria, Germany,
Italy, Malta and Poland).
Children from minority ethnic backgrounds, migrant
backgrounds, or disadvantaged family and social
“Yes, especially with underage unaccompanied refugees, it has a strong
environments are generally more likely to be
influence on the part of the authorities, because there is usually no
detained, professionals conclude. The main reason
stable social environment here in Germany. […] These are people who
seems to be the lack of a solid and supportive
have usually been to many different European countries and have no
family background. This prevents them from
language skills here. And there is always the assumption that there
benefiting from staying at home under parental
is a risk of flight. That is very unpleasant in this area, but it [pre-trial
supervision. Unaccompanied refugee children are
detention] is actually always done.”
more likely to be detained before trial because
Lawyer, Germany.
they may abscond, many interviewees point out.
Roma children in Bulgaria, Italy and Portugal are more often deprived of
liberty, some professionals argue. In Portugal, children belonging to an ethnic
minority and to low-income groups receive less leniency and are treated
differently, two lawyers interviewed add.
In Austria, Belgium and Germany, there are regional differences in the pre-trial
detention of children, interviewees point out. Some judges and prosecutors
“The hand of justice is heavier with
may apply detention more often, they mention. This is probably because
Roma, with Africans and with the
they lack experience with and specialised knowledge of juvenile justice.
poor. There’s no doubt about it. Both
in the option not to suspend prison
sentences and in the range of the
sentences. There are judges who are
exceptions.”
Lawyer, Portugal.
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In Belgium and Germany, the lack of space in
“I have not yet succeeded in convincing a court that the state’s failure to supervised facilities may result in placing children
provide such facilities [supervising children] in sufficient numbers cannot in detention, lawyers and social workers indicate.
lead to pre-trial detention being imposed. I have not yet succeeded in
having such a detention order lifted. From my point of view, it should
happen, but it doesn’t.”
Lawyer, Germany.
In Austria, the COVID-19 pandemic decreased the
number of children in prison, interviewees note.
“Mind-blowing scenes! Six children sitting together in the garden, who In contrast, in Belgium, children were detained
are picked up after someone called it in and were put in a cell: three in police custody and pre-trial detention for
children in a cell for one person, for the whole night. They are then violating COVID-19 restrictions, one lawyer and
brought before the juvenile court the next morning. That is a clear one prosecutor recall.
example of abuse in that context. I am not saying that it always happens
like that, but it happened a lot. Because of the corona measures, children Around two thirds of the children interviewed
sometimes spend 30 hours in a cell before coming before the juvenile across all countries studied reported some
court.” experience of being deprived of liberty. These
Lawyer, Belgium. experiences include police custody, pre-trial
detention and living in a closed community centre
or in prison.
The most critical accounts of detention concern
police custody, where children typically spent
“Well, I think especially for young people the time in the police detention
a few hours in pre-trial detention. In a very few
centre is really shocking […] actually, I think the police detention centre is
cases, it was longer. The conditions are rough, and
worse than pre-trial detention. It looks like a prison from times of war or
being in the police detention centre feels lonely,
a concentration camp and the atmosphere over there is really extremely
as a child from Austria vividly describes.
unpleasant. I got a strange mental state there; I sat down on the floor
and the body automatically starts to rock back and forth because of the
restlessness and this silence and that you can’t talk to anyone. And the
second time, I cut myself with a piece of broken glass to even get out of
that cell.”
Child, Austria.
A child in Bulgaria had a particularly severe
experience.
“The prison staff were very rude! Six or seven people enter the cell for
the slightest wrongdoing and beat you with the batons. If you knock
down an ashtray – the guard comes and beats you up. And then he writes
a report for a punishment. If I collected five or six punishments, I was
getting the ‘internal sentence’, that is, the correctional cell. I was there
for 14 days, alone, no walks, nothing.”
Child, Bulgaria.
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6.2. MEDICAL EXAMINATION OF CHILDREN DEPRIVED OF
THEIR LIBERTY
Legal overview
Children deprived of liberty have the right to be medically examined without
undue delay to establish their mental and physical condition, Article 8 of
the directive states. The medical examination should be as non-invasive
as possible. A physician or another medical professional must carry it out.
Authorities should consider its results when determining the child’s capacity
to be questioned, or when ordering other investigative or evidence-gathering
acts, or any other measures against the child. Authorities must initiate the
medical examination when they see reasons for this, or at the child’s, their
parents’ or their lawyer’s request. Authorities must order a fresh medical
examination when circumstances require it.19
A medical assessment should be used to determine whether a child can be
placed in a juvenile detention centre, the ECtHR ruled.20 The Council of Europe
Guidelines on Child-friendly Justice also recommend providing medical care
to children deprived of liberty.21 This treatment should be provided “as soon
as possible after admission”. This is to ensure children’s physical and mental
well-being from the outset and throughout their deprivation of liberty.22
Prisoners are entitled to the same medical care as persons living in the
community, the CPT states.23 Children who are suspects or accused persons
should have access to a doctor without delay after their admission and at
any time on demand, regardless of their status.
Moreover, the healthcare service should be able to provide at least regular
outpatient consultations and emergency treatment. Psychiatric care and
preventive healthcare must also be provided for children, and privacy should
be ensured. However, they are not always provided and privacy is not always
ensured in practice’.
Patients’ consent and medical confidentiality must be upheld. In addition,
authorities must pay special attention to the needs of particularly vulnerable
children. Any decisions taken by doctors should be governed by medical
criteria only.
The same requirements regarding
medical examination should be provided
to children deprived of liberty, the UN
Committee on the Rights of the Child
advocates.24
Findings: national laws,
professionals’ perspectives on and
children’s experiences of the right to
a medical examination
Laws vary across the Member States
studied. Some fully implement the
obligation stemming from the directive
and prescribe the conduct of detained
children’s medical examinations in detail.
Austria insists on examination by a doctor
on admission to pre-trial detention, and
allows an examination on request.25
98
A medical examination must take place on admission to the penitentiary to
determine whether imprisonment would overstrain the juvenile defendant,
according to the explanatory remarks of the EU Criminal Law Amendment Act
2020.26 The medical examination’s results help assess whether the detained
juvenile can participate in questioning, other investigative or evidence-
gathering actions, or measures taken or planned. Estonia27 and Malta28 have
similar legislation.
Other Member States resort to general rules that apply to all (adult) detainees.
These detainees undergo a mandatory medical examination on arriving at
the detention facility to establish their general health condition. This is the
case in Bulgaria,29 Poland30 and Portugal.31
In Germany, the federal states are in charge of implementing the requirements
concerning the medical examination. They are responsible for legislation on
executing pre-trial detention and all deprivation of liberty.32
However, the federal states have not amended their corresponding
enforcement legislation. It includes general provisions on medical care and
provisions on the introduction procedure. The introduction procedure involves
a medical examination.33
Prisoners have a right to necessary, sufficient and appropriate medical
services, according to the laws on the execution of juvenile punishment
(Jugendstrafvollzugsgesetze) in Bremen, Mecklenburg-Western Pomerania,
Saarland, Saxony, Schleswig-Holstein, Brandenburg, Rhineland-Palatinate,
Saxony-Anhalt, Thuringia, Berlin, Hesse, North Rhine-Westphalia and Baden-
Württemberg.
Laws in Belgium and Italy do not provide for such obligation. Interviewees
in Belgium do not know whether this is done. However, interviewees in Italy
can explain the process in detail.
The medical examination in practice
Children are always medically examined at the
beginning of pre-trial detention, according to most
“A medical examination is absolutely standard, even upon admission to
professionals interviewed in all Member States
pre-trial detention. The first thing is a presentation to a prison doctor.
studied who have relevant experience.
And the investigating magistrates also ask about it before the detention,
or should do so. Are there any particularities to be considered? Are there
any illnesses? Are they taking medication, etc.? That must be clarified
beforehand. And there is always the right to request assistance.”
Prosecutor, Germany.
There was no consensus among practitioners on whether children are
examined when taken into police custody. However, in Austria, Italy and
“Sometimes, the police request
Malta, the examination is usually carried out immediately after defendants
a medical examination if the minor
are placed in police custody, according to police officers. Police officers in
has visible injuries, in order to
Malta often initiate medical examination themselves, a police officer explains.
document them. That is also to
This is especially the case if the child has any injuries.
safeguard ourselves. This way we
can prove the minor was not injured
Medical examination on admission to a detention facility is common practice
while in police custody.”
in all countries studied, according to the fieldwork.
Police officer, Malta.
In Belgium, a thorough medical examination on admission to detention
centres is not standard practice, interviewees clarify. As interviews were
conducted during the COVID-19 pandemic, children were tested for COVID-19,
interviewees indicate. Apart from that, children are mainly checked for
conditions that require medication, such as diabetes.
99
In other countries, children can be either examined on site or taken to a health
centre.
In Estonia, detained children are not asked to consent to a medical examination,
a police officer emphasises. Instead, a prison doctor automatically examines
them. The scope of the examination appears fairly basic. Usually a doctor
records any injuries, and asks the child about medications, use of alcohol
and drugs, family doctor’s information, etc.
The medical examination is merely a meeting
with a doctor in which they talk and fill out
“I can’t tell you [how it goes]. But I do think that they have to undress,
a questionnaire, some interviewees across
because I have often had the experience that injuries were found by the
the countries studied say. However, a physical
medical officer, which are otherwise hidden under clothing. So, I do think
examination also takes place, according to other
that they are examined without any clothes on, at least externally.”
interviewees. It can reveal injuries that would have
Judge, Austria.
stayed hidden otherwise, an Austrian judge notes.
In Malta, the examination takes place in a separate, private room and is
confidential like a normal medical examination, professionals interviewed
claim. The physical examination is as non-invasive as possible and conducted
in a highly ethical manner. A prison warden accompanies the child in the health
clinic. In Poland, girls deprived of liberty may also undergo a gynaecological
check-up, if necessary, a non-legal expert adds.
In Austria, Italy and Malta, both physical and mental health conditions are
medically assessed, interviewees report. This includes if the child shows
suicidal tendencies or self-harming behaviour, and if their mental state allows
them to be detained. The assessment of mental condition is regularly updated.
Professionals interviewed in Estonia were unsure whether mental health is
examined. In Poland, the process does not include an assessment of the child’s
mental health, interviewees state. However, children may be psychologically
evaluated later in a detention facility. In Bulgaria, if mental health problems
are observed, the child is either not detained or a psychiatrist is called, some
lawyers point out.
Children, parents and lawyers have the right to request a medical examination
at any time, interviewees in Austria, Bulgaria, Estonia, Italy, Malta, Poland and
Portugal generally agreed. However, in Estonia, children or their parents may
not be aware of this right, one lawyer notes. Most interviewees in Poland
do not know whether children are informed of this right.
Children are informed of this right, one of the interviewed lawyers says. If
a child is arrested and taken to hospital for examination, they explain every
step of that procedure to the child in detail, one police officer states. This
process, however, is informal and outside the official framework of informing
children about their procedural rights.
Most interviewed children who had been detained could not recall whether
they had been medically examined at the beginning of their detention, or
whether they had received any information about this right. In Belgium and
Italy, a medical examination or brief medical check-up is more consistently
undertaken when children enter a facility, they report.
100
How and for what purposes do national authorities use the results of the
medical examination in practice?
The medical examination’s results should be considered when determining the
child’s ability to be questioned or undergo other investigative or evidence-
gathering acts, according to Article 8 (2) of the directive. They should also
be considered when determining any measures taken or envisaged against
the child.
Medical examinations have various purposes, interviews with professionals
indicate. They are primarily for determining if any further medical treatment
is required. However, they also determine if a child can be detained, and are
used in sentencing.
In Austria, Bulgaria, Estonia, Germany, Italy and Poland, the child’s capacity
to participate in the proceedings and be questioned is determined on the
basis of the medical examination’s results, professionals state. The results are
also used to assess whether the child is psychologically fit to be detained.
Moreover, they may be used to assess if the child can be held criminally
responsible in sentencing.
The results of medical examinations are also used in case of complaints
about maltreatment in police custody or detention. In these cases, the results
are sent to a prosecutor to investigate if the authorities used violence, as
“[…] if any traumatic injuries have
a prosecutor from Bulgaria explains.
been identified that the medical
specialist has registered and the
A police officer in Malta confirms that, and sees medical examinations as
detainee says that they were caused
protection from false allegations of mistreatment.
during detention or by police officers
while working with them, a copy of
these documents is sent to us and 6.3. TREATMENT OF CHILDREN DEPRIVED OF THEIR
we are investigating potential police
LIBERTY
violence. This applies to both adults
and children.”
Prosecutor, Bulgaria. Legal overview
The directive pays particular attention to children deprived of their liberty. The
well-being of children demands special care and attention, under Article 24 of
the Charter of Fundamental Rights of the European Union. It obliges authorities
to make children’s best interests a primary consideration and consider the
children’s views, according to their age and maturity.
There are requirements for the detention of children, as Article 12 of the
directive spells out. Detained children must be held separately from adults,
unless their best interests indicate otherwise. This also applies to police
custody, except for extraordinary circumstances.
101
However, children may be detained with young adults under 24, unless
this is contrary to their best interests. Young detainees who turn 18 may
continue to be detained with children and separately from adults unless the
best interests of other detained children dictates otherwise.34
The directive also requires that detained children must be treated in an
appropriate manner, as they are in a particularly vulnerable position.
Accordingly, national authorities should ensure:
― detained children’s health, and physical and mental development;
― their right to education and training, including if they have physical,
sensory or learning disabilities;
― the effective and regular exercise of their right to family life, that is, to
maintain regular contact with their parents, family and friends through
visits and correspondence, unless there are exceptional restrictions;35
― access to programmes that foster their development and reintegration
into society;
― respect for their freedom of religion or belief, although this does not
require actively assisting children in worshipping.36
The right to family life is protected by the specific requirement that children in
detention can meet with their parents, as soon as possible, as Article 12 (6) of
the directive states. This is provided that it does not jeopardise investigative
and operational requirements.
The directive is aligned with Article 37 (c) of the UN CRC. Detained children
must be separated from adults as a rule, unless their best interests dictate
otherwise, the UN CRC states. Children deprived of their liberty must be treated
with humanity and respect, and according to their age, Article 37 (c) of the UN
CRC states. It further enshrines children’s right to maintain contact with their
family through correspondence and visits, save in exceptional circumstances.
Thus, imprisoning a child in an adult prison is inhuman and degrading
treatment, the ECtHR found.37 A short-term placement there can also be
degrading and inhuman treatment when combined with other inadequate
conditions.38 The child’s best interests should always guide national authorities,
and the child should be guaranteed proper care and protection, the ECtHR’s
case law shows.39
102
The CoE’s guidelines and recommendations include standards for detention
conditions identical to those of the directive. For example, children deprived
of their liberty should:
― be held in suitable premises and, as a rule, separately from adults, unless
their best interests entail otherwise;
― be properly accommodated regarding their privacy, health and hygiene;
― have regular contact with their parents, family and friends, and contact
should not be restricted as punishment;
― receive proper education and have access to leisure, for example physical
education and sport;
― enjoy freedom of thought, conscience and religion;
― have access to educational and reintegration programmes;
― receive appropriate nutrition and medical care.
These standards apply in addition to those applicable to adults.40
The UN Committee on the Rights of the Child emphasises the need to observe
similar standards. No disciplinary measures that could compromise the
physical or mental health or well-being of children should be imposed, the
committee notes. For example, this rules out corporal punishment, placement
in a dark cell, solitary confinement, etc. Solitary confinement is only to be
used to protect a child.41
For further information, see FRA Criminal Detention Database 2015–2019 on
EU Member States’ detention conditions, and FRA (2019), Criminal detention
conditions in the European Union: Rules and reality.
Findings: national laws, professionals’ perspectives on and children’s
experiences of the right to special treatment
All Member States studied have legal frameworks regulating the detention of
children. However, the details of these regulations and their comprehensiveness
differ.
Laws in five of the Member States studied include the general rule that children
should be detained separately from adults, unless this is against their best
interests. These Member States are Austria,42 Estonia,43 Germany,44 Malta45
and Poland.46 Legislation in Bulgaria,47 Italy48 and Portugal49 also provides for
separating children from adults in detention. However, it does not mention
that children can be detained with adults if that is in their best interests.
Legislation in seven of the Member States studied provides rules ensuring
that children in detention have access to healthcare, education, training and
sport activities. These Member States are Austria,50 Belgium,51 Estonia,52
Italy,53 Malta,54 Poland55 and Portugal.56 The Flemish Government has similar
legislation for its regional facilities. In Germany, the federal states regulate this.
Laws in Bulgaria,57 Malta58 and Portugal59 allow detained children to maintain
contact with their families.
Separation from adults
Children are almost always separated from adults in police custody, children
interviewed in all Member States studied indicate. They are always strictly
separated from adults in detention. Of the professionals interviewed in
Austria, Bulgaria, Estonia, Italy and Malta who had experience with children
deprived of liberty, most confirm this.
103
Children are held in single cells in police custody, all interviewees in Austria
elaborate. They are held in youth departments in pre-trial detention facilities,
and in separate juvenile detention facilities when in criminal detention.
However, in Austria and Malta, the situation is different for girls, professionals
interviewed point out. Girls are held with adult women in prison.
In Belgium, Germany and Poland, children are separated from adults in
detention centres but not in police custody, interviewees state. There are
different ways to separate children from adult prisoners depending on the
detention facility, as the interviewees in Germany describe. For example, they
can designate a detention facility exclusively for children and young adults,
or establish a separate unit within an adult detention facility.
Generally, post-trial detention guarantees separation. In Belgium, separating
children from adults is mainly a problem in police custody, interviewees point
out. There are separate waiting rooms for children in courts, a lawyer adds.
These rooms look like offices rather than cells.
Still, police stations in Belgium are not equally well equipped to achieve
separation. Some police stations have special youth cells or youth rooms,
but other areas do not, one prosecutor and three police officers clarify.
Interviewees in Germany describe a similar situation.
Children in Portugal are separated from adults
in police custody but not in detention, according
“In Portugal, we have a specific school prison [for children] in Leiria,
to professionals interviewed. In police stations,
which is called Prisão Escola Leiria. But in Lisbon, all the pre-trial
both adult and child defendants are detained in
detainees go to the EPL [Lisbon Prison Establishment] and above 16
a single room/cell, one police officer says. The
years old they stay where the adults are.”
situation is different for pre-trial detention or
Lawyer, Portugal.
a prison sentence.
In regional prisons in Portugal, cells are used for groups of inmates, a judge
adds. It is very difficult to guarantee that children will be held separately.
Placing a child in a prison other than the School Prison of Leiria is based
on the proximity to their family’s home, according to this interviewee. This
facilitates family visits.
In the School Prison of Leiria in Portugal, children are held separately in
individual detention cells in seven pavilions. They are split according to age,
and depending on whether they are serving a sentence or detained before
trial. In addition, the School Prison of Leiria has facilities for children at risk
of suicide, where they are accompanied. Children aged 16 or under are held
separately from older detainees, a specialist interviewed stresses.
Access to healthcare during detention
Detained children have access to healthcare in both detention centres and
police custody, most professionals confirm in eight Member States: Austria,
Belgium, Bulgaria, Estonia, Italy, Malta, Poland and Portugal. This healthcare
is in addition to the initial medical examination.
In Austria and Portugal, children can always ask to see a doctor, and those
using addictive substances see the doctor regularly anyway, interviewees
elaborate. Children also continue any previous medical treatments.
In Italy and Malta, children are offered psychological support in addition to
regular healthcare during their detention period, interviewees report.
104
However, in Belgium, Estonia, Germany and
Poland, only very basic healthcare care is provided,
“Psychological support is also aimed at preventing the risk of self-harm
professionals interviewed claim. In Belgium and
and suicide, because this is another recurrent phenomenon in juvenile
Bulgaria, medical examinations are sporadic,
prisons. It is understandable: deprivation of liberty for an adult is terrible
interviewees report.
and even more so for a child.”
Prosecutor, Italy.
In Estonia, there is a shortage of medical staff in
detention facilities for children, a social worker
indicates. Children are sent to support services
or a family doctor outside the closed childcare
institution. However, this is not always possible
for logistical reasons.
“There is already sufficient medical care. There is a separate hospital
unit in the prison. I don’t know if there are any gaps, especially at night.
There can be hygiene issues, one judge interviewed
What I know from the prison [Vienna] is that the juveniles are allowed
in Austria notes.
to shower two or three times a week. I don’t think that’s enough, for
example. In my opinion, showers should be possible every day.”
Several children across all Member States
Judge, Austria.
mentioned difficulties while in police custody due
to lack of access to regular medications, or lack of
care for alcohol intoxication or drug-related withdrawal symptoms.
However, it seems that access to healthcare was ensured during detention,
in contrast to police custody. Yet several children report issues. Not having
access to a drug treatment programme while detained was odd, one child
in Belgium thought.
Education, reintegration measures and leisure activities
Interviewee accounts of education, reintegration measures and leisure
activities differ significantly. In some Member States, the professionals
interviewed are sure that children in detention have access to education,
reintegration measures and leisure programmes. In others, some argue that
access depends mainly on the length of stay. Other professionals claim that
such programmes are insufficient or simply do not exist at all.
105
In Italy, Malta and Portugal, all detention centres
always ensure the right to education and “Over the past few years, there has been an increase in services
professional training, professionals interviewed available for young offenders, especially programmes on education and
agree. There have been positive changes in this training. They are usually encouraged to pursue some type of education
regard over time, some interviewees note. and at least use the time they have in prison constructively.”
Psychologist, Malta.
The Prison School of Leiria offers a wide range of
programmes, on which professionals interviewed
in Portugal elaborate. Children detained there have
access to education; vocational training such as
cooking, bricklaying and gardening; and various
sport activities.
PROMISING PRACTICE
In Austria, Belgium, Estonia and Poland, the
availability of measures depends on the length
Opera project in
of stay, professionals interviewed state. Portugal
The Prison School of Leiria runs
In Austria, children in pre-trial and short-time
the Opera in Prison (Ópera na
criminal detention have no access to vocational
Prisão) project in three-year cycles.
training or reintegration measures. As children
It involves the detainees, prison
in pre-trial detention have not been convicted
management, specialists, guards,
yet, there is no need for measures fostering
an orchestra and professional opera
reintegration into society, according to a judge
singers.
interviewed. Still, some basic education is offered
to children in pre-trial detention, particularly those Children develop artistic skills and
of mandatory school age. learn about music. At the same
time, they develop empathy and
Children detained in Austria, Belgium, Estonia, understand the value of effort and
Germany and Portugal can participate in outdoor work. They are allowed to go and
activities and physical exercises to a certain extent, see the actual show, provided they
they state in interviews. behave well. They perform a show
themselves at the end.
In Bulgaria, there are no specific programmes
It is now part of the international
or measures for detained children, as far as the
“Q: And what do you do when Traction project, which focuses
judges and prosecutors interviewed are aware.
you go there [outside area]? on opera co-creation for social
If a detained child wants education, someone,
“A: Nothing… For five months in transformation.
for example their parents, must bring them self-
this ‘square’ [prison jargon for
learning materials, a prosecutor mentions. Children The Calouste Gulbenkian Foundation
the walking area] all I saw was
confirmed this. (Fundação Calouste Gulbenkian)
one raven and one plane.”
finances the project as part of its
Child, Bulgaria.
Artistic Practices for Social Inclusion
(Práticas Artísticas para a Inclusão
Social, Partis) initiative.
Source: For more information, see the
SAMP web pages on the first cycle’s
performance of Don Giovanni (2015)
and the second cycle’s Mozart Pavilion
(Pavilhão Mozart) (2016/2018).
Challenges with access to programmes
Lack of funding and staff, and overcrowded “Some activities are for sure offered in detention facilities. I cannot
facilities, can compromise the adequacy and quality tell if these are adequate. They are not individually tailored, though.
of the opportunities offered to children during Also, because the high number of detainees, compared to the available
the detention period, professionals interviewed teachers and staff members, makes it extremely difficult to actually
in Italy mentioned. benefit from these opportunities.”
Lawyer, Italy.
106
Interviewees in Belgium raised a particular
“That’s the big tragedy: the whole school career of a child threatens problem. Children do not obtain recognised
to come to a halt if children have to stay in a closed institution. And diplomas or certificates from the education or
sometimes there are children who commit serious offences, but who training in institutional settings, one judge, two
actually went to school quite regularly, and detention jeopardises the lawyers and two social experts claim.
whole school career. Now we do see that for some children distance
learning is organised. What’s more, there are children who come from
Mol to Antwerp every day to attend their normal school and then return
to the facility in the evening. They have to get up at 05.30 and they are
on the train at 06.30 to attend their normal school and then return to the
institution at 19.00. They are very motivated people, but those are the
exceptions.”
Judge, Belgium.
In Belgium, the choice and quality of educational
“It really is a joke; ‘education’ they call it. Well, here in the facility, I have
programmes is poor, one child complains. This
one teacher that is competent and whom I can go to for questions for
confirms the professionals’ accounts.
physics and mathematics, that’s it […] Because it is expected that ‘the
girls from Beernem’ are a bit dumb, and that they would want to become
a hairdresser, a nail specialist, a cashier or a seamstress – yes, those are
the four options to choose from. That’s it.”
Child, Belgium.
In Estonia, even when programmes are offered,
“When he comes to prison at the age of 14 and leaves at the age of 22, the personal development of children held in
he has not really reached the level of a 22-year-old mentally [...] This detention for a long time suffers, according to
can be seen, for example, in their decision-making capacity. This is often one practitioner.
seen in their sexual life, for example. They haven’t seen the part where
you, I don’t know, flirt with girls. This part is completely missing from
their lives there. In fact, a normal development is lacking.”
Therapist, Estonia.
Children interviewed wish they had had access to
“I think that someone who is in pre-trial detention or criminal detention not only quality education, but a better programme
should be resocialised rather than secluded from life. I think I would have for their daily life while in pre- or post-trial
liked to have had more tasks”. detention. They would like to feel useful and be
Child, Austria. active while detained, many state. This could be
by engaging in different tasks, work and physical
activities, and having more access to entertainment.
“Employment, simply, not sitting
here.”
Contact with parents, family and friends
Child, Austria.
Children can call their parents immediately upon their arrest, across the
Member States studied, unless the parents are also suspected or accused
of the same crime. However, seeing parents might not always be possible.
In Belgium, contact with parents depends
on the good will of individual police officers,
“[T]he children should always have the right to have a chat with their
professionals interviewed suggest.
parents as well. And my experience has taught me which of my colleagues
I can persuade and say, ‘Let mummy come in for a minute, let mummy be
Arrested children face a practical difficulty,
mummy for a minute to those little ones who did something stupid’. But
professionals interviewed in Austria and Poland
I also know that with other colleagues that will not be possible. They will
point out. They need to remember their family
feel, ‘No, a phone call is more than enough’. Yes, and then they call the
members’ telephone numbers, as children have
parents, if it’s voicemail, they don’t even leave a message. So, again, it
no access to their mobile phones. Moreover, they
depends very much on the person who does the things.”
need to pay the telephone fees. The interviewed
Police officer, Belgium.
children confirm this.
107
In Austria, children are allowed to meet their girlfriends/boyfriends even if
they are also accused, according to a judge interviewed. However, a guard is
present during the meetings, listens to what they say and stops the meeting
as soon as they talk about the offence.
In most cases, children in detention could contact their family members
both remotely and in person. However, there were different degrees and
“Visits, of course, I could talk to my
frequencies of contact.
mother, somehow get rid of some of
my pressure, because in detention
In all Member States, children in detention are allowed to see their family
you can’t show weakness, otherwise
members during visiting hours.
you’ll be put down, your things will
be taken away from you and so
In Bulgaria, parents can be appointed as children’s defence counsels alongside
on. So, you can’t really talk things
professional lawyers, professionals interviewed mention. This allows them
out with your fellow prisoners. My
to visit their children at any time. Nevertheless, children in Bulgaria have
mother supported me in bearing the
few opportunities to maintain contact with family members, they all claim
deprivation of liberty, even if it was
in interviews. This is partly due to practical challenges such as having access
only for half an hour a week.”
to phone cards.
Child, Austria.
In Belgium and Italy, there are strict rules regarding calls and visits, children
mention. They found these quite harsh. In particular, they would like to be
allowed to call their family members more than two or three times a week,
and to choose the time and day of the calls.
Usually, relatives can visit child defendants in detention up to twice a week.
As with telephone calls, there are practical difficulties such as travelling
distance, professionals mention. This is particularly an issue in Belgium,
Germany, Italy and Portugal.
The interviews were conducted in the winter and spring of 2021. Therefore,
the COVID-19 pandemic restrictions caused hardships, which interviewees
in all Member States mention. The lack of ‘normal’ visits over a very long
time affected the young people, professionals observe. In-person visits were
allowed later in the pandemic, with restrictions such as glass separation and
prior COVID-19 testing.60
108
Endnotes
1
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, recital 45.
2
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, paras. 19 and 86–88; UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) –
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras. 28 and 80–81.
3
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Arts. 10 and 11, and recital 46.
4
ECtHR, Azizov and Novruzlu v. Azerbaijan, Nos. 65583/13 and 70106/13, 18 February 2021, paras. 60–62; ECtHR, Güveç v. Turkey,
No. 70337/01, 20 January 2009, paras. 108–110.
5
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October
2011, Guidelines 19 and 20, p. 24, and explanatory memorandum, para. 73, p. 66; CoE, Committee of Ministers (2008), Recommendation
CM/Rec(2008) 11 of the Committee of Ministers to Member States on the European Rules for juvenile offenders subject to sanctions or
measures adopted by the Committee of Ministers on 5 November 2008 at the 1040th meeting of the Ministers’ Deputies, Strasbourg,
5 November 2008, paras. 10 and 111.
6
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, paras. 19 and 86–88; UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) –
Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras. 28 and 80–81.
7
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, para. 78.
8
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener (Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 22 October 1988, §§ 35, 35a and 36. Austria, Criminal
Procedure Code 1975 (Strafprozeßordnung 1975, StPO), Federal Law Gazette No. 631/1975, 30 December 1975, §§ 172 (2) and 173 (5).
9
Germany, Draft Act to Strengthen the Procedural Rights of Accused Persons in Juvenile Criminal Proceedings (Entwurf eines Gesetzes zur
Stärkung der Verfahrensrechte von Beschuldigten in Jugendstrafverfahren), Drucksache 19/13837, 9 October 2019, p. 35.
10
Italy, Codice processo penale minorile – D.P.R. 448/1988, 22 September 1988, Arts. 16–19.
11
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGJ.
12
Portugal, Code of Criminal Procedure (Código de Processo Penal), approved by Decree-Law 78/87 (Decreto-Lei n.º 78/87), 17 February
1987, last amended by Law 57/2021, 16 August 2021, Art. 202.
13
Belgium, The Federal Youth Law, Art. 37 § 2, section 3.
14
Poland, Penal Code (Kodeks Karny), 6 June 1997, Art. 32.
15
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 386, para 1.
16
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 131 (32).
17
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, recital 45.
18
FRA (2021), Presumption of innocence and related rights – Professional perspectives, Luxembourg, Publications Office, Chapter 2.
19
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 8 and recital 4.
20
ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March 2016, para. 138.
21
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Guideline 21b, p. 24.
22
CoE, Committee of Ministers (2008), Recommendation CM/Rec(2008)11 to member states on the European Rules for juvenile offenders
subject to sanctions or measures, adopted by the Committee of Ministers on 5 November 2008 at the 1040th meeting of the Ministers’
Deputies, Strasbourg, 5 November 2008, paras. 62.2.g, 62.5, 69.1–2, 72.1 and 119.
23
CoE, CPT (2015), CPT standards, Extract from the 3rd General Report [CPT/Inf (93) 12], CPT/Inf/E (2002) 1 – Rev. 2015, Strasbourg, January
2015, para. 31, p. 38.
24
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, para. 89d, p. 23; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in
the child justice system, CRC/C/GC/24, 18 September 2019, para. 95d, p. 15.
25
Austria, Penitentiary Act (Bundesgesetz vom 26. März 1969 über den Vollzug der Freiheitsstrafen und der mit Freiheitsentziehung
verbundenen vorbeugenden Maßnahmen, Strafvollzugsgesetz – StVG), Federal Law Gazette No. 144/1969, 26 March 1969; Austria,
Criminal Procedure Code 1975 (Strafprozeßordnung 1975, StPO), Federal Law Gazette No. 631/1975, 30 December 1975; Austria,
Explanatory remarks to the EU Criminal Law Amendment Act 2020 (Strafrechtliches EU-Anpassungsgesetz 2020 – StrEU-AG 2020), Federal
Law Gazette No. 20/2020, 26 February 2020.
26
Austria, Explanatory remarks to the EU Criminal Law Amendment Act 2020 (Strafrechtliches EU-Anpassungsgesetz 2020 – StrEU-AG 2020),
Federal Law Gazette No. 20/2020, 26 February 2020.
27
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 34 (11) 4).
28
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGH.
29
Bulgaria, Execution of Penalties and Detention in Custody Act (Закон за изпълнение на наказанията и задържането под стража),
3 April 2009, last amended 11 December 2020, Art. 242.
30
Poland, Minister of Justice, Organisational rules of application of pre-trial detention, 22 December 2016, § 9(3). Poland, Minister of Justice,
Organisational rules of application of deprivation of liberty, 21 December 2016, § 9(1).
31
Portugal, Code of enforcement of prison sentences or measures involving the deprivation of liberty (Código da Execução das Penas
e Medidas Privativas da Liberdade), Lei n.º 115/2009, 12 October 2009, last amended by Law 27/2019, 28 March 2019, Art. 32(1).
32
Germany, Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Art. 70, para. 1
and Art. 74, para. 1.
109
33
Berlin, Art. 34, para. 1; Hesse, Art. 72, para. 1; North Rhine-Westphalia, section 24, para. 1; section 36, para. 1, in conjunction with
Strafvollzugsgesetz, section 45, para. 1; Baden-Württemberg, Art. 31 para. 1 IV. book.
34
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 12 and recitals 48–50.
35
Ibid., Art. 12 (5) (c), and recital 51. See also European Parliament (2012), Charter of Fundamental Rights of the European Union (2012/C
326/02), OJ 2012 C 326, Art. 24 (3).
36
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 12 (5) (d), recital 52.
37
ECtHR, Güveç v. Turkey, No. 70337/01, 20 January 2009, paras. 91–98.
38
ECtHR, Zherdev v. Ukraine, No. 34015/07, 27 April 2017, paras. 92–93.
39
ECtHR, Blokhin v. Russia [GC], No. 47152/06, 23 March 2016, para. 138.
40
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Guidelines 20–21, p. 24, paras. 74–77; CoE, Committee of Ministers (2008), Recommendation CM/Rec(2008) 11 to member states on the
European Rules for juvenile offenders subject to sanctions or measures adopted by the Committee of Ministers on 5 November 2008 at
the 1040th meeting of the Ministers’ Deputies, Strasbourg, 5 November 2008.
41
UN, Committee on the Rights of the Child (2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10,
25 April 2007, paras. 85–89, p. 23–4; UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights
in the child justice system, CRC/C/GC/24, 18 September 2019, paras. 92–95, pp. 15–16.
42
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, Art. 36 (1)–(3).
43
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 34 (11) (5); in connection with Estonia,
Minister of Justice (Justiitsminister), Establishment of form of declaration of rights (Õiguste deklaratsiooni näidisvormi kehtestamine),
14 July 2014, amendment entered into force 30 December 2019, Annex 3: Declaration of the rights of the minor (Lisa 1: Alaealise õiguste
deklaratsioon); and Estonia, Imprisonment Act (Vangistusseadus), 14 June 2000, § 12 (5).
44
Germany, Youth Courts Law (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 89 c, para. 2.
45
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGL.
46
Poland, Criminal Enforcement Code (Kodeks karny wykonawczy), 6 June 1997, Arts. 84 (1) and (2), and 212 (1).
47
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Art. 386.
48
Italy, Decree of the President of the Italian Republic (Decreto del Presidente della Repubblica 22 settembre 1988, n. 448: Approvazione
delle disposizioni sul processo penale a carico di imputati minorenni), D.P.R. No. 448/1988, 22 September 1988, Art. 18; Italy, Decreto
Legislativo 2 ottobre 2018, n. 121: Disciplina dell'esecuzione delle pene nei confronti dei condannati minorenni, in attuazione della delega
di cui all'art. 1, commi 82, 83 e 85, lettera p), della legge 23 giugno 2017, n. 103, 2 October 2018, Art. 20.
49
Portugal, Code of enforcement of prison sentences or measures involving the deprivation of liberty (Código da Execução das Penas
e Medidas Privativas da Liberdade), Lei n.º 115/2009, 12 October 2009, last amended by Law 27/2019, 28 March 2019, Art. 9.
50
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener (Jugendgerichtsgesetz, JGG)), Federal Law Gazette No. 599/1998, 20 October 1998, Art. 36 (1)–(3).
51
Belgium, Decision of the French Government of December 5, 2018 on the general conditions for the recognition and financing of the
services referred to in Article 139 of the Decree of January 18, 2018 on the Code of Prevention, Youth Assistance and Youth Protection
(Besluit van de Franse Regering van 5 december 2018 betreffende de algemene voorwaarden voor de erkenning en de subsidiëring van
de diensten bedoeld in artikel 139 van het decreet van 18 januari 2018 houdende het wetboek van preventie, hulpverlening aan de jeugd
en jeugdbescherming), 11 January 2019.
52
Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12 February 2003, § 34 (11) 5); in connection with Estonia, Minister
of Justice (Justiitsminister), Establishment of form of declaration of rights (Õiguste deklaratsiooni näidisvormi kehtestamine), 14 July
2014, amendment entered into force 30 December 2019, Annex 3: Declaration of the rights of the minor (Lisa 1: Alaealise õiguste
deklaratsioon).
53
Italy, Legislative Decree of 28 July 1989, No. 272/1989, Implementation, coordination and transitional rules of the decree of the President
of the Republic 22 September 1988, n. 488, containing provisions on the criminal trial against underage defenders (Decreto Legislativo
28 luglio 1989, n. 272, Norme di attuazione, di coordinamento e transitorie del decreto del Presidente della Repubblica 22 settembre
1988, n. 448, recante disposizioni sul processo penale a carico di imputati minorenni), 28 July 1989, Arts. 9 and 10.
54
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGL.
55
Poland, Criminal Enforcement Code (Kodeks karny wykonawczy), 6 June 1997, Arts. 95 and 130.
56
Portugal, Code of Enforcement of Prison Sentences or Measures involving the deprivation of liberty (Código da Execução das Penas
e Medidas Privativas da Liberdade), 12 October 2009, last amended by Law 27/2019, 28 March, Art. 20; Portugal, Young Adult’s Special
Penal Regime (Regime aplicável em matéria penal aos jovens com idade compreendida entre os 16 e os 21 anos), approved by Decree-
Law 401/82, 23 September 1982, Art. 12.
57
Bulgaria, Penal Procedure Code (Наказателно-процесуален кодекс), 29 April 2006, last amended 18 May 2021, Article 91. Bulgaria,
Ministry of Justice (Министерство на правосъдието), Order on internal order in arrests (Заповед за вътрешния ред в арестите),
6 October 2016, Art. 48.
58
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Article 534AGL.
59
Portugal, Code of Enforcement of Prison Sentences or Measures involving the deprivation of liberty (Código da Execução das Penas
e Medidas Privativas da Liberdade), 12 October 2009, last amended by Law 27/2019 on 28 March 2019, Art. 20; Portugal, Young Adult’s
Special Penal Regime (Regime aplicável em matéria penal aos jovens com idade compreendida entre os 16 e os 21 anos), approved by
Decree-Law 401/82, 23 September 1982, Art. 12.
60
For more details, see FRA (2020), Bulletin #4: Coronavirus pandemic in the EU – Fundamental rights implications, Luxembourg,
Publications Office.
110
7
PROFESSIONALS’ TRAINING
ON CHILDREN’S RIGHTS IN
CRIMINAL PROCEEDINGS
Member States must train professionals who deal with children accused or
suspected of a crime, according to the directive. They must also monitor the
implementation of this training.
This chapter outlines the legal framework of these issues, and the laws
and practices of the Member States studied. It also analyses the views of
professionals interviewed regarding the training available on issues the
directive covers.
7.1. TRAINING FOR PROFESSIONALS DEALING WITH
CHILDREN
Legal overview
Criminal justice professionals dealing with children accused or suspected of
a crime must receive special training, the directive states. Law enforcement
authority and detention facility staff dealing with children must receive this
training, according to Article 20. This training includes child psychology and
communication.
Furthermore, judges and prosecutors must have specific abilities in this, the
directive states. Alternatively, they must at least have access to specialised
training. In addition, Member States must promote providing training to
criminal lawyers dealing with children. They must encourage training initiatives
for professionals in support and restorative justice services.1
111
The European Commission’s European judicial training strategy for 2021–
2024 also addresses training for professionals dealing with children.2 The
European Judicial Training Network and the European Union Agency for Law
Enforcement Training provide training opportunities for judges, prosecutors
and police officers dealing with children.
Professionals dealing with children should receive interdisciplinary training on
the rights and needs of children, the CoE Committee of Ministers’ guidelines
on child-friendly justice stress.3 The UN Committee on the Rights of the Child
also underlines that multidisciplinary, rights-based, continuous and systematic
training of professionals is important to uphold children’s rights and their best
interests, in line with the UN CRC.4
FRA’s report on child-friendly justice deals extensively with the training of
professionals handling children’s cases.5
EU Member States should ensure that all professionals in contact with children receive
FRA opinions training on child rights, child-friendly verbal and non-verbal communication and language,
child development, and child-related criminal and civil legislation. Professionals should be
trained to identify the varying needs of children in different age groups so that they can
address these and communicate with children appropriately.
General and specialist training for judges and prosecutors should be promoted. Training
should be obligatory for front-line practitioners such as police officers and court staff.
Specific modules should be developed that target different professionals’ specific jobs.
EU Member States should ensure that only trained professionals carry out child hearings,
and that training on child hearings is mandatory and continuous for professionals. This
entails increasing opportunities for training; the number of professionals trained to carry
out children’s hearings; and the presence of specialised, trained professionals at hearings.
Professionals carrying out children’s hearings must be specifically trained on appropriate
questioning techniques, existing guidelines on carrying out children’s hearings and the
relevant legal basis.
Source: FRA, 2015
Findings: national laws, professionals’ perspectives, and children’s
experiences regarding professionals’ training
Almost all Member States studied have legal provisions referring to the
directive’s obligation to provide training for professionals dealing with children
accused or suspected of a crime, research findings confirm. The exceptions
are Poland and Portugal. National bar associations typically define the design
and content of this training. The training is mandatory in Estonia and Italy.
This section analyses these findings further.
Specialised training to deal with children accused or suspected of a crime is
important, many professionals across all groups acknowledge. Some training
is generally available to all criminal justice practitioners. However, the quality
and effectiveness of training offered to professionals is mixed in practice,
interview findings show. Table 2 outlines the laws on training and findings
from professionals’ interviews on its availability.
Mandatory training is an exception; training is usually on a voluntary basis.
Only around half of professionals from across interviewed groups actually
received training, they report.
112
Training is rarely multidisciplinary, and often focuses mostly on legal aspects,
interviewees say. This is particularly the case for judges, prosecutors and
lawyers. Many professionals in all the Member States are especially concerned
about the lack of training on how to communicate with children.
Despite such concerns and challenges, some interviewees also outlined
certain noteworthy training initiatives. This chapter describes them.
TABLE 2: AVAILABILITY OF TRAINING ON CHILDREN SUSPECTED OR ACCUSED OF A CRIME IN LAW AND PRACTICE
Training laid down in the Training available: Training available: police Training available:
Member State Training available: judges
law prosecutors officers lawyers
Austria Yes Yes Yes No N/A
Bulgaria Yes Yes Yes Yes Yes
(draft bill)
Estonia Yes No Yes Yes Yes, mandatory
for representing
children
Germany Yes Yes Yes Yes Yes
Italy Yes Yes Yes Yes Yes, mandatory for
legal aid lawyers
representing
children
Malta Yes No No No N/A
Poland No Yes No No No
Portugal No No No Yes No
Source: FRA, 2021
Note:
N/A, not applicable.
The interviews with children indicate which
specific abilities training should develop. For
“No, I actually got my lawyer as public defender. And he is really good.
instance, professionals should approach children
From five stars, I would give him four point eight. That’s really good [...]
in a respectful way, speak calmly to them, and take
He is really nice and I can talk to him openly. He is about 70 years old and
time to listen and explain processes, outcomes and
has more than 50 years of experience [... I like] that he is defending me,
legal jargon. This means children can follow the
that I can talk to him honestly, that he is nice to me and that he wants to
proceedings more easily and participate effectively.
help. But I mean this is also his job.”
Child, Germany.
It affects the quality of the proceedings when professionals are not skilled
at communicating appropriately with children.
“But he [the judge] did not let me
finish what I actually wanted to
Professionals need training on child psychology and social development, and
say […] Then I just thought, never
communication skills. Children’s negative accounts of professionals’ behaviour
mind, just give me as many hours
and many suggestions of changes to it confirm this.
[community service] as you want
and then leave me alone, otherwise
In countries such as Austria and Estonia, police officers and prosecutors
I’ll freak out. In my eyes he was just
receive special training and specialise in working with children. Children in
like a Nazi to me.”
these countries have more positive experiences, according to their interviews.
Child, Germany.
113
National laws on providing training to professionals
Austrian law provides for special training of judges, prosecutors and all juvenile
penal system personnel.6 These professionals also receive further mandatory
training every two years.7 There is no such obligation for lawyers. However,
the law encourages the bar association to offer training to lawyers dealing
with juvenile criminal cases.8
Bulgaria’s draft incorporating legislation aims to reinforce this obligation
further. Investigative authorities, prosecutors and judges in proceedings
against children must have special training in children’s rights, it specifies.9
Italy and Malta also have laws requiring the provision of training.10
In Estonia, the law incorporating the directive did not lead to fundamental
changes. Training activities and other development activities are already in
place because of legal amendments in 2018. These are available for police
officers, prosecutors, child protection workers and other professionals.11
Moreover, in Estonia and Italy, training courses are mandatory for lawyers
appointed as legal aid lawyers to children in criminal proceedings.12
In Germany, judges and prosecutors appointed to youth courts must
by law have qualifications in both legal and multidisciplinary issues, for
example children’s psychological and social development.13 There are similar
requirements for child and youth welfare service staff working in juvenile
criminal proceedings.14 Still, there should be more binding qualification
requirements, some commentators say.15
In Poland, the Ombudsman for Human Rights underlined the lack of legal
obligations for training professionals in a letter to the Minister of Justice.16
However, no follow-up action was noted at the time of research. Malta lacks
specialised training for people who work with young offenders, official reports
say. They call for more action in this area.17
Special training received by the professionals interviewed
Law enforcement officers dealing with children should undergo special
training, Article 20 of the directive provides. It also encourages such training
for judicial authorities and lawyers.
As mentioned above, the picture of the training that professionals actually
receive is mixed, interview findings indicate. Only about half of interviewees
received any such training.
114
Malta, Poland and Portugal are examples of Member States where specialised
training is not generally available. In Malta, only social workers had attended
or were aware of any special training concerning the rights of children
suspected or accused of a crime.
In Portugal, professionals never receive any training in this area and are not
aware the training exists, judges, public prosecutors and lawyers say. The
directive is poorly promoted, and legal seminars touch on it only slightly,
some professionals mention.
In Poland, none of the lawyers, prosecutors or judges interviewed has ever
received training. Only two judges know of some training on child psychology.
The rest are not aware of any available training.
Judges and prosecutors
In Austria, special training on children is available and mandatory, all judges
and one prosecutor interviewed confirm. Professionals must participate in
regular training on juvenile criminal justice and the soft skills necessary to
deal with child defendants, they report.
In Bulgaria, three out of the five judges and prosecutors interviewed had
not received any training. Two prosecutors had attended legal training on
the rights of accused children.
In Italy, specific training sessions are available to professionals, as prosecutors
and judges interviewed confirm. These sessions are especially available to
juvenile judges. They focus on judicial procedures and procedural rights of
children accused or suspected of a crime.
Estonia has training courses on the rights of suspected or accused children,
several prosecutors interviewed mention. Two prosecutors interviewed
received training on the rights of children, including training on effectively
communicating with children. Two interviewed judges received multidisciplinary
training on children. However, this training is voluntary and the Judicial Training
Council does not systematically offer it, one of them reports.
In Germany, none of the interviewed judges and prosecutors received special
training before becoming a juvenile judge or prosecutor. Voluntary training is
available from certain institutions, such as the German Judicial Academy and
the German Association for Juvenile Courts and Juvenile Court Assistance,
a judge and a prosecutor interviewed clarify. In Poland, the National School of
Judiciary and Public Prosecution provides some training on child psychology,
two judges report.
The way judges treat them is positive, most interviewed children say.
Judges show interest when talking to them, listen, ask questions and try to
“Yes, he explained it in his own
understand. The children feel heard, respected and taken seriously. Children
words, OK. Really OK, this judge.”
appreciate and, in most cases, understand the explanations judges give about
Child, Poland.
their decisions, they say.
Some children found the judge could be impatient and interrupt, shout or
not believe them. Such behaviour hinders children’s effective participation.
115
Police officers
Specialised training is available for police officers in most countries researched.
However, the picture emerging from the interviews is mixed.
In Austria, interviewed police officers had not participated in special training
on the procedural rights of and safeguards for suspected or accused children.
Their training is “learning by doing”, two officers claim. In contrast, most
interviewed police officers in Bulgaria received special multidisciplinary
training.
Most Estonian police officers interviewed who work with children were
certified to do so or knew about certification. They receive standard training
from lecturers with different backgrounds, one police officer explains. Lecturers
include child protection staff, psychologists and prosecutors.
All police officers in Germany in departments for juvenile offences must
complete special training concerning juvenile criminal investigations and
child-friendly approaches, they confirm in interviews. Training courses are
updated to include new legal developments such as the directive, three police
officers confirm. Various professionals working in juvenile justice deliver
training, including juvenile judges and prosecutors, social workers and the
JCA, one police officer reports. However, no interviewee received or knows
of training on effectively communicating with children.
Police officers in Portugal receive no specific training in this area, they report
in interviews. Although the training exists, it is not yet widely available, they
claim. Police officers in Poland receive training on juvenile justice, but not
specifically on children’s rights, they report.
The negative attitude and behaviour of police
officers is stressful and triggers uncooperative
behaviour, according to most children interviewed. “Well, they [the police] should observe the public order. That is why they
Children suggest improving the police officers’ are officials, not only to act important. More precisely, they are very
interpersonal skills to help the proceedings. rude, they offend. You behave with them like a human and they treat
Children want to be respected, they often say. you like a dog.”
Child, Bulgaria.
“I guess it’s not a rule, but I feel that policemen – more often than
policewomen – treat young persons, especially young girls, with such
a terrible disrespectful approach. They don’t pass [on] everything they
should pass [on] about the right of the detained person, for example
about this right to trial and so on. I think this is a big problem with how
the police work in this case. They treat people who are particularly
vulnerable or just younger from the position of power.”
Child, Poland.
116
There is a difference between appropriate and
inappropriate treatment, one child notes. Each
“The way they act, among other things, that’s it, and of communicating.
has an impact on the child’s behaviour during
If they are calm, we, on our side, will also think to answer with more
questioning.
calm, won’t be in so much pressure, like really nervous to answer.
We try to understand what we have done wrong. But if they make an
aggressive entrance, we will also reply in an aggressive way or will not Lawyers
answer only because they wanted us to. That’s what happens in most
Although training is generally available for lawyers,
cases, they start to be aggressive, and we begin to be like them also.”
it is typically received and organised on a voluntary
Child, Portugal.
basis, interview findings confirm.
In Austria, only one of five interviewed defence lawyers attended training
on the directive, they report. Their attendance was voluntary. In Bulgaria,
two out of five lawyers received legal training on the directive. Again, this
was on a voluntary basis.
Similarly, Germany has a special training course on juvenile criminal law that
focuses on the specifics of juvenile criminal proceedings, some lawyers note.
Again, participation in this training is entirely voluntary. In Malta, Poland and
Portugal, no training on children’s rights is available for lawyers, they report
in interviews.
Estonia and Italy are exceptions to this lack of training.
The Estonian Bar Association delivers interdisciplinary training on children’s
rights, communication with children and children’s psychology to all lawyers.
From 2021 onwards, lawyers who do not attend such training courses cannot
represent children in criminal or in civil cases, one lawyer clarifies.
In Italy, lawyers in general do not have to train in children’s rights. However,
public defenders must take part in legal training focusing on the juvenile
judicial system. This training is not interdisciplinary and does not include
how to communicate effectively with children, one lawyer interviewed says.
Rather, it mostly focuses on technical aspects of the judicial proceedings.
In most cases, communication with their lawyer throughout the proceedings
is positive, children say. Lawyers have a crucial role in explaining rights and
“[These lawyers treat me] Very,
procedures to them, children point out. This is not only before and after the
very well […] What I do not
trial, but also when participating in it. Children represented by a specialist
understand I ask them and they
lawyer describe what knowledge and skills they appreciate.
explain it to me better […] for
example, at the beginning we talked
about my situation, about sending Non-legal experts such as social workers, judicial assistants and staff in
me home in home custody, and the detention facilities for children
private lawyer together with the
Austrian non-legal experts, such as experts from the JCA, receive training
public defender did everything they
on juvenile criminal justice, but not children’s procedural rights, they report.
could to send me home [...] then
Probation officers receive training on every new legal instrument, including
they told me how to behave, not
those applicable to children.
to get into fights with the centre’s
staff, and then if I didn’t understand
Most Bulgarian non-legal professionals receive specialised multidisciplinary
something they told me to write
training on children, they report. In Estonia, three out of seven non-legal
them on WhatsApp and call them at
professionals interviewed received specialised training of some kind.
any time.”
Child, Italy.
All Italian non-legal professionals, such as social assistants, educators and
psychologists, report participating in training. These include sessions on how
to communicate with children. Training is needed on the particular needs of
children from migrant backgrounds, including how best to communicate with
them, one interviewee stresses. Children from migrant backgrounds form an
increasing number of those involved in criminal proceedings.
117
In Malta, some social workers from the Foundation for Social Welfare Services
attended training on children’s rights. They are committed to attending
compulsory continuous professional development sessions.
The rehabilitation professionals in Portugal received training on the individual
assessment of children, they report in interviews. This included how to draft
assessment reports of children.
Psychological and social support is important, children interviewed stress.
As well as from close family members and other persons of trust, they want
continuous social support from professionals, particularly diversion, probation,
alternative or rehabilitation measures.
Overall, children provide many suggestions about
the behaviour of professionals. They would like “Yes, be nice. Ask normally. You also have to let the boys think when
professionals to trust them, and show interest in they have something to say. Mrs [probation officer] knows me: if
their cases and personal situations. They would also someone has respect for me, then I have respect for them. If I am treated
like them to take time to listen, and be friendly and respectfully, then I am also respectful. The two policewomen had respect
compassionate. Most of all, professionals should indeed, only one of them had no respect for me.”
treat them with respect and not discriminate. Child, Austria.
“I really hope for the future that
the next time they really care for
someone, no matter where he or
she is from or what colour their skin
has.”
Child, Germany.
118
Endnotes
1
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are
suspects or accused persons in criminal proceedings, OJ 2016 L 132, Art. 20 (1–4) and recital 54.
2
European Commission (2020), Communication from the Commission to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of Regions: Ensuring justice in the EU — a European judicial training strategy for 2021–2024,
COM(2020) 713 final, Brussels, 2 December 2020, pp. 3 and 5.
3
CoE, Committee of Ministers (2011), Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted
by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, Strasbourg, October 2011,
Guidelines Nos. 14 and 15, p. 23, and Guidelines Nos. 67–69, p. 65.
4
UN, Committee on the Rights of the Child (2019), General Comment No. 24 (2019) on children’s rights in the child justice system, CRC/C/
GC/24, 18 September 2019, para. 39, p. 8, para. 95 (f), p. 16, and paras. 111–112, pp. 18–19; UN, Committee on the Rights of the Child
(2007), General Comment No. 10 (2007) – Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para. 40, p. 13, and paras. 96–
97, p. 25.
5
FRA (2015), Child-friendly justice – Perspectives and experiences of professionals on children’s participation in civil and criminal judicial
proceedings in 10 EU Member States, Luxembourg, Publications Office, pp. 97–108.
6
Austria, Juvenile Court Act 1988 (Bundesgesetz vom 20. Oktober 1988 über die Rechtspflege bei Straftaten Jugendlicher und junger
Erwachsener ( Jugendgerichtsgesetz 1988 – JGG)), Federal Law Gazette No. 599/1988, 20 October 1988, Art. 30, as amended by EU
Criminal Law Amendment Act 2020 (Strafrechtliches EU-Anpassungsgesetz 2020 – StrEU-AG 2020), Federal Law Gazette I No. 20/2020,
21 March 2020, Art. 3.
7
Austria, Explanatory remarks to the EU Criminal Law Amendment Act 2020 (Strafrechtliches EU-Anpassungsgesetz 2020 – StrEU-AG 2020),
Federal Law Gazette I No. 20/2020, 21 March 2020.
8
Ibid.
9
Bulgaria, National Assembly (Народно събрание) (2020), Draft Amendments to the Criminal Procedure Code (Законопроект за
изменение и допълнение на Наказателно-процесуалния кодекс), 10 November 2020.
10
For example, see Italy, Legislative Decree of 28 July 1989, No. 272, Implementation, coordination and transitional rules of the decree of the
President of the Republic of 22 September 1988, no. 448, containing provisions on the criminal trial against underage defendants (Decreto
Legislativo 28 luglio 1989, n. 272, Norme di attuazione, di coordinamento e transitorie del decreto del Presidente della Repubblica
22 settembre 1988, n. 448, recante disposizioni sul processo penale a carico di imputati minorenni), 28 July 1989, Arts. 5, 6 and 14;
Malta, Act No. XVIII of 2020, an Act to further amend the Criminal Code, Cap. 9 (Att Nru XVIII tal-2020, Att li jkompli jemenda l-Kodiċi
Kriminali, Kap. 9), 10 June 1854 (as amended), Art. 534AGQ; and Malta, Act No. XVIII of 2019, an Act to substitute the Child Protection
(Alternative Care) Act, Cap. 569, to provide for protection orders for minors, for alternative care and for suitable protection for those
minors deprived of parental care or in the risk of being so deprived, and for matters that are ancillary or incidental thereto or connected
therewith (Att Nru XXIII tal-2019, Att sabiex jissostitwixxi l-Att dwar il-Protezzjoni tat-Tfal (Ħarsien Alternattiv), Kap. 569, biex jipprovdi
għal ordnijiet għall-protezzjoni tal-minuri, biex jistabbilixxi ħarsien alternattiv u protezzjoni xierqa għall-minuri mċaħħda mill-ħarsien tal-
ġenituri jew li huma f’riskju li hekk jiġu mċaħħda, u l-ħwejjeġ l-oħra kollha li huma anċillari jew inċidentali għal dan jew konnessi miegħu),
10 July 2019, Art. 17 (2).
11
Estonia, Ministry of Justice ( Justiitsministeerium), Karistusseadustiku ja teiste seaduste muutmise seadus (Euroopa Liidu finantshuvide
kaitse direktiivi ja alaealiste menetlusõiguste direktiivi ülevõtmine), 12 December 2019, Explanatory memorandum (Eelnõu seletuskiri);
Estonia, Ministry of Justice (Justiitsministeerium), Establishment of specialised youth justice approach; Estonia, Ministry of Justice
(Justiitsministeerium), Justiitsministeerium soovib kaasajastada alaealiste kohtlemist süüteomenetluses, press release, 15 July 2020;
Estonia, Prosecutor’s Office (Orokuratuur) (2018), Special treatment of juveniles suspected of crimes during the criminal procedure
(Kuriteo toime pannud alaealiste erikohtlemine kriminaalmenetluses), Narva-Jõesuu, 21 February 2018, p. 16.
12
See the Estonian Ministry of Justice (Justiitsministeerium) web page on child-friendly proceedings (Lapsesõbralik menetlus, Koolituste
kontaktid).
13
Germany, Youth Courts Act (Jugendgerichtsgesetz, JGG) in the version of the promulgation of 11 December 1974 (Federal Law Gazette
[BGBI.]) Part 1 p. 3427, most recently amended by Article 1 of the Act of 8 July 2008 (Federal Law Gazette Part 1 p. 2099), 11 December
1974, Section 37; see also Germany, Draft Act to strengthen the procedural rights of accused persons in juvenile criminal proceedings
(Entwurf eines Gesetzes zur Stärkung der Verfahrensrechte von Beschuldigten in Jugendstrafverfahren), Drucksache 19/13837, 9 October
2019, p. 42.
14
Germany, Social Code (SGB) – Eighth Book (VIII) – Children’s and Youth Aid – (Article 1 of the Law of 26 June 1990, BGBl. 1163)
(Sozialgesetzbuch (SGB) – Achtes Buch (VIII) – Kinder- und Jugendhilfe – (Artikel 1 des Gesetzes v. 26. Juni 1990, BGBl. I S. 163)), 26 June
1990, Section 72.
15
Eisenberg, U. and Kölbel, R. (2020), ‘§ 37’ in: Eisenberg, U. and Kölbel, R. (eds.), Youth Courts Act (Jugendgerichtsgesetz), Munich, C. H.
Beck, para. 6a.
16
Poland, Ombudsman for Human Rights, Letter to the Minister of Justice, 11 March 2019.
17
Pace, J. F. (2017), Crime prevention: Keeping you safe – Crime Prevention Strategy for the Maltese Islands for the period 2017–2021,
Valletta, Ministry for Home Affairs and National Security, May 2017; Ministry of Education, Employment and the Family (2020), Draft
National Children’s Policy (L-Abbozz Tal-Politika Nazzjonali Tat-Tfal), Valletta, 2020.
119
Conclusion
This report examines the relevant legal provisions, and the views and
experiences of practitioners in nine Member States and children in eight
Member States, on the implementation of the directive. The research addresses
aspects of criminal proceedings that apply to a special category of vulnerable
suspects and accused persons: children. Findings and opinions are based on
the observations of children who were subject to criminal proceedings, and
of practitioners with in-depth knowledge and experience of juvenile justice.
There are still major gaps in law and practice concerning implementing
the safeguards for child defendants that the EU legislator stipulates. This
corroborates previous FRA findings on criminal procedural rights, applicable to
adult and child defendants, identifying shortcomings in practice. For example,
they encompass how defendants are informed of their rights, how access
to a lawyer is facilitated, and how the criminal justice system perceives and
treats defendants from underprivileged groups.
Children in criminal proceedings should be perceived and treated not as
‘younger adults’, but as children. They have the right to be treated according
to the requirements of international, European and EU legal provisions in
line with their particular needs. These needs are based on maturity level,
social or cultural background and psychological profile. Representatives of all
professional groups are generally aware of this, the current findings show.
However, this general awareness does not always translate into law and
practice. This calls for efforts to address possible shortcomings. For example,
information should be conveyed in a more understandable manner for children,
both orally and in writing, particularly because some children and their parents
need interpretation and translation.
The essential rights of defendants in criminal proceedings are to know their
rights and what is happening to them and around them. These should be
real, effective and not illusory for child defendants as well, in line with the
case law of the ECtHR. It would be easy to induce child defendants to confess
or disclose details to the police before they are informed of their rights and
can speak to their lawyer, findings indicate.
The right to legal assistance seems to be generally well implemented.
However, it is not always effective in protecting a child’s rights. For example,
a child may be encouraged to speak to police before speaking to a lawyer.
Therefore, a balance must be found and maintained between the effective
investigation of a crime and a defendant’s procedural rights.
120
The directive affords parents and support persons new rights, such as the
right to information. However, parents or support persons accompanying
children in criminal proceedings have a relatively minor role, findings point out.
Proceedings are against a particular defendant and aim to punish wrongdoing.
However, the roles of family members and other close persons should not
be underestimated throughout the process, from investigating and trying the
offence to punishing, rehabilitating and socially reintegrating the offender.
There are some positive findings. In general, authorities do their best to
guarantee children’s rights to be present at trial and to a new trial if they are
absent. This is in line with previous research findings in criminal procedural
rights.
Authorities try to prioritise non-custodial measures over detention,
interviewees generally confirm. Children are treated differently from adult
detainees when deprivation of liberty is required. In general, they are offered
more educational and therapeutic activities. However, more could be done
in this area beyond ensuring access to basic education and sports activities.
Overall, professionals working with children do not necessarily receive
specialised training. This is especially the case for law enforcement officers,
judicial authorities and defence lawyers. The lack of specialised training might
explain why some professionals find it difficult to communicate with children
effectively and understand their perspective. To address this, Member States
should provide appropriate training for professionals working with children
in the justice system.
Member States must take special measures to ensure that suspected and
accused children can effectively participate in criminal proceedings and benefit
from a fair trial, in accordance with the directive. The implementation of these
measures should be closely monitored. Any shortcomings in implementing
safeguards can severely limit children’s possible rehabilitation and reintegration
into society, whether they are proven guilty or not.
This report provides evidence-based advice to help policymakers and
practitioners, at both EU and Member State levels, assess the application of
the directive. It will also help them to consider the need for further action to
ensure that children’s rights are effectively upheld in practice.
121
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contact_en).
On the phone or in writing
Europe Direct is a service that answers your questions about the European Union.
You can contact this service:
—b y freephone: 00 800 6 7 8 9 10 11
(certain operators may charge for these calls),
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Finding information about the EU
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European countries.
PROMOTING AND PROTECTING
YOUR FUNDAMENTAL RIGHTS
ACROSS THE EU ―
Every child has a right to be protected even when they are accused
or suspected of committing a crime. The basic principles of justice
apply to adults and children alike. But children face specific obstacles
during criminal proceedings, such as a lack of understandable
information about their rights, limited legal support and poor
treatment.
The report looks at the practical implementation of Directive (EU)
2016/800 on procedural safeguards for children who are suspects
or accused persons in criminal proceedings in nine Member States –
Austria, Belgium, Bulgaria, Germany, Estonia, Italy, Malta, Poland and
Portugal.
It draws on practitioners’ and children’s experiences of how
the directive is applied in practice. In so doing, the findings
presented support authorities and policymakers in gaining a better
understanding of the fundamental rights challenges encountered and
potential remedies to address these. The report also highlights good
practices that countries could follow to uphold children’s rights.
Access to Justice Victims Judicial cooperation Information society Internal security
Migration Roma Equality Non-discrimination Children
People with EU Charter of
Access LGBTI people Access to Victims
to Justice Justice
disabilities Judicial Older peopleJudicial
Victimscooperation cooperation
Information
Rule of lawInformation
society society
Internal Internal security
security Rights
Fundamental
Violence against
Migration
women Migration
Roma
Racism Roma
Equality
Hate crime Equality Hate speechNon-discrimination
Non-discrimination Children Children
FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
Schwarzenbergplatz 11 – 1040 Vienna – Austria
Tel. +43 158030-0
People with
– Fax +43 158030-699 EU Charter of
People with EU Charter of
LGBTI people LGBTI people
disabilities Older people
disabilities Older people
Rule of law Rule of law
Fundamental Rights Fundamental Rights
fra.europa.eu
facebook.com/fundamentalrights
Violence against
women twitter.com/EURightsAgency
Violence against
womenRacism Racism
Hate crime HateHate
crimespeech Hate speech
linkedin.com/company/eu-fundamental-rights-agency
Saatja: Laura Mallene <
[email protected]>
Saadetud: 27.09.2022 16:29
Adressaat: Harjumk info <
[email protected]>; Pärnumk info <
[email protected]>;
Tartumk info <
[email protected]>; virumk.info <
[email protected]>
Koopia: Talhk info <
[email protected]>; Tartu HK Tartuhk info <
[email protected]>;
Tallinna Ringkonnakohus info <
[email protected]>; Tarturk info <
[email protected]>;
Riigikohus Info mail <
[email protected]>
Teema: Uuring alaealistest õigusrikkujatest
Manused: image001.png; image002.png; image003.png; ee_ccp_country_report.pdf; fra-2022-
children-procedural-safeguards_en.pdf
Tähelepanu! Tegemist on välisvõrgust saabunud kirjaga.
Tundmatu saatja korral palume linke ja faile mitte avada.
Tere!
Edastan teile uuringu "Lapsed kahtlustatavate või süüdistatavatena kriminaalmenetluses", mille Eesti osa
mõttekoda Praxise analüütikute teha oli. Manuses on nii Euroopa riikide ülevaade kui ka eraldi Eestit
puudutav osa, kõik paraku vaid inglisekeelsena.
Eesti intervjueeritavate tsitaadid on eestikeelsena olemas, tõlge juures.
Laura Mallene
kommunikatsioonijuht
Mõttekoda Praxis
+372 640 8000
[email protected]
Me toetame Praxises paindlikku töötamist. Niisiis ma ei eelda,
et loed ja vastad kirjadele väljaspool oma enda tavapärast tööaega.