Good Practice 5
Address children prosecuted for terrorism-related offenses primarily through the juvenile justice system.
The aim of the juvenile justice system should be the child’s rehabilitation and reintegration into society while ensuring accountability for his or her acts. The rights in the CRC and international standards and norms of juvenile justice apply equally to children allegedly involved in terrorism-related offenses. States should ensure that their legislation provides for appropriate child-specific procedures for cases involving children, and training should be available for law enforcement, prosecutors, judges, corrections officers, probation officers, defense counsel, and other actors handling cases involving children by making appropriate stakeholders aware of relevant standards and norms on crime prevention and criminal justice focusing on juvenile justice.
In situations where a criminal case includes children as possible suspects of terrorism, procedures should reflect appropriate recognition of the age and other relevant individual characteristics of the suspect. Thus, surveillance, searches, media communications, and procedures for arrest, detention, and interview should take into account the suspect’s child status and the officials carrying out such activities need to be trained accordingly.
One such procedure includes the protection of the identity and privacy of a child to prevent stigmatization. The rehabilitation process may be permanently undermined if a child is identified by name in the media or on the internet. Children should also be afforded protection such as parental notification of an arrest, the right to counsel, the right to be informed about the charges, the right to confront and cross-examine witnesses, the privilege against self-incrimination, the right to an interpreter, the right to have charges proven beyond a reasonable doubt, and the right to judicial review.15
Legal representatives are entitled to be involved in the judicial proceeding. A child has a right to legal counsel. After his/her arrest, the child has the right to have his/her parents or legal guardians promptly notified and a legal representative present at any questioning. The child has the right to remain silent and not to self-incriminate. In addition, the child has the right to be informed of his/her procedural rights, including the right to legal assistance, in a way that is clearly understandable to him/her.
15. See Art. 40 (2), CRC, supra note 2.
Good Practice 6
Apply the appropriate international juvenile justice standards to terrorism cases involving children even in cases that are tried in adult courts.
In the exceptional cases where children are tried in adult courts, the juvenile justice standards necessary to protect children should be applied such as incarceration separate from adults and opportunities for rehabilitation during incarceration.16 When prosecutors and courts consider whether a child should be tried in an adult court, they should take into account the negative impact on the child.
Judges, prosecutors, and defense attorneys should be trained on the specificities of the juvenile justice system and its procedural guarantees that apply in the court room.
16. See also the GCTF’s The Hague Memorandum on Good Practices for the Judiciary in Adjudicating Terrorism Offenses.
Good Practice 7
Consider and design diversion mechanisms for children charged with terrorism-related offenses.
Bearing in mind the consequences of submitting children to criminal proceedings, which may raise the level of their vulnerabilities, States should look at other ways of addressing offending behavior by children. Diversion seeks conditional channelling of children in conflict with the law outside the judicial proceedings towards a different way of addressing the issue that enables many children’s cases to be resolved by non-judicial bodies, thereby avoiding the negative effects of formal judicial proceedings and a criminal record.17 Children who may be diverted into a program should be given the opportunity to be heard before a final decision is made.18
States are encouraged to implement and promote laws that contain specific provisions for the application of diversion mechanisms, whenever appropriate and desirable. Such diversion proceedings may be carried out at different stages of the process, including before the initiation of criminal proceeding, during criminal proceedings, and as an alternative to incarceration. Guidelines should be developed allowing law enforcement officials, prosecutors, and judges to exercise their discretion to divert children into diversion programs at different stages of the process.
The child will be assessed before entering a diversion program. Diversion programs for children involved in terrorism-related activities need to be carefully tailored to the characteristics of the child and the offense committed. Diversion programs that intend to target children radicalized to violence or recruited for terrorism-related offenses should include disengagement and de-radicalization components as well as educational elements, vocational training, and psychological support, all aimed at supporting reintegration.
The successful completion of the diversion program by the child should result in a definite and final closure of the case, and no criminal or other forms of public records should be kept.
17. Art. 40(3)(b), CRC, supra note 2. The Committee on the Rights of the Child has elaborated by stating that diversion “should be a well-established practice that can and should be used in most cases” (CRC, General Comment 10, § 24).
18. Art. 12(2), CRC, supra note 2.
Good Practice 8
Consider, and apply where appropriate, alternatives to arrest, detention, and imprisonment, including during the pre-trial stage and always give preference to the least restrictive means to achieve the aim of the judicial process.
A child subject to detention is likely to suffer immediate stigmatization, disruption of education and social development, and further severance from their community, thus jeopardizing the possibility of effective reintegration and rehabilitation.
In accordance with international legal instruments, and in line with international juvenile justice standards, measures that do not involve detention should be considered for children who are being processed through the criminal justice system.19 Prosecutors and judges play a key role in deciding about protective, supportive, educational and security measures for children facing terrorism-related charges. Consistent with the laws in their countries, judges should be given a variety of possible alternatives to institutional care and detention. Alternatives in the shape of community-based options for the supervision of children can be appropriate alternatives to detention. Such community-led intervention programs should include a de-radicalization component where appropriate.
19. Article 37 (b) of the CRC provides, "[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time", supra note 2.
Good Practice 9
Apply the principle of individualization and proportionality of justice interventions in sentencing.
When sentencing, the court should consider the situation and needs of the child as well as the severity of the offense to be sanctioned, respectively the crime to be punished, in accordance with the national criminal procedure. In order to help achieve this goal, it is recommended that psychologists and other experts examine the background and situation of the child and make individualized recommendations to the courts for sentencing options that would assist in that child’s rehabilitation and reintegration.
A juvenile justice system should have a rehabilitative goal while still respecting the proportionality between the individual circumstances of the child and the gravity of the offense. Recognizing that mitigating factors may render alternatives to incarceration appropriate, children should be considered for sentences not involving imprisonment measures even for terrorism-related offenses. States should also consider implementing sentences that include a variety of rehabilitation measures, including educational and vocational components, with the aim of assisting the child in his/her development, rehabilitation, and reintegration.
Good Practice 10
Hold children deprived of their liberty in appropriate facilities; support, protect, and prepare them for reintegration.
Every child in pre-trial detention or sentenced to prison for terrorism should be held separate from adults and, where possible, in specialized juvenile detention facilities. Children should not be held in solitary confinement. Detention conditions need to ensure that the child can physically and mentally develop in a healthy way taking into account the fact that children in detention may be particularly vulnerable to violence, persecution, and manipulation. Psychological support and frequent contact with families is important. The education process should continue to help children build essential educational and vocational skills, as well as to develop critical reasoning and social awareness.