At the inauguration of a children’s fund in Pretoria in 1995, Nelson Mandela stated as follows: “there can be no keener revelation of a society’s soul than the way in which it treats its children.”1 This is especially true for how a society treats children in vulnerable situations and particularly when they meet government agencies and courts as victims, offenders or otherwise in civil, criminal or administrative proceedings. Today, 33 years after the United Nation Convention on the Rights of the Child (“the UNCRC”) was adopted, the existence of children’s rights is taken for granted. Nevertheless, how to achieve these rights remains a challenge. The UNCRC did not have a game changing impact on the Netherlands as it did on certain other countries. However, there are still some issues arising in the light of children’s rights and the Convention is not fully implemented or widely known and understood.2 This article analyses the position of the Netherlands concerning the UNCRC and mainly focuses on child-friendly justice, inter alia, the implications of article 40 UNCRC.
Principles of the UNCRC
The development of juvenile law in the Netherlands cannot be seen separate from the development and recognition of children’s rights on an international level. The UN General Assembly adopted the UNCRC in 1989 and it came into force in the Netherlands on the 8th of March 1995. The Convention is the most widely ratified human rights treaty in history. Due to the adoption of the UNCRC, children are recognised as legal subjects with their own individual rights. By ratifying the UNCRC, the States commit to undertaking ‘all appropriate legislative, administrative and other measures’ for the full realisation of the rights it contains.3 A general principle as identified by the committee is that all children should enjoy their rights and should never be subjected to discrimination. The obligation to provide equality in opportunities among children is expressed in article 2 UNCRC. Furthermore, the best interest of the child shall be a primary consideration according to article 3.
Child-friendly justice system
Article 40 UNCRC is the main provision when it comes to the rights of children in the juvenile justice system.4 The first paragraph formulates the primary objective of a child rights-compliant justice system, which is the successful reintegration of the juvenile into society, while also preventing recidivism. The second paragraph further stipulates that a juvenile suspect is entitled to a fair trial. Article 40(3) UNCRC then requires treaty states to develop a separate juvenile justice system with a minimum age limit for juvenile criminal liability. The fourth paragraph of Article 40 UNCRC further provides that juvenile criminal interventions must be proportionate in relation to both the seriousness of the offence committed and the circumstances.5
General comment No. 24
In General Comment No. 24, the Children’s Rights Committee makes concrete recommendations for the development of a child rights-compliant juvenile justice system based on the core provisions, which should be read in conjunction with the general principles of the UNCRC.6 It provides an up-to-date interpretation of the UNCRC and contributes to an effective implementation to minimise the harmful effects of criminal law on minors. In recent years, there has been a shift of focus on protecting the position of a juvenile suspect. This seems to be partly influenced by the development of international human rights.7
The position of the Netherlands
The Dutch Constitution states that international treaties, such as the UNCRC, are part of the Dutch legal system after ratification. The Dutch courts may attribute direct effect to provisions if they are formulated in sufficiently concrete terms and can therefore bind everyone. In addition, Dutch laws and regulations must always be interpreted in conformity with treaty provisions and, in the event of conflict, are subordinate to international law.8
The Netherlands on the one hand has long had a separate juvenile criminal law and in recent years regularly served as an example for other countries, especially when it comes to the use of evidence-based interventions and the role and influence of multidisciplinary reporting. However, on the other hand it is questionable whether a juvenile suspect is always entitled to adequate (legal) protection.9 Dutch juvenile criminal law does not appear to comply with the recommendations of the Committee on the Rights of the Child in several aspects and is therefore not fully UNCRC-compliant.
For example, when it comes to the criminalisation of status offences (compulsory education cases), the policy and practice on judicial documentation and certificates of conduct (VOG). This is also known as the use of diversion or out-of-court settlement of juvenile criminal cases. Diversion can reduce the stress and avoid the harm of a lengthy criminal trial. However, application of diversion must be accompanied by respect for the rights of juvenile suspects under the UNCRC, including the right to a fair trial and access to justice. In the Netherlands, the Prosecution proceedings (OM-afdoening), in particular the transaction, is a widely used form of out-of-court settlement of juvenile criminal cases, but this form of settlement nevertheless cannot be qualified as a form of ‘diversion’. After all, Prosecution proceedings are a criminal settlement, which also results in a mention in the judicial documentation and may prevent obtaining a certificate of conduct.10
Furthermore, the application of adult criminal law towards minors in the Netherlands is not in accordance with General Comment No. 24. In the Netherlands, the minimum age for juvenile criminal liability is 12 years.11 The Children’s Rights Committee lists fundamental arguments as to why the minimum age of juvenile criminal responsibility should not be lower than 14, which should be taken seriously by the Netherlands.12
It can be concluded that monitoring the practical implementation of children’s rights is no superfluous luxury. There is a certain rigidity regarding the willingness (and especially lack thereof) to bring Dutch juvenile criminal law more in line with the UNCRC.
1 Mahmoudi et al. A child-friendly justice: a quarter of a century of the UN convention on the rights of the Child. Leiden: Brill, Nijhoff 2015.
2 Liefaard & Vonk 2016, ‘The Rights of the Child in the Netherlands: A Family Law Perspective’, in: Jančić (ed.) The Rights of the Child in a Changing World. Ius Comparatum: Global Studies in Comparative Law.
3 Article 4 UNCRC.
4 Liefaard, ‘Juvenile justice from an international children’s rights perspective’, in: Desmet (red.), Routledge International Handbook of Children’s Rights Studies, Londen: Routledge 2015, p. 234-256.
5 Van den Brink & Mijnarends, BSb 2020, ‘General Comment No. 24 – nieuw elan voor het jeugdstrafrecht? Over leeftijdsgrenzen, ‘diversion’ en de bredere implicaties voor het jeugdstrafrecht’.
6 VN-Kinderrechtencomité, General Comment No. 24 on children’s rights in the child justice system, CRC/C/GC/24, 18 september 2019.
7 Liefaard & Kilkelly, ‘Child-Friendly Justice: Past, Present and Future in Juvenile Justice’, in: Goldson (ed.) Europe: Past, Present and Future, Routledge 2019.
8 Liefaard & Doek, FJR 2015/20, ‘Kinderrechten in de rechtspraak: een internationaal perspectief’.
9 Bruning, Liefaard & Mijnarends, NTM-NJCMBull 2013/41, ‘De doorwerking van het IVRK in het Nederlandse jeugdstrafrecht’.
10 Van den Brink & Mijnarends, BSb 2020, ‘General Comment No. 24 – nieuw elan voor het jeugdstrafrecht? Over leeftijdsgrenzen, ‘diversion’ en de bredere implicaties voor het jeugdstrafrecht’.
11 Art. 486 Sv and art. 77a Sr.
12 Van den Brink & Mijnarends, BSb 2020, ‘General Comment No. 24 – nieuw elan voor het jeugdstrafrecht? Over leeftijdsgrenzen, ‘diversion’ en de bredere implicaties voor het jeugdstrafrecht.