Children in criminal proceedings: Commission proposal to increase protection takes decisive step forward

On 6 June, justice ministers from member states agreed on a general approach (an informal agreement) for measures that will guarantee special safeguards for children during criminal court proceedings. The European Commission put forward a directive in November 2013 (IP/13/1157, MEMO/13/1046), aiming to establish specific protection for children, as they are particularly vulnerable during court proceedings. The agreement coincides with the publication, by the Commission, of a study on children's involvement in criminal judicial proceedings in all EU member states.

"Making the justice system in Europe more child-friendly is a priority for the Commission. As the most vulnerable in society they deserve special protection. I would like to thank Ministers in the Council and especially my colleague Charalambos Athanasiou for their committed work on this file which made it possible to reach such a fast initial agreement," said Vice President Viviane Reding, the EU's justice commissioner. "This is also about putting the EU Charter of Fundamental Rights into law and action as its states that we must act in the child's best interests. That's exactly what this directive does: putting children first by guaranteeing better rights for those who are suspected or accused of a crime."

Judicial systems in Europe are still not adapted to the vulnerabilities and specific needs of children. Every year in the EU, roughly 1,086,000 children face criminal justice proceedings, representing 12% of the total European population facing criminal justice.

The Commission's proposal therefore aims to ensure that the highest possible standards are guaranteed for children:

• Children must be assisted by a lawyer. As children might not be in a position to fully understand the consequences of their actions, they should not be allowed to waive their right to a lawyer. The mandatory assistance by a lawyer is a core element of the Commission's proposal and must be strengthened.

• Children should be detained separately from adults. Specificprotection measures should exist for children who are deprived of their liberty. It is particularly important to keep detained adults and children apart, to prevent ill-treatment and abuse.

• Children should not have to bear the cost of certain safeguards, even if found guilty. A child should not have to reimburse the costs of certain procedures e.g. individual assessment, medical examination or audio-visual recording of interviews. A differentiated regime for reimbursement could seriously undermine a child's access to justice by preventing a child, parent or lawyer from exercising their rights.

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Other key safeguards that children should benefit from include being swiftly informed of their legal rights, being assisted by parents (or other appropriate persons), and not being questioned in public hearings. Since the questioning of a child is potentially risky due to their vulnerability, the Commission proposes that interviews should be filmed only if necessary, and especially if the child is deprived of liberty. The directive proposed by the Commission also sets minimum standards for detention including access to rehabilitation measures, with an obligation to take all measures possible to avoid the deprivation of liberty whenever this is in the best interests of the child.

The Directive will not apply to Denmark (which has an opt-out) while the UK and Ireland can decide to join (they have a right to opt-in).

Next steps: Today's initial agreement in the Justice Council will pave the way for trilogue discussions between the Council of Ministers, European Parliament and Commission under the Italian Presidency of the EU. Following the European elections the Civil Liberties, Justice and Home Affairs (LIBE) committee of the European Parliament is due to be reconvened in July. The first trilogue meeting on this file is expected at the end of November this year.

Study on children's involvement in criminal judicial proceedings

On 6 June, the Commission released a new study on children's involvement in criminal proceedings in the EU. The 2011 EU Agenda for the Rights of the Child (IP/11/156) identified a lack of reliable, comparable and official data in this area, while in April 2014 the Commission kicked off a public consultation asking how the EU can best support national child protection systems (IP/14/392).

The overview of member states' systems is composed of an EU summary report plus country-specific reports for each EU member state. The aim is to help share examples of best practice across member states and build a basis for evidence-based policy in the context of child-friendly justice.

Key findings from the study include:

Age of criminal responsibility

1. All member states have a minimum age of criminal responsibility – the age below which a child is not considered to be capable of committing a criminal offence. In the majority of member states, the minimum age is 14 or 15 years. Only five jurisdictions have a lower minimum age (IE – 12, NL – 12, and the UK-England & Wales and UK-Northern Ireland – 10 and UK-Scotland – 12).

2. The majority of member states has an upper age limit for juvenile justice. In most cases this is 17 years of age.

Specialist courts

2. Six member states have specialized units dealing with children within prosecution services¹Nine member states do not have specialist courts - all children (suspects/offenders, victims, witnesses) are tried in ordinary courts with the same judges who adjudicate in adult cases.

Training for professionals

3. 12 member states have mandatory training requirements on the rights and needs of children for judges². 11 member states have mandatory training for prosecutors³, and seven member states mandatory training for defence lawyers⁴.

Protection measures during interviews

1. In nearly all member states there are safeguards aimed at protecting children during interviews and when giving testimony (limitations to the number of interviews, use of video-recordings, etc.).

2. Adaptations to the physical environment in which the child is interviewed are more frequent for child victims and witnesses than for child suspects. Adaptations to the physical setting in which child suspects/offenders are interviewed are in place in seven jurisdictions⁵.

Conditions for children in pre-trial detention

5. There is a legal obligation to make pre-trial detention of child suspects a measure of last resort exists in 22 jurisdictions⁶. It is not a legal obligation in 8 jurisdictions⁷.

Both, the Directive and the study, are central elements of the EU Agenda for the Rights of the Child. The Commission is also gathering data on the involvement of children in civil and administrative justice, for which the results are expected end 2014.

More information

Data and statistics
EU summary report and national contextual overviews
European Commission Directive on special safeguards for children suspected or accused of a crime
Child friendly justice
Procedural rights
Homepage of Viviane Reding
Follow the Vice-President on Twitter: @VivianeRedingEU
Follow EU Justice on Twitter: @EU_JusticeAnnex

Table 6.3 Countries with comprehensive safeguards for child suspects/offenders in 18 areas of child-friendly justice

Table A4.16 Alternatives to judicial proceedings for children in conflict with the law

Table A4.7 Right to legal representation and legal aid for child suspects

Table A4.3 Provision of information and advice on rights and procedures to child witnesses

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