Lima Declaration on Restorative Juvenile Justice

Lima Declaration on Restorative Juvenile Justice

The First World Congress on Restorative Juvenile Justice was organised by the Foundation Terre des hommes (Lausanne), in cooperation with the Public Prosecutor of Peru, the Pontificia Universidad Católica of Perú and the Association Encuentros-Casa de la Juventud and was held in Lima from 04 to 07 of November 2009. About 1.000 participants from 63 countries on five different continents representing governments, the judiciary, civil society, in particular NGO’s, and organisations of professionals working with or for children, the media, the academic world and UN agencies attended the Congress to discuss different aspects of restorative juvenile justice guided by the objectives of the Congress:

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  to reflect upon the concept of Restorative Juvenile Justice and to undertake a critical viability analysis;
  
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  to examine the methodology and instruments of Restorative Juvenile Justice;
  
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  to evaluate the situation of the victim in Restorative Juvenile Justice and the need for her/his protection and reparation of damages;
  
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  to exchange experiences and lessons learned and good practices of Restorative Juvenile Justice worldwide;
  
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  to elaborate and present some recommendations for the development and implementation of Restorative Juvenile Justice.
  

In the discussions in panel sessions, specialised conferences and workshops the participants were guided and inspired by, amongst others, the UN Convention on the Rights of the Child (CRC) and General Comment N° 10 of the CRC Committee on “The rights of the child in juvenile justice”, the African Charter on the Rights and Welfare of the Child, the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Resolution 2002/12 of the UN Economic and Social Council (ECOSOC) on Basic Principles on the use of Restorative Justice Programmes in Criminal Matters, the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes (ECOSOC Resolution 2005/20), the Handbook on Restorative Justice Programmes of the UN Office against Drugs and Crimes (UNODC) and relevant regional human rights instruments.

The participants to the Congress want to underline that (the practice of) Restorative Juvenile Justice (RJJ) has to respect the fundamental rights of children as enshrined in the CRC, more specifically elaborated for Juvenile Justice in General Comment No 10 of the CRC Committee, and has to be in full compliance with the relevant international standards such as the UN Minimum Standards on the

Administration of Juvenile Justice (Beijing Rules) and the recommendations and guidelines mentioned above .
The participants in the Congress recall in particular the aims of Juvenile Justice as set out in Art. 40 (1) of the CRC:

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  to treat children in conflict with the law in a manner consistent with the promotion of the child’s sense of dignity and worth;
  
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  to reinforce the child’s respect for the human rights and fundamental freedoms of others;
  
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  to promote the child’s reintegration and the child’s assuming a constructive role in society.
  

In their efforts to achieve these goals States shall take into account the relevant provisions of international instruments, such as the rule that retro-active justice is prohibited, and shall in particular ensure the implementation of the following rights of the child:

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  the right to be presumed innocent until proven guilty according to the law;
  
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  the right to be promptly informed about the charges against her or him;
  
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  the right to legal or other appropriate assistance;
  
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  the right to have the matter determined without delay by a competent, independent and impartial authority or legal body;
  
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  the right not to be compelled to give testimony or to confess guilt;
  
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  the right to examine or have examined adverse witnesses;
  
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  the right to have the decision that the child has committed the alleged offence and the measures imposed reviewed by a higher authority or legal body;
  
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  the right to have free assistance of an interpreter;
  
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  the right to full respect of her or his privacy at all stages of the proceedings.
  

Furthermore the CRC requires States to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children in conflict with the law, the establishment of a minimum age of criminal responsibility and to take measures (when appropriate and desirable) for dealing with these children without resorting to judicial proceedings while ensuring that human rights and legal safeguards are fully respected. In order to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence the States shall make available a comprehensive set of measures such as supervision, counselling, probation, educational and vocational training programmes and other alternatives to institutional care. This is in line with the rule in Art.37 (b) of the CRC that deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate period of time. This article contains further specific rules for the use of this measure of last resort.

During the Congress, and with references to the rights and principles mentioned earlier, participants expressed their serious concerns at the status and the quality of the rules and practices in Juvenile Justice. Many children in conflict with the law do not receive justice in accordance with the provisions of the CRC and other relevant international standards. They are (too) often deprived of their liberty either in the context of pre-trial detention (often without any information about the charges against them) or in the context of the execution of a sentence. Furthermore concerns were expressed, based

particular of the deprivation of liberty, to achieving the aims of juvenile justice as set out in Art. 40 (1) of the CRC. Efforts to deal with children in conflict with the law without resorting to judicial proceedings, as clearly recommended in the CRC, are in many countries either very limited or even non-existent. However, available information shows that alternative measures, including restorative justice programmes, do contribute to the child’s reintegration and the child’s assuming a constructive role in society.

Restorative juvenile justice is a way of treating children in conflict with the law with the aim of repairing the individual, relational and social harm caused by the committed offence. This aim requires a process in which the child offender, the victim and, where appropriate other individuals and members of the community participate actively together in the resolution of matters arising from the offence. There is not one single model for practicing this restorative justice approach.

Restorative justice is a way of treating children in conflict with the law which contributes to the child’s reintegration into society and supports the child in assuming a constructive role in society. It takes the child’s responsibility seriously and by doing so it can strengthen the child’s respect for and

other affected members of the community. Restorative justice is an approach that promotes the child’s sense of dignity and worth.

The use of restorative justice should be governed by the basic principles on the use of restorative justice programmes in criminal matters as set out in ECOSOC Resolution 2002/12 such as:

Restorative juvenile justice should only be used when there is sufficient evidence to charge the child offender and with the free and voluntary consent of the victim and the offender. The offender and the victim should be allowed to withdraw such consent at any time during the process of restorative justice. Agreements should be arrived at voluntarily and should contain only reasonable and proportionate obligations. Neither the victim nor the child offender should be coerced or induced by unfair means to participate in the restorative process or to accept the restorative outcomes.

Disparities leading to power imbalances, as well as cultural differences among the parties should be taken into consideration.

1. 
   We call on the UN Committee on the Rights of the Child to systematically recommend the States Parties to the CRC to undertake the necessary measures for the integration of restorative processes as a possibility for dealing with children in conflict with the law at all stages of the administration of juvenile justice.
   

2. 
   We recommend the Interagency Panel on Juvenile Justice to further strengthen its technical assistance for the support of governments in their efforts to develop and implement the restorative juvenile justice approach, while referring to Resolution 2009/26 of the ECOSOC encouraging UN Member States to provide this Interagency Panel with the necessary resources and to fully cooperate with the Panel.
   

3. 
   We recommend the UN Office against Drugs and Crime to increase, as a follow-up to its Handbook on Restorative Justice Programmes, its efforts to promote the use of restorative justice approaches in dealing with offences committed by children and to assist Sates in their efforts in this regard where appropriate.
   

4. 
   We recommend UNICEF to continue and increase its efforts to support and provide technical assistance to States in the development and implementation of restorative juvenile justice programmes, in particular by providing training to all actors in the field of juvenile justice.
   

5. 
   We recommend States parties to the CRC and States that signed the CRC to undertake, as part of their comprehensive national policy on juvenile justice, the necessary measures to include restorative justice programmes as an integral part of the administration of juvenile justice while taking into account the observations, suggestions and rules above under a – c, and to call on the Interagency Panel on Juvenile Justice, UNICEF and UNODC for technical assistance in that regard. These measures should include awareness raising campaigns, with the involvement of national and local media, informing the public about the nature and the benefits for the victim, the offender and the society of a restorative juvenile justice policy and the promotion of the involvement of parents and the community.
   

6. 
   We recommend States engaging in a process of introducing restorative juvenile justice to undertake pilot projects together with a thorough evaluation and to decide on the basis of the outcome of these projects on the country wide introduction of restorative juvenile justice and on the legislative measures to provide a solid basis for a sustainable practice of restorative juvenile justice as the main characteristic of its juvenile justice system, while ensuring that human rights and legal safeguards are fully respected in line with the basic principles adopted by ECOSOC.
   

7. 
   We recommend States when developing and implementing restorative juvenile justice to pay special attention to vulnerable children such as children in street situation, taking into account their specific daily reality, their problems and needs and children and adolescents involved in gangs, armed groups and paramilitary groups.
   

8. 
   We recommend States to develop and implement adequate and ongoing training for all the key actors in the administration of juvenile justice, with special attention for changing the conventional legal approach and to establish and/or support the services necessary for implementing restorative juvenile justice programmes while using existing networks as much as possible. These services should practice an interdisciplinary approach, for instance by establishing multidisciplinary teams, in conducting restorative juvenile justice among others with the view to address also the emotional needs of both the victim and the juvenile offenders.
   

9. 
   We recommend States to establish or strengthen the systematic collection of data on the nature of and the responses to juvenile delinquency in order to inform its policies in that regard with a view to adjusting them as necessary and to conducting or supporting research on the nature and the impact of the various responses to juvenile delinquency.
   

10. 
    We recommend States and the relevant UN agencies to initiate and/or support the development and implementation of regional projects of restorative juvenile justice in different parts of the world.
    

Lima, November 7, 2009

Gladys M. Echaíz Ramos Jean Schmitz

General Attorney Delegate

Public Ministry Terre des hommes-Lausanne Foundation

Peru Peru
Walter Albán Peralta Oscar Vásquez Bermejo

Dean of the law Faculty Executive Director

P.U.C.P Encuentros Association

Peru Peru