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THE COUNTRY’S STANCE TOWARD THE UN COMMITTEE ON THE RIGHTS OF THE CHILD
The UN Convention on the Rights of the Child was ratified from Austria in 1992, 2 years after its enforcement. Most of the rights laid down in the UN Convention had already been part of the Austrian national law prior to the ratification. It was seen as a rather symbolic act to sign the Convention (Berka et al.
2014). Also the optional protocols are ratified by Austria.
However, three rights, not concerning criminal matters, have not been implemented even after the ratification. Austria made a reservation related to those Articles of the Convention concerning freedom of speech, freedom of association, and freedom to access information (Article 13, 15, 17). It was argued that the Convention Articles do not comply fully with the European Convention on Human Rights (ECHR), which is of constitutional rank in Austria.
In 2011 the core provisions of the UN Convention of the Rights of the Child were stated explicitly in a separate constitutional Act in Austria, in the so-called “Constitution on the Rights of the Child” (Bundesverfassungsgesetz uber die Rechte von Kindern). The above-mentioned articles with the said reservation had still not been included.
After growing criticism that Austria still abides to the above-mentioned reservations, the Federal Ministry for Family Affairs established an independent advisory board on the Rights of the Child (Kinderrechte-Monitoring-Board) in 2012 to examine the compatibility of the UN Convention Articles the EHCR and the Austrian Constitution. The members of the advisory board decided that both documents can be conciliated; thereupon, Austria departed from the reservations in 2015.
The core provision concerning delinquent juveniles is Art. 40 of the UN Convention of the Rights of the Child, dealing with the treatment of children in criminal law and criminal procedure. These basic matters are implemented in the constitutional law and more detailed in the federal law of Austria.
In Art. 40 Section 1 of the UN Convention of the Rights of the Child, the signatory states are obliged to conduct criminal proceedings with focus on the rehabilitation and resocialization of the juveniles. This aim is the underlying principle of the Austrian Juvenile Court Act, and it is especially reflected in its specific deterrence approach. Rehabilitation and resocialization is also the objective of the Penal Code (Strafvollzugsgesetz).
The principle of nullapoene sine lege, which is stipulated in Art. 2a of the UN Convention on the Rights of the Child, is guaranteed by Art. 7 ECHR as well as by Art. 1 of the Austrian Criminal Code. The procedural rights listed in Art. 2b of the UN Convention can be found as minimum standards for a fair trial in Art. 6 ECHR, and they are regulated in even more detail in the Austrian Code of Criminal Procedure (as the principle of presumption of innocence and the right to silent) as well as in the special provisions of the Juvenile Court Act (e.g. that the parents can accompany the young suspect to court).
Equally fundamental is Art. 37 of the UN Convention. The protection of children against torture and the guarantees concerning imprisonment are laid down in Art. 3 and Art. 5 of the ECHR. The Austrian law also complies with Section 2 of Art. 37 of the Convention. According to the Juvenile Court Act, pretrial detention and imprisonment have to be ordered only as ultima ratio sanction and as short as possible. Life imprisonment is precluded for both juveniles and young adults. Additionally, visitation by and correspondence with the parents are allowed also for young offenders during prison time.
Even those articles of the UN Convention safeguarding children against crimes, such as protection from the use of violence, abuse (Art. 19), sexual abuse, abduction, child trafficking or exploitation (Art. 34 et seq.) or abuse of narcotic drugs (Art. 33), can be found in detail in the national law. The corresponding offences are listed in the Criminal Code, most of them with higher threat of punishment if the victims are minors. The protection from use of violence in general is also guaranteed in the Federal Constitution (Bundes-Verfassungsgesetz—Art. 5). Moreover, it falls within the scope of Art. 3 ECHR (prohibition of torture and inhuman and humiliating treatment) (see to the implementation of the other Art. Berka et al. 2014).
The social rehabilitation of child-victims (Art. 39) is pursued in Austria, not only by comprehensive victim rights including psychosocial support, but also by highly committed social workers and child protection centres.
In total, it can be ascertained that Austrian law and in practice does comply with the requirements of the UN Convention of the Right of the Child.
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