Home Law International Handbook of Juvenile Justice
CUSTODIAL RULES FOR JUVENILES (DETENTION, PRISON, MIXING JUVENILES WITH ADULTS)
Juvenile offenders as a rule are not criminally responsible and are not subject to penalties provided for adults. As a result, they are not deprived of their liberty in prisons or remand prisons with the exception of a small number of offenders who committed one of the most serious crimes while being 15 or 16 years of age and were subject to criminal liability in accordance with provisions of the Criminal Code. Prison statistics confirm that both temporary detention in a remand prison and prison sentences apply to juveniles extremely rarely. In December 2014 there was only one juvenile who was aged between 15 and 16 years who was temporarily arrested. At the same time no person below 17 years of age was serving a prison sentence (Ministerstwo Sprawiedliwosci [Ministry of Justice] 2015d). Offenders who were 17 years of age at the time of the offense are treated as adults under the criminal law and may be punished with prison sentences. Pursuant to the 1997 Code of Execution of Sentences, all prisoners below 21 years of age serve their prison sentences in prisons for young adults. Such prisons may be organized as a separate penitentiary institution or a separate unit in an institution designed also for other groups of prisoners. Young adult prison- ers—with the exception of those punished with short substitute sentences—serve their terms under the therapeutic or programmed treatment system. In both cases an individual sentence plan is prepared for them.
Apart from youth exceptionally criminally responsible under provisions provided for adults, juvenile offenders are dealt with by family courts and receive educational, medical or correctional measures. A vast majority of educational measures applied to juveniles do not deprive them of their liberty, with the exception of placement in a youth educational center. Similarly, correctional measures (unsuspended placement in a correctional institution) as well as some medical measures (placement in a psychiatric hospital, other health care institution) are custodial measures. Institutions in which such measures are enforced are subordinated to different ministries and governed according to different rules (Helsinki Foundation for Human Rights 2014).
Correctional institutions are public institutions subordinated to the Ministry of Justice, but they do not form any part of the prison system. Some basic provisions which relate to granting inmates’ rewards, disciplinary penalties, or measures of restraint are included in the JA. Detailed regulations concerning the functioning of correctional institutions are issued by the Minister of Justice. Provisions included in the order issued by the Minister of Justice emphasize the need to prepare an individual treatment plan for each juvenile and provide him or her with a broad range of therapeutic, educational, and vocational activities in order to achieve the goal of resocialization. It should be added that in 2012 the Constitutional Court ruled that several provisions on correctional institutions issued by the Minister of Justice were unconstitutional, because they regulated matters related to the limitation of personal liberty which required the statutory basis. The Prosecutor General while outlining his position before the Constitutional Court stated that the legislator provided adult offenders serving prison sentences with significantly higher standards of protection of their rights and freedoms than juveniles placed in correctional institutions. The judgment of the Constitutional Court resulted in some amendments introduced to the JA in order to provide statutory basis for the imposition of disciplinary penalties and using measures of restraint. However, the enforcement of correctional measures is still underregulated in the sense that there is insufficient statutory basis for some forms of the interference with personal rights of juveniles, such as strip searches or surveillance cameras in rooms.
The lack of sufficient statutory regulations also relates the enforcement of educational measures consisting in the depriving juveniles of their liberty in youth educational centers which may be public or private and are subordinated to the Ministry of Education. Given the complexity of this issue, the detailed analyses of rules governing the enforcement of educational, medical, and correctional measures which deprive juveniles of their liberty would require a separate study.
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