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THE COUNTRY’S STANCE TOWARD THE UN COMMITTEE ON THE RIGHTS OF THE CHILD

Prior to the reform of the juvenile criminal law, the UN Committee on the Rights of the Child (CRC) regularly criticized the age of criminal accountability of 7 years of age as being too low. In its closing statement in the second, third, and fourth state party’s periodic report of Switzerland, the UN Committee on the Rights of the Child criticized the new age of criminal accountability of 10 years as being too low as well (United Nations 2015). Furthermore, the committee was concerned that not all underage defendants were granted free legal counsel, and too few attorneys specialize in juvenile criminal law and juvenile criminal law procedure. Above all, children in prison had yet to be separated from the adult inmates. Pursuant to the law, free legal counsel is granted as an “authorized defense” only in cases considered to be “required defense” as stated in Art. 24 JCPC. For this reason there is discrimination vis-a-vis adult defendants with limited financial resources who, according to Art. 132 paragraph 1 of the Criminal Procedure Code (CPC), can already receive a defense counsel at no cost when a defense is merely reasonable but deemed not necessary. Thus, Riedo (2013) suggests an equal treatment with adults in cases when a defense is required.

Regarding the question of shared accommodations, the periodic report of Switzerland asserts that the separation of minors and adult inmates has been introduced with the adoption of the JCPC and JCC (Art. 28 paragraph 1 JCPC and Art. 27 paragraph 2 JCC). The cantons (i.e., country/territorial subdivisions) were granted a 10-year transition period until the end of 2016 for the construction of appropriate juvenile incarceration facilities (Art. 48 JCC, cf. Baechtold/Weber/Hostettler 2016, 62.2). According to the last published progress report of the National Commission for the Prevention of Torture, at a minimum, the separation requirement cannot be consistently met (NKVF 2015). Because of the lack of a transition period, the separation of minors and adult inmates must be observed absolutely if it comes to pretrial detention for juveniles. In practice there are a number of diverse facilities available (KUnzli et al. 2015), though according to the report of the Swiss Center of Expertise in Human Rights (SCHR), in isolated cases juveniles are admitted to “normal” prisons. The SCHR also indicated that in exceptional individual cases joint accommodation of children and adults might be permissible from a human rights standpoint in order to prevent serious harm, such as in solitary confinement.

 
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