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Positive Aspects of the 2016 Juvenile Law

The Juvenile Protection Law incorporated the entire provisions of CRC relating to children in conflict with the law. It placed “the best interest of the child” as a primary consideration for dealing with juveniles.[1] The Law prohibited subjecting children who breach the law to “torture or other cruel, inhuman or degrading treatment or punishment.”[2] It confirmed the nonapplicability of death penalty against children and removed the possibility of life imprisonment against them regardless of the gravity of the offence that the child might have committed.[3]

The Law stipulated that detained children should be separated from adults[4] and that the child “shall have the right to maintain contact with his family through correspondence and visits.”[5] It also provided basis for deciding the child-related cases promptly,[6] the child’s right to benefit from free legal assistance,[7] and his “right to challenge the legality of the deprivation of liberty before a court.”[8] Through such provisions, Palestine has not only adhered to Article 37 of the CRC in its legislation, but it also embraced more favored rights than those elaborated by the Convention.

The Law laid down the foundation for a comprehensive specialized juvenile system for children who come in contact with official institutions, separate from that of adults. It established specialized police, prosecution, courts, procedures, and disciplinary measures.[9] A special unit at the Ministry of Social Development relating to “juveniles or children at risk of delinquency” is set up.[10] The Ministry is assigned with the power to establish a “Social Defense Office” to be embedded within the juvenile court to assist judges with sociopsychological information about children.[11] Clearly, the Law regards child’s offences as social, rather than criminal, problem.

A notable development in the Juvenile Law stems from its incorporation of a whole range of disposition alternatives to custody[12] which is no longer applicable.[13] Alternatives might be decided based on the circumstances of the child on a case-by-case basis. These dispositions include warning the child not to reoffend[14]; signing the child, one of his parents or guardian a financial commitment that guarantees to bring the child to investigations or court hearings[15]; transferring the child to an alternative family if the parents are unable to take care of the child or if they are the reason of his delinquency[16]; referral to a vocational training institution[17]; obliging the child to do certain things, such as attending counseling sessions, banning him from accessing specific locations that endanger the youth,[18] placing the child under judicial examination,[19] subjecting him to social probation by child protection officers,[20] diverting him to any social care institution,[21] or to a hospital.[22] Other dispositions include release on bail in the pretrial phase,[23] posttrial conditional release after spending one-third of the term in a child care institution,[24] and “public community service.” These alternatives aim to divert

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minors from the state system, particularly the deprivation of liberty.[25] They, in turn, conform to the advanced modern referral mechanisms embraced by the most developed legal and social systems of the world.[26]

Mediation has been elaborated in the Law as a means to resolve cases of juveniles. Article 23 opens the possibility for mediation over misdemeanor and contraventions before initiating a criminal file. Once mediation succeeds, the criminal proceedings would be closed. Successful mediation leads to the case’s end. This option can be offered by the prosecutor or be requested by the child, his lawyer, or guardian. Based on mediation, an agreement can be reached. In it, the child should commit to any obligation under the guarantee of his guardian; including reparation of damages, refraining from accessing certain locations, or to undergo a medical treatment. The agreement is monitored by a probation officer and the police, under the supervision of prosecution. If the agreement’s fails, the criminal proceedings may reopen.[27]

The foregoing formulation of “mediation” in such a flexible language may pave the way for Palestine to design a system of restorative justice by a regulation or instructions that complement the Juvenile Law.[28] The key point of restoration is that the crime is personal matter between the offender, the victim, not against the state.[29] Offences can then be resolved by bringing together the victim, the offender, their social networks, and judicial bodies.[30] It could apply for certain offences, not all.[31] Restorative agreements contain reasonable obligations with a view to reintegrate offenders in the society.[32] Restorative justice is a relatively recent alternative in the world; it systematically worked in countries such as Australia,[33] Britain,[34] Canada,[35] New Zealand,[36] and the United States.[37] It exists in certain African countries as well.[38] Yet the seeds of this form of justice principles find roots in the Middle East and Islamic traditions,[39] where informal justice is widely practiced to resolve criminal conducts.[40] This justice is even more utilized in Palestine due to the absence of state system under the occupation for half a century.[41] For example, in 2014, out of the 2,457 of juvenile cases received by police in the West Bank, 491 were resolved by conciliation.[42] Much more conflicts were resolved before reaching the police.[43]

Other child-friendly provisions can be found in the new Juvenile Law. The Law rose the age of criminal responsibility to 12 years of age[44] (it was 9 in previously).[45] It preserves the child’s privacy by making all juvenile trials confidential,[46] and it criminalizes any person who reveals information that affects the child’s honor.[47] Financial penalties against minors are nonapplicable, nor the possibility of filing civil claims before juvenile courts.[48] All juvenile cases are exempted from court fees.[49] The conviction of a child would not be recorded.[50] The Law reduced the applicability of the statute of limitation to the half regarding any case involving children.[51] The child, while deprived of liberty, has the right to complete his primary and secondary education.[52] A separate system is established to enforce juvenile cases with the supervision of the court, prosecution, and child protection officers over the disciplinary measures that affect convicted children.[53]

  • [1] Article 3 of CRC; Article 2 of the Law.
  • [2] Article 37(a) of CRC; Article 7(1) of the Law.
  • [3] Article 37(a) of CRC; Article 7(2) of the Law (ban of capital punishment), and Article 46(1)(removing the possibility of imprisonment of the child and rather referring him to a care institution for 9 years if he commits an offence punishable by death, or for 7 years if he commits a crimewhose punishment is life imprisonment).
  • [4] Article 37(c) of CRC; Article 21(1) of the Law.
  • [5] Article 37(c) of CRC; Article 4 of the Law. The latter article added that the child has the right,while under disciplinary measure that deprives him of liberty, to have periodical vacations to visithis family “unless the court decides otherwise based on the child’s best interest.”
  • [6] Article 37(d) of CRC; Article 8 of the Law.
  • [7] Article 37(d) of CRC; Article 10 of the Law. The latter article made it mandatory to have a lawyerfor the child accused of committing felony or misdemeanor. In cases where the child has no lawyer,“the prosecution or the court, as the case might be, shall appoint a lawyer on its own expense.”
  • [8] Article 37(d) of CRC; Articles 33 and 34 of the Law.
  • [9] See section III later.
  • [10] Article 64.
  • [11] Article 28.
  • [12] Article 36.
  • [13] Article 20(1).
  • [14] Article 37.
  • [15] Article 20(2-3). See P. Voelcker, “Juvenile Courts: The Parents’ Point of View,” 1 British Journalof Criminology 154 (1961); Jeremy Prichard, “Parents of Young Offenders: Remodelling RestorativeJustice,” 26 University of Tasmania Law Review 101 (2007).
  • [16] Article 38. The referral in this case is carried out in accordance with the 2004 Child Law. Article32 of this law reads as: “A child deprived of his natural family temporarily or permanently has theright to ... a foster (alternative) family to look after him.” In 1963, regulations were enacted toorganize the alternative family system. The system includes the Ministry of Social Development’ssupervision over the alternative families, family’s characteristics, and allocation of financial compensation for this family payable by the juvenile’s family or by the Ministry (Substitute FamiliesRegulations No. 70, 1963; Jordanian Official Gazette, No. 1704, 15 August 1963, p. 1053). In 2012,the alternative family system was included in Article 19(2/a(1)), of the Amended Child Law; itstated that the decision to allocate an alternative family should be held by a judge upon the requestof a social protection officer.
  • [17] Article 39. The Ministry of Labor established certain institutions to provide vocational trainingfor adolescents. The Ministry of Social Development may refer children in conflict with the law tosuch training facilities. This is consistent with a number of provisions of the Law that provides thepossibility of referring children to an institution that can rehabilitate children. Cf. H. Parker, “TheJuvenile Employment Service,” 57 International Labour Review 15 (1948).
  • [18] Article 40.
  • [19] Article 41.
  • [20] Article 42. See details on the child protection officers in section II.2 below.
  • [21] Article 43. See details on the care institutions in section II.3 below.
  • [22] Article 44.
  • [23] Article 20(3).
  • [24] Article 51. Children may benefit from conditional release regardless of the crime’s gravity. Thisoption is not conditional to the good conduct of the child deprived of liberty, but it is understoodby implication. Once the child is conditionally released, he would be referred to judicial controlwith the supervision of the child protection officer. It is not possible to bring the child back tocomplete his term in the care institution if the release has not achieved its objective, but he mightbe subjected to other disciplinary measures. However, the possibility of exercising the conditionalrelease after passing one-third of the deprivation of liberty’s term means that the child might notbe released before passing less than three years if he gets a 9-year term under Article 46(1.A). Thisis a step backward; Article 14(2) of the 1954 Law allows releasing the child after one year of“imprisonment.”
  • [25] Article 40(4) of the CRC stated: “A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes andother alternatives to institutional care shall be available to ensure that children are dealt with in amanner appropriate to their well-being and proportionate both to their circumstances and theoffence.”
  • [26] V. Kumar, “The Treatment of Juvenile Offenders in England,” 6 Criminal Law Quarterly 488(1964), pp. 491-507; Larry Wilson, “Diversion: The Impact of Juvenile Justice,” 18 CanadianJournal of Criminology and Corrections 161 (1976); Mark Berlin & Herbert Allard, “Diversion ofChildren from the Juvenile Courts,” 3 Canadian Journal of Family Law 439 (1980); Gary Reker,James Cote, & Edward Peacock, “Juvenile Diversion: Conceptual Issues and Program Effectiveness,”22 Canadian Journal of Criminology 36 (1980).
  • [27] Article 16 of the 2001 Criminal Procedures Law states: “Settlements may be reached on contraventions and which are punishable only by a fine. The competent police officer is held ... to proposea settlement to the accused in the contravention or to his attorney and to establish same in theminutes. The proposal for a settlement in a misdemeanor shall be made by the Public Prosecution.”
  • [28] Bernd-Dieter Meier, “Restorative Justice: A New Paradigm in Criminal Law,” 6 European Journalof Crime, Criminal Law and Criminal Justice 125 (1998); Rick Sarre, “Restorative Justice:Translating the Theory into Practice,” 1 University of Notre Dame Australia Law Review 11 (1999);Jim Consedine, “The Third Millenium: Restorative Justice or More Crime and Prisons,” 11 SriLanka Journal of International Law 1 (1999); John Braithwaite, “Restorative Justice and SocialJustice,” 63 Saskatchewan Law Review 185 (2000); Kent Roach, “Changing Punishment at the Turnof the Century: Restorative Justice on the Rise,” 42 Canadian Journal of Criminology 249 (2000);Samuel Damren, “Restorative Justice: Prison and the Native Sense of Justice,” 47 Journal of LegalPluralism and Unofficial Law 83 (2002); Donald Schmid, “Restorative Justice: A New Paradigm forCriminal Justice Policy,” 34 Victoria University of Wellington Law Review 91 (2003); GeorgeMousourakis, “Understanding and Implementing Restorative Justice,” 11 Tilburg Foreign LawReview 626 (2004); Katherine Doolin, “But What Does It Mean? Seeking Definitional Clarity inRestorative Justice,” 71 Journal of Criminal Law 427 (2007); Barbara Hudson, “Institutionalisationof Restorative Justice: Justice and the Ethics of Discourse,” 2007 Acta Juridica 56 (2007); ShawnFields, “Private Crimes and Public Forgiveness: Towards a Refined Restorative Justice AmnestyRegime,” 5 International Journal of Civil Society Law 7 (2007); Frank Hill, “Restorative Justice:Sketching a New Legal Discourse,” 4 International Journal of Punishment and Sentencing 51 (2008).
  • [29] Terre des homes-Lausanne, Thematic Policy on Juvenile Justice (Lausanne 2010); Terre deshomes-Lausanne, Lima Declaration of Restorative Juvenile Justice, 7 November 2009.
  • [30] Adam Crawford, “Situating Restorative Youth Justice in Crime Control and Prevention,” 2007Acta Juridica 1 (2007); Robert Mackay, “Restorative Justice and Children’s Hearings: A Proposal,”11 European Journal of Crime, Criminal Law and Criminal Justice 1 (2003).
  • [31] UN Office for Drugs and Crime, Handbook on Restorative Justice Programmes (New York 2006).
  • [32] Basic principles on the use of restorative justice programmes in criminal matters; UN Doc. E/2000/INF/2/Add.2 at 35 (2000).
  • [33] Sharon Hayes & Hennessey Hayes, “Developing Ethical Identities in Young Offenders throughRestorative Justice Practice in Australia,” 8 Queensland University of Teaching Law and JusticeJournal 380 (2008).
  • [34] Georgios Antonopoulos & John Winterdyk, “The British 1998 Crime and Disorder Act: ARestorative Response to Youth Offending,” 11 European Journal of Crime, Criminal Law andCriminal Justice 386 (2003).
  • [35] Bruce Archibald & Jennifer Llewellyn, “The Challenges of Institutionalizing ComprehensiveRestorative Justice: Theory and Practice in Nova Scotia,” 29 Dalhousie Law Journal 297 (2006).
  • [36] Hannah Goodyer, “Rethinking Justice in New Zealand: A Critical Assessment of RestorativeJustice,” 9 Canterbury Law Review 179 (2003).
  • [37] Joanne Katz & Gene Bonham, Jr., “Restorative Justice in Canada and the United States: AComparative Analysis,” 6 Journal of the Institute of Justice and International Studies 187 (2006).
  • [38] Boyane Tshehla, “Restorative Justice Bug Bites the South African Criminal Justice System,” 17South African Journal of Criminal Justice 1 (2004); Bruce Baker, “He Must Buy What He Stole andThen We Forgive: Restorative Justice in Rwanda and Sierra Leone,” 2007 Acta Juridica 171 (2007).
  • [39] Mutaz Qafisheh, “Restorative Justice in Islamic Penal Law: A Contribution to the GlobalSystem,” 7 International Journal of Criminal Justice Sciences 487 (2012).
  • [40] Mutaz Qafisheh, Restorative Justice in Palestine and in the Middle East (presentation delivered ata workshop organized by Terre des hommes-Lausanne in Bethlehem, Palestine, 5 April 2016).
  • [41] Nadera Shalhoub & Mustafa Abdelbaqi, Tribal Justice and Its Effect on Formal Justice inPalestine (Birzeit 2003).
  • [42] Defense for Children International, Juvenile Police in Palestine ... , supra note 7, p. 61.
  • [43] Lisa Traki et al., Informal Justice System and the Rule of Law and Dispute Settlement in Palestine:The National Report on the Results of the Field Research (Birzeit 2006).
  • [44] Article 5.
  • [45] Article 2 of the 1954 Juvenile Law; and Article 94 of the 1960 Penal Code as amended by Article2 of Law No. 39 of 25 November 1963 (Jordanian Official Gazette, No. 1727, 16 December 1963,p. 1683). The Jordanian Penal Code No. 16 of 10 April 1960 is still applicable in the West Bank(Jordanian Official Gazette, No. 1487, 1 May 1960, p. 374). See Kamel Said, Interpretation of thePenal Coode (Amman 2009); Netham Majali, Interpretation of the Penal Coode: General Section(Amman 2010). Criminal responsibility in Gaza was determined by Article 9 of the 1936 CriminalOrdinance: “A person under the age of nine years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act or omission,unless it is proved that at the time of doing the act or making the omission he had capacity to knowthat he ought not to do the act or make the omission.” On the origin of the 1936 Ordinance, seeNorman Bentwich, “The New Criminal Code for Palestine,” 20 Journal of Comparative Legislationand International Law 71 (1938). Fixing the age of criminal responsibility at 9 years has been unified between the West Bank and Gaza after the adoption of Child Law of 2004 (Article 67). Theage was at last fixed at 12 by Article 24 of the Decree-Law No. 19 of 7 December 2012 Concerningthe Amendment of the Palestinian Child Law No. 7 of 2004 (Palestine Gazette, No. 101, 20 August2013, p. 6).
  • [46] Article 9.
  • [47] Article 59. Article 11(1) prohibits the reference in any scientific or professional diplomas thatsuch documents were obtained from juvenile care institution.
  • [48] Article 63. This is of course without prejudice to the possibility of filing civil claims before othercourts according to the general civil obligations, including contacts and torts.
  • [49] Article 14.
  • [50] Article 11(2).
  • [51] Article 12.
  • [52] Article 13.
  • [53] Articles 47-55.
 
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