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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. The Law prohibited subjecting children who breach the law to “torture or other cruel, inhuman or degrading treatment or punishment.” 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.
The Law stipulated that detained children should be separated from adults and that the child “shall have the right to maintain contact with his family through correspondence and visits.” It also provided basis for deciding the child-related cases promptly, the child’s right to benefit from free legal assistance, and his “right to challenge the legality of the deprivation of liberty before a court.” 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. A special unit at the Ministry of Social Development relating to “juveniles or children at risk of delinquency” is set up. 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. 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in the Juvenile Law stems from its incorporation of a whole range of disposition alternatives to custody which is no longer applicable. 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; signing the child, one of his parents or guardian a financial commitment that guarantees to bring the child to investigations or court hearings; 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; referral to a vocational training institution; obliging the child to do certain things, such as attending counseling sessions, banning him from accessing specific locations that endanger the youth, placing the child under judicial examination, subjecting him to social probation by child protection officers, diverting him to any social care institution, or to a hospital. Other dispositions include release on bail in the pretrial phase, posttrial conditional release after spending one-third of the term in a child care institution, and “public community service.” These alternatives aim to divert
minors from the state system, particularly the deprivation of liberty. They, in turn, conform to the advanced modern referral mechanisms embraced by the most developed legal and social systems of the world.
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.
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. The key point of restoration is that the crime is personal matter between the offender, the victim, not against the state. Offences can then be resolved by bringing together the victim, the offender, their social networks, and judicial bodies. It could apply for certain offences, not all. Restorative agreements contain reasonable obligations with a view to reintegrate offenders in the society. Restorative justice is a relatively recent alternative in the world; it systematically worked in countries such as Australia, Britain, Canada, New Zealand, and the United States. It exists in certain African countries as well. Yet the seeds of this form of justice principles find roots in the Middle East and Islamic traditions, where informal justice is widely practiced to resolve criminal conducts. This justice is even more utilized in Palestine due to the absence of state system under the occupation for half a century. For example, in 2014, out of the 2,457 of juvenile cases received by police in the West Bank, 491 were resolved by conciliation. Much more conflicts were resolved before reaching the police.
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 (it was 9 in previously). It preserves the child’s privacy by making all juvenile trials confidential, and it criminalizes any person who reveals information that affects the child’s honor. Financial penalties against minors are nonapplicable, nor the possibility of filing civil claims before juvenile courts. All juvenile cases are exempted from court fees. The conviction of a child would not be recorded. The Law reduced the applicability of the statute of limitation to the half regarding any case involving children. The child, while deprived of liberty, has the right to complete his primary and secondary education. 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.
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