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04
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Publisher:
The USA Journals
ABSTRACT
The article analyzes the emergence and formation in the normative form of international legal standards of justice for
children in international law. The periodization of the normative development of international legal standards of
juvenile justice (justice for children) was carried out and a detailed analysis of special international UN documents in
the field of justice for children was made. The international legal concepts and the content of the concepts "justice
for children", "child-friendly justice", "child-sensitive justice", "access to justice for children" from the point of view of
the modern theory of international law are investigated.
The paper analyzes the effectiveness of the use of artificial intelligence in the justice system for children and notes the
need for an individual approach to each child and when making a decision to proceed only from human awareness,
and not only artificial intelligence.
The author also notes that the current global growing trends of digitalization of all spheres of society contribute to
the further development of the electronic justice system, based on which the emergence of a new concept of
"electronic justice for children" in international law is predicted.
KEYWORDS
Child, juvenile justice, international standards of juvenile justice, justice for children, child-friendly justice, child-
sensitive justice.
Research Article
INTERNATIONAL LEGAL STANDARDS OF JUSTICE FOR CHILDREN:
THEIR FORMATION AND CONTENT
Submission Date:
February 08, 2022,
Accepted Date:
February 17, 2022,
Published Date:
February 28, 2022
|
Crossref doi:
https://doi.org/10.37547/tajpslc/Volume04Issue02-04
Miruktamova Feruza Lutfullayevna
PhD in Law, Tashkent State University of Law, Uzbekistan
Tarasova Anna Evgenievna
PhD in law, Head of International Law Department, Law faculty Southern Federal University, Russia
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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SJIF
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The USA Journals
INTRODUCTION
The rights of the child are an integral part of human
rights, and today a number of international legal
instruments on the rights of the child have been
developed and adopted in international law. Although
the first international documents on the rights of the
child were adopted at the beginning of the twentieth
century, the trends in the development of children's
rights were especially strong in the late twentieth and
early twenty-first centuries. In the international arena,
the legal protection of children's rights is achieved by
reflecting their rights in declarations and conventions
in the field of human rights, and then in special
international documents aimed at protecting the rights
of the child.
One of the main issues in the protection of children's
rights is ensuring their rights and freedoms in the
justice system. Today, international law has a system of
international standards of justice for children (rules,
principles, recommendations), which are universally
accepted by the UN and its agencies, as well as regional
organizations.
Analyzing the normative development of children's
rights to justice, this process can be considered in the
form of 5 conditional stages.
Stage 1 is associated with the emergence of the League
of Nations and covers the period before the formation
of the United Nations (1919-1945). At this stage, the
first document of an international legal nature in the
field of the protection of the rights and interests of the
child was the Declaration of the Rights of the Child of
1924. Although the declaration did not contain clear
instructions regarding justice for children, it set a
strategic direction according to which "humanity
should provide children with the best", and had a
significant impact on the emergence of children's
rights. In the declaration, the child is considered as a
passive object of protection, and not as an active
subject capable of protecting his rights. This document
reflects a paternalistic approach to the well-being of
children, i.e. adults fully control the fate of children [1].
The Declaration consists of 5 basic principles of
ensuring the rights of the child [2]. The Declaration says
for the first time that taking care of children and
protecting them is the responsibility not only of the
State, but also of the whole world.
Stage 2 began with the founding of the United Nations
(1945) and lasted until the 1980s. By this time, the basic
principles of justice had received international legal
recognition. The Universal Declaration of Human
Rights of 1948 established international standards in
the field of justice. This declaration created an
imperative requirement that judicial protection be the
universal and most effective way to ensure human
rights. It was the Universal Declaration of Human
Rights that laid the foundation for the international
legal system for the protection of human rights and the
system of international documents designed to ensure
the right to justice for all segments of the population.
The role of the UN Charter of 1945 in the creation of
mechanisms for the protection of human rights in
international law is invaluable. The Charter laid the
legal basis for these mechanisms. Within the
framework of the United Nations, international
monitoring bodies have been established to protect
human rights. During this period, special international
legal acts on the rights of the child were adopted.
In 1959, the Declaration of the Rights of the Child [3]
was created, based on the goals and principles
enshrined in the UN Charter. This declaration expands
the list of principles published in the Geneva
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Declaration of 1924 to 10 principles. The preamble of
the document states that "given that children are
immature physically and mentally, children need
special protection and work both before and after
birth." For the first time in an international document,
the term "interests of the child" is used, and as a
principle, the need to ensure the best interests of
those responsible for his upbringing, first of all parents,
is established. However, at the same time, the
Declaration did not contain clear instructions on the
rights of children to justice.
The Standard Minimum Rules for the Treatment of
Prisoners, adopted in 1955, established non-binding
legal norms for the treatment of prisoners, which
should be based primarily on the rules of humanism
and respect for human dignity. The International
Covenant on Civil and Political Rights of 1966 provides
that “all persons shall be equal before the courts and
tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial
tribunal established by law”. These international
documents establish general rules for ensuring human
rights in the justice system.
In international law, in the period from 1980 to 2000,
special
international
legal
norms
(principles,
recommendations, rules) were adopted in the field of
justice for children, and at this 3rd stage, the term
"juvenile justice" was used for the first time in
international law. International legal norms provide for
the creation of a special system (at the legislative and
institutional level) in order to ensure the rights and
freedoms of minors in conflict with the law under the
international term "juvenile justice"[4]. In particular,
the "UN Standard Minimum Rules for the
Administration of Juvenile Justice" (Beijing Rules,
1985) [5]; "Guidelines for the Prevention of Juvenile
Delinquency" (The Riyadh Guidelines, 1990) [6], "Rules
for the Protection of Juveniles Deprived of their Liberty
" (Havana Rules, 1990) [7], Standard Minimum Rules
for Non-Custodial Measures" (Tokyo Rules, 1990) [8]
and other international standards were adopted by the
UN General Assembly.
The 1989 UN Convention on the Rights of the Child is
the only legally binding international document that
enshrines norms regarding justice for children. The
Convention was developed on the basis of the liberal
theory of paternalism, according to which children are
recognized as full members of society. With the help of
this concept, the rule that has existed for hundreds of
years about the child's belonging to parents or other
persons who replace them is terminated. The
Convention on the Rights of the Child expanded the
range of subjects of international law, in which children
began to be considered as subjects with their rights,
and not as objects of protection and care. In addition,
the adoption of the Convention for the first time in
history marked the beginning of the creation of an
international
mechanism
for
monitoring
the
implementation of the provisions of the Convention -
the Committee on the Rights of the Child.
Stage 4 of the process of adopting international legal
standards on justice for children covers the period
from the 2000s to the present. By this period, in
international law, in addition to the concept of
"juvenile justice", the concepts of
"justice for
children",
"child-friendly justice"
[9],
"child-sensitive
justice"
[10],
"access to justice for children"
[11] were
formed in international legal documents.
The concept of the term "Juvenile justice" was used in
the UN Standard Minimum Rules on Juvenile Justice of
1985 (Beijing Rules). However, the concept of "Juvenile
Justice" is reflected in the title of the document, but its
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content is not disclosed in the document. The term
"Juvenile Justice" means not only juvenile justice as a
judicial process, but also as a set of stages from the
beginning of the preliminary investigation, up to the
execution of the sentence and the prevention of the re-
commission of a crime among minors.
The concept of "justice for children" (justice for
children) appeared after the development of the
concept of "juvenile justice". "Justice for children",
unlike juvenile justice, also applies to children who
have become victims or witnesses of a crime, as well as
to children who, for one reason or another, have
become participants in the legal process (including in
matters of inheritance, custody). This definition applies
to all types of jurisdiction of the justice system (not
only criminal, but also administrative and civil) [12].
The concept of "Access to justice for children" (Access
to justice for children) appeared in the last decade. It
covers all judicial and non-judicial mechanisms
(national and international) that relate to the rights of
children, suspects, accused or convicted of crimes,
victims and witnesses of crimes, or children associated
with the justice system for other reasons (for example,
in matters of custody, inheritance, etc.).
These concepts are reflected in the UN Guidelines on
Justice in Matters involving Child Victims and
Witnesses of Crime (2005) [13], the UN Secretary-
General's Guidelines on the Common Approach to
Justice for Children (2008) [14] and the UN Model Law
on Justice in Matters involving Child Victims and
Witnesses of Crime (2009) [15], Guidelines of the
Committee of Ministers of the Council of Europe on
child-friendly justice (2010) [16] and other documents.
In 2019, the 30th anniversary of the UN Convention on
the Rights of the Child marked the beginning of a
Global Pledge: "for every child, every right.
Many States of the World have proclaimed their
pledges: to create a national coordination of the
criminal responsibility system for adolescents; to
establish juvenile criminal courts (Venezuela); to
continue their efforts towards incorporating children's
rights in the Fundamental Law - the Constitution
(Germany); to undertake a complex reform of national
juvenile law to strengthen / support children's rights,
including the strict separation of protective and
criminal measures; to introduce specific procedural
guarantees for juveniles; to set a minimum age for
imprisonment (Luxembourg); to prevent violence
against children; to ensure the inclusion of children in
procedures that concern them; to guarantee security
in the digital space; to implement child-friendly justice
and to provide equal opportunities for all children
(Slovenia), etc. [17]
The promises of many countries relate to the
establishment of special courts for juveniles or special
judicial procedures for children.
UNICEF experts noted: «We recognize that the 21st
century has brought forth new challenges in the form
of, inter alia, climate change, rapid urbanization,
unsustainable exploitation of natural resources,
protracted conflict and humanitarian crises, forced
displacement, digitalization and mass connectivity and
multi-dimensional and inter-generational poverty with
a profound impact on children’s rights and well-being.
It also brings new opportunities, including through the
advancement of science, technology and innovation,
for our renewed collective and concerted action with,
and for, the 21st century child» [18].
In the current so-called information age, the
digitalization of all spheres of society, especially in the
era of pandemics, the acceleration of this process has
not spared the justice system. Electronic justice as an
important area of legal and political practice around
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the world is assessed as the main direction of
electronic democracy. The COVID-19 pandemic has
created health threats with serious human and social
consequences. In a short period of time, States have
made significant efforts to adapt to new conditions
and use available resources to ensure the functioning
of justice bodies. The crisis caused by the COVID-19
pandemic creates the need for more active
development of areas based on digital technologies
and innovative solutions, in particular, the adoption of
national and international regulations on the
introduction and further use of digital justice.
The fact that information technologies have become
the "driver" of economic growth has laid the
foundation for the use in international documents of
such terms as "information age", "digital age",
"electronic justice", "cyber justice", "remote justice",
"digital justice", "artificial intelligence". In addition, the
process of developing and adopting international
documents on the protection of human rights in the
digital space by universal and regional organizations
continues.
It should be noted that today a number of international
documents on digital justice have been adopted in the
international arena, and as an example, an
international document entitled “European Ethical
Charter on the use of artificial intelligence in judicial
systems” [19] can be cited adopted by the The
European Commission for the Efficiency of Justice
(CEPEJ) in 2018. The document for the first time at the
European level adopted the basic principles of the use
of artificial intelligence in the judicial system.
The emergence of a crisis period around the world in
2019-2020 dictated the adoption by the European
Commission for the Efficiency of Justice (CEPEJ) in june
of 2020 of the Declaration “On lessons learnt and
challenges faced by the judiciary during and after the
covid-19 pandemic” [20]. The Declaration sets out
guidelines for ensuring quality justice and respect for
human rights. In the document, the Commission called
on governments to invest in cyber justice, provide
Internet access and conduct court hearings remotely.
The Declaration states that the main task of the
judiciary in times of crisis should be to ensure justice in
cases affecting vulnerable groups, especially women
and children. The European Parliament and the Council
adopted “The Regulation (EU) 2020/1783 of of 25
November 2020 on cooperation between the courts of
the Member States in the taking of evidence in civil or
commercial matters (taking of evidence)”[21].
In 2021, the UN Committee on the Rights of the Child
published its General Comment No. 25 “On children's
rights in relation to the digital environment”. It sets out
guidelines for ensuring children's rights in the digital
space [22].
The Kyoto Declaration, adopted by the UN Congress on
Crime Prevention, also provides recommendations for
establishing cooperation between States in the field of
protecting children's rights and preventing their
violations on the Internet [23].
In general, the development of electronic justice is now
entering a new period of protection of children's rights
in the digital space. The new era requires the
development and adoption of international legal
standards to ensure the rights of children in the digital
space. Ensuring children's rights in the e-justice system
lays the foundation for the concept of "digital justice
for children" (e-justice-, cyber justice-, digital justice for
children), and this period marks the beginning of a new
stage in the development of children's rights in the
justice system. It can be predicted that this period will
mark the beginning of a new, 5th stage of the
normative development of children's rights to access
to justice.
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Proceeding from the above, in order to improve the
system of protection of the rights and fundamental
freedoms of the child in international law, we consider
it appropriate to adopt an Optional Protocol to the
Convention on the Rights of the Child "On the
Protection of children from Information threats in the
digital space" within the framework of the United
Nations.
CONCLUSION
To date, e-justice as an important area of legal and
political practice around the world is assessed as the
main direction of e-democracy. The administration of
justice for children who have committed crimes in
emergency situations, especially during periods of
health crisis, requires a special approach. This is due to
the increase in juvenile delinquency rates in States
during the COVID-19 pandemic that spread around the
world. Proceeding from this, we consider it expedient
to include in the agenda of the next meeting of the UN
Congress on Criminal Justice and Crime Prevention the
adoption within the UN framework of the Principles of
Children's Access to digital-justice defining rules and
guidelines regarding children's access to justice in the
electronic justice system, as well as special Principles of
access to justice for children in conflict with law during
crisis periods.
In short, the protection of children's rights in
international law in the justice system was achieved
first through the adoption of universal declarations
and conventions in the field of human rights, and then
special international documents on justice for children.
Today, the UN has created a number of international
legal standards aimed at ensuring the rights and
freedoms of the child in the justice system.
Today, e-justice is considered as the main element of e-
democracy in the legal and political practice of
countries around the world. Accordingly, international
legal standards of justice for children should cover
issues related to ensuring their rights in the electronic
justice system. The practice of using artificial
intelligence in the justice system has its positive
aspects, but the importance of the human factor in the
work of children, the fact that the fate of each child
should be decided not by artificial intelligence, but by a
conscious human approach should be one of the basic
principles of international legal standards in this area.
Specialised juvenile courts or child-friendly justice has
not been established in all countries, while the justice
system for children needs to be rethought and adapted
to the emergence of new digital technologies and the
limitations caused by the pandemic.
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