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Juvenile Justice Systems: Poland-Brazil-Portugal

by Barbara Janusz-Pohl (Volume editor)
Monographs 192 Pages
Series: Lex et Res Publica, Volume 18

Table Of Content

  • Cover
  • Titel
  • Copyright
  • About the author
  • About the book
  • Table of Contents
  • Introduction
  • Part I. Analysis of Juvenile Justice Systems: Typologies and Development Perspectives
  • Barbara Janusz-Pohl
  • 1 General remarks
  • 2. Welfare model
  • 3. Justice model
  • 4. Rehabilitative treatment model
  • 5. Restorative justice model
  • 6. Mixed models: Combinations of welfare and justice, including minimum intervention and elements of restorative justice: Poland, Brazil and Portugal
  • Part II. Juvenile Delinquency: Polish Perspective
  • Chapter 1. Criminal Responsibility of Juveniles in Polish Law
  • 1. General remarks
  • 2. The concepts of a juvenile, a minor and a young offender
  • 3. Age limit of criminal responsibility
  • 4. Offender age and attribution of guilt
  • 5. Prerequisites of the criminal responsibility of juveniles
  • 6. Penalty for a juvenile offender
  • 7. Conclusion
  • Chapter 2. Juvenile Situation under the 1982 Juvenile Justice Act
  • 1. General remarks: Aims and basic rules of juvenile justice
  • 2. Definition of ‘Juvenile’
  • 3. Definition of ‘Antisocial behaviour’
  • 4. Definition of ‘Punishable act’
  • 5. Educational and correctional measures
  • 6. Conclusion
  • Chapter 3. Procedural Aspects of Participation of Juvenile Offenders in Criminal Proceedings: General Remarks
  • 1. Introduction
  • 2. Juvenile offender as a party to a criminal proceeding
  • 3. Juvenile offender as a source of evidence
  • 4. Extension of the right to defence principle in the context of juveniles
  • Chapter 4. Procedural Aspects of Participation of Juvenile Offenders in Criminal Proceedings: Selected Specific Institutions
  • 1. General remarks: Formal representation of ‘a juvenile’ in criminal proceedings
  • 2. European measures improving the status of the juvenile offender
  • 3. Application of coercive and preventive measures
  • 4. Influence of a juvenile offender on the course of the proceedings
  • 5. Consensual proposals: abbreviation of proceedings
  • 6. Selected issues related to the extinction of criminal liability
  • Part III. Juvenile Delinquency: Comparative Perspective – Brazil
  • 1. General remarks
  • 2. The historical conception of the socio-educational system in Brazil
  • 3. Legislation applicable to the Socio-Educational System
  • 4. Application of the Socio-Educational System
  • 4.1. The addressees of socio-educational measures: children and adolescents and the absence of responsibility under criminal law
  • 4.2. Procedure for investigating a criminal act
  • 4.3. The socio-educational measures
  • 5. Restorative Justice in the Socio-Educational System
  • 6. Conclusion
  • Part IV. Juvenile Delinquency: Comparative Perspective – Portugal
  • 1. General remarks
  • 2. Minors: Law on the protection of children and young people in danger, Child Education and Protection Act, and Extraordinary Criminal Regime for Young Adults
  • 3. The lack of criminal responsibility due to age
  • 4. Conclusion
  • Works published in the collection

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Part I. Analysis of Juvenile Justice Systems: Typologies and Development Perspectives

Barbara Janusz-Pohl

Abstract: This part deals with the issue of models of juvenile responsibility systems. The models shall be treated in an abstract manner as so-called model-patterns, that is, in their extreme (complete) form, so to speak. The model-patterns discussed in this paper are welfare model, justice model, rehabilitative treatment model and restorative treatment one. When juvenile justice systems were beginning to take shape, such model-patterns were occasionally reflected in equally extreme (absolute) forms around the world. Understandable that specific models (model-representations) take rather eclectic forms and share only certain selected characteristics of various abstract models (model-patterns). Polish, Brazilian and Portuguese Juvenile justice system are seen as mixed models.

Keywords: juvenile justice systems, model of juvenile justice systems, comparative systems, welfare system, justice system, rehabilitative treatment system, restorative justice system.

1 General remarks

Juvenile justice evolved from general criminal law, with the evolution being especially dynamic in the 20th century albeit its outcomes varied from region to region and it progressed in waves. The nature of its evolution has already been noticed by the authoritative juristic literature, which has traced the patterns of changes and noted them as separate models of juvenile justice.1 Moreover, it has been observed that it was juvenile justice, separate from but also closely related to adult criminal justice, that served as a testing ground for new criminal-political conceptions with respect to, for instance, rehabilitation instruments, subsequent ←11 | 12→probation measures, greater role of mediation and restitution in connection with the idea of restorative justice.2

The need to model juvenile justice along different principles than the responsibility of adult offenders resulted from socio-cultural changes and new trends in psychology and pedagogy. These trends demanded that juveniles be viewed as autonomous. On the one hand, their susceptibility to environmental influence was underscored, while on the other their lack of ability to comprehend the meaning of their actions and accordingly control them, known as the ability of sensible self-determination, was recognized. Attention was drawn to unfinished educational processes and the ongoing personality formation of juveniles. Initially, a crucial role in the emergence of juvenile justice models in the early 20th century is believed to have been played by the so-called positivist school of criminal law. This school preferred the idea of individual prevention to merely general prevention and the classic retributive (justice) function of criminal law. Hence, it can be said that already at the early stages of the rise of juvenile justice models, the ideas of individual and general prevention were in conflict.

This chapter therefore shall describe the key models of juvenile justice. The models shall be treated in an abstract manner as so-called model-patterns, that is in their extreme (complete) form, so to speak. When the systems of juvenile justice were beginning to take shape, such model-patterns were occasionally reflected in equally extreme (absolute) forms around the world. Today, however, specific models (model-representations) take rather eclectic forms and share only certain selected characteristics of various abstract models (model-patterns).

Although the models of juvenile justice develop autonomously in particular countries, certain unification tendencies and development trends can be seen as well. In the last few decades, these tendencies are encouraged by dynamic changes in criminal-political theories and are driven by the growing impact of standards set by the United Nations, especially those following from the Convention on the Rights of the Child, and others set by the Council of Europe.3

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The models of proceedings in juvenile causes can be variously organised. Above all, note must be taken of the criterion of separation of juvenile justice from adult justice, i.e. making the former autonomous of the latter. Furthermore, formal autonomisation involves the enactment of special laws for the regulation of the responsibility of juveniles, while actual autonomisation makes the rules of juvenile justice autonomous from those applicable to the criminal responsibility of adults without enacting separate laws. Consequently, a formal or actual autonomisation entails the setting up of a procedural model adequate to the autonomous purpose of the proceedings and the way a response is profiled to the violation of criminal law and other instances of antisocial behaviour by a juvenile.

Historically, juvenile justice systems began to develop in the late 19th and early 20th centuries, and in the 1900s with the rise of so-called welfare systems. In them, courts addressed the good of an ‘endangered juvenile,’ which was considered vitally important. Pure welfare systems, however, began to break down in the second half of the 20th century; besides, mixed systems already then dominated globally and have always been more stable. The middle of the 20th century witnessed rehabilitative tendencies in the criminal policy that were known as 4×D models (diversion, decriminalisation, deinstitutionalisation and due process of law). Towards the end of the 20th century and in the early 21st century, a trend perpetuated by the strong idea of restorative justice gained momentum. Its impact produced so-called 4×R models (responsibility, restitution or reparation, restorative justice and retribution, with the last-mentioned occasionally openly publicised). The relevant literature claims even that ‘These so-called “4Rs” have replaced the “4Ds” (diversion, decriminalization, deinstitutionalization and due process).’4

The mixed models, most common now, reflect the impact in various proportions though, of such ideas as minimum intervention, education instead of punishment, restorative justice (mainly implemented with the participation of extrajudicial bodies) and the perception of punishment – especially incarceration – as an ultima ratio (last resort). For the models of juvenile justice, the ←13 | 14→crucial assumption is that juvenile delinquency is of an ephemeral nature. Statistically, juvenile delinquency shows a strong tendency to wane in early adulthood. In juveniles, moreover, the impact of external factors is seen to be effective. These include environmental factors as well as educational instruments or possibly correctional ones. The punishment of juveniles is thus a last resort and should be an alternative or an option left to the decision of the adjudicating body. It will take into account the degree of the juvenile’s intellectual and emotional development, and of the reprehensibility of their behaviour.

It must be made absolutely clear that neither today nor in the past has a uniform model of juvenile justice been developed. In some countries, the administration of justice with respect to bringing juveniles to justice is organised in part or in full within the limits of substantive or procedural criminal law. Whereas in others, separate courts and procedures for juveniles are provided. Countries differ also in the range of responsibility, systems of educational and correctional measures, and possible penal sanctions. In the event juveniles are made to bear criminal responsibility along the principles close to those applied to adult offenders, the age for criminal responsibility varies as well.

This monograph shall describe three systems of responsibility of juvenile offenders and juveniles exhibiting antisocial behaviour: Polish, Brazilian and Portuguese. These are completely different systems, but each to a greater or lesser degree, shows elements of one of the four model-patterns: welfare, justice (including the neo-classical one), rehabilitation and one based on the idea of restorative justice. These four model-patterns, i.e. models considered in abstract (extreme) terms, shall be described below.

2. Welfare model

The rise of this model was stimulated by the output of the so-called positivist school of criminal law which had redefined the function of punishment. A strictly retributive approach to punishment was abandoned, where it was meant as a retribution for evil done and stress was laid on individual prevention.5 What ←14 | 15→is more, with respect to juvenile delinquency, individual prevention is considered not only prospectively but also retroactively. For it is important for the assessment of the legal situation of an offender not only who the offender was at the time of violating the law and who they are right now, but also what factors shaped them in the past.

Thus, the welfare model adopts a non-deterministic paradigm under which juvenile delinquency is caused by environmental reasons. To combat juvenile delinquency, it is necessary to separate a juvenile from their pathological environment and its detrimental effect on the juvenile’s conduct. In this model, an offence committed by a juvenile is grounds for responsibility but does not determine its scope. What is more, in welfare models, a juvenile remains the focus of attention of proceeding bodies when they show an inclination to commit offences, exhibit antisocial behaviour, are educationally neglected or even when only their environment may be considered criminogenic. The child and their needs are the focus of attention while the criminal law response is geared to the enhancement of educational processes and not repressive measures. The purpose of such proceedings is not only to influence the juvenile offender, but also to prevent criminal and antisocial behaviour by taking welfare and educational measures early enough, going even as far as isolating the juvenile from the pathogenic environment if necessary.

Welfare trends moreover, are strongly underpinned by specific pedagogical conceptions, especially those that deal with socially maladjusted children and young persons. When a juvenile has committed an offence, it is in a sense detached from the offender. The proceeding bodies focus their attention on the circumstances of its commission and the preceding psycho-pedagogical situation of the juvenile. This means that the breaching of the norm sanctioned by criminal law is not entertained in the strict sense, but instead the action of the adjudicating body aims at exposing the entire process that led to the commission of the offence or ‘pushed’ the offender, so to speak, to this behaviour. Hence, the overriding purpose of the proceedings and measures taken is to improve the welfare-educational situation of the offender and not to influence them only in connection with the committed offence. It is worth mentioning that paternalistic judiciary for juveniles was established in the United States in the late 19th and early 20th centuries, with the juvenile court set up in Chicago in 1899 being the first of its kind. This court closely ←15 | 16→followed the welfare model as it had broad jurisdiction; its purpose was to act in the best interest of the child, where proceedings before it were informal and the power of judges was fully discretionary.6

Crucial for the welfare model, the distinction of the formula of juvenile justice and making its rules autonomous from adult justice was accompanied, not less importantly, by developing an autonomous procedural model. Its level of repressiveness and formality is low while flexibility is high. The welfare model presupposes the establishment of independent proceedings conducted by a special body such as a special juvenile court or an education panel. The role of such bodies is not only to bring offenders to account, but above all to educate juveniles in accordance with the idea ‘punishment through education.’ Juveniles, in this case, are treated as persons without due care, and co-responsibility for their deeds is attributed in a sense to the actual and legal guardians who have failed in their educational efforts.

As already mentioned, a juvenile offender so perceived is not, in principle, considered an individual capable of bearing criminal responsibility because guilt cannot be laid on them (they are not capable of sensible self-determination). Hence, they cannot apprehend the meaning of their act or control their conduct because they have not learned the model of correct conduct. The impact of the pathological environment, it could be said, has disturbed the process of acquisition of such a model, while harmful stimuli have distorted volitional processes.

In the welfare model, juvenile justice is procedurally tied to the supervision of the entire educational process. This is seen not only in the fact that measures decreed in response to offences are geared to educational aims, but also that responsibility is extended to cover other antisocial behaviour. As a result, the subject matter of proceedings is rather broad. The welfare model makes the child the centre of attention and, what is more, entrusts the proceeding body with responsibility for any necessary action to secure the interest of the child also as far as their legal situation in the course of proceedings is concerned. Consequently, the model does not emphasise procedural safeguards. This approach underpins the doctrine of parens patriae,7 which prevails in ←16 | 17→English-speaking countries and which provides for the state to take over the education of, and responsibility for, the child in view of the tutelary failure of their family. The paternalism of the proceeding body makes it possible to lower considerably formalism and widen its discretion. As a rule, juvenile adjudicating bodies enjoy far greater autonomy than criminal courts. When applying educational measures, they make their own findings of fact and law. Moreover, the law provides for wide discretion, following above all from the general clause of the ‘good of the child’ and consequently determines the direction of proceedings and the kind of decisions made.

Biographical notes

Barbara Janusz-Pohl (Volume editor)

Barbara Janusz-Pohl (ed.) is professor of the Department of Criminal Procedure at the Faculty of Law and Administration of the Adam Mickiewicz University. She author or co-authored many scientific publications in the fields of Criminal Law, Criminal Proceedings and General Law Theory.

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Title: Juvenile Justice Systems: Poland-Brazil-Portugal