Reform of criminal legislation and the position of the social welfare centre – an open question III CHAPTER 3 - CRIMINAL SANCTIONS FOR JUVENILES IN BOSNIA AND HERZEGOVINA 3.1 ANALYSIS OF THE NATURE OF CRIMINAL SANCTIONS
Balance between the ‘welfare principle’ and the ‘justice principle’
Restorative justice – a new model of response to juvenile offending
ANNEX I Compliance with of the Criminal Legislation of BIH with the Most Important Instruments Pertaining to Juvenile Delinquency ANNEX II Criminal Sanctions for Juveniles in Republika Srpska and Federation of BIH and Frequency of Ordering and Implementation – Tables
ANNEX III Projects and Initiatives of Local and International Organisations in BiH in the Field of Juvenile Justice
ANNEX IV Glossary Annex V List of Laws and International Instruments Consulted for Juvenile Justice Review
INTRODUCTION This Review of Practice and Legislation in the Field of Juvenile Justice in Relation to the International Standards is the first of its kind in Bosnia and Herzegovina (BiH). It has been researched and compiled by Save the Children UK, with the financial support of UNICEF and SC UK, after the need for such an overview was highlighted in the context of the Rule of Law Task Force in 2002. The Analysis complements the study, Young People in Conflict with the Law in the Light of Topical Problems Related to Juvenile Justice in BiH, produced by the Open Society Fund BiH and UNICEF in 2002.
Information specific to the situation in BiH is included in the Analysis, as well as references to international standards and examples of good practice in the JJ field. Information was gathered from October 2002 to March 2003 through desk research and interviews, and data was requested from relevant ministries and agencies. This was, at times, a lengthy process because of the need to obtain permissions and compile information. Further analysis and views on the situation were obtained through interviews and contacts with some 35 practitioners and policy-makers across the country. Additional input was made by Ramiz Huremagić in terms of research into legislative instruments (Annex 1) and by Judge Jasmina Kosović. Judge Dragan Uletilovic and Nikhil Roy are appreciated for their contribution in consultation during the research. Comments were also added by members of the Juvenile Justice Sub-Issue Set, a working group of the Rule of Law Task Force, prior to publication.
By its nature, this Analysis is a snapshot of the various elements of JJ in BiH at a particular point in time. Arrangements and initiatives with respect to JJ vary widely across BiH, and there is an absence of routine analysis and compilation of data. It was not possible to obtain full details on the situation by making contact with each of the many ministries, prosecutors’ offices, courts, police stations, centres for social welfare, prisons and other institutions which work in different ways with children in conflict with the law. We sought, instead, to gather what was readily available, along with details about the JJ situation and initiatives in major urban areas. It was clear in this process that practice varies very widely and it has not been possible to draw conclusions about average or usual practice. As a result, the Analysis focuses on problems noted by respondents.
Legislative instruments governing JJ are extensive and vary widely across the country. Therefore, only relevant entity level legislation in the Federation of BiH and the Republika Srpska has been considered in this analysis. Upcoming changes in the Criminal Procedure and Criminal Codes as well as other legislation will inevitably bring some changes to policy and practice. This analysis, however, draws on the legislation which was in place in late 2002 (see Table of Statutes).
In highlighting some of the gaps in translating this legislation into practice, we hope this situation analysis will contribute towards promoting child-centred solutions which are feasible to implement. Specific reference has not been made to the Brčko district, but its different criminal laws and their implications in practice could be the subject of a later useful study.
With respect to international instruments, this Analysis refers primarily to United Nations conventions which underpin work in the field of juvenile justice. BiH is also party to European conventions, and various Council of Europe recommendations which, although not binding, nevertheless remain relevant and important.
A final word is necessary on issues of terminology. Throughout this document we have referred to terminology currently in use in BiH, while recognising that there are problems with some of the terms used. The changing nature of terminology in the JJ sector worldwide reflects developments in the understanding of the behaviour of children who come into conflict with the law. As such, these children are now seen as having harmed the community through their behaviour rather than seen as having criminal behaviour or committing criminal acts.
We are particularly grateful to the many people who contributed to this study for their willingness, time and insight. The immense interest in, and concern for, children coming into conflict with the law which was shown by all those we contacted is an indication of the broad consensus on the need for reform in the JJ system.
We look forward to this analysis providing a basis for the addition of further information so as to complete the picture, and serve as a foundation for developing reform initiatives in the Juvenile Justice sector in BiH. As examples in this document show, the most effective and cost-efficient approaches in terms of dealing with youth crime and young offenders are those that are community-based and simultaneously focused on rehabilitation and reintegration, rather than the more costly provision of residential and institutional care.