Published by Save the Children uk, Bosnia and Herzegovina Programme


Article 37 of the United Nations Convention on the Rights of the Child



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7.Article 37 of the United Nations Convention on the Rights of the Child

Article 37 of the Convention contains the provisions that are supposed to protect the child against torture or other cruel or degrading treatment or punishment, the application of capital punishment or life imprisonment without possibility of pardon, and against unlawful or arbitrary deprivation of the child’s liberty. In addition to these provisions, also stipulated are the conditions of arrest, detention or imprisonment according to which these measures should be applied in conformity with the law and, if possible, as a measure of a last resort after having exhausted all other measures and, if however applied, to last for the shortest appropriate period of time. As regards the compliance of the provisions of the criminal legislation of Bosnia and Herzegovina relating to juveniles with the provisions of the Convention, each provision of Article 37 shall be specifically compared with the provisions of the domestic legislation.

Article 37
States Parties shall ensure that:


  1. No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

The fundamental legal regulation, which provides for the protection against torture, inhumane or any other cruel treatment, is the very Constitution of Bosnia and Herzegovina, an integral part of which is the European Convention on Human Rights. Since the concepts of “torture”, “cruel, inhuman or degrading treatment or punishment” are rather broadly presented without a precise definition of what they respectively imply, case law at the European Court for Human Rights can be used for clarification, since it has defined the above concepts as follows:



  • Torture: wilful inhuman treatment causing very severe and intense suffering.

  • Inhuman treatment or punishment: causing intense physical and mental suffering.

  • Degrading treatment: abuse aimed at instilling a sense of fear, suffering and submissiveness in the victim, which may degrade and humiliate them and crush their physical or moral resistance.105

The European Convention on Human Rights guarantees the right to life to every person, thereby preventing the application of capital punishment. At any rate, the criminal legislation in BiH contains additional provisions that, inter alia, include the provisions relating to juveniles. Thus, under such provisions, neither capital punishment nor life imprisonment may be imposed on juvenile criminal offenders since such punishments or a long-lasting imprisonment do not exist at all as types of punishment in the BiH legislation. The maximum imprisonment prescribed for juvenile offenders, though only in extraordinary circumstances, is ten years. As far as the conduct of the proceedings is concerned, there are no specific provisions, but instead general provisions are applied for all participants in the proceedings, whether the suspect, the accused or the witness is in question. These provisions, contained in the Criminal Procedure Code, expressly prohibit any extortion of confession or other statements by the suspect, accused or any other participant in the proceedings. They also provide that the court may not base its decision on evidence obtained while violating human rights and freedoms, or on evidence collected while in breach of legal provisions.




  1. No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

The provisions of both the Constitution of Bosnia and Herzegovina and the respective entity Constitutions do not allow for any form of unlawful or arbitrary deprivation of liberty of any person including juveniles, while the provisions of the criminal legislation stipulate sanctions for such a conduct. This is stipulated in the formulation of the criminal offence of “'unlawful deprivation of liberty” with specific reference to cases of the offence being committed by an officer while on duty.


The conditions for ordering custody against juveniles alleged as having committed a criminal offence are considerably stricter than in the case of adults. Custody is provided only in exceptional circumstances; thus for example, under the Criminal Procedure Code of the Federation of Bosnia and Herzegovina, the custody of juveniles may last for not longer than one month, exceptionally up to three months. The conditions under which it is possible to order custody against a juvenile are contained in the general provisions on ordering custody (Article 183 of the Criminal Procedure Code of the Federation of Bosnia and Herzegovina). Only three out of a number of these conditions are applicable in FBiH to juveniles, as follows:

  • if he or she is in hiding or if other circumstances exist which suggest a danger of flight
  • if there is reasonable fear that he or she will destroy, hide, alter or falsify evidence or clues important for the criminal proceedings, or if particular circumstances indicate that he or she will hinder the criminal proceedings by influencing witnesses, accomplices or fences (those who hide them)


  • if particular circumstances justify the fear that he or she will repeat the criminal offence or complete an attempted criminal offence or commit the threatened criminal offence, and for these offences the sentence of imprisonment of three years or a more severe penalty is prescribed.

Such restrictions with regard to the conditions for the custody do not exist in the Republika Srpska, while in the case of juveniles; the judge for juveniles orders the custody. If the judge for juveniles orders custody, “he or she is obliged to inform the juvenile on his or her rights to defence, examine him or her within 24 hours at latest, and release him or her – if the public prosecutor does not file a petition to institute the preparatory proceedings within 48 hours upon being notified on the custody. Under the Criminal Procedure Code of the Republika Srpska (Article 190), the period of custody has to be reduced to the shortest necessary time, and the judge for juveniles may order custody for one month, while the juvenile panel may, on the proposal of the judge for juveniles, prolong the custody for another two months.”106


It is also provided that juveniles are kept in custody separately from adults, and only exceptionally, if it is deemed that the isolation of a juvenile would be prolonged and if there is a possibility of placing the juvenile in a cell with an adult who would not have an adverse effect on him or her, they can be kept in custody together with adults. Only the judge for juveniles can render this decision.

  1. Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.




  1. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action.

It should be noted here that there are two forms of deprivation of liberty: the first is when the custody is ordered against a person as a measure to ensure the presence of the accused and the successful conduct of the criminal proceedings, and the second takes the form of imprisonment for persons convicted as perpetrators of criminal offences. The Criminal Procedure Code stipulates the conditions for ordering custody and the manner of enforcing such a measure. Thus, it is prescribed that during the custody the feelings or dignity of the person accused/detained may not be offended, and that persons of different sexes cannot be kept in the same premises. However, neither of the entity's laws contains specific provisions for juveniles kept in custody or a prohibition against keeping them together with adults. With regard to the supervision of detainees, it is stipulated that the President of the court or another judge designated by him or her should visit adult detainees at least once weekly to assess their situation. In the case of juveniles, there are no such provisions; it is, rather, provided that the Juvenile Panel of the court that has ordered custody against a juvenile, should examine the necessity of the custody every 10 days, while the judge for juveniles has the same rights and authority as the investigative judge. This indicates that there is no specific mechanism for inspecting the conditions in which juveniles are being kept in custody, other than an examination by the President of the court or another judge authorised by him or her. The fact that the judge for juveniles has the same rights and authority as the investigative judge does not in any way mean that he or she can also inspect the conditions of stay in custody. What is more, he or she cannot do that at all, since it is stipulated that the judge authorised by the President of the court must not be an investigative judge, which accordingly applies to judges for juveniles as well.

The treatment of juveniles convicted to juvenile imprisonment is regulated in the framework of the provisions of the Law on the Implementation of Criminal Sanctions. These provisions prescribe that the treatment of convicted persons must be humane, including respect for the human dignity of the convicts and their physical and mental health and prohibiting any kind of torture, cruel, inhuman or degrading acts by the institution's official personnel. Also prohibited are all forms of discrimination on any ground. These are universal provisions applicable to all persons deprived of their liberty including juveniles as well.
For juveniles, it is also stipulated that, as a rule, they should be separated from adults to prevent adverse effects on them. The exceptions are cases where such a separation might have detrimental consequences on the detained juveniles, and therefore the possibility of joint accommodation is provided. However, since the law uses the term “as a rule”, it is not clear when it is possible for juvenile convicts to serve their sentence of imprisonment together with adult prisoners. Therefore this provision creates the possibility of inadequate application of the law to the detriment of the juvenile.
A juvenile serving the sentence of juvenile imprisonment has the right to maintain contact and correspondence with his or her parents and other close relatives without any restraint.

Specific provisions of the Criminal Procedure Codes (particularly that of the Federation of Bosnia and Herzegovina) relating to juveniles stipulate special privileges in favour of juveniles. Thus, time periods prescribed for processing juveniles in criminal proceedings are considerably shorter and special mechanisms are provided for expedient completion of proceedings. Precise deadlines imposed on both courts and prosecutor's offices are much shorter in comparison to the deadlines prescribed in proceedings against adults. Thus, it is provided that, inter alia, the judge for juveniles must report to the President of the court on cases which have not been completed, along with reasons for their delay, based on which the President of the court may undertake measures, if necessary, to accelerate such proceedings.


Article 39 of the United Nations Convention on the Rights of the Child

The provisions of this article of the Convention relate to child victims of any form of neglect, exploitation, abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts. Thus, it is stipulated that the States Parties should take all appropriate measures to promote physical and psychological recovery and social reintegration of child victims of the aforementioned treatments in an environment which fosters the health, self-respect and dignity of the child. While it is evident that the provisions of this article do not directly relate to juvenile criminal justice systems, it is possible to find the application of certain provisions in this area as well. Thus the application of these provisions would contribute to child victims of the criminal justice system, such as victims of cruel and unprofessional conduct by police officers, personnel of institutions for serving imprisonment sentences and institutional measures and possible mental disorders in children resulting from the participation in court proceedings (adverse reaction to the environment, publicity in the media and negative public opinion, etc).

Unfortunately, in Bosnia and Herzegovina there is no system complemented by underlying legislation, organisational structure or readiness to respond to such needs of children exposed to any form of the aforementioned treatment. Even in the case of the criminal offences committed against children (e.g. sexual abuse), it is not possible to find an institutional and systemic approach to this kind of problem, since there are virtually no such specialised institutions (social welfare services are definitely unable to cope with this), nor is there a system to regulate this. In this regard, the state will have to find a way to ensure the physical and psychological recovery of child victims, as well as their further development.

United Nations Guidelines for the Prevention of Juvenile Delinquency

(the "Riyadh Guidelines")


The UN Guidelines for the Prevention of Juvenile Delinquency, as well as the UN Resolution No. 45/112, were adopted at the Eighth Congress of the UN on the Prevention of Crime and Treatment of Offenders (Havana, 1990). As is evident from the formulation, the Guidelines do not have a binding character, having been envisaged as a supplement to the UN Standard Minimum Rules for the Administration of Juvenile Justice (the so-called Beijing Rules). These guidelines are known as the Riyadh Guidelines, named after the venue of the meeting at which a draft of these guidelines was reviewed.
In short, the Guidelines, in terms of the prevention of juvenile offending, anticipate a new approach in which children should be the focus, with an active role and participation in society, rather than be only the subjects of measures of socialisation and control. The Guidelines point out that a successful approach to the prevention of juvenile offending can be achieved only through the participation of all elements of society, where family, school, society and the media should take on special roles and responsibilities. The Guidelines also foresee the existence of appropriate legal regulations for juveniles, as well as the establishment of an institution of ombudsmen with the corresponding development of necessary research.

The basic characteristics of the Guidelines are their comprehensiveness, the promotion of a proactive approach to juvenile offending, and the view that children are fully capable of participation in society. The comprehensiveness relates to the clearly stated objective that all areas of society should contribute, through the establishment of appropriate, comprehensive and preventive plans at every level of government. The proactive approach is related to the improvement of children’s quality of life and their general well-being, rather than to simply the prevention of negative situations conducive to deviant behaviour. In a sense, it means that formal methods, such as the juvenile justice system and all its components, for example, should be used only as the last resort and to the least possible extent.

As to the participation of children in society, the Guidelines state that an approach to children as a “separate social category” and thus a special group, is not the best solution. A “child as a fully-fledged participant in society” is the approach reflected in the Riyadh Guidelines. Children should be viewed as equal and capable of active participation in social developments.
Implementation of the Riyadh Guidelines in BiH
Evidently a more traditional view of children is still dominant in Bosnia and Herzegovina, ie of minors who come into conflict with the criminal/ justice system. Namely, the issue of juvenile offending in Bosnia and Herzegovina becomes a problem only at the time when an under-age person comes into contact/conflict with the law. Preventive action that diverts young people from coming into conflict with the law is almost non-existent in BiH except through the formal institutions of the system. At this point we shall not analyse this situation, since that would lead to a wide and complex debate. The intention is to identify the state of affairs. In this regard, it should be noted that some of provisions of the Riyadh Guidelines have found their place in BiH society. This is true, for example, with the institution of ombudsmen in the Federation of BiH and the RS.
In the post-war period both entities established ombudsmen. In the FBiH, this occurred in 1995, and in the RS in 2000. Both these institutions have special departments to deal with the rights of the child. The ombudsmen are of exceptional importance for the protection of children in general, as well as for the protection of those children who come into contact with the system of criminal justice.

Additionally, there are the offices of the Ombudsmen for Human Rights of Bosnia and Herzegovina, which by virtue of their mandate are competent to deal with cases of violation of the rights of children. However, this situation does not fully satisfy provisions of the Riyadh Guidelines because there is no separate ombudsman for children outside and beyond the juvenile justice system.


United Nations Rules for the Protection of Juveniles Deprived of their Liberty

The purpose of these rules is primarily to alleviate any detrimental effects of a juvenile’s deprivation of liberty. The term deprivation of liberty implies deprivation of liberty of children in any form when children are kept in a public or private institution based on an order by a court or any other administrative or authorised body.


The Rules also anticipate that deprivation of liberty should be the last option and carried out in compliance with the law and in a manner prescribed under the law, under the condition that children are kept for as short a period as possible.
Of other principles contained in the Rules, inter alia, it is important to underline the following:

  • The principle pertaining to the procedure of deprivation of liberty in accordance with legal regulations and international law.

  • Open institutions are recommended as institutions for juveniles deprived of liberty, as well as an individual approach to children,

  • The structure and contents of juvenile offenders’ activities in institutions must encourage children's skills and abilities, and enhance their development,

  • Closed institutions should be decentralised to better facilitate imprisoned juveniles maintaining contact with their families, as well as their reintegration into the society,

  • Care for juveniles deprived of liberty should be of a social nature and accorded the highest importance

The Rules are not binding, but some of basic provisions of the Rules are contained in the UN Convention on the Rights of the Child.

Some of the Rules in Bosnia and Herzegovina have been implemented. Thus, for example, there are provisions pertaining to special accommodation of minor persons, separated from adults (however, this provision has not become compulsory, since the law uses the term as a rule”), special food for juveniles (of a better quality and higher calorie level), compulsory education during their stay in an institution, facilities for physical activities, the right to practice a religion, and the right to have contacts (correspondence) with members of their family. All these provisions are contained in the Law on the Implementation of Criminal Sanctions in BiH. It is important to point out the difficult situation concerning female minor persons. This is primarily related to female juveniles deprived of freedom, either as the detention measure or when serving a juvenile imprisonment sentence. It is important to note that in the FBiH there is no institution for female juveniles to serve imprisonment sentences (under the Law on the Implementation of Criminal Sanctions of the FBiH, it is envisaged to have a department for female juveniles at the penal-correctional institution for women in Ljubuški, but that has not happened as yet).

In the Republika Srpska, female juveniles serve sentences in the Penal-Correctional Institution in Srpsko Sarajevo. An additional aggravating circumstance is the issue of juvenile detention, be it in detention units or police premises, since facilities designated to cater for this particular category of children are almost non-existent. In addition, in accordance with legal regulations on the implementation of criminal sanctions, it is envisaged that those penal-correctional institutions (prisons) should have a department for enforcing a measure of juvenile confinement to correctional-reformatory institutions. This should not be the case, since confinement to a correctional-reformatory institution is an educational measure and is a totally different type of penalty compared to the penalty of juvenile prison. Consequently, the environment in a penal-correctional institution would have a serious impact on a person sentenced by the court to a reformatory-correctional institution.
However, much in the Regulations has yet to be defined in domestic legislation. Thus, concerning provisions for disciplinary punishment of persons serving prison sentences/juvenile prison sentences (provision of the Law on Implementation of Criminal Sanctions), almost all measures administered against adults may be used for juveniles as well, including placement in a solitary cell. The only measure that cannot be administered for a juvenile is the measure of solitary confinement. The domestic legislation anticipates education outside the institution of confinement, provided security and treatment conditions are met and supervision maintained.

It is anticipated that the inspection and supervision of correctional and penal institutions will be carried out by authorised officials of the competent ministry (inspectors), now being appointed by Ministries of Justice in both entities. These provisions are incomplete in terms of the time intervals between inspections and the supervision of the said institutions, and in particular in light of the fact that there are no specific provisions pertaining to control and supervision of the institution for confinement of juveniles. The RS Law on Implementation of Criminal and Misdemeanour Sanctions (Art. 84) contains provision for the engagement of scientific and professional institutions and individuals to carry out professional supervision. Defined only as a possibility, this provision may represent the foundation for a bolder breakthrough towards external supervision. Similarly, additional provisions should be further elaborated and defined as follows:


  • health care and program for treatment of drug addicts

  • accommodation and conditions of accommodation

  • contacts with community at large (visits by community representatives)

  • structure and education of staff at institutions

  • arrangements to re-integrate juveniles into the community.

In addition to this it is necessary to emphasise that another problem in BiH is related to the number and type of special institutions for juveniles. Thus, in the Federation of BiH there is no special institution for juveniles sentenced to imprisonment. Instead, convicted juveniles are placed in the only penal-correctional institution of a closed type (the Penal-Correctional institution, Zenica), in a separate section for juvenile prisoners. The situation in the RS is almost identical, and male juveniles serve their prison sentences in a special section of the Penal-Correction Institution in Foča/Srbinje. This situation is in direct contradiction to the principle of separate institutions for juveniles deprived of liberty.

Similarly, it is important to note the situation concerning juveniles against whom detention measures are ordered. Bearing in mind the exceptional importance of the first phase of the criminal proceedings (contacts with the police authorities) because of its enormous influence on the personality and psychological make-up of a juvenile, it is absolutely essential to define far more precisely provisions pertaining to this segment of the procedure. While general legal provisions pertaining to the right of persons upon deprivation of liberty are in compliance with the international instruments for the protection of human rights (24 hours’ maximum time of detention before appearance before the court, the right to remain silent, the right to a defence counsel, etc), and as such are applicable to minors, the problem is related to the lack of precise provisions defining the placement and stay of juveniles in detention, whether in police detention or institutional detention facilities.

United Nations Standard Minimal Rules for the Administration of Juvenile Justice, (Beijing Rules)
In the course of 1995 the United Nations adopted the Beijing Rules. The main purpose and significance of the Rules lie in the fact that they represent guidelines necessary for the establishment and development of a separate and specialised justice system for juveniles. Thus, for the first time, the Rules represent an international instrument, which, in a comprehensive and detailed manner, renders support to the protection of the rights of the child and respect of the rights of juveniles in contact with the law. The Beijing Rules indicate what should be applied in the administration of justice systems for juveniles so as to meet all the specific conditions for that particular age. The Beijing Rules represent one of the three parts that sum up the entire system of administration of juvenile criminal justice (the others being the Riyadh Guidelines and the UN Guidelines for the Protection of Children Deprived of their Liberty). The Beijing Rules are not binding and hence this document is not obligatory for member countries of the UN. However, given the exceptional importance of the Beijing Rules, much of their contents are incorporated in the UN Convention on the Rights of the Child of 1989. Thus, Article 40 of the Convention represents a condensed version of the Beijing Rules and contains almost all the basic principles upon which the Beijing Rules are founded. To this effect, Article 40 contains provisions for setting a minimum age limit and for defining the term "juvenile", a provision on special objectives for the juvenile justice system, such as promotion of juvenile well-being and proportional reaction in terms of the severity and nature of an offence, provisions on the use of diversion, ie, the widest possible scope of measures outside the range of traditional criminal measures, etc.

The detailed analysis of the Article 40 and its compliance with BiH legislation has already been described. Therefore only those guidelines and principles from the Beijing Rules that are not contained in the UN Convention on the Rights Child will be outlined in the text to follow.

As regards the protection of the privacy of a juvenile, it is important to note that privacy must be respected in all phases of the procedure, and in particular the identity of a minor should not be publicised. The former is relevant for the previous procedure with the police authorities, because the very fact that a juvenile has come into contact with the police does not imply that he or she is a criminal, ie a person connected to the commission of a felony. The revelation of information on a juvenile who has come into contact with the police may have detrimental effects on the juvenile in his or her community (for example, the so-called ‘labelling theory’). Thus, legal provisions pertaining to the former should be more precise, although there are already provisions that prohibit the police or any other body involved in the procedure to reveal information concerning the child's identity. However, provision on sanctioning of those responsible parties in the case of violation of the -aforementioned provisions (even if by negligence and not deliberately) should be more explicit.

Specialisation and permanent professional training for those members of the police force involved in work with juveniles should be a permanent and regular activity and a duty of the administration. In this context, it is of utmost importance to emphasise that all police officers, and particularly those in everyday contact with members of the community, must understand the importance of a different approach to juveniles. Also, police officers need to be acquainted with at least the basics of how to deal with juveniles and must be aware that juveniles cannot and must not be treated in the same way as adults. This is especially important if we consider another principle of the Rules that deals with diversion (diversion re-directing from the formal criminal procedure). Under this principle, even a police officer should be able to apply this model of work. Namely, it is often the initial contact between a police officer and a juvenile which determines whether a certain form of behaviour will be treated as a demeanour or an offence leading to further procedures. At this point, if a police officer is well trained and aware of the specific features of treatment of juveniles, he or she may apply the diversion model, and thus avoid formal institutional proceedings against a juvenile.

Ordering a detention measure against arrested juveniles and/or those waiting for a trial in BiH requires additional legal regulations. Namely, while the criminal legislation contains provisions anticipating separation according to gender, as well as separation from adults, provisions are needed to define more precisely control and supervision during the detention period, as well as standards for the social, educational, health, psychological and physical care of juveniles. If it is not possible to separate juveniles from adults within a single institution, then it would be desirable to remove the detention measure altogether or perhaps to place juveniles in some other, non-prison, institution. As to the rehabilitation and integration of juveniles into society, much has yet to be done in BiH in terms of organisation, local institutions, other non-government and outside institutions, as well as other resources available in community.
Also, it is necessary for academics and other professionals to be more intensely involved in order to contribute to the development of models of rehabilitation, the structure and quality of stay of convicted juveniles in institutions, and the fulfilment of the very purpose of imprisonment and punishment.

CONCLUSION

There is no single legal document in BiH that regulates comprehensively the area of juvenile offending,107 nor is there such a document existing at entity level. Hence, special provisions of general legal documents are being applied, such as criminal codes, laws on the criminal procedure, and laws on the implementation of criminal sanctions against juveniles. In comparing these regulations with basic international documents related to juvenile justice, it is possible to identify a high degree of compliance between the domestic juvenile legislation and international standards. In terms of the laws analysed in this text, it is not possible to find laws that are in full contradiction to international standards.

There is some deviation from international standards and this is reflected to various degrees in entity legislation. Those elements which reflect some deviation may be identified in the following cases:


  • The issue of privacy of a juvenile in the procedure (strict prohibition of the revelation of identity in the course of the procedure in the Federation of BiH, contrary to rather vague provisions in the RS).




  • Emergency procedure (deadlines in the Federation of BiH are tighter in procedures against juveniles and a defence counsel must be provided, while the possibilities of unjustified extension of the procedure are less).




  • The right to a defence counsel (in the FBiH every juvenile is entitled to a defence counsel from the very beginning of the procedure and a defence counsel must be provided, while such regulations have yet to be adopted in the RS).



  • There are provisions in the FBiH criminal legislation for the ordering of educational recommendations and measures, ie the prosecutor’s duty to review the possibility of suspending the procedure against a juvenile in this phase of the procedure, with the same responsibilities applying to a judge juvenile cases, whereas this is not the case in the RS.

There are certainly some specific questions that should be addressed through enactment of new legal regulations in the whole of BiH, as well as a certain number of legal solutions already in existence that need to be modified and adjusted. In this regard, it is possible to identify three basic groups of issues that have not been brought in line with international standards.





  1. Deficiencies in the BiH criminal legislation pertaining to juveniles.

  2. Existing provisions that require revision or adjustment.
  3. Aspects of existing BiH legislation which are advanced with regard to international standards.





  1. Deficiencies in the BiH criminal legislation pertaining to juveniles

Some of the more significant deficiencies in domestic legislation related to the principles promoted in international standards, and possible solutions, are as follows:

  • the lack of provision for the police to be active in the process of diverting juveniles from formal procedures, whereas in the Republika Srpska this possibility should be first offered to the prosecutor and the juvenile judge; the aforementioned has already been incorporated in the Federation of BiH

  • more precise legal regulation of the process of diversion and elaboration of by-laws and procedural regulations are needed primarily in relation to the police

  • significant use of bail and bail of non-material nature as an alternative to the detention measure

  • introduction of alternative sanctions, as well as legal solutions enabling implementation of these measures in the community

  • introduction of the possibility of external supervision and control of implementation of criminal sanctions, both in institutions designated for this purpose and measures executed in the community

  • systematic, ongoing training, and the development of specialisation, for staff employed in juvenile justice system institutions.




  1. Existing provisions that require revision or adjustment

Additions and improvement of existing legal solutions as a result of a previous expert revision should be directed towards:

  • establishing special courts for juveniles with specially trained staff.
  • redefining duration of institutional measures, specifically mitigating the provisions related to juvenile imprisonment. Currently the sanction when sentenced cannot last less than one year.


  • redefining existing criminal sanctions in terms of their feasibility in practice with respect to culture and traditional ways of thinking.

  • establishing the right to a defence counsel from the initiation of criminal proceedings in the Republika of Srpska.

  • regulating the detention measure in such a way that it excludes detention of juveniles with adults, unless it is in the best interest of the juvenile, and under specific conditions as part of a special programme.

  • improving all existing legal regulations pertaining to juveniles to provide for greater representation of special provisions pertaining to female juvenile offenders, as well as for juvenile persons with special needs.

  • defining more clearly the conditions of supervision of juvenile detainees ordered by the juvenile judge.



  1. Aspects of existing BiH legislation which are advanced with regard to international standards are that provisions related to minor perpetrators may be applied to persons of junior age, under certain circumstances. This is directly related to Article 41 of the UN Convention on the Rights of the Child stipulating that every more advanced solution in the domestic legislation in regard to the Convention should prevail in implementation.

Lastly, it should be emphasised that the issue of prevention is rather imprecise. In the forthcoming reform of the criminal legislation in Bosnia and Herzegovina, provisions on the prevention of crime in general, and specifically on the prevention of juvenile crime, must find their rightful place. This will inevitably lead to a reform in other domains of society, because it is impossible in practice to maintain successful prevention of juvenile crime by using the instruments and methods of a criminal justice system. This issue calls for participation by the community at large, and thus reforms of legal regulations in other domains will have to be considered in order to facilitate that participation.

Therefore, it is strongly recommended that evaluation of all existing legal regulations related to juveniles, not only those in the domain of the criminal code, should be made, as well as a cross-section of the state of affairs (in society) and parts of justice system (from prevention to post-penal treatment). Only then will it be possible to set the necessary guidelines and define a system for the efficient administration of juvenile justice.
SUMMARY OF THE MOST IMPORTANT PROVISIONS OF THE INTERNATIONAL GUIDELINES 108


Summary of the most important provisions of international guidelines
Taken together, the Convention on the Rights of the Child and other international guidelines include the following provisions:


  • Children should be respected as fully-fledged members of society, with the right to participate in decisions about their own futures, including in official proceedings.




  • Children have the same rights to all aspects of due process as those accorded to adults.




  • Children should be diverted from the formal system of justice wherever appropriate and specifically to avoid their being labelled as criminals.




  • There is a set of minimum standards which should be provided to all juveniles in custody.






  • A variety of non-custodial sentences should be made available including care, guidance and supervision orders, counselling, probation, foster care, educational and vocational training programmes.





  • Capital and corporal punishment should be abolished.




  • There should be specialised training for personnel involved in the administration of juvenile justice.




  • Children have the right to release on bail unless there are specified reasons why bail should not be granted.




  • States are obliged to establish a minimum age of criminal responsibility which is not set too low, but reflects children’s capacity to reason and understand their own actions.




  • States should invest in a comprehensive set of welfare provisions to contribute to preventing juvenile crime. This should include provisions for very young children. Provisions should involve the government, NGOs, schools, churches, volunteers, etc.

Taken together, the Convention on the rights of the child and the other international guidelines include the following provisions:




  • Children should be respected as fully-fledged members of society, with the right to participate in decisions about their own futures, including in official proceedings.




  • Children have the same rights to all aspects of due process as those accorded to adults.




  • Children should be diverted from the formal system of justice wherever appropriate and specifically to avoid their being labelled as criminals.




  • There is a set of minimum standards which should be provided to all juveniles in custody.




  • Custodial sentences should be used as a last resort, for the shortest possible time and limited to exceptional cases.



  • A variety of non-custodial sentences should be made available including care, guidance and supervision orders, counselling, probation, foster care, educational and vocational training programmes.





  • Capital and corporal punishment should be abolished.




  • There should be specialised training for personnel involved in the administration of juvenile justice.




  • Children have the right to release on bail unless there are specified reasons why bail should not be granted.



ANNEX II


TYPES OF CRIMINAL SANCTIONS FOR JUVENILES


This annex notes those criminal sanctions which can be ordered for juveniles in the Republika Srpska and the Federation of BiH.



Criminal Sanctions for Juveniles in the Republika Srpska

An overview of criminal sanctions for juvenile perpetrators of criminal offences, as determined in the Criminal Code of the Republika Srpska, Art. 66 to Art 92, is given in Table 1. The Code anticipates the following sanctions:





  • Educational Measures – which can be pronounced for juveniles aged 14 to 18,

  • Juvenile Imprisonment – which can be pronounced only for juveniles older than 16.

  • Security Measures may additionally be pronounced for juveniles with mental disability, as well as Special Obligations in relation to other measures


Educational Measures are divided into:

i) Disciplinary Measures:


Court reprimand

Committal to a disciplinary centre for juveniles



ii) Measures of Intensified Supervision:

Intensified Supervision by Parents, Adoptive Parents or Guardians

Intensified Supervision in a Foster Family

Intensified Supervision by the Competent Social Care Body / Centre for Social Work

iii) Institutional Measures:

Committal to an Educational Institution

Committal to an Educational/Reformatory Home

Committal to Another Training Institution


In conjunction with educational measures or the sentence of juvenile prison, Security Measures can also be pronounced, among which mandatory psychiatric treatment in an institution and committal to a health institution with mandatory psychiatric treatment at liberty may be pronounced independently for a juvenile with a mental disability.
Security measures are:

Mandatory psychiatric treatment in an institution and committal to a health institution

Mandatory psychiatric treatment at liberty

Mandatory treatment of alcoholics and drug addicts

Ban on driving a motor vehicle

Seizure of an object

Expulsion of a foreigner from the country.
In conjunction with any of three mentioned educational measures of intensified supervision, the court may pronounce one or more Special Obligations for a juvenile, if necessary, so that the measure will be more successful, provided that the obligations cannot last longer than the Measure of Intensified Supervision itself.
Special Obligations can be:


  • an apology to the injured party

  • payment for damage within his or her abilities

  • regular school attendance

  • undertaking training for a job suitable to his or her capabilities and propensities

  • to restrain from drinking alcohol or taking intoxicating drugs

  • to visit an appropriate health institution or counselling office

  • not to associate with persons who have a bad influence on him or her.

According to some professionals, the possibility of ordering special obligations is not being sufficiently used. Therefore the impact of the implementation on juveniles cannot be assessed.






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