CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA
1.1 BASIC CHARACTERISTICS OF CHILDREN IN CONFLICT WITH THE LAW IN BOSNIA AND HERZEGOVINA (BiH)
A Child's Age in the Criminal Legislature of BiH
In Bosnia and Herzegovina (BiH), the Criminal Codes of the Federation of BiH (FBiH) and of the Republika Srpska (RS) define the child in conflict with the law as a minor who at the time of the offence is 14 to 18 years old. Under this definition, a “younger juvenile” is a person who, at the relevant time, is 14 to 16 years old, and an "older juvenile” is a person who, at the relevant time, is 16 to 18 years old.
Children below the age of 14 are not held criminally liable before the law. These definitions are reflected in the measures and sanctions that may be used in the case of juvenile offenders (see Annex II, Types of Criminal Sanctions for Juveniles in BiH):
For children up to the age of 14, the proceedings are ceased and criminal sanctions cannot be carried out. Parents or carers are notified about the offence in question along with social welfare services.
For children aged 14 to 16 years (defined in legislation of both entities as a "younger juvenile"), sentences involving Educational Measures may be given, and in the Federation of BiH, Educational Recommendations may also be ordered.
For children aged 16 to 18 years (defined in the legislation of both entities as an "older juvenile"), a prison sentence of duration from one to ten years may be ordered in addition to educational measures.
It should also be mentioned that legislation in both entities provides for the possibility of:
educational measures (with close supervision or in institutions) for young adults between the ages of 18 and 21, if he or she has committed the offence as a juvenile
educational measures (with close supervision or in institutions) for a young adult (i.e. a person who had turned 18 at the time of the offence and is under 21 at the time of the trial), where the court can reasonably assume that the educational measures will achieve the same result as punishment.
With the lower limit of the age of criminal responsibility set at 14, BiH falls in line with a group of European countries that includes Hungary, Italy, Croatia, Slovenia, Bulgaria, Germany, Rumania, Serbia and Montenegro, and Russia.
The issue of the lower age of criminal responsibility is a critical aspect to be considered in the process of law reform. The level at which the lower age limit is set does not by itself indicate whether a system of juvenile justice is predominantly repressive or directed towards rehabilitation. The age of criminal responsibility as defined by the law cannot indicate how the child is treated once he or she “gets into” the system.1
The UNCRC in Article 40:
States Parties shall seek to promote establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the criminal law, and, in particular:
The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law.
The Guidelines for Periodic Reports to the Committee on the Rights of the Child that should be submitted by State Parties request information on the “establishment of a minimum age below which a child can be presumed not to have the capacity to infringe the penal law.”
The Beijing Rules demand under Rule 4 that:
“In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”
Examples from international practice:
In Scotland, where the minimum age is one of the lowest in the world (8 years), there is a progressive “children’s hearing” system, which enables children under 16 to avoid contact with the formal justice system for all but the most serious offences. In addition, the whole system is oriented towards non-custodial solutions.
In Romania, on the other hand, where the minimum age is 14, a child of that age can be brought to court and sentenced to detention.