Despite the fact that every formal identification and further examination of a person may, in general terms, be viewed as an act of deprivation of liberty (for example, a limitation of freedom of movement while a police officer checks identification documents), the police authorities make a distinction between a so-called ‘informative’ conversation with the juvenile suspect and deprivation of liberty.
Juvenile offenders are questioned at police premises (either a police station or a Public Security Centre, depending on the size of a settlement) after being brought or summoned to such premises. Reasons for bringing or summoning a juvenile may include the following:
he or she was found committing an offence or criminal act
there is evidence or reasonable suspicion that he or she committed a criminal act and he or she is summoned for an ‘informative’ conversation
another person has made a complaint against the juvenile
the juvenile participated in an offence
there is the need to protect the juvenile offender.
In practice, the police try not to charge repeat offenders (recidivists) automatically simply because they are known to be offenders, if there is no solid evidence that they have committed an offence. However, police officials point out that this is not possible in all cases because police officers are not always familiar with the juvenile recidivist's home area. This occurs when police officers are frequently re-assigned to different areas and cannot become acquainted with the particular section of the town, and thus have a limited ability to protect citizens and form a realistic picture of offenders. A different practice would reduce the possibility of "adding another offence" to repeat offenders.
Methods of apprehension
The practice in BiH is that a juvenile caught in the process of violating the law should be brought in without having his or her hands restrained. An exception is made if it is thought the young person may jeopardise his or her life or the life of another person, and handcuffs are used when a serious criminal act with fire weapons has been committed.
Minors are never transported in police vehicles with bars, the so-called paddy wagon.
In general, according to all police officers interviewed in both entities, methods of force are used only exceptionally according to the Instructions current in both entities.
If a minor is caught in violation of the law during the night and the matter does not involve a serious criminal offence, the young person’s details are noted and he or she is released and requested to return in the morning with his or her parents or carers. If the matter concerns a serious criminal offence, an on-duty inspector is called in to conduct an examination.
In all cases, except when detention is considered, a juvenile cannot be held in police premises for more than 24 hours. According to claims by police officers from both entities, this rule is always respected. Police officials estimate that, on average, a juvenile spends up to five hours at police premises.
Procedure with a minor in police premises Presence of parents
Across the country, the presence of parents or carers during interrogation is always sought. If their presence is not possible, a social welfare centre is contacted. A juvenile is told that he or she need not answer questions until the above-mentioned persons are present. In larger towns in BiH female police officers carry out searches of girls, and female inspectors conduct investigative inquiries. A male police officer may assist during interrogation, depending on the type of offence.
If a child from an institution or a homeless child is brought in for examination, an officer from that institution is called in, i.e. permission is requested from the relevant social welfare centre.
Examination of a juvenile The police officers interviewed emphasised that when interrogating children officers will ask neutral questions since, in their view, most children are not fully aware the legality of their actions and the possible consequences. They also added that often, in course of conversations, the child’s background, i.e. the reasons that may have led to the particular offence, can be discovered. The officers emphasised that an alarming number of criminal offences are caused by the need to get money to purchase drugs.51
Engagement of a defence counsel In the Federation of BiH, the engagement of an attorney is obligatory for less severe criminal offences from the onset of the criminal proceedings. However, in the Republika Srpska, the engagement of an attorney is only obligatory immediately following the public prosecutor’s request for the preparation of proceedings in cases when a prescribed penalty is over five years.
Observations made by Republika Srpska attorneys in the recent OSF/UNICEF study (Young People in Conflict with the Law in the Light of Topical Problems of Juvenile Criminal Justice in BiH) on the treatment of juveniles referred to “excessive repressive measures” and the “presumptuous and harsh” behaviour of police officers. This could indicate a need in the Republika Srpska for greater participation by attorneys earlier on in the juvenile justice process, where this should be legally verified.
Forwarding of Cases to the Public Prosecutor’s Office
If a juvenile is not deprived of liberty, i.e. if remand in custody is not ordered, the juvenile is released after the interrogation has been completed. If a police officer decides that the matter involves a criminal offence, the case is forwarded to the public prosecutor in the form of a criminal charges report. Criminal charges for all juveniles, as well as for children under the age of 14, are brought to the public prosecutor. However, the latter cases are not sent to the court by the public prosecutor.
The public prosecutor cannot consider that statements contained in a criminal charges report, including any statement by a juvenile given to the police, are proof of a committed offence. Instead, the report will constitute grounds either to initiate preparatory proceedings or to reject them.
With regard to juvenile behaviours that can have criminal features or to features of a minor offence (e.g. a fight without injured persons, a minor traffic offence), a police officer may conclude the case without pressing charges against a minor by giving a caution and drafting a so-called official note.
Remand in custody and deprivation of liberty If a juvenile is deprived of liberty and kept at police premises, the relevant law enforcement body is obliged without further delay to take the juvenile in question to a juvenile judge, under condition that this detention may not last longer than 24 hours.
Currently, when a juvenile is informed about deprivation of liberty, he or she must also be informed about his or her rights pertaining to a defence counsel and to conditions of detention. The juvenile suspect may be remanded in custody. In this regard, there are differences between the RS and FBiH, both in legislation and practice.
In the Federation of BiH52 the Criminal Procedure Code states that a juvenile judge may, exceptionally, in accordance with the law, decide on the necessity of detention every 10 days, whereas the Juvenile Panel of the same court may extend detention on legal grounds53 for another two months. Once the legal reasons for which the custody was ordered no longer exist, the custody order must be cancelled.
The law also allows for the possibility of alternative action (e.g. intensified supervision, placement in correction institutions, etc). However, these alternatives are not feasible in practice due to the lack of appropriate infrastructure. The principle of separation of juveniles in detention from adult persons is respected, as stated by police officials across the country “within the limits of accommodation facilities”. For example, in the penal-correctional institution in Sarajevo where, as stated by officials, due to lack of funds there are no conditions for providing adequate care and protection as envisaged by international legal standards and also by the Criminal Code of the Federation of BiH.54
In the Republika Srpska, remand in custody is, as a rule, ordered by a juvenile judge, although “detention, exceptionally, may be ordered by a law enforcement body prior to initiating an investigation, if, because of the need to verify facts, check an alibi or for other reasons, it is necessary to collect evidence in order to conduct proceedings against a certain person, and there is reasonable fear that the person in question may tamper with or destroy the evidence of a criminal act”.55 Therefore, law enforcement bodies in the RS are legally empowered to order a remand in custody for a maximum duration of 72 hours, i.e. three days,56 pending a juvenile judge being notified. In practice it often happens that a juvenile judge is only notified upon expiry of the 72 hours. The judge then must act immediately to examine the reasons for the detention so as to decide whether to bring the period of detention to a close or to extend it. In practice, remand in custody is rarely ordered; according to some estimates, no more than one in ten cases of juvenile suspects. Usually police detention and custody ordered by a juvenile judge coincide, even though this is not strictly required. Based on an order given by a judge for juveniles, detention may last one month at the most, and upon the judge’s recommendation, the Juvenile Panel may extend detention for another two months. A juvenile judge may rescind the detention order as soon as the reasons for no longer apply.
Detention can be invoked only upon a judge’s recommendation (in agreement with the prosecutor). (More detail on detention is provided below under ‘Court – Detention during Preparatory Proceedings’.)
It should be noted that in both entities, juveniles are being kept in detention with adults. In Banja Luka, where there is no detention section within the police premises, juveniles are sent to the Penal-correctional Institute (Prison) and placed with adult offenders. As these buildings are far apart, juvenile suspects are transported back to police premises for questioning if it was the police who ordered the detention. The police are aware of this problem and it is hoped that it will be partially solved by opening a correctional institution in Banja Luka where juvenile offenders may be accommodated.
Caution that may be given by the police Police officers may caution a juvenile about the detrimental effects of committing acts against the law, but such cautions are usually made in cases where the juvenile’s behaviour is considered to constitute a minor offence.
Police officers may be guided in their decision-making by the type and gravity of the offence, as well as by any lack of evidence and an understanding of the potential preventive nature of their activities. This is confirmed by the difference between the number of children brought in for questioning and the number of cases processed by the public prosecutor’s office. Police records include official notes of investigative talks with children which can be defined as cautions.
Police officials contacted in the Republika Srpska are not sure whether the expansion of police powers in terms of a formal and legally-grounded caution would be an appropriate measure. Their reservations concerned the following:
existing work overload of the police
insufficient support from social care services
ethical issues, such as ‘what is best’ for young people in terms of any positive learning that could be gained from cautions
frequent lack of co-operation from parents.
However, police officials from both the RS and FBiH stated their readiness to apply new methods of work if so prescribed by the law and if adequate training and intensified co-operation with other services within the system is provided, especially with social welfare centres.
DIVERSION FROM FORMAL ADMINISTRATION OF CRIMINAL JUSTICE
Diversion is one of the pillars of the UNCRC’s regulations on juvenile justice. It is essential in all the international instruments for regulation of juvenile justice area.
Ideally, in any stage of the criminal judicial proceedings, the possibility should exist to impose an extra-judicial measure. Judicial authorities of all kinds – the police officer, the public prosecutor and the juvenile judge – should be allowed to impose such a measure as long as they have had specialised education or training. (Art. 11.2 and 12.1 Beijing Rules, Art. 58 Riyadh Guidelines, Art. 81087 Havana Rules.)
The theory of diversion
The aim of diversion can be:
to divert juveniles at high risk of offending the law from formal administration of criminal justice, in a way that they are enabled to participate in care and rehabilitation programmes where all available resources in the community shall be used;
also, a juvenile offender who confesses to his or her crime is offered the option to go through extra-judicial proceedings. In exchange, he or she should fulfil a task (see BiH example in the section Prosecution, under ‘Pronouncement of Educational Recommendations – the Federation of BiH’).
Examples from International Practice:From the Netherlands
The Netherlands is the only country that offers the possibility of extra-judicial measures at each of the three juvenile justice phases (i.e. police, public prosecutor, judge). (The institution for police dismissal is called HALT (Het Alternatief – The Alternative) and is outlined in the criminal code. HALT bureaux have been established by local authorities in co-operation with the state prosecutor’s office. HALT bureaux are private organisations that work in close co-operation with the police and operate under the auspices of the public prosecutor’s office. The first HALT bureau was established as an experiment, which was then replicated across the country and incorporated into the law.
Police can refer a first-time juvenile offender (provided that it concerns a minor crime or petty theft) to a HALT bureau. The charges against the juvenile can be dropped if he or she confesses to the crime and agrees to participate in a HALT project. The offender consents to the type of project. A HALT project should not exceed 20 hours. HALT measures include carrying out tasks of work related to the offence: payment for the damage, for offenders over 14 years of age; activities of an educational nature; or a combination of the two. If the task has not been carried out satisfactorily, the juvenile can be further prosecuted.
From the United Kingdom
Since 1998 in the United Kingdom, the police can give a final warning instead of a caution. When a young person admits offences for the first time they may receive a reprimand or a final warning from a police officer, depending on the seriousness of the offence. Where a final warning is administered, the young person will be referred to the relevant youth offending team for assessment. Depending on the assessment, there will usually be an intervention that addresses the factors underlying the young person’s offending behaviour and considers whether reparation to the victim by the young offender is appropriate. The aim is to divert young people from crime before their offending behaviour becomes entrenched. At the same time, the young offender is diverted from the formal court process.
Protection of information on juveniles Across BiH, police records on juveniles are confidential and not available to third parties. In practice, if the media is informed about minors, only initials and selected pieces of information are provided, so as to prevent revelation of the young person’s identity.
Police and prevention All police officers interviewed in the RS and the FBiH are in absolute agreement about the necessity to plan preventive activities in which the police would be more engaged. However, the prevailing opinion is that benefits would be more far-reaching if there was an inter-agency approach in place.57 In some towns, the police are directly involved in preventive projects or initiatives, as mentioned in Annex III: Projects and Initiatives in the Field of Juvenile Justice in Bosnia and Herzegovina.
Police officers spoke of parents’ lack of co-operation once the police have completed their work (irrespective of whether or not the case in question is sent to the public prosecutor) as a missed opportunity for preventive work. The officers believe that the benefits of measures to prevent offending behaviour (and repetition of offences) would be far greater if parents were more co-operative with the police.
Police officials believe their work on prevention in particular would be more effective if arrangements were made for police officers to serve in particular areas for longer periods of time, thus enabling them to learn about “every corner and cellar”.
Examples from International Practice: In many Western countries, the police are engaged in preventive work in schools. In Amsterdam (Netherlands), where there are drug problems and petty crime, the police conduct several preventive programmes (secondary prevention) aimed directly at juveniles at risk. Different activities and projects include:
regular visits to schools where they talk about risk situations for young people, and explain what happens to a child when he or she is held by police
a police officer takes a group of children to visit and talk to a detained adult drug addict
the police co-operate with regional job centres and private companies to help find paid jobs for high-risk juveniles.
Communication and co-operation with the police is conducted directly with the Office of the Public Prosecutor to whom the Police refer the case, and the Centres for Social Welfare.
Police officials from both the RS and FBiH unanimously underlined the need for Centres for Social Welfare to pay more attention to preventive work with children who have been identified by the police as being at high risk, mostly through contacts with those who have committed a minor offence. However, sometimes police officers are not well informed about the legal responsibilities of Centres for Social Welfare and hence their expectations are too high.
Problems and constraints in practice
Current non-compliance of legal acts and internal procedures (RS)
Lack of detention facilities or alternative solutions for detention in both entities
Insufficient equipment, especially in smaller places
Uniformed police officers are relocated too often to different city areas
Lack of co-operation from parents
Insufficient co-operation from Centres for Social Welfare
Insufficient specific knowledge for work with minors at different levels within the police force
Current organisation of work lacks specialised inspectors for juvenile offending
Insufficient number of women police inspectors
Low salaries contribute to a lack of motivation among personnel (raised in RS)