Review article
Procedural safeguards for children who are suspects or accused persons in criminal proceedings on the basis of Directive (EU) 2016/800
Lidija Horvat
Abstract
The subject of this paper is Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings and its implementation in the national legal system which, according to the transitional and final provisions of the Directive, must be enforced by 11 June 2019 at the latest. The author first introduces the so-called soft law and other legal sources that directly affect the adoption of the Directive. The case law of the European Court of Human Rights is analysed, from which follows the importance and need to adopt the Directive as a legally binding document. In order to find the reason for the lack of Constitutional Court decisions in relation to juvenile defendants (given the fact that the almost entirely analysed case law refers to the injured party), statistics were requested on the total number of cases and on the number of ex officio appointed defence lawyers for juveniles from five municipal and county courts in the Republic of Croatia (Zagreb, Rijeka, Pula, Split, and Osijek). An analysis of the collected data shows that in 80% to 90% (and before some courts in 100%) of juvenile cases, defence lawyers were appointed ex officio, and this is a possible reason for the lack of case law of the Constitutional Court in this area. (The second most probable reasons are the relatively mild sentences and the unwillingness of parents to initiate further proceedings.) Further, the provisions of the Directive are analysed with special reference to the meaning of the term “best interest of the child” as one of the guidelines of the whole Directive, as well as the right to legal aid in relation to the defence attorney, which was the most controversial issue in its adoption. The provisions of the domestic Juvenile Courts Act and its compliance with the Directive are then analysed. It was found that one of the main disadvantages of the domestic law is the lack of the obligation to provide information on the right to information in criminal proceedings in general and to the special rights of a child which should be prescribed in a domestic lex specialis. The principle of non-nocere also needs to be replaced by the principle of “best interest of the child”. Further, the need is noted for terminological harmonisation of the Croatian Juvenile Courts Act with the Directive.
Keywords
children who are suspects or accused persons; Directive (EU) 2016/800; juvenile criminal law; standards in the juvenile criminal justice system; procedural safeguards; best interest of the child; right of the child to a defence attorney
Hrčak ID:
218960
URI
Publication date:
12.12.2018.
Visits: 1.482 *