On May 23, 2007, Georgian President Mikheil Saakashvili signed into law a set of amendments to three laws, lowering from 14 to 12 the minimum age of criminal responsibility for children for certain crimes. The amendments affected the criminal code, the code of criminal procedure, and the law on imprisonment, and enter into force July 1, 2008.
“By lowering the minimum age of criminal responsibility, Georgia has gone against international and European standards,” said Holly Cartner, Europe and Central Asia Director at Human Rights Watch. “States are supposed to work to establish higher, not lower, ages of criminal responsibility.”
The amendments to the criminal code consider children as young as 12 mature enough to be held responsible for premeditated murder, including under aggravated circumstances, intentional damage to health, rape, most types of robbery, assault, and possession of a knife. Under the amendments to the criminal procedure code, minors will be prosecuted and tried by “judges, prosecutors and investigators who have had special training in pedagogy and psychology.” If convicted, minors would face the same punishment as adults, but under the amendments to the Law on Imprisonment, would serve their prison terms in separate penitentiary institutions from adults, which Georgia has yet to build.
Under existing law, children under 14 were not to be formally charged or subject to criminal proceedings for actions that, if committed by an older child or adult, would have been defined as criminal.
The amendments directly contravene a UN recommendation that states not lower the age of criminal responsibility for children. The United Nations Convention on the Rights of the Child, to which Georgia is a party, defines a child as any person under the age of 18. In its General Comment on Children’s Rights in Juvenile Justice of February 9, 2007, the UN Committee on the Rights of the Child, which monitors states’ compliance with the Convention on the Rights of the Child, explicitly stated that countries “should not lower their minimum age of criminal responsibility to 12,” and has encouraged states to progressively increase the age of criminal responsibility.
Similarly, in 2003, the European Network of Ombudspeople for Children (ENOC) stated that “current trends to reduce the age of criminal responsibility and to lock up more children at younger ages must be reversed.” The network stated that instead of lowering the age of criminal responsibility, states should aim to progressively raise the age to 18, and develop innovative systems for responding to juvenile offenders below that age with a genuine focus on their education, reintegration and rehabilitation.
The Committee of Ministers of the Council of Europe has also asked member states, including Georgia, to refrain from instituting criminal responsibility for young children. In its Explanatory Memorandum on a 2003 recommendation concerning juvenile delinquency and justice, the Committee of Ministers noted that “the lower capacity of younger children should be reflected in the use of predominantly welfare measures. They should be seen as children first and offenders second.”
In its explanatory note to the law, the Georgian government stated that the amendments were part of Georgia’s criminal justice reform and explained the need for a lower age of criminal responsibility as a preventive measure that aimed to make children realize the criminal nature of their deeds and fear punishment. Ministry of Internal Affairs statistics for the first quarter of 2007 show a slight decline, as compared to the first quarter of 2006, in registered crimes committed by juveniles.
Imprisoning more and younger children is unlikely to solve the problem of juvenile delinquency in Georgia. On the contrary, use of detention could exacerbate the problem, as Georgia currently lacks a juvenile justice system capable of educating, reintegrating, and rehabilitating juvenile offenders.
Following Georgia’s initial report on its implementation of the Convention on the Rights of the Child, the Committee on the Rights of the Child expressed concern regarding Georgia’s lack of adequate legislation on juvenile justice, the poor conditions of juvenile detention facilities, inadequate facilities for children in conflict with the law, and the lack of trained personnel.
The amendments to the criminal procedure code instructs the Ministry of Justice to build a new facility for juvenile offenders or to modify an existing penitentiary institution and tasks several ministries to train criminal justice officials dealing with children, but it is not clear that this will adequately address the concerns raised.
“By lowering the minimum age of criminal responsibility, Georgia risks placing an even greater number of children in detention, possibly for long periods,”said Cartner. “This raises further concern, as overcrowding has been documented as a serious problem in Georgia’s existing penitentiary institutions.”
International standards consistently call on states to imprison children only as a last resort. Article 37 of the Convention on the Rights of the Child states that the arrest, detention and imprisonment of a child must only be used as a measure of last resort and for the shortest appropriate time. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty also state that deprivation of the liberty of a juvenile should be used as a last resort and limited to exceptional cases. The European Committee on Social Rights, on the basis of Article 17 of the revised European Social Charter, has similarly determined that “prison sentences should only exceptionally be imposed on young offenders.”
“Instead of simply prosecuting and locking up children in conflict with the law, states are supposed to develop alternatives,” said Cartner.
Alternatives to prosecution envisaged by the Convention on the Rights of the Child include care, guidance and supervision orders, counseling, probation, foster care, and education and vocational training programs.
