What advantages do adolescents have over adults?
Subject area child and youth policy
Separation of adolescents and adults in prisons
The reservation with regard to Art. 37 let. c CRC and the difficulty of ensuring complete separation of adolescents and adults in prisons
As part of the Universal Periodic Review (UPR) 2008 and 2012 (recommendation 123.80), recommendations were made to Switzerland regarding the obligation arising from the Convention on the Rights of the Child (CRC) to separate adolescents and adults in prisons. Switzerland rejected these recommendations. This article examines the international demands, the situation in our country with regard to the Federal Act on Juvenile Criminal Law (JStG) and the Swiss Juvenile Criminal Procedure Code (JStPO), as well as the specific options for executing deprivation of liberty.
The UN treaty bodies have long called for the separation of young people and adults in prisons in Switzerland. Both the UN Committee on the Rights of the Child in 2002 and the UN Committee against Torture in 2010 expressed concern about the situation and recommended that Switzerland ensure the complete separation between young people and adults. The second UPR of Switzerland 2012 contains a recommendation that directly affects this separation of young people and adults in prisons:
- 123.80. "Protect minors and ensure that imprisonment of minors is separated from imprisonment of adults."
Two further recommendations addressed to Switzerland deal with Switzerland's reservations about the CRC and concern the same topic:
- 123.7. "Withdraw remaining reservations to the CRC";
- 123.9. "Withdraw its reservations to Article 37 (c) of CRC"
These recommendations were not accepted by Switzerland immediately after the debate, but were subjected to detailed scrutiny. On February 27, 2013, the Federal Council decided to reject recommendations 123.79, 123.7 and 123.9.
The question of the separation of young people and adults in prisons was already the subject of the first UPR (Rec. 57.10: "Treat minors in detention differently than adults in all forms of deprivation of liberty").
While recommendation 57.10 from 2008 is based on Police custody or Custody related, the recommendations of 2012 do not specify the type of detention, but speak generally of the deprivation of liberty of "minors" and call for the withdrawal of the reservation against Art. 37 c) CRC, which calls for the separation of young people and adults in detention centers (Rec. 123.8 ), or the withdrawal of all reservations made by Switzerland and not yet withdrawn against the CRC (Rec. 123.7).
The international demands
In order to show the general meaning of this question, the relevant international obligations should be recalled:
a) At the international level, the rules of Juvenile criminal law contained in the CRC (especially in Art. 37) and in Art. 10 of the International Covenant on Civil and Political Rights (ICCPR). Art. 10 para. 2 let. b of this pact reads: "Young suspects are to be separated from adults and a judgment must be given as soon as possible." In the CRC, the youth criminal law requirements concerning our question can be found in Article 37 and include the duty to treat children with humanity and respect for their inherent dignity, to separate them from the adults, unless an approach other than the best interests of the child is considered, and to ensure the connection to the family (correspondence and visits) (letter c).
b) Further rules can be found in international documents without a binding character (soft law), such as in the "United Nations Rules for the Protection of Minors under Deprivation of Liberty" (1990), also called "Havana Rules", which cover protection and the Affect the welfare of minors in detention. The point is to protect these children from the harmful effects of imprisonment by guaranteeing the rights of the CRC. These rules again take up the duty To separate adolescents from adults in all detention facilities.
c) The European Prison Rules of 2006 (Recommendation Rec (2006) 2 of the Committee of Ministers to the Member States on the European Prison Principles) explain the minimum treatment that juvenile detainees must receive, such as accommodation in facilities specially created for juveniles, which Separation from the adults or the consideration of their special situation and needs.
d) The guidelines adopted by the Council of Europe in 2010 on a child-friendly judiciary (see also the article in the SKMR newsletter of October 26, 2011) stipulate that the following points must be observed in particular when treating young people in prisons: Separation from the adults, Maintaining contact with family, access to education.
Legal situation in Switzerland
With regard to the reservation against Art. 37 c), Switzerland made very clear statements in its 2nd, 3rd and 4th reports to the Committee on the Rights of the Child in 2012, pointing out that the Committee on the Rights of the Child "... cannot be withdrawn as long as the 10-year transition period granted to the cantons for the establishment of the necessary facilities has not expired." The report speaks here of the period granted in Art. 48 of the Federal Act on Juvenile Criminal Law (JStG). It is therefore not surprising that Switzerland rejected the recommendations made in October 2012 in this regard.
The Youth Criminal Law and the Youth Criminal Procedure Code
The new federal law on juvenile criminal law (JStG) requires in Art. 27 para. 2 the separation of juveniles and adults for the execution of sentences to of condemnation. However, Art. 48 JStG grants the cantons a period of 10 years (i.e. until December 31, 2016) to set up the necessary facilities, which significantly weakens the current right of convicted children not to be housed with adult prisoners.
Minors who are in administrative detention in Switzerland must also be considered. Recommendation 123.79 of the UPR 2012 aims in this direction, which requires that unaccompanied minor asylum seekers be separated from adults in detention centers. However, she was rejected by Switzerland at the end of February. This requirement was already the subject of the Federal Council's report on the compliance of the coercive measures in the law on foreigners with children's rights in 2009.
The Swiss Youth Criminal Procedure Code (JStPO) came into force on 01.01.2011. With regard to the execution of imprisonment before sentencing Article 28, Paragraph 1 states: "Remand and preventive detention are carried out in a facility reserved for juveniles or in a special section of a detention center, where the juveniles are separated from adult prisoners. Adequate care must be ensured. "This provision resumes Article 6, Paragraph 2 of the old JStG and adopts the principle of the separation of young people and adults.
With regard to pre-trial detention, the Federal Supreme Court clearly states that the juveniles are to be separated from the adults when it is enforced and that there are no exceptions to this principle (BGE 133 I 286, 1P.7 / 2007). As far as the implementation by the cantons is concerned, the Federal Supreme Court found that the execution of pre-trial detention is in no way mentioned in Art. 48 JStG. It concluded from this that Art. 48 JStG does not extend to the execution of detention prior to the conviction and that consequently the transitional period granted to the cantons for the establishment of such institutions does not apply either.
As far as developments at the Swiss level are concerned, the member cantons of the Latin Conference of Justice and Police Directors (LKJPD) passed a concordat on March 24, 2005 to address issues relating to the criminal deprivation of liberty among young people in the cantons of Latin Switzerland regulate how this is required by the JStG. This Concordat came into force on January 1, 2007 and requires in Art. 20the complete separation of minors and adults in prison.
Stand in Switzerland
In the SKMR study published in January 2012 on the implementation of the recommendations from the first UPR cycle 2008 (Etude du CSDH sur le suivi des recommandations UPR de 2008), the authors of the considerations on recommendation 57.10 dealt with the current status of the separation or failure to separate adolescents and adults in prison. On the basis of a study carried out by the Federal Office of Justice (FOJ) in 2007 and a new study carried out in the cantons in 2009, the results of which were not published, they were able to show that young people imprisoned in Switzerland were not treated differently from adults because it was too there were not enough places for minors in police custody or pre-trial detention at that time.
According to the information provided by the Federal Office of Justice (FOJ) in February 2013, the situation has not changed significantly in the meantime, but some improvements are underway. B. the first juvenile prison in Latin Switzerland in Palézieux (Vaud) start operations. The basis of this project was the intercantonal concordat that the cantons of French-speaking Switzerland and parts of the canton of Ticino adopted in order to meet the requirements of the new JStG. This concordat also provides for the construction of a facility for girls in Cornaux (NE). In German-speaking Switzerland, the number of places with childcare specifically tailored to the needs of young people in the cantons of St. Gallen, Zurich, Basel-Stadt and Basel-Land as well as Bern seems to be sufficient during normal times.
Switzerland cannot yet withdraw its reservation with regard to Art. 37 c) CRC and cannot yet fully ensure the separation of young people and adults in prisons; this applies in particular to the execution of sentences and measures. According to the FOJ, however, it supports the separation of adolescents and adults during deprivation of liberty and care, and tries to achieve this. In addition, the federal government no longer grants subsidies (neither for construction nor for operation) if this separation is not implemented and guaranteed. After the transitional period granted to the cantons (2016), the separation of young people and adults should be fully ensured in all areas of deprivation of liberty.
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