Natalia Burukovska,
PhD, Associate Professor,Chief Scientist
Departmentof researchstudy of problems
of legal proceedings and itsimprovement
National School of Judges of Ukraine
CREATION OF JUVENILE JUSTICE SYSTEM IN LIGHT OF THE NEW CRIMINAL PROCEDURE CODE OF UKRAINE
The issue of criminal responsibility of minors is one of the most important currentsocial and legal problems in Ukraine. The interest to the protection of minors is rather high in Ukrainian legal science. The majority of experts in the field of protection of minors believe that children are the most vulnerable stratum of society. The theoretical issues of creating the juvenile justice system were discussed by many scientists, including N. Krestovskaya, V. Abramova, N. Borisov, N. Sibilova, J. Baulin and others. In this context and in light of the adoption of the new Criminal Procedure Code of Ukraine the issue of creation of juvenile justice system, which is totally new and unfamiliar to domestic judiciary, has urgently arisen in front of Ukrainian experts in the sphere of law, both theorists and practitioners.
A sound judicial system is one of the key legal mechanisms for protecting children's rights in any country of the world. Judicial protection should be understood as botha jurisdictional form of protection of rights and legitimate interests of children, and as an important internal function of state of law, which consists in recognizing and protecting the rights of every citizen. Therefore, at the present stage of reform improvements regarding juvenile justice and effective model of juvenile justice are one of the most promising areas of development of the Ukrainian judiciary in general, and criminal procedure in particular.
Today, Ukraine has launched several "pilot" projects for developing juvenile justice, and formed different approaches to the range of issues that fall under its sphere of influence. In general, the peculiarity of juvenile justiceis determined byprinciples and rules that are established to further improve the legal protection of minors. Almost everywhere, the notion of juvenile justice is closely linked to its basic element, i.e. a “Juvenile Court” (acourt which deals with underage defendants), which allows us to clearly define this concept and describe a range of issues and problems related to it. First and foremost, this is justice for minors. Thus, the juvenile justice system is a system of protection of rights and legitimate interests of minors, uniting around a specialized juvenile court a variety of specialized services and agencies. The main purpose of the juvenile justice system is to ensure the legality, validity and appropriateness of any legal decision regarding minors, and timely and effective protection of rights, freedoms and legitimate interests in dealing with civil, administrative and criminal cases involving children upbringing and offenses committed by them.
Back in 2010, Ukraine made the first attempt to create a juvenile justice system. Thus, according to the order of the Ministry of Justice of Ukraine № 491/7 from 27.05.2010, the Task Force was established in connection with the start of implementation of the Canadian Government’s technical assistance project "On Reforming Juvenile Justice in Ukraine".Its objective was to build a modern juvenile justice system, to reduce crime among youth and improve the protection of their rights and interests [1], which wass provided for bythe President of Ukraine’s Decree № 597/2011 from 24.05.2011 "On the Concept of Criminal Justice for Minors" [2] and the Cabinet of Ministers of Ukraine’s order № 1039-r from 12.10.2011 "On approval of the Plan for Implementation of the Concept of criminal justice for minors in Ukraine" [3]. But it was only in 2012, that due to the adoption of the new Criminal Procedure Code of Ukraine the first practical steps towards implementation of these documents were made.
In our country, the juvenile justice is currently being formed as one of the constituents of the new criminal justice, namely as criminal justice for minors. The practical implementation of juvenile justice legislation in Ukraine concerning juvenile offencesis the amendment to Article 18 of the Law of Ukraine "On the Judicial System and Status of Judges" (Part 3), which provided for introducing a position of a judge in criminal proceedings for minors in local general courts and appellate courts of regions, the cities of Kyiv and Sevastopol, the Court of Appeal of Autonomous Republic of Crimeaand clearly prescribed the mechanisms for electing judges authorized to conduct such proceedings [4].
The main condition for election of a judge in criminal proceedings for minors is their professionalism, moral and professional qualities, significant pedagogical and legal experience. Thus, the stated amendment is aimed at creating within the judicial system a position of"juvenile judge", who should thoroughly and impartially consider criminal offenses and misdemeanors committed by minors; work closely with their parents and specialized services for minors. The focus of their activity should be not punitive but restorative justice. In essence, Ukrainian juvenile justice applies only to two groups of children: children who have committed offenses and/ or are victims or witnesses of a crime; and children who are deprived of parental care.It has nothing to do with the Family Code of Ukraine and does not apply to family conflicts. Thus, Ukrainian lawmakers try to create a legal framework for the protection of minors and avoid the mistakes of their Russian counterparts, where in the result of adoption of several laws on juvenile justice the state is accused of intervention in family life.
The project “Reform of the criminal justice system for juveniles in Ukraine” supported by the Canadian International Development Agency is being implemented in Ukraine. The contribution of the project to the development of juvenile justice is outstanding. On the basis of national legislation, judicial practice and taking into account the results of public work the efficient system of juvenile justice is being developed [5]. The project clearly defines principles of criminal justice for minors that found their embodiement in Section VI (Chapter 38) of "Criminal proceedings in respect of underage persons" of the Criminal Procedure Code of Ukraine [6, 1002-1025]
In conclusion, it must be recognized that the main purpose of juvenile justice is education that isaimed at reducingthe negative effect of criminal proceedings on children, and, therefore, at preventing criminal behavior. Not only legal, but also social factors and their interactionshould be taken into consideration in the development of the juvenile justice system. Criminal policy in respect of minors must be constantly improving through the introduction of new technologies of socio-legal protection of minors, development and adoption of corresponding legal acts aimed at creating a complete system of juvenile justice, and the formation of specialized juvenile courts. A professional approach to the issue should play a major role in the mechanism of prevention of juvenile delinquency. This will enableto implement reforms on children’s rights and interests to the full.
References:
- NakazMinisterstvayustytsiiUkrainy № 491/7 vid 27.05.2010 «Pro utvorennyarobochoihrupy» [Elektronnyyresurs]. – Rezhymdostupu: http://zakon2.rada.gov.ua/laws/show/v491_323-10.
- UkazPrezydentaUkrainy № 597/2011 vid 24.05.2011 «Pro Kontseptsiyurozvytkukryminalnoiyustytsiishchodonepovnolitnikh» [Elektronnyyresurs]. – Rezhymdostupu: http://zakon1.rada.gov.ua/laws/show/597/2011.
- RozporyadzhennyaKabinetuMinistrivUkrainy № 1039-r vid 12.10.2011 «Pro zatverdzhennyaplanuzakhodivshchodorealizatsiiKontseptsiirozvytkukryminalnoiyustytsiishchodonepovnolitnikh v Ukraini» [Elektronnyyresurs]. – Rezhymdostupu: http://zakon3.rada.gov.ua/laws/show/1039-2011-r.
- ZakonUkrainy «Pro sudoustriyi status suddiv» № 2453-17 vid 07.07.2010 (izzminamy) [Elektronnyyresurs]. – Rezhymdostupu: http://zakon2.rada.gov.ua/laws/show/2453-17.
- Proekt «Reformuvannyasystemykryminalnoiyustytsiishchodonepovnolitnikh v Ukraini» (RSKYU). [Elektronnyyresurs]. – Rezhymdostupu: http://youthjustice.org.ua/ua.
- KryminalnyyprotsesualnyykodeksUkrainy. Naukovo-praktychnyykomentar / Zazahalnoyuredaktsiyeyuprofesoriv V.H. Honcharenka, V.T. Nora, M.Ye. Shumyla. – K.: Yustynian, 2012. – S. 1002-1025.