Kids in face of criminal justice system

Kids in face of criminal justice system

CCTV in Sa Kaeo province on Jan 11 shows members of a group of teenagers accused of killing a 47-year-old woman with psychological problems. The murder prompted the Royal Thai Police and supporters to reduce the age threshold for detention from 15 to 14 years old. (Photo from screen grab video from CCTV)
CCTV in Sa Kaeo province on Jan 11 shows members of a group of teenagers accused of killing a 47-year-old woman with psychological problems. The murder prompted the Royal Thai Police and supporters to reduce the age threshold for detention from 15 to 14 years old. (Photo from screen grab video from CCTV)

Passions are raised understandably when children are alleged to have committed crimes. Yet, a balanced approach is required; emotions need to be moderated, and rationalisation needs to be advocated.

Fortunately, there are international standards which show the preferred way. Bearing in mind that the international definition of "child" covers persons under 18 years of age, the UN Convention on the Rights of the Child (CRC), to which Thailand is a party, offers objective guidance. It is based on the principle that even where a child has broken the law, the child deserves a second chance. With the best interests of the child in mind, the child should be treated humanely; the state should avoid retribution and proffer rehabilitation.

A key concern is the minimum age of criminal responsibility under which a child must not be prosecuted under the Criminal Law, thus being labelled with a criminal record. The minimum age asserted by the Committee on the Rights of the Child, which monitors the CRC is 14; children under 14 should not be dealt with by the criminal law but through social protection measures not labelled with a criminal record.

Currently, in Thailand the minimum age of criminal responsibility is set at 12 for the purpose of having a criminal record. Any attempt to lower that minimum age should be repudiated as contravening the CRC. Rather, the minimum age of criminal responsibility and criminal record labelling should be raised to comply with the international standard of 14.

More directly on the children, there are at least two sensitive categories. Firstly, there might be children who are involved with peaceful activities, especially in exercising their right to freedom of expression and assembly, but who irk the authorities and are arrested and or prosecuted for breaking various national security-related laws. Secondly, there are children who inflict serious physical injuries on others, sometimes mortally.

To deal with these categories, the nation's leaders should enable the general public to pay more attention to the root causes of children's actions. The environment behind those deeds can vary from psychological and personal stress to deprivation, family pressures, societal alienation, manipulation, limited recreation and lack of space -- at times environmental, at times political.

Even where criminal law is applied against children, the CRC advocates that detention should be a matter of last resort and for the shortest possible time. Diversion measures to divert them from incarceration, such as by means of non-custodial measures and "restorative justice", anchored on family and community-based solutions, should constitute the basics of juvenile justice.

In this country, there are more child-sensitive options. For all categories of children with difficulty with criminal law, a social report is essential for the authorities to take stock of the background of the children -- to decipher the causality factor behind the act and to opt for responsive solutions. Especially where the alleged crimes are not in regard to physical attacks committed by children on other persons, the criminal proceedings against the children should be dropped, and social measures should be explored if needed.

Most pertinent to this dilemma are some 280 children who, in expressing themselves and assembling together during the past three years, have been apprehended, detained and or prosecuted under national security-related laws such as the emergency decree, public assembly law, computer crimes law, and Criminal Code provisions such as lese majeste and sedition.

The head executives from the Justice, Social Development, Foreign Affairs and Interior ministries, as well as key prosecutors and judiciary, should work together to ensure that criminal proceedings against these children are dropped expeditiously, as these cases tarnish Thailand's human rights record.

Society should provide safe spaces so that the children are able to discuss matters constructively.

Education and socialisation should also enable children to understand that various rights and freedoms, such as expression, are not absolute and are subject to possible limitations. However, where the authorities seek to constrain those liberties, they need to prove reason and compliance with the country's international obligations. Arbitrary and disproportionate constraints are antithetical to those obligations.

If the authorities still feel the need for some legal measures to deal with those children, there is the option of the country's Child Protection Act 2003, which enables social welfare personnel to be involved in applying social protection measures to "children at risk". They might monitor and guide the development of the children concerned. In difficult situations, the children might be sent to various social welfare institutions and "homes" for adaptation. This would be via the social protection track without criminal records.

With regard to children who have been involved in serious crimes, such as shootings and killings, the main law on this subject should be the Juvenile and Family Court and Procedure Act 2010, as with the Criminal Code. The country has specific juvenile courts in all provinces, and they oversee the observation centres/borstals, which are akin to prisons for young people. An important power of these courts, per Section 132, is to release the child and explore rehabilitation measures without continuing the criminal proceedings. The court also has the power to set into motion a rehabilitation plan.

In reality, there is a differentiation between two age brackets: "12, 13 and 14-year-olds" and "15, 16 and 17-year-olds". For the former, usually, the Juvenile Court will work out a rehabilitation plan with the help of the observation centres, and detention is avoided where possible. For the the latter, older group, there might be more likelihood of incarceration, but there are a range of centres, some of which are less constraining than others. The better centres are those which aim to nurture the self-esteem of the children and to enjoy a sense of belonging -- to return to society with a second chance.

Simplistic arguments to detain children more stringently in closed facilities and to shift the age range among the two groups so that it would be easier to detain "14 years olds" (and older) -- for the purpose of detention (which should not be confused with the minimum age of criminal responsibility for the purpose of having a criminal record, now starting at age 12 in Thailand), should thus be shunned. They also violate the letter and spirit of the CRC and international law.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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