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Monday 1st of June 2020

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Practical Guide for Lawyers: How to defend a child in conflict with the law ?

Defence for Children International (DCI) - Belgium


There is no field where the demand for justice is stronger than that of juvenile justice. Inadequate responses, inappropriate for children in conflict with the law, can harm their future, sometimes forever, and even further contribute to insecurity. Lost lives, shameful societies. The stakes are fundamental and the responsibility of the decision-makers is enormous. Yet, paradoxically, juvenile justice is often neglected, if not forgotten.

For years, a variety of international and European texts (hard law, soft law) have been insisting on the same issue: children in contact with the criminal justice system are in an increased vulnerable situation and have the right to be protected by the State. The violation of their human rights is not a myth, but a reality, as I have had the occasion to observe in the (too) many cases that have reached the European Court of Human Rights and that reveal unbearable and intolerable situations. Yes, there are children who take their own life in prison, who die in custody or who endure such ill treatments that these are sometimes qualified of torture. Even slaps given by a police officer to a child who is entirely under his or her control constitute a violation of human dignity and can give birth to feelings of arbitrariness, injustice and powerlessness.

In a democratic society, ill-treatment is never an adequate answer to the difficulties, which are real and should not be minimised, faced by the authorities. In that regard, the situation of girls in detention cannot be ignored anymore. The conditions of detention themselves often reach the gravity threshold set by Article 3 of the European Convention on Human Rights. As for the very principle of deprivation of liberty and of detention of children, the limits of “educative surveillance” should be subject to an extreme vigilance for there is a risk of drift in the current security climate.

Through all these very real cases, there is one essential need that arises: to ensure children’s rights time and again, and always more. In addition to the fact that children have access to the rights and liberties guaranteed “to everyone” by Article 1 of the European Convention on Human Rights, Article 24 of the Charter of Fundamental Rights of the European Union is a remarkable disposition for it expressly acknowledges children’s rights. It is indeed about “fundamental” rights, which means that these rights are in relation with the very foundations of democracy and of the rule of law. The Charter of Fundamental Rights has become “the compass of all policies decided at EU level” and acquired full legally binding nature with the entry force of the Treaty of Lisbon on 1st December 2009.

Its incorporation into the Treaties marks a significant step in the constitutional order of the European Union.

Nonetheless, it is now urgent that these rights become “practical and effective”, rather than “theoretical or illusory” as the European Court of Human Rights keeps repeating. Declarations are not enough for children anymore, they need actions.

In the field of juvenile justice, the demands of the fair trial are at the centre of the debate. Children have the right to a judgment, given by an independent and impartial tribunal within a reasonable time. They have the right to the presumption of innocence and to all the procedural guarantees. Defence rights from the beginning of the procedure and at all stages of the juvenile justice proceedings are an essential part of the scheme. As opposed to this, the practice of interrogating and holding a child in a context lacking procedural guarantees, including lack of legal representation, is regarded as an inhuman and degrading treatment. The role of the lawyer, free, independent and trained, is more necessary than ever, for he or she is responsible for the relationship of trust and for the confidentiality in the interest of the young litigant and of the justice. In a democratic society, lawyers are the first and last bulwark against arbitrariness.



Year Language

2018 English

Category Type

Grey Literature Guide


Judicial, Judiciary, Juridical, Justice, Juvenile, Law, Minors, Penal

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  • International Juvenile Justice Observatory (IJJO). Belgian Public Utility Foundation

    All rights reserved

  • Head Office: Rue Armand Campenhout, nº 72 bte 10. 1050. Brussels. Belgium

    Phone: 00 32 262 988 90. Fax: 00 32 262 988 99. oijj@oijj.org

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