Jean Schmitz is the delegate for the Foundation Terre des Hommes Lausanne in Peru and the Regional Technical Advisor in Juvenile Justice for Latin America and the Caribbean. He is the executive director of the magazine 'Justicia para Crecer' and the executive director of the 1st World Congress on Restorative Juvenile Justice which will take place in Lima, Peru from the 4th to the 7th November 2009.

He has got a Bachelor Degree in Social, Economic and Political Sciences from the University of Louvain-la-Neuve, Belgium. For over 22 years he has worked on topics related to children, adolescents and youth in vulnerable situation in different countries and continents (Soudan, Cameroun, Burkina Faso, Haiti, Guatemala, Argentina, El Salvador, Peru…)

He has worked with various NGOs: SCF UK, MSF, International Rescue Committee and since 2002, with the Foundation Terre des Hommes Lausanne in Peru. Within the framework of his work in Peru, he started a pilot project in Restorative Juvenile Justice in two pilot areas which have caused a lot of interest among governmental and civil institutions.

QUESTION.- What is the situation of juvenile delinquency in Peru and what are the specific responses of the national juvenile justice system?

ANSWER.- Juvenile delinquency in Peru is increasing, nobody can deny this. It is the same in almost all Latin American countries and unfortunately it is due to two main factors: the absence or the little support of the social and family circle and the lack or weaknesses of public social policies adopted to prevent and face this phenomenon of violence. It is becoming more and more obvious that family problems like family violence, break-ups, abandonment are increasing, turning their children into the first victims. We must also admit that public institutions, the schools among others, frequently show rejection towards adolescents and young people when they do not accept the established system, leaving as an only option the street, outside the system and their family environment where the problem generally starts in the first place. The society itself tends to be more and more discriminatory towards youth and the media contribute to the generalisation of the image of a young person as a citizen creating problems instead of promoting their potentialities.

Only a few ask themselves why adolescents and young people do not get to integrate or do not want to integrate – to live with their family or participate at the community school. We live in a society which is becoming more and more exclusive and discriminatory, less integrating. We can see that it is becoming a phenomenon in which society locks itself up, protecting it from others (those who do not fit in or respond because of their socioeconomic, ethnic, cultural, religious, political,… situation). The current world crisis might be a boost for a global and radical change, although it will not be done in a short or medium term and there is the risk of worsening this juvenile violence problematic. The rejected and discriminated adolescents do not have any other option than getting together and trying to make themselves visible, asserted and recognised; in other words show that they exist (graffiti on the streets; angry gangs at football games, tattoos, etc.). It is no surprise at all to see that, according to a recent study done by the National Peruvian Police in Lima Metropolitan and el Callao, there are about 12,100 “supposed” gang members spread over 410 gangs (in other words 30 gangs more than 5 years ago). There are also school gangs, student groups that fight for the control of the educational space, and groups of hooligans, football fans and it is difficult to separate them from gangs. We must also think about those who are not part of a “formal” group yet, but who are about to become one.

There are several, various and opposite, relevant and inappropriate, public and private, coordinated and disjointed, integrating and discriminatory responses to this situation… but all these do not really form a social policy with a medium- and long-term vision, balanced and coordinated by all the actors from the State and civil society. They are small scale plans, populist strategies that respond to the short term political interests and terms of office and which do not solve anything, on the contrary…

Q.- Within the framework of the prevention of juvenile delinquency, what kind of intervention is there for minors at risk of social exclusion?

A.- What kind of prevention are we talking about? Primary prevention in schools (preschool, primary and secondary)… by educating about a peace culture from early childhood on, about how to solve their conflicts as soon as possible and in the best way possible within a wide mediation process (I have known some interesting examples within the restorative circles at Porto Alegre and San Caetano in San Paulo – Brazil). Secondary prevention works with children, adolescents and young people at risk: adolescents living on the streets, who were abandoned, mistreated… who are at risk of entering the delinquency spiral easily or being captured by gang leaders or criminal gangs. Tertiary prevention, although it works directly with adolescents in conflict with the criminal law, tries to make them leave the vicious circle of violence and to avoid re-offending as is being done by the Restorative Juvenile Justice Project in Peru.

There are several, generally very limited but interesting experiences, some are based on the adolescents’ and young people’s potentials, resources, interests and skills: art, sports, theatre … Some promoted by civil society organisms, others by public institutions (police: youth patrol; Crime Prevention Prosecutors from the Public Prosecutor’s Office, etc.) There are several positive initiatives but they are often isolated. They are rarely disseminated and even less articulated among the actors. If an inventory and evaluation was done of each and every one of them, we would realise that there are a lot of prevention alternatives but that there is a lack of large scale promotion and dissemination. It is always more difficult to invest in prevention than in the direct care because you cannot measure the results that quickly. No comparison can be done between the deployment of 50 police agents in a night zone and a well organised football tournament between young people from different neighbourhoods. The deployment will clean out the block and keep order until the following night and a tournament fosters human interaction, promotes respect and involves the neighbourhood participation… encouraging to repeat these experiences over the following days.

Q.- Which is the current criminal legislation that is applied to minors in conflict with the law in Peru? (Internet links. What is its origin?, what will be its future developments ?, what are its limitations?)

A.- Three months after the Declaration of Independence, Hipolite Unanue issued the famous Decree which prescribes the First Mandatory’s obligation to protect the abandoned child. From that November 1821 up to today, various care, protection, re-adaptation and rehabilitation laws have been issued for minors.

The source of the 1924 Penal Code, the doctrine of the “irregular situation”, mentioned the protective measures that are applicable to minors under 18 and it created therefore the first Youth Court in Lima as well as a Special (Youth) Judge who should apply justice and impose the protective rules on minors immersed in the nomenclature of social irregularity.

In 1924 a fight began to achieve a Code targeting minors leading to the first Code for Minors on May 2nd 1962 (Authoritarian Law 13968). The second one was the Code for Children and Adolescents (Law 26102 of June 27th 1993) which revoked the previous one. Seven years later on August 7th 2000, the current Code for Children and Adolescents was enacted through the Law 27337, which came into force on August 8th 2000.

Future developments want the national justice to take on the commitment and respect for the international convention on the rights of the child related to youth justice (art. 37 and 40) which is compulsory for all member states, as well as to elaborate a set of guidelines, laws and rules forming a framework for children which will not only benefit children but also their relatives and the community they live in, when applied sensitively.

Q.- What kinds of measures are provided by the criminal law for minors? In practice, in which proportion are restorative justice measures or alternatives to deprivation of liberty applied?

A.- The existing socio-educational measures in the Code for Children and Adolescents of Peru are the more common ones you can find in surrounding countries, like: Reprimand; Community Services; Probation; Restricted Liberty and Detention. Moreover the diversion (to avoid going to trial – art. 206 of the same Code) is a very interesting figure and is often applied in the Restorative Juvenile Justice paradigm. It allows separating the child who is responsible for committing a criminal offence (generally minor or medium offences) from the legal process by offering them a social response with professional accompaniment, avoiding their discrimination and integrating them from the beginning in their socio-family environment. The same figure also exists on a legal level.

In the Agustino (Lima) and Chiclayo (Lambayeque Region) districts, where the Foundation Terre des Hommes-Lausanne and the Association Encuentros have developed a pilot project on Restorative Juvenile Justice, the figure of diversion is applied as well as socio-educational measures in open regime in most of the cases (80%). While in other jurisdictions of the country, de most applied figure in open regime is that of community services and there is a high percentage of Detention which is supposed to be used as a last resort and for the shortest period of time possible.

Q.- Generally, how is restorative justice applied and developed in Latin and Central America ? Which are the limitations to its application?

A.- There is not really a country in South or Central America which applies Restorative Juvenile Justice (RJJ) systematically and in a standardized way. RJJ is a concept, a paradigm which is still very ambiguous, depending on the person or institution that defines and conceptualises it. There are various, interesting and innovative experiences and practices of RJJ in different places and countries. First it is important to know what is understood as RJJ, or at least which ones are the most important characteristics of this paradigm, like the diversion, repairing damage to the victim or society through a mediation process (simple, wide, direct or indirect, at different times: before, during or after the process), the participation of a large variety of legal and social actors, a vision for the future based on the responsibility of the author and community, among others. Brazil, Argentina, Nicaragua, Chile, Peru and other countries develop RJJ experiences. However we must admit that they are all done at a small scale and that they are still not well known, although they are obtaining interesting, compromising and convincing results. Although we are still far from the great experiences countries like New Zealand, Australia, Canada and European countries have had (which have a very different background and context from the L.A. countries), we cannot ignore that some nice RJJ interventions are being done, with difficulties and limits because we are going against the mentality and public policies of zero tolerance, iron fist and super iron fist that were developed in Central American countries and which other countries want to repeat in spite of the fact that they have shown their inefficiency, not to say their complete failure.

Q.- What kind of training should be given to practitioners (policemen, judges, psychologists, prison wards, etc.) in contact with minors in order to allow the development of restorative justice and to benefit the social intervention and reintegration of young people?

A.- Specialised and interdisciplinary training. Training which goes further than only the legal aspects, which also includes social, psychological, pedagogical and educational topics, based on theory and practice at the same time. RJJ should be open to all professionals. It is important that each and every one of them understands the role of the other and that they can coordinate themselves, always thinking about the child’s best interests, without excluding the damage caused to the victim, including society and looking for social peace (this is the objective of justice, isn’t it?). The concepts that should be part of the training are multiple and new, and they should especially not be limited to a pure legal focus, but they should also be interdisciplinary and multi-sector. Now branches like philosophy, psychoanalysis and anthropology also contribute a lot to juvenile justice.

The professionals and instances should be specialised and prepared to help adolescents, because helping an adult is not the same as helping an adolescent. We are talking about a developing rights-bearer who is on the path of learning and constant positive and negative influences coming from experiences. Training should not be limited to only the offender but to all he is surrounded by, what made him offend and in which context or circumstances did he do it. There is a need for training focused on integrations, education instead of punishment and which really defines deprivation of liberty as a last resort and for the shortest period of time possible.

Q.- Which are de essential objectives of the future World Congress on Restorative Juvenile Justice which will be held in Peru in November 2009 ?

A.- The objective of the congress is to promote the new and promising Restorative Juvenile Justice Model as a response to the current neo-retributive and to define its nature, scope and specific applications in different cultural and judicial contexts.
The objectives of the Congress are:

Think about the concept of Restorative Juvenile Justice and formulate a critical analysis of its feasibility

Deepen the methodology and the instruments of Restorative Juvenile Justice

Evaluate the victim’s situation in Restorative Juvenile Justice and the need for his protection and repairing the damage

Exchange experiences, lessons learned and good practices of Restorative Juvenile Justice all over the world

Elaborate a proposal for guidelines about the development and implementation of a Restorative Juvenile Justice model

Q.- Guarantee legal assistance to minors in conflict with the law is one of the main objectives of the IJJO through its international campaign. To what extent is legal assistance for minors envisaged and applied during the criminal procedure, going from the detention until the final reintegration in society, going through the trial, detention, etc.?

A.- Upon detention at the police station for having violated the criminal law, adolescents do not have legal assistance. They testify within the presence of the person who is responsible for them and the Family Prosecutor (when it is not a general prosecutor who deals with all kinds of legal branches). The State’s legal support (a court-appointed lawyer) only appears when the Family Prosecutor presses charges against adolescent and he has to appear before a Judge like a detainee and he has to testify. It is not until this legal phase that the Public Prosecutor appears, assisting the minor in his testimony and the following trial proceedings like the hearing and the sentencing. The State also offers legal support to those adolescents who are in detention in order to respect their rights to obtain benefits like semi-liberty or others included in the legislation. The same happens with adolescents who are subject to a complaint and who are already before a jurisdictional organism where they have to testify. Only at from that moment on they have got legal assistance and in subsequent proceedings of the trial until the sentencing. There are multiple problems and mistakes within the arrest (on some occasions completely arbitrary), detention (which do not respond regularly to the international conditions and rules), and the legal trial (lack of a proper trial guarantee).

Q.- Security forces are the first practitioners to get in contact with the adolescent. Using a restorative approach, which kind of attention should be given to young people as subjects with rights? What can we do to provide good conditions for that first contact and avoid even worse consequences?

A.- Unfortunately I do not know any country in Latin America where the security forces are well prepared and trained to arrest, attend and protect the adolescent in conflict with the law. It is not because he has broken the law that the adolescent does not have the right to a decent and fair treatment, according to the international law and rules. As mentioned above, the police is the first to get contact with the supposed adolescent offender; the way the police treat them is very important and this would be the first step towards a “fair” and “decent” justice, if not, it will have the completely opposite effect of injustice and the creation of rejection, troubles and rebellion on the supposed adolescent offender.

In Restorative Juvenile Justice, the first moments of detention and custody are crucial. First of all, the arrest should be done by police officers specialised in dealing with minors and there must be a difference between the police officers who arrest the adolescents and those who detain him. Detention should be done in decent (without the use of hand coughs except in some cases when the adolescent wants to hurt himself for example) and secure (to avoid an escape or mistreatment…) conditions. A decent treatment puts the adolescent at ease, gives him more confidence. Apart from the police specialisation, the time and place of detention is also important. Putting an adolescent in custody in a dark, sickening cell or even worse sharing his cell with adults is the most abominable thing that could happen to him and could cause an almost irreversible, strong resentment together with all the risks of mental and physical troubles he might be submitted to. In Juvenile Justice, it is necessary to consider the specialised training of all legal and social operators, the (decent and secure) infrastructure and the immediate and appropriate interdisciplinary defence. And of course we must not forget the victim and give him a predominant and active role with regard to Restorative Juvenile Justice.

Q.- Why did you take the initiative to organise the 1st World Congress on Restorative Juvenile Justice?

A.- After attending, on different occasions and in different countries, conferences, seminars and congresses on criminal juvenile justice, often related to the topic of urban security, I realised that little space was given to the topic or paradigm of Restorative Juvenile Justice. It was always mentioned but only in a superficial way and the concepts were not very clear. The organisers (Foundation Terre des hommes Lausanne, Encuentros, the Public Prosecutor’s Office of Peru and the Pontifical Catholic University of Peru) do not pretend to have all the knowledge and good practices, nor to be the owners of this models because there are not any owner, this is a movement, a philosophy in full development within juvenile justice. It is not a magical cure for everything, it does not mean at all that everything which is not restorative is retributive (the welfare model for example). We would rather prefer inviting all the interested and key actors on the topic in order to clarify the concept of RJJ, put the theory next to the practice and try to gather opinions and experiences so we can write some guidelines on the development and implementation of the RJJ model. It is a great opportunity and I am sure that it will help to improve juvenile justice.