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CHAPTER 1 - MINORS, RIGHTS AND JUSTICE
1988: A new beginning: the Code of Criminal Procedure for Minors
The Code of Criminal Procedure for Minors: Principles
Juvenile Justice and the UN Convention on the Rights of the Child
How the Juvenile Justice system has changed: from a closed centralized system to an open system
Criminal chargeability of a minor
Age ascertainment
The work of hundreds of professionals across the country who with dedication, skill and great affection take care of about twenty thousand minors, often with a complex family background, is the main reason our Juvenile Justice System so appreciated. A commitment further motivated by the encouraging results achieved in recent years: high rates of successful reintegration, relatively low risk of recurrence, many cases of successfully completed probations leading to less and less custodies within juvenile detention centers.
I am convinced, and believe that many others share this conviction, that merely understanding what it means to be part of a society, sharing the same vital space, emotions and goal with others, can teach these kids why everything is not permitted.
Juvenile Justice has a special responsibility towards the minors in its care that it fully accepts. However, everyone is involved in carrying out the measures decided upon by the Juvenile Magistrates because everyone should feel the educational responsibility towards these minors: especially those who are more in need or in a more fragile condition, like the minors who have trouble with the law, for example.
This, hence, is what has happened in Juvenile Justice particularly in the last 15 years: it has gone from a system that is spread across the country and, despite being incresingly enmeshed with other educational services, has been able to maintain a strong sense of authority.
As the system changed from one of closed penitentiaries to open spaces of social integration, other important institutional transformations were coming about. When Title five of the Constitution changed and with the Regional Councils acquiring more independence, Juvenile Justice became even more Glocal, if you will.
In fact, the previously centralized nature of the Juvenile Justice Department had to find a way to adapt to the local or regional contexts, contexts which had developed somewhat differently across the territory because each region chose to organise their services and facilities in order to suit them best. Juvenile Justice, or rather, the offices that answer to this Directorate General had to increase their capacity to create network local actors and develope strong, comunicative relationships with different levels of governament in the area.
At the same time as this was happening, not only Juvenile Justice but the entire Justice System in general was slowly becoming more regional with the ulterior passage from Penitentiary Healthcare to the National Healthcare System.
Italy deeply believes in the universal right to healthcare, a right which is primarily guaranteed to all citizens by the National Healthcare System. Obviously this right is also extended to whoever is serving a sentence, a fact which underlines the effort made by the lawmakers to guarantee the utmost dignity to each and every citizen.
And yet, these organizational adjustments have not been easy and have required time and dedication in order to safeguard and guarantee the wellbeing of the weakest, who in this case, are the minors.
Although these transformations generated from the passage from one Institution to another (from Penitentiary Healthcare to the National Healthcare System) have been an ongoing challenge, one which still sees us struggling after many years to reach the objective which we albeit see very clearly in front of us, we, from the Head of Department to the social services are still happy for this transformation.
Restorative Justice means many things: it means using community service work as a means to re-educate and teach the young offender to be a responsible citizen and the importance of being part of a community; it means creating Juvenile offenders mediation centres to help also the victims and highlight the fact that crime produces suffering and offends the dignity of others.Through the work done in these centres the young offenders can learn what consequences their actions had; it means introducing the Group conferencing experience organized by social services as a means to put young offenders together to talk about and share what they have done and build a sense of awareness and responsibility.
Presidential Decree (DPR) 488/88 is the law which was adopted to meet this challenge as it outlined a new trial system for juvenile offenders. It was created to make sure that particular solutions could be found in order to prevent, suspend or know in advance the outcome of trials involving minors, protecting them and sustaining them throughout. In effect, it is thanks to this new outlook that confining young offenders to serving their sentences in detention centres is becoming a practice of the past. Part of this new approach in fact, is to make the whole experience less traumatic as possible by offering not only psychological support but educational courses and dedicated social service workers as well. The intent of the new System is to give the minor the means to get his/her life back on track through a series of combined efforts, on the part of the family, the educators and the social services. Not only that though, it also wants to give more emphasis to the reeducation and re-socialization factor of the sentence which intends to rehabilitate the offender and re-introduce him/ her into the community as a valid and conscious citizen.
The Italian legal system, through the prosecution system of minors and the social institutions involved, tends towards the rehabilitation of the minor who for one reason or another has fallen into trouble with the law. The entire legislative system, substantive and procedural, aims for the so-called favor minoris and, in particular, wants to ensure that the various sanctions handed down to the minor, do not hinder or interrupt unnecessarily his educational path and evolution into adulthood. The Principles of Presidential Decree 488/88 are testament to this. These principles can be summarized as follows:
As pointed out, the Code of Criminal Procedure for Minors laid the foundations for a profound cultural transformation where recognizing the minor as bearer of particular rights and need for protection are concerned. Presidential Decree 488/88, as a fact, anticipated by one year the UN Convention on the Rights of the Child of 1989, which added to the importance of this transformation: the 54 articles of the Convention on the Rights of the Child (ratified in Italy with law 27.5.1991, n.176) in fact, symbolize how the Judicial System must act in regards to the rights of minors.
The right to wellbeing (under the care of the Juvenile Justice System). The Juvenile Justice System and the National Health care system collaborate to ensure the general wellbeing of minors in virtue of the changes made to the legislation by the DPCM of the 1st April 2008, which in fact, transferred the care of minors to the National Health care system. All minors, even those subjected to criminal procedure, undergo medical, physical and psychological tests. Legislative Decree of the 22nd June 1999, n. 230 Reorganisation of Penitentiary medicine states that all inmates, the same as for regular citizens, have the right to preventive medicine, diagnosis, cure and rehabilitation. The National Healthcare System guarantees to all inmates and minors in criminal procedures:
Participating States must recognise the rights of minors to benefit from the best possible healthcare. They must strive to ensure that no minor is deprived of such care. NY Convention 1989, art. 24 co. 1
The right to leisure time (private/local organization). As the right to healthcare, housing, work, rest, education and social benefits, leisure is also indispensable for the development and dignity of the individual, even more so if a minor. Activities such as sport, culture, art, training or entertainment constitute important factors not only for a harmonious development of the personality but an effective integration in society. And, because social reintegration is the main objective of the Justice System, it is no wonder that a great deal of importance is given to the positive outcome of these activities. The Justice System collaborates with local organizations delegating to them the responsibility of overseeing minors in these leisure activities.
Participating States recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
NY Convention 1989, art. 31 co. 1
The 1988 Code of Criminal Procedure for Minors slightly anticipated what was a year later established in the UN Convention in New York. For the first time in fact, the D.P.R explicitly speaks about the best interest of minors and their need for education and protection. It also kept Italy out of the heated debates which were going on in other European Union countries regarding lowering the age limit for which a minor could be charged with a crime and tougher sanctioning.
Nevertheless, the minor of 14 years of age which is considered socially dangerous can be subjected to security measures. The social danger that the minor poses must necessarily and concretely be ascertained. For the social danger that the minor poses to be affirmed we must make reference to art. 37 co. 2 of Presidential Decree 448/88, according to which one can apply a provisional security measure if meeting with the conditions laid down in Article 224 of the Penal Code and when, for the specific procedures and circumstances of the offense and the personality of the accused, a real danger exists that he/she commits crimes with the use of weapons or other means of personal violence or directed against the collective security or the constitutional order or otherwise show as serious organized crime offenses.
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