Fair trial for juveniles
The cognitive and emotional development of young people is not yet complete. Their immaturity should be taken into account when they are tried in court and extra assistance should be given to juveniles to ensure they receive a fair trial.
In 2009 a 13-year-old boy, Rayan (fictitious name), stabs his mathematics teacher in her chest several times, at his school in Toulouse, France. The teacher survives the assault on her life, but she is severely injured. Three-and-a-half years after the offence was committed the trial takes place in the youth court of Toulouse. On the day of the trial several news reporters are present in the entrance hall of the court building. The case is tried behind closed doors, but still many people are present at the trial, such as several defence lawyers, the victim and her two lawyers, (expert) witnesses and social workers. The case starts at two o‘ clock in the afternoon. After four hours of hearing witnesses and experts the judge introduces the first recess. The second recess follows at 22.30h. The judgment is finally given at 4.00h the next morning. The trial lasted 14 hours in a row, with only a minimal amount of recesses and the 16-year-old defendant and his parents had to stay from the beginning until the end (Ladepeche.fr, 02-10-2012).
The case gives an example of how juvenile defendants may be handled in a youth court in Europe, at a time when the notion of child-friendly justice is gaining increased attention. In 2010 the Council of Europe published the Guidelines on child-friendly justice. In these guidelines it is specified that child-friendly justice is ‘justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child’. From the observations of youth court hearings in 11 different European countries – forming part of the research I conducted for my dissertation (Rap, 2013) – it becomes clear that in cases such as Rayan’s age, appropriate and speedy justice is not self-evident.
When considering the age appropriateness of juvenile court procedures it is helpful to look at findings from studies in the field of adolescent development. Young people mature significantly during adolescence, both cognitively and emotionally. On the cognitive level, adolescents are able to think in more advanced, abstract, efficient and effective ways than children. However, as a consequence of their not yet completed cognitive and emotional development, adolescents’ understanding of the juvenile justice process is not optimal. Several studies concerning the adjudicative competency of juveniles conclude that young persons below 14 years of age are not able to sufficiently understand a criminal court hearing. Only from around that age does a young person start to understand what it means to be criminally tried in court (Grisso, 2000; Grisso et al., 2003; Scott & Steinberg, 2008).
Extra assistance for juvenile defendants
Because of the incomplete cognitive and emotional development of juveniles it can be argued that they need extra assistance in order for them to receive a fair trial. This notion has been put forward by the European Court of Human Rights as well, in the famous Bulger case (T. v. the United Kingdom). The Court has ruled that a fair trial entails that a juvenile defendant should be able to participate effectively at the criminal trial, with the assistance of a lawyer. The trial must be adapted to the intellectual abilities and the developmental stage of a juvenile defendant. In similar cases the Court has added that lawyers play an important role in explaining the purpose and nature of the process and what is discussed during the court hearing (S.C. v. the United Kingdom; Güveç v. Turkey).
The Dutch High Court confirmed this as well, by ruling that the presence of a lawyer presumes that the lawyer informs the juvenile defendant about the sanctions that can possibly be imposed. This was even ruled in a less serious case, which involved the endorsement of the driving licence of a young person. The fact that the young person was not informed by the court of the possibility of imposing this particular sentence was not seen as a violation of good procedures, inter alia because he was represented by a lawyer (HR 28 August 2012, LJN BX3807, NJ 2012, 506).
Although Rayan was 16 years old at the time of the trial, it is questionable whether he understood enough of what happened in court for him to participate and to receive a fair trial. Judging from my personal observations during the hearing, the boy was clearly overwhelmed and intimidated by the large courtroom, the large number of people present in court, the lengthy testimonies made by many different people and the media attention his case received in general. Moreover, having to sit in court for 14 hours consecutively is unbearable, not only for juveniles. The question can be raised why his lawyers didn’t intervene and ask for an adjournment of the case, in order to ensure a fair trial for the defendant.
Because of the importance that is assigned to the role of the lawyer in ensuring a fair trial for juvenile defendants, the need for specialised juvenile lawyers is argued for. Lawyers should adhere to certain requirements for child-friendly defence. Only by educating lawyers in the field of juvenile justice and adolescent development will they be able to make a substantial contribution to ensure a fair trial for juvenile defendants. They can contribute substantially to the young person’s overall understanding of the juvenile justice process, the procedures that are followed and the final outcome of the hearing. Furthermore, lawyers should ensure that cases such as Rayan’s are tried in a more child-appropriate manner.