| Indicator ID | J3 |
|---|---|
| Indicator full statement | # of children and youth in contact with the law (suspects and offenders) who were granted a non-custodial measure. |
Purpose
| Importance | This indicator aims to indicate how many children in contact with the justice system and thanks to the work of Tdh and/or its partners have actually accessed an alternative measure to detention and hence prevented from being deprived of liberty. It is important to note that the work of Tdh and/or its partner in this regard could be diverse: from capacity building, advocacy, direct support to judicial authorities and social workers that lead the child’s case, direct support to civil society organizations, national/local institutions, and/or families that have obligations during the implementation of the non-custodial measure (e.g. vocational training courses, community services, family counselling/therapy sessions, etc.). All of the diverse axes of work can contribute to more children being out of detention by means of being granted any type of non-custodial measure (diversion, alternatives to pre-trial detention, alternative measures to imprisonment, measures to reduce prison sentences – see definitions below). |
|---|---|
| ToC pathway | ToC Pillar 1: Procedural safeguards for children in contact with the law. |
| Related services | Catalogue of services: provision of non-custodial measures. |
Definition
Non-custodial measures: any decision made by a competent authority to submit a child suspected of, accused of or sentenced for an offense to certain conditions and obligations that do not include/avoid deprivation of liberty; such decision can be made at any stage of the administration of criminal justice.
Overall, there are four types of non-custodial measures:
Diversion refers to the use of all legal alternatives to the formal judicial system. The magistrate who uses a diversionary measure waives the right to initiate public proceedings and uses instead either a reprimand, at the police level, compensation for the damage caused to the victim, restitution of the object, amicable settlement, or a restorative justice mechanism (apology type, criminal mediation)
Alternatives to pre-trial detention can be considered at the level of the public prosecutor as well as at the level of the executive magistrate or the juvenile court/judge
The aim of alternative measures to imprisonment is to prevent the incarceration of a child guilty of an offence constituting a felony or misdemeanour. Among the measures usually considered, are (though they might vary according to the national laws):
Oral sanction: admonition, warning, reprimand
Economic or pecuniary penalties: fine, confiscation, expropriation
Custodial penalties, restrictions of rights: Conditional release, home confinement, probation, and judicial supervision
Treatment in an open environment: assignment in an open institution, education center, and vocational training
Community service
Restitution to the victim
Conditional sentence or suspension of sentence
Detained before a court decision
Restorative justice mechanism: criminal mediation, family conference, mediation circle, etc.
A combination of those measures
Measures to reduce prison sentences are exclusively granted to children who have been sentenced to a firm prison term in a sentence. Among the measures usually envisaged, such as placing the child outside the prison, semi-liberty, parole or remission of sentence, etc.
How to collect & analyse the data
| What do we count? | Number of children in contact with the law who benefited from any non-custodial measure supported directly or indirectly (e.g. if significant work in the country regarding legislation of capacity building on non-custodial measures) by Tdh. |
|---|---|
| How to calculate the indicator's value | The sum of the number of children who access a non-custodial measure. |
| Data sources | Project data and reports produced; national government statistics or human rights monitoring groups statistics (when Tdh work has been significant at different connected levels: direct service provision, capacity development, technical support to authorities, etc.); statistics from regional or international bodies when available (e.g. UNICEF database of children deprived of liberty to analyse the reduction of custodial measures. |
| Data collection methods and tools | Document review. This indicator is to be collected at the national level. Please, disaggregate at least by gender and age as well as the type of non-custodial measure granted. |
| Disaggregation | Gender and age group. |
Limitations and precautions
Be mindful of the possible errors and/or incompleteness of the information about non-custodial measures that might be transmitted by institutions/authorities concerned. Try to cross-reference with the information provided by other partner institutions (e.g. information provided by the public prosecutor's office can be checked with the court, or with child protection networks when they have access to the information. This include to consider the regional office of the authorities/institutions concerned, as the information might not have been fully transmitted to their central offices. tIt is a good practice to try to establish MoUs with authorities/partner institutions to ensure timely access to information.
Consider that the indicator does not calculate the proportion of non-custodial measures compared to the total number of children who have been arrested based on a criminal offense at the police level. In as much as possible try to collect this number to compare it with the total number of children who have accessed to a non-custodial measure as it’d be an important part of the analysis.
In case Tdh delivers direct assistance and collects primary data about non-custodial cases, the anonymity of children’s data must prevail according to the GDPR rules.
What further analysis are we interested in?
It is advisable to perform a critical analysis of the use of non-custodial measures for children. Some guiding questions:
For which types of offenses are the different types of non-custodial measures taken?
Who are the children who benefit from non-custodial measures? Is there any group with common intersectional elements/identities that are granted with more or less non-custodial measures (e.g. gender/sexual orientation, ethnic or religious origin, disability, rural/urban living place)?
How many children go back to detention after having served a non-custodial measure compared to those who were not granted a non-custodial measure?
What are the barriers that allow or prevent authorities from using non-custodial measures for children?