How to deal in justice with the juveniles who are not criminally responsible

When we talk about juvenile justice, we refer to children in conflict with the law. Beyond the legal component, juvenile justice also includes social elements such as the social and psychological rehabilitation of children in conflict with the law and the prevention of situations where children may be in conflict with the law. In this context, we can say that the role of juvenile justice is to prevent the delinquency of underage children, to solve the criminal processes they are involved in and to reintegrate them into society. It is a mission assumed not only by the justice system but also by the child protection system, which will always pursue the respect of the best interests of the child.


What happens to underage children committing crimes but not criminally responsible?

According to Decision 102/2018 regarding the provisions of art. 505 of the Criminal Procedure Code, “age and discernment are the criteria for distinguishing between the juveniles who are criminally responsible and those who are not, and the lawmaker divided the age of the minority into three periods: up to 14 years the absolute presumption of innocence applies, between 14 and 16 years of age the relative presumption of innocence operates, i.e. the presence or absence of discernment at the time of committing the criminal deed, and the juvenile is criminally responsible over 16 years of age. Even if, in the latter case, the person is reasonably presumed to have discernment and was able to grasp the seriousness of the act he/she has committed and the socially dangerous consequences of the crime, the legislator considers that this capacity is not fully formed, which justifies the different sanctioning regime of criminal offenses committed by juveniles.

The decisions made in relation with juveniles in conflict with the law should favour rehabilitation and reintegration, to the detriment of more punitive approaches. Custodial measures should be used as a last resort and for the shortest possible time. Priority is given to non-custodial measures that can be implemented within the community. 

Underage children have the right to be informed about the procedures and likely results of the trials and processes they are involved in, have the right to participate actively in the decision-making process. Families, communities and other important people have to participate in the process of rehabilitation and reintegration – a valuable principle. Collaboration is rather declarative at this time. The staff interacting with juveniles in conflict with the law should be provided with specialized training and procedures, but this is often not the case in practice. 

For the underage children who are not criminally responsible and commit a criminal offense, the law provides for special protection measures, namely placement and specialised supervisory probation up to 18 years of age or until graduation from studies (not more than 26 years of age). The concrete procedure is similar to that of the juvenile who is criminally responsible in first instance – the police identify the suspect, and if the suspect is under 14 years of age he/she is referred to DGASPC, and the latter draws up an individualized protection plan that is presented to the Commission for the Protection of Children’s Rights by the Secretary of the County Council. With the presentation of the individual plan, a special protection measure – placement or specialized supervisory probation is proposed. If the parents or guardians disagree with this measure, they can address the court.

What should always be considered by the court dealing with cases with juvenile offenders is the preponderance of the educational purpose of the educational measure, and not its sanctioning purpose, and to do so in accordance with this principle. Among the non-custodial educational measures available in the legislation, we may list civic training, supervision, weekend confinement and daily assistance.

The Foundation Terre des hommes aims that through the project AWAY („Alternative Ways in Addressing Youth”) to promote alternative diversion methods).

The number of decisions establishing these special protection measures is increasing in Romania – for example, the measure of residential placement on the national level is increasing. We had 69 cases in 2013, and 100 cases in 2016. At the same time, the number of children in conflict with the law subjected to the measure of specialised supervision has dropped from 988 in 2011 to 454 in 2016.

However, the figures and statistics provided by the institutions are not always clear or realistic, with specialists considering, for example, that the number of children for whom the placement measure is being instituted is actually higher.

We will find a critical analysis of the juvenile justice system in Romania, with a special focus on alternative diversion methods in the national survey “Alternative Diversion Methods for the Juveniles in Romania”. The assessment has been developed from the perspective of EU standards (Directives 2012/29, 2001/220, 2012/800) but also of important UN standards (such as the Beijing Regulation, the Riyadh Guidelines and others).  

The study was conducted by Prof. Dr. Ioan Durnescu, Faculty of Sociology and Social Assistance within the Bucharest University and Mrs. Corina Popa, Juvenile Justice Program Manager, Terre des hommes Foundation, between March 2017 and March 2018.



The Project AWAY (Alternative Ways to Address Youth), which aims to raise public awareness of alternative diversion methods for solving the criminal trial and to ensure that professionals from different multidisciplinary fields become more aware and better prepared about diversion methods for suspected / investigated children benefiting from the procedural guarantees of EU Directives 2016/800, 2012/13, 2012/29. AWAY is supported by the European Union’s Rights, Equality and Citizenship Program and is active in five countries across Europe: Bulgaria through the involvement of the Judicial System Development Program (PDSJ), Croatia through Brave Phone Croatia, Romania through Terre des Hommes-Switzerland , Belgium, through Defence for Children International (DCI) and the International Juvenile Justice Observatory (IJJO), Hungary, under the coordination of the Terre des hommes Regional Office for Central and Southeast Europe (Applicant) and the Global Network for Public Interest Law – PILNET.


Fundatia Terre des hommes Elvetia