Detention and people in situations of vulnerability This is also reiterated and detailed by the Council of Europe’s Committee of Ministers’ Guidelines on childfriendly justice,192 which, though not binding, have been adopted by all 47 Member States of the Council of Europe (and consequently by all 28 EU Member States). Guidelines 19 and 20 stipulate that remedies that involve detention, in whatever form: • • • • need to be avoided as far as possible, should only be a measure of last resort, used for the shortest time possible, and restricted to serious cases.193 This position is supported by UN194 and Council of Europe Recommendations195 and the European Prison Rules.196 Child-friendly justice for all children is an overarching goal of the Council of Europe Programme ‘Building a Europe for and with Children’, established in 2006, and of the two Council of Europe Strategies for the Rights of the Child adopted so far, the most recent to cover the period 2016-2021, to achieve effective implementation of existing children’s rights standards.197 These standards have been adopted on the basis that alternatives to imprisonment can promote rehabilitation, especially for children. The International Covenant on Civil and Political Rights emphasizes (in Article 14 (4)) the desirability of promoting the rehabilitation of juvenile offenders. This is supported by the Beijing Rules. Strictly punitive approaches to juveniles are also inappropriate from the perspective of the need to reduce post-trial detention.198 Attention should instead be focussed on the child’s reintegration into society, a need that is more acute amongst children because of their early stage of development.199 This is grounded in the necessity of reducing the “criminal contamination”200 of juveniles caused by incarceration with other offenders, particularly amongst children who are vulnerable to negative influences, and is a part of “progressive 192 Council of Europe, Committee of Ministers (2010). 193 Council of Europe, Committee of Ministers (2008), Recommendation Rec (2008)11 of the Committee of Ministers to member states on the European Rules for juvenile offenders subject to sanctions or measures, 5 November 2008, para. 59 (1). 194 UN, Secretary-General (2008); Council of Europe, Committee of Ministers (2003), Council of Europe recommendation Rec (2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, 24 September 2003 (Council of Europe, Rec (2003)20). 195 Council of Europe, Parliamentary Assembly (2014), Resolution on Child-friendly juvenile justice: from rhetoric to reality, Resolution 2010 (2014), 27 June 2014, para. 6.4. 196 Council of Europe, Rec (2006)2, Section I, 3. 197 Committee of Ministers (2012), Programme “Building a Europe for and with children”, 15 February 2012; Council of Europe, Ministers’ Deputies (2016). 198 UN, GA (1985), Commentary to para. 17 (1) (b). 199 Ibid., Commentary to para. 19. 200 Ibid., Commentary to para. 13 (5). criminology which advocates the use of non-institutional over institutional treatment.”201 Alternatives to detention should be applied to avoid institutionalization to the greatest extent possible.202 The Beijing Rules recommend measures such as care, guidance and supervision orders, probation, community service orders, financial penalties and educational settings. The Council of Europe Committee of Ministers’ Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice203 emphasises that the main aims of juvenile justice are to prevent offending and re-offending, (re) socialise and (re)integrate offenders, and address the needs and interests of victims. The ECtHR has supported this view. For example, in Nart v. Turkey, the court stated that “the pre-trial detention of minors should be used only as a measure of last resort; it should be as short as possible and, where detention is strictly necessary, minors should be kept apart from adults.”204 There is a movement to extend the specific measures for children to young adults. This group of persons has been identified as also being at risk – as highlighted in the Beijing Rules, which recommend extending the principles applicable to children to young adult offenders.205 This is supported by Council of Europe Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice because the age of legal maturity does not necessarily coincide with the age of maturity, so that young adult offenders may require certain responses comparable to those for juveniles.206 This flexibility of approach is seen in a number of Member States. For example, in Portugal, the Criminal Code states that, taking into account the personal or family circumstances of a sentenced person under the age of 21, a prison sentence of up to two years may be replaced with house arrest.207 In Germany, young adults aged 18 to 20 do not fall within the scope of the Juvenile Justice Act ( Jugendgerichtsgesetz 1988); nevertheless, the age and age-related living situation must be considered by courts.208 In Sweden, a person under the age of 21 who commits a crime can 201 Ibid., Commentary to para. 19. 202 Ibid., para. 18 (1). 203 Council of Europe, Rec (2003)20. 204 ECtHR, Nart v. Turkey, No. 20817/04, 6 August 2008, para. 31. 205 UN, GA (1985), para. 3 (3). 206 Council of Europe, Rec (2003)20. 207 Portugal, Criminal Code, Decree-Law 48/95 (Código Penal, Decreto-Lei n.º 48/95), 15 March 1995, Art. 44. 208 When applying Article 116 of the German Code of Criminal Procedure (Strafprozeßordnung), Federal Parliament (Bundestag) (2015) BT-Drs. 18/4894, 13 May 2015, p. 15. 75