International Studies Journal (ISJ)

International Studies Journal (ISJ)

Comparative Analysis of Dominant Models for Penalization of Juvenile Delinquency in International Human Rights Documents and Laws of Iran: From a Welfare Discourse to a Justice Discourse

Document Type : Original Independent Original Article

Author
Parizad Kavosi Khasraghi
Ph.D.in Criminal Law and Criminology, University of Ferdowsi, Mashhad, Iran.
10.22034/isj.2024.437656.2144
Abstract
Legislators have been involved in several disputes over the methods of determining responses in criminal juvenile laws to adopt logical plans and policies; as a result, various models have emerged for the penelisation of juvenile delinquency. The most common models represent justice and welfare. The justice model emphasises the acceptance of strict punishments used for intimidation or entitlement, whereas the welfare model seeks to improve the behaviour/personality of juvenile delinquents by guaranteeing the right to rehabilitation. This paper addresses the following question: What penalisation model is accepted in both the laws of Iran and the international human rights system for the differentiation of criminal justice? In this study, a descriptive-analytical method is employed to answer such questions by reviewing national and international laws from a comparative perspective. Research findings indicate the normalisation of the welfare discourse in various regulations of international documents, which reflect individualisation, pluralism of de-incarceration leniency, and absolute prohibition of strict approaches. By contrast, Iran’s legislative discourse tends to adopt opposite models due to the nature of juvenile delinquency. In other words, the justice model and the alternative model are accepted as the dominant penalisation models based on the possibility of applying physical punishments and guaranteeing the right to security in sharia-related crimes as well as individualisation and freedom deprivation centrality in punishments.

Highlights

Extended Abstract

Iranian legislators have always been involved in disputes over determining the mechanisms of criminal laws for juvenile delinquency to adopt logical plans and policies; as a result, various penalisation models have emerged. The most common mechanisms for the penalisation of children’s and adolescents’ crimes include welfare, justice, control, and de-incarceration models in legal systems. The classification of these models and the evaluation of their dimensions and effects will reflect the dominant model governing international and national criminal systems. These models are differentiated mainly by the right to a strict criminal approach to controlling/criminal policies and the right to rehabilitation in the welfare model. However, considering the differential penalisation in this area requires the centrality of a child-oriented discourse to adopt a different mechanism than that of adults. The differentiation of penalisation was developed and completed after the approval of Declaration of the Rights of the Child (1959), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, 1985), United Nations Rules for the Protection of Juveniles Deprived of Liberty (1990), and the United Nations Convention on the Rights of the Child (1989) as the most comprehensive international document. In other words, the differential approach to the realm of criminal juvenile justice has been normalised as a human rights category in international documents.

 

The dominant model in these documents must be analysed due to its effects on the national laws of countries and the necessity of knowing a model compatible with the differential approaches to juvenile criminology. Therefore, this study aims to conduct a comparative analysis of the dominant penalisation model in international documents and the laws of Iran to address the following question. What model is accepted in both the laws of Iran and the international documents to differentiate criminal juvenile justice and upgrade an effective penalisation mechanism?

 

The welfare model is assumed to be the dominant penalisation model in international documents and national laws. The hypothesis of considering obligation to the welfare model is often backed by criminology research and empirical studies. In this study, the research hypothesis is based on the notion that the welfare model is the internationally accepted model for the penalisation of juvenile delinquency based on criminology foundations and empirical studies. These dimensions in the international penalisation system are also assumed to be compatible with the Iranian penalisation mechanism. In other words, due to the commitment of member states to the normalisation of requirements or international guidelines on human rights as well as Iran’s accession to the most normative international document on children’s rights, i.e., the United Nations Convention on the Rights of the Child, by the annexation permission act of I.R. Iran’s state in 1993, the dominant penalisation mechanism model in the international human rights system and the laws of Iran were consistent. Both systems are committed to differential penalisation that emerges in a discourse on rehabilitation and treatment as well as the welfare model. For this purpose, a descriptive-analytical model was employed to conduct a comparative study on the laws of Iran and international documents from the perspective of a dominant model for the penalisation of juvenile delinquency.

 

Research findings indicate the normalisation of the welfare discourse in various regulations of international documents, which reflect individualisation, pluralism of de-incarceration leniency, absolute prohibition of strict approaches, and necessity of behavioral therapy. However, Iran’s legislative discourse demonstrates the unacceptance of indices for commitment to this model in criminal laws. The applicability of physical punishments, de-individualisation, deterioration of therapeutic approaches, cancellation of de-incarceration, and the non-therapeutic nature of responses are among the violation cases of this model in Iran’s legislative criminal policy. Nevertheless, the requirements of accepting this model include a commitment to the areas of human rights, criminology foundations, experience-oriented procedures, and favourable differentiation. Moreover, setting goals in proportion to the nature of juvenile delinquency would require the acceptance of the welfare model to determine appropriate responses. Accordingly, the following suggestions can be made to commit to various dimensions of the welfare model. Firstly, punishments should be determined by considering a criminal’s status rather than the severity/nature of a crime. The realisation of this approach necessitates generalising segregation tools to juvenile crimes, regardless of the type/degree of a crime. Secondly, judicial commitment to clinical indices such as personality files should replace legal indices and should be used as the dominant criterion for penalisation. The foregoing indices are reflected in personality files, and the use of scientific expertise in psychological and sociological dimensions would necessitate expanding the scope of such files in all crimes. Thirdly, the legislative policymaking system should determine punishments based on empirical reasons. This component can help develop certain policies to guarantee the mitigation of delinquency and the maximisation of de-incarceration in penalisation. Additionally, the experience-orientation of the penalisation procedure can help develop homogenous regulations to progress a child-oriented criminal policy. Finally, the importance of legislative and judicial criminal policies would necessitate holding workshops for acquaintance with criminological findings, continuing interdisciplinary education, training judicial employees, and designing efficient mechanisms for interactions between judicial institutions and pro-judicial activists as well as the access of courts to supportive resources for juvenile delinquents in the responsiveness stage. As a result, the welfare model can be employed in practice.

Keywords
welfare model
justice model
Determining the punishment
juvenile delinquency
international documents
Iranian regulations

Subjects

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