The Best Interests of the Child in Criminal Law

A Normative Framework for Juvenile Justice

Abstract

In the postwar period, particularly after the 1950s, international concern for the protection of children’s rights has grown significantly, taking the form of conventions, soft law instruments, recommendations, and case law, which have established a common standard of protection. This evolution has addressed both children within family relationships and minors in the criminal context, whether as perpetrators or victims of crime. In this context, states have progressively adapted their domestic legislation to align with international standards and to establish a criminal justice system centred on prevention, individualized treatment, rehabilitation, and social reintegration, against the backdrop of rising juvenile delinquency and the diversification of its forms. This process of normative consolidation finds its most relevant expression in the UN Convention on the Rights of the Child, which enshrines the principle of the best interests of the child. In this doctoral research, we set out to analyse this complex concept which encompasses elements of a legal principle, a procedural rule, and a subjective right, in relation to domestic criminal law, particularly regarding the criminal liability of minors and the criminal proceedings applicable to them. This study aims to identify ways to implement the principle of the best interests of the child both in the work of judicial bodies and in the legislative policy choices of the legislature, as well as to assess the need for its express enshrinement or implicit integration into the existing legal framework. The research focuses on the main institutions of criminal law relevant to minors, analysed from a new perspective, primarily to determine to what extent the current regulatory framework adequately meets the requirements of this principle or, conversely, requires certain amendments and additions. Equally, the entire scientific endeavour also has a practical dimension, as it is designed to serve as a useful tool in resolving criminal cases involving minors.