"This publication was compiled with the aim of facilitating alternatives to detention and reducing the number of children in detention in Palestine.
This Report covers alternatives to deprivation of liberty, from the prosecution stage onwards, as stipulated in the Palestinian Juvenile Protection Law. It does not deal with diversion. While diversion may be considered an “alternative” insofar as it is used instead of full, formal criminal justice processes, it is different from the other measures listed below as it keeps a young person away from the formal criminal justice system altogether, rather than being a sanction imposed within the criminal justice system. Whereas diversion is a key aspect of any criminal justice system, and while its importance is emphasised in the relevant children‟s rights standards, it is a separate issue to the issue of alternatives to detention.
Linguistically, alternative means “to substitute”, or substituting something with another in the sense of changing it. It can fundamentally alter the nature of the initial phase and requires a transformative process.
Alternative to detention (A2D) has some commonalities with restorative justice systems as opposed to punitive/retributive or welfare models. In cases where there is one or several victims or the community is harmed, A2D aims at reforming a child's life in all its different aspects and at repairing and conciliating the child in conflict with the law with himself/herself, the victim and the community.
This Report draws from the Juvenile Protection Law (2016). As such it may be more relevant in areas of the West Bank where practitioners have started implementing the law. It may be useful however in the Gaza Strip where a different legal regime is in force but similar principles apply. The authorities in Gaza have indicated that failing the enactment of a new Juvenile Protection Law, Article 18 of the “Juvenile Offenders Ordinance” (1937) 2 can be applied to put alternatives to detention into practice. Article 18 allows for the child in conflict with the law to be discharged if he or she recognizes the harm he made. The child can also be placed under the supervision of a probation officer as per Art. 18(c) or a relative or other fit person as per Art. 18(d) of the Ordinance.
What are the Goals of this Report?
This Report was devised with the following intents:
1. Remind the target groups of the concepts and principles of juvenile justice related to the use of alternative measures in light of the relevant international conventions and Palestinian Law (Juvenile Protection Law).
2. Highlight the importance of A2D as a restorative approach and practice.
3. Emphasise children‟s rights at every stage of the judicial proceedings, rehabilitation, reintegration and monitoring.
4. Provide guidance on different phases of children‟s case management benefitting from A2D.
In addition, the Report will provide answers to the following questions:
- Is the list of alternatives to detention exhaustive or non-exhaustive?
- Can children above the age of 15 benefit from A2D?
- Which alternative measures for which offences?
- Can verdicts regarding alternative measures be appealed?
- How should the Child Protection Counsellor act if a child violates a judgment imposing an alternative measure?
- What are the social and legal actions to be taken if the child does not adhere to the conditions of an alternative sentence?
- What power does the court have to end, modify or replace alternative measures?"