Juvenile justice and labor of minors

One of the priorities of any state is the protection of the rights of the child. In different countries, there are special mechanisms for protecting the interests of children, and one of them is the formation of a special procedure for the legal proceedings against juveniles who have committed unlawful actions juvenile justice. It  is based on the doctrine of «parens patrie», according to which the state behaves as a trustee or a responsible person for minors, protecting them from dangerous behavior and harmful surroundings. The article deals with the history of the emergence of courts for juvenile cases in different countries, about their peculiarities and differences, and about the age qualification of subjects of juvenile justice. The legislation of the Republic of Kazakhstan, directly devoted to the rights of minor children, including legal regulation of work of minors is discussed in more detail. The development of proposals for the strengthening and development of regulations governing labor relations with the participation of workers under the age of eighteen years demonstrates the relevance of the problem of the legal regulation of labor relations with minors. 

One of the priorities of any state is the protection of the rights of the child. In different countries, there are special mechanisms for protecting the interests of children, and one of them is the formation of a special procedure for the legal proceedings against juveniles who have committed unlawful actions juvenile justice.

It is based on the doctrine of «parens patrie», according to which the state behaves as a trustee or a responsible person for minors, protecting them from dangerous behavior and harmful surroundings. The first juvenile court was established in Australia (1890), then these courts were established in Canada (1894) and  in the US (1899). The history of the development of the concept of juvenile courts testifies to the existence  of different approaches to this issue. Autonomous juvenile justice emerged not in all countries where juvenile courts were established. Two options were clearly identified: an autonomous court not connected with the general court, and the composition of the general court, which received the functions of dealing with cases of minors.

Originally autonomous juvenile justice was established in the USA, Canada, England, Belgium, France, Greece, the Netherlands, Russia, Poland, Hungary, Egypt, Japan, Australia, New Zealand, the cantons of french Switzerland. In Germany, Austria, Spain, Portugal, the cantons of german Switzerland, the functions of guardianship courts were linked to the functions of the juvenile courts, which put their task of protecting the rights of minors to the forefront of their activities, and not the task of combating crime, as happened in the courts of the first groups of countries. Some countries have taken the path of creating specialized juvenile judges. This happened in Ireland, Italy, Greece, Switzerland (Canton of Geneva), Japan, New Zealand [1; 6]. Speaking about the time and reasons for creating juvenile justice in such foreign countries as Germany, Britain, France and Sweden, the following can be noted. Juvenile justice in Germany has passed a long historical path of development. In different countries, the first separate bodies begin the history from 1532 [2; 7]. Close to the modern form, German juvenile justice acquired in 1923 with the adoption of the Juvenile Courts Act (Jugendgerichtsgesetz). The main reasons for the adoption of the law include, first and foremost, the worst consequences for Germany of defeat in the First World War, post-war devastation, the huge number of street children and juvenile criminals, etc. The UK juvenile justice system, referring to the AngloSaxon model, is based on the idea of preventing juvenile delinquency, Which can save for the country 80 million pounds sterling per year [3; 60]. In France, in 1912, the first specialized juvenile court was established. But the judges in it were ordinary judges who did not specialize in cases of minors. In the same year, a special measure of punishment was provided, which consisted of supervised monitoring of minors. The first juvenile court was established in 1914 on the basis of US experience. Juvenile justice in the whole of France in the modern sense with the establishment of a system of courts of minors, with specialized judges originates in February 1945. This is the period of the country's complete liberation from fascist occupation and the beginning of the restoration of the war-ravaged economy. It is known that the satellites of war and devastation are homelessness, fatherlessness, the  growth  of juvenile  delinquency and  crimes against themselves. And in Sweden, as in other Scandinavian countries, there is juvenile justice, but there are no separate juvenile courts.

The main sources of the criminal law of minors in Germany are the Federal and Land Constitutions, as well as the above mentioned Law on Courts for Minors. In turn, the idea of juvenile justice, first formalized in the United States, was developed in the UK in 1908, when a series of laws on children and youth was adopted. In France, the modern system of juvenile justice is regulated by the Law of 2 February 1945 No. 45-174 on the offenses of minors. On December 23, 1958, a decree was adopted that extended the notion of «minor offender» in general on all minors and criminals, and not criminals, that is Children are in danger.

If we talk about the age qualification of the subjects of juvenile justice, then in Germany by age, subjects of juvenile justice do not form a single category, but are divided into three subgroups: children (up to  14 years), adolescents (14-17 years) and young adults (18-21 years). Jurisdiction of juvenile courts extends  to 14-17-year-old minors, as well as 18 to 21-year-old adults [4]. In the UK, the age of subjects of juvenile justice is 8-17 years. Criminal punishment can be applied to 14-17-year-old criminals. In France, the main age of the minority is 13-18 years, which is divided into the younger: 13-16 years old and the senior: 16-18 years. Nevertheless, in March 2002, a law came into force, according to which «punitive» measures (socalled educational sanctions) can be applied to minors aged 10 to 13 years. If educational measures involve return to parents, reprimand, compensation for harm, supervision, educational care, the appointment of judicial protection, placement in an institution, etc., then an educational sanction is, for example, compensation for damages or rendering assistance to the victims, a ban on visiting certain Places or communication with certain people. In Sweden, adolescents under the age of 15 are not subject to criminal liability, and the  crimes of young people from 15 to 18 are considered by ordinary courts, while being guided by relaxed legislation. Persons under the age of 18 can not be sent to prisons. The most severe punishment for them is placement in a closed educational house. Recently, the relatively new problem for Sweden, connected with the growth of the number of immigrants, has been aggravated, and adolescents from among them commit a significant number of crimes. In 1999, a new system of punishment for juvenile offenders aged 15-17 was introduced.

The main characteristics of the juvenile justice system in Germany is the implementation of legal proceedings by special courts for minors; Priority of alternative punishments (minimum intervention); Priority  of mediation and restorative justice; Priority of educational social sanctions; Detention (for as short a period of 6 months to 5 years, and in exceptional cases up to 10 years) as an extreme measure («ultima ratio»);  The absolute exclusion of juvenile cases in a general court for adults, even in the most serious cases. The right of minors in Germany is a special criminal law for young criminals who are at the time of committing a tort at puberty (both in physiological and mental aspects).

In the UK, there are the following opportunities at the stage of prevention and work with adolescents at risk: Youth Inclusion Program (YIP) for people aged 8 to 17 years. The program operates in the 110 most criminal «active» regions of the country. The program gives the young person an opportunity to raise the educational level, gain new skills and help with the choice of profession. Also act the so-called YISPs «Panels of inclusion and support» of young people. There are programs for parents at the local level to help them prevent the commission of a crime by their child. There are «partnerships for school security» (Safer School Partnerships), whose goal is to influence the criminal situation in schools. They are formed in schools, and they include police officers.

The main characteristics of the juvenile justice system in France [5; 6]:

1. The preference of educational measures before punishment, punitive
2. Deep acquaintance with psychology, with the personality of a minor
3. Specialization of judges, who must deal solely with the affairs of

A significant place is occupied by the study of the personality of a minor offender. It is conducted according to the rules of the «social research» provided by the French procedural legislation with the preparation of a special dossier. This study under French law is a mandatory procedural requirement.

In Sweden, as in other Scandinavian countries, there is juvenile justice, but there are no separate juvenile courts.

Distinctive features of the system of juvenile justice in Germany, Britain, France and Sweden are as follows. In Germany, the right of minors contains the material and procedural legal provisions that take into account age characteristics. The following types of legal consequences are possible for minors who violated the law in Germany. In the UK, if a minor commits an offense for the first time or repeatedly, but pleads guilty, he is dealt with by the police or local services, and he does not enter the orbit of the court. The police

and local authorities use a system of different «prescriptions» for such a teenager and a «system of agreements». Juvenile justice in France covers all stages of justice from investigation to execution of an educational measure or control over the execution of punishment in relation to a minor. The fact of detaining a juvenile who committed an offense in the police is reported to the juvenile prosecutor (such position is available at large juvenile courts) or to the ordinary prosecutor (in small courts). In Sweden, in the absence of separate juvenile courts, the essence of juvenile justice here lies in the very strong role of the social worker and his active participation in the investigation and trial of a minor.

Depending on the gravity of the crime, the court directs the adolescent for a period of 14 days to 4 years in the social rehabilitation center (alternative to the prison), and the term of its isolation can no longer be changed. The court resorts to imprisonment in rare cases if a young person over 18 years of age is accused of multiple committing particularly serious crimes; then the term of imprisonment exceeds 4 years.

Despite the fact that there are no separate juvenile courts in Sweden, there are juvenile prosecutors representing the juvenile case.

The rules of law directly devoted on the Rights of the minor children for the first time appeared in the Kazakh legislation with the adoption of the Law of the Republic of Kazakhstan about «On Marriage and Family» [6]. This Law under the Code of the Republic of Kazakhstan about «On Marriage and Family» of  26 December 2011 ceased to be effective [7]. But, until then, the rights of the Child exposed from legal relationship between parents and children. Children in the force of the incapacity weren’t independent bearers of rights, also in a position of passive objects of parental care. This Code defines purposes, objectives, principles and the legal foundations for marriage – family relations and this Code defends supporting rights and interests of family, determining its development a priority of social policy of the Republic of Kazakhstan. The inclusion to the Code of a separate chapter devoted on the rights of the minor children was an important step on the way to overcome this approach.

There is the Law «On the Rights of a Child in the Republic of Kazakhstan» of 8 August 2002 for the protection of the rights of the minor children in the republic [8]. They specifically governed relations arising in connection with the implementation of the basic rights and interests of the child as guaranteed by the Constitution of the Republic of Kazakhstan [9], on the basis of the principles of priority for children to a full life in society, development of public meaningful and creative activity, education in their high moral qualities, patriotism and civic education, the formation of a national identity on the basis of the universal values of world civilization.

The Law [8] applies to citizens of the Republic of Kazakhstan, foreigners and stateless persons. The rules of the law establishing the rights and duties of the child doesn’t apply to children who has civil legal capacity in full scope until the age of majority in accordance with the legislative acts of the Republic of Kazakhstan. The law considers the child as a self-identity with rights and who capable in varying degrees to the implementation and protection by themselves.

The definition of the child is given in article 1 of the Law of the Republic of Kazakhstan [8]. The Kazakh law stipulates the child is a person who has not reached the age of 18 years (majority).The recognition of the child has full legal capacity before reaching the majority age, including its emancipation does not affect, except for the cases specified in the Law possibility to consider it as a child.

There are the new parameters of the regulatory content, grounds, the changes, termination of the employment relationship with one of the most vulnerable category of workers – minors discusses in this article.

The legal regulation of the employment of juveniles, them rights and duties in the sphere of labor are enshrined in the Constitution of the Republic of Kazakhstan [9], the Labor Code of the Republic of Kazakhstan [10]. The Law of the Republic of Kazakhstan «On State Youth Policy» of 9 February 2015 [11] in the normative legal acts, which to some extent, refer to the question of the legal regulation of labor relations with minors.

Minors (persons who have not attained the age of eighteen years) because of their age belong to the category of workers, who needs of special protection. The labor legislation of the Republic of Kazakhstan on juvenile justice is a set of restrictions on the admission to work, labor conditions, avoidance of the labor contract. These restrictions cannot be considered discriminatory, because they are caused by the particular concern about these persons.

At this stage of development in our country is continuing the reform of all spheres of public life, including legal, wide-ranging social, political and economic reforms are carrying through. Especially, considerable changes are visible in the sphere of labor relations. The labor market «thank» by the result of the removal of all kinds of obstacles and prohibitions on entrepreneurial activities, in resulting the employers have become private individuals and legal entities, also there aren’t subordinate to the State.

For the years of independence of the Republic of Kazakhstan critical regarding the various parties of the market the most important regulatory legal acts adopted. Today there are a number of legal norms, especially relating to the labor of minors in need of further clarification. Unfortunately, the relations that arise between the employer and the minors as an employee as a special category of workers, existing national legislation isn’t settled fully. This situation poses a number of problems for both the employer and the minor, wishing to get hired. Based on the fact, it should be noted that the regulation of the labor of persons under the age of eighteen years old is the current problem.

The focus of the Republic of Kazakhstan to the formation of the rule of law and just civil society allows minors to take its rightful place in the social structure of the Kazakh society and take an active part in the realization of the fundamental ideas of the Constitution of the Republic of Kazakhstan.

Available in the labor legislation of the shortcomings and gaps, the facts of abuse by employers their powers have reduced the effectiveness of the application of legal norms for the protection of the labor rights of minors.

Young adolescents are strive to get side jobs in the period of summer vacations, then the most of them are continuing to reconcile work and study. Labor relations with persons under the age of 18 years have its own characteristics, which must comply with the employers.

The rules governing the work of minors, contained in chapter 42 of the Labor Code, as well as the other articles of the Labor Code of the Russian Federation [12] (LC RF) and have its own specific characteristics. A minor aged 14 with the agreement of one of the parents (guardian) and of the tutelage and guardianship authorities can conclude labor treaty of employment to work in their free time. There is a list of the necessary documents when a labor contract, which is defined in the labor legislation is complemented by a specific list of documents. The young person can be to conclude an employment contract for an indefinite period or to fixed-term contract, for example, at the time of summer holidays. In any case, the minor employees probationary period is not installed (Аrt. 70 LC RF).

For comparison, we can consider the employment of minors in Germany and the United States. According to the law of Germany [13] regular, constant and daily work during the full working shifts of children  and adolescents who are obliged to attend school during the full school day is prohibited. Therefore the law on the protection of the youth labor and a separate provision for children allows the exclusion only for shortterm, easy and suitable for children work.

As any workers, minors young people of Germany have the right to paid annual leave. The period of this leave depends on the age of the juvenile worker (pupil). According to the law of Germany [13] working adolescents are obliged to attend school during the full school day, may perform periodically for a period of not more than 3 hours a day work, not having a negative impact on the health of the Adolescent (delivery newspapers, magazines). Students under the age of 15 years during school vacations may perform a constant, the regular work at the enterprises and in institutions for a period of not more than 4 weeks in the calendar year in Germany.

The right to work have the children in the USA. In each state adopted its laws governing the employment of minors. The United States Department of Labor has identified, what types of work can perform minor Americans. The employer hiring  the minor, is obliged to comply with a number of conditions which  must not break the training activities of the young person as well as to provide the right for the rest and to comply with the working mode change its employee in the United States [14].

In summary, I would like to highlight the criteria for the distinction the employment of minors in Russia, Germany and the USA. The age criterion, namely, the general rule in the Russian Federation is 16 years, the United States and Germany on 15 and 17 years. It should also be noted that in the United States and Germany there is a precise list of the types of work for any age, in Russia only to persons up to 14 years.

In our view, the Kazakh legislators is to draw attention to the laws of the United States and Germany in the part of the indicate specific works which are possible for persons 13 years, 14 years, from 15 to 18. Just would like to propose to create such a list in which the stated that the work may be adolescent, not reached majority.

Development of proposals for the strengthening and development of regulations governing the labor relations with the participation of the workers haven’t attained the age of eighteen years demonstrates the relevance of the problem of the legal regulation of labor relations with minors. 

The Kazakhstan legal literature issues relating to the legal regulation of the labor of minors in the light of the new Labor Code of the Republic of Kazakhstan, have not been due attention yet. There is a pattern  that the problems with which it was confronted, may not always be the subject of scientific studies and thereby are not adequately reflected in the legislative process in legal practice.

References

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