GlobalChild Platform

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

-UN Convention on the Rights of the Child

The core attributes of Article 40 are:

• The specialized juvenile justice system and the related comprehensive policy (Article 40(1) and (3))
• Fair trial principles for children (Article 40 (2))
• The establishment of the Minimum Age of Criminal Responsibility (MACR) (Article 40(3)(a)
• The diversion process and alternatives measures to institutionalization (Article 40(3)(b) and (4))

Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all four attributes. Others are common to two or more attributes and other still are specific to each attribute. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.

These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:

1. Goal 16.Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
   • Target 16.3 Promote the rule of law at the national and international levels, and ensure equal access to justice for all.
     • SDG indicator 16.3.1 Proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms.
     • SDG indicator 16.3.2 Unsentenced detainees as a proportion of overall prison population.
   • Target 16.7 Ensure responsive, inclusive, participatory and representative decision-making at all levels.
     • SDG indicator 16.7.2 Proportion of population who believe decision-making is inclusive and responsive, by sex, age, disability and population group.

• Ministry and government departments dealing with children in formal and informal care
• Ministry dealing with juvenile justice
• National studies and NGO’s reports dealing with juvenile justice
• NHRI data
• Primary research by National Human Rights Institutions for Children

1. United Nations Committee on the Rights of the Child. (2007). General Comment No.10 (2007), Children’s rights in juvenile justice (CRC/C/GC/10), (para. 2-3, 10). Retrieved from https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf
2. United Nations Committee on the Rights of the Child. (2019). General Comment No. 24 (2019) on children’s rights in the child justice system (CRC/C/GC/24), (para. 22, 28). Retrieved from https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f24&Lang=en
3. Van Bueren, G. (2006). Article 40: Child Criminal Justice. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (pp. 1-3). Leiden, The Netherlands: Martinus Nijhoff Publishers.
4. United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., p.601). Geneva, Switzerland: UNICEF.

• Fundamental Rights Agency, European Union Agency For Fundamental Rights. (2010). Developing indicators for the protection, respect and promotion of the rights of the child in the European Union (Conference Edition). Retrieved from https://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union
• Pinheiro, P.S. (2006). World Report on Violence against Children (pp. 216-217). Secretary-General’s Study on Violence against Children. Geneva, Switzerland: United Nations. Retrieved from https://www.unicef.org/violencestudy/I.%20World%20Report%20on%20Violence%20against%20Children.pdf 
• United Nations Committee on the Rights of the Child. (1995). Concluding observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland (CRC/C/15/Add.34), (para. 20, 35). Retrieved from https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/15/Add.34&Lang=en
• United Nations Committee on the Rights of the Child. (2007). General Comment No.10 (2007), Children’s rights in juvenile justice (CRC/C/GC/10), (para. 23-24, 62-63). Retrieved from https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf
• United Nations Committee on the Rights of the Child. (2007). General Comment No.9, The rights of children with disabilities (CRC/C/GC/9), (para. 20). Retrieved from https://www.refworld.org/docid/461b93f72.html
• United Nations General Assembly. (2015). Sustainable Development Goals. Retrieved from https://sustainabledevelopment.un.org/?menu=1300
• United Nations General Assembly. (1985). United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). Retrieved from https://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf
• United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed. p.613). Geneva, Switzerland: UNICEF.
• United Nations Office on Drugs and Crime and UNICEF. (2006). Manual for the measurement of juvenile justice indicators. New York, United States of America: United Nations. Retrieved from https://www.unodc.org/pdf/criminal_justice/Manual_for_the_Measurement_of_Juvenile_Justice_Indicators.pdf
• United Nations Office of High Commissioner of Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
• Van Bueren, G. (2006). Article 40: Child Criminal Justice. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (pp. 14-15). Leiden, The Netherlands: Martinus Nijhoff Publishers.

Child-friendly justice
Child-friendly justice refers to “justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity” (The Council of Europe, 2011).

Detention
“The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988) defines detention as follows:

• ‘Detained person’ means any person deprived of personal liberty except as a result of conviction for an offense;
• ‘Detention’ means the condition of detained persons as defined above.

“The term therefore normally refers to pre-trial detention only. However, in some countries, this term is used as a synonym to deprivation of liberty. For simplicity purposes, this is how these terms are used in the present toolkit. In the case of children, detention should always be a measure of last resort and for the shortest appropriate period of time as per article 37 b) CRC. [See last resort]” (UNICEF, 3020).

Diversion
“States Parties are required to promote the establishment of a juvenile justice system, including measures for dealing with accused or convicted children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected” (UNICEF Innocenti Research Centre, 2000).

Minimum age of criminal responsibility (MACR)
“States Parties are required to promote the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985), otherwise known as the Beijing Rules, recommends that the beginning of the age of criminal responsibility should not be fixed at too low an age level, bearing in mind the tacts of emotional, mental and intellectual maturity” (UNICEF Office of Research-Innocenti, 2000).

Presumption of innocence
“The right of the accused child to be presumed innocent until proven guilty according to law is set forth in Article 40(2)(b)(i) of the CRC” (UNICEF Office of Research-Innocenti, 2000).