CRC/C/GC/24
B.
Interventions for children above the minimum age of criminal
responsibility4
13.
Under article 40 (3) (b) of the Convention, States parties are required to promote the
establishment of measures for dealing with children without resorting to judicial proceedings,
whenever appropriate. In practice, the measures generally fall into two categories:
(a)
Measures referring children away from the judicial system, any time prior to
or during the relevant proceedings (diversion);
(b)
Measures in the context of judicial proceedings.
14.
The Committee reminds States parties that, in applying measures under both
categories of intervention, utmost care should be taken to ensure that the child’s human rights
and legal safeguards are fully respected and protected.
Interventions that avoid resorting to judicial proceedings
15.
Measures dealing with children that avoid resorting to judicial proceedings have been
introduced into many systems around the world, and are generally referred to as diversion.
Diversion involves the referral of matters away from the formal criminal justice system,
usually to programmes or activities. In addition to avoiding stigmatization and criminal
records, this approach yields good results for children, is congruent with public safety and
has proved to be cost-effective.
16.
Diversion should be the preferred manner of dealing with children in the majority of
cases. States parties should continually extend the range of offences for which diversion is
possible, including serious offences where appropriate. Opportunities for diversion should be
available from as early as possible after contact with the system, and at various stages
throughout the process. Diversion should be an integral part of the child justice system, and,
in accordance with art. 40 (3) (b) of the Convention, children’s human rights and legal
safeguards are to be fully respected and protected in all diversion processes and programmes
17.
It is left to the discretion of States parties to decide on the exact nature and content of
measures of diversion, and to take the necessary legislative and other measures for their
implementation. The Committee takes note that a variety of community-based programmes
have been developed, such as community service, supervision and guidance by designated
officials, family conferencing and other restorative justice options, including reparation to
victims.
18.
The Committee emphasizes the following:
(a)
Diversion should be used only when there is compelling evidence that the child
committed the alleged offence, that he or she freely and voluntarily admits responsibility,
without intimidation or pressure, and that the admission will not be used against the child in
any subsequent legal proceeding;
(b)
The child’s free and voluntary consent to diversion should be based on
adequate and specific information on the nature, content and duration of the measure, and on
an understanding of the consequences of a failure to cooperate or complete the measure;
(c)
The law should indicate the cases in which diversion is possible, and the
relevant decisions of the police, prosecutors and/or other agencies should be regulated and
reviewable. All State officials and actors participating in the diversion process should receive
the necessary training and support;
(d)
The child is to be given the opportunity to seek legal or other appropriate
assistance relating to the diversion offered by the competent authorities, and the possibility
of review of the measure;
(e)
4
Diversion measures should not include the deprivation of liberty;
See also section IV.E below.
5