CRC/C/GC/24
(f)
The completion of the diversion should result in a definite and final closure of
the case. Although confidential records of diversion can be kept for administrative, review,
investigative and research purposes, they should not be viewed as criminal convictions or
result in criminal records.
Interventions in the context of judicial proceedings (disposition)
19.
When judicial proceedings are initiated by the competent authority, the principles of
a fair and just trial are applicable (see section D below). The child justice system should
provide ample opportunities to apply social and educational measures, and to strictly limit
the use of deprivation of liberty, from the moment of arrest, throughout the proceedings and
in sentencing. States parties should have in place a probation service or similar agency with
well-trained staff to ensure the maximum and effective use of measures such as guidance and
supervision orders, probation, community monitoring or day reporting centres, and the
possibility of early release from detention.
C.
Age and child justice systems
Minimum age of criminal responsibility
20.
Children who are below the minimum age of criminal responsibility at the time of the
commission of an offence cannot be held responsible in criminal law proceedings. Children
at or above the minimum age at the time of the commission of an offence but younger than
18 years can be formally charged and subjected to child justice procedures, in full compliance
with the Convention. The Committee reminds States parties that the relevant age is the age
at the time of the commission of the offence.
21.
Under article 40 (3) of the Convention, States parties are required to establish a
minimum age of criminal responsibility, but the article does not specify the age. Over
50 States parties have raised the minimum age following ratification of the Convention, and
the most common minimum age of criminal responsibility internationally is 14. Nevertheless,
reports submitted by States parties indicate that some States retain an unacceptably low
minimum age of criminal responsibility.
22.
Documented evidence in the fields of child development and neuroscience indicates
that maturity and the capacity for abstract reasoning is still evolving in children aged 12 to
13 years due to the fact that their frontal cortex is still developing. Therefore, they are unlikely
to understand the impact of their actions or to comprehend criminal proceedings. They are
also affected by their entry into adolescence. As the Committee notes in its general comment
No. 20 (2016) on the implementation of the rights of the child during adolescence,
adolescence is a unique defining stage of human development characterized by rapid brain
development, and this affects risk-taking, certain kinds of decision-making and the ability to
control impulses. States parties are encouraged to take note of recent scientific findings, and
to increase their minimum age accordingly, to at least 14 years of age. Moreover, the
developmental and neuroscience evidence indicates that adolescent brains continue to mature
even beyond the teenage years, affecting certain kinds of decision-making. Therefore, the
Committee commends States parties that have a higher minimum age, for instance 15 or
16 years of age, and urges States parties not to reduce the minimum age of criminal
responsibility under any circumstances, in accordance with article 41 of the Convention.
23.
The Committee recognizes that although the setting of a minimum age of criminal
responsibility at a reasonably high level is important, an effective approach also depends on
how each State deals with children above and below that age. The Committee will continue
to scrutinize this in reviews of State party reports. Children below the minimum age of
criminal responsibility are to be provided with assistance and services according to their
needs, by the appropriate authorities, and should not be viewed as children who have
committed criminal offences.
24.
If there is no proof of age and it cannot be established that the child is below or above
the minimum age of criminal responsibility, the child is to be given the benefit of the doubt
and is not to be held criminally responsible.
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