- 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.
To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
- 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;
Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
- To be presumed innocent until proven guilty according to law;
- 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;
- 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;
- 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;
- 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;
- To have the free assistance of an interpreter if the child cannot understand or speak the language used;
- To have his or her privacy fully respected at all stages of the proceedings.
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:
- the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
- 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.
- 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.
What does article 40 say?
Article 40 addresses rights relating to children in conflict with the law (also known as juvenile justice). It includes general human rights guarantees such as the right to be presumed guilty until proven innocent (2(b)(i)), as well as child specific provisions including:
The requirement that States establish a minimum age of criminal capacity (3(a))
Advocating the use of measures to divert children from criminal proceedings
The requirement that States provide specific orders and measures relating to the care, guidance and supervision of children, as well as counselling services. Alternatives to institutional care should 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.
Article 40 requires that the treatment of children within justice systems is consistent with their dignity and worth. All professionals involved in the administration of juvenile justice should be knowledgeable about child development, and what is appropriate to their well-being.
Other Convention rights that are linked to the fulfilment of article 40 include article 37, which also relates to juvenile justice.
Why is this right important?
In almost all countries of the world, children are criminalised for what may be minor offences. They are put in jail, perhaps alongside adults, and/or may be saddled with a conviction that restricts future opportunities in employment and elsewhere.
The Committee on the Rights of the Child has noted that in many countries children languish in pretrial detention for months or even years. It has also argued that: “The use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society” (see above link, p.5).
What are the problems?
A child rights approach to juvenile justice demands that children are diverted from formal judicial processes. This does not mean an abdication of responsibility. All people should be responsible for crimes they commit. Rather, it requires that special attention be paid to children’s level of development and evolving capacities.
It is also important that juvenile justice systems are not based on retribution. The promotion of re-integration, and the provisions of innovative and effective community sanctions, should be at the heart of youth justice policy.
We know that depriving children of their liberty tends to increase the rate of re-offending. Locking up children can only be justified if there are no other alternative ways to deal with the immediate risks to others.
Moreover, it tends to be certain types of children who get caught up in the criminal justice system. They may have been socially marginalised for a variety of reasons; poverty, race and minority status are often heavily implicated in criminal status.
What can States do about it?
The Committee on the Rights of the Child’s General Comment No. 10 (2007) on children’s rights in juvenile justice makes a number of recommendations regarding appropriate measures to be taken by States. In respect of Article 40, these relate to:
The prevention of juvenile delinquency
Age and children in conflict with the law
The guarantees for a fair trial
Deprivation of liberty including pre-trial detention and post-trial incarceration
The organisation of juvenile justice
Awareness and training
This page forms part of a guide to children's rights as set out in the articles of the UN Convention on the Rights of the Child. The guide explains what each right means, why they are important and what States should do to guarantee them.