Ariticle40Children who break the law
- 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.
This article provides the guarantee of the rights of the child in terms of juvenile justice. It can be considered that this article is closely related to Articles 37 and 39, which stipulate “prohibition of capital punishment and torture, and proper treatment of children deprived of their liberty” and “mental and physical recovery and social reintegration of children who have been victims,” respectively.
Paragraph 1
It recognizes “the right of the child who has committed a crime to be treated in a manner consistent with the promotion of the child's sense of dignity and worth.” In brief, this means that the child's self-esteem should be improved so that he or she can have confidence in his or her own personality and individuality. The background of children who commit crimes is that a certain number of them have not been respected for their characteristics, character, and personality since early childhood. In addition to this, in most cases, they are not properly nurtured and given the roles they want in society, which ultimately leads them to commit crimes because they do not find any value in their own personality. Based on such a situation, this article promotes “the sense of dignity and worth” and “reintegration” into society, as well as “assuming a constructive role upon reintegration.”
In summary, this paragraph aims to help children who have committed crimes to recognize their own value, to recognize that the human rights, personalities, and freedoms of others are also important, and to set them on the path to rehabilitation from their crimes.
Paragraph 2
Prohibit charging a crime that occurred before the law punishing that crime was enacted (i.e., retroactively punishing the crime).
i : Principle of presumption of innocence.
ii : Ensuring that the child is informed of the alleged crime and that he/she is able to obtain a legal defense against it.
iii : The fairness of the trial to judge the guilt or innocence of the child for a crime and the presence of the parents or guardians.
iv : The prohibition of coercing the child to confess and the right to call all witnesses (whether against or in favor of the child) and examine them about the facts.
v : The right to have a conviction re-examined by a higher court to determine guilt or innocence (i.e., appeal).
vi : Provide free interpreting assistance to the child, in case the child does not speak the language to his/her satisfaction.
vii : To protect, respect and not divulge any personal information about the child's daily life and privacy during the whole process of the criminal investigation.
Paragraph 2 states the above. These provisions in this paragraph are generally the same rights granted to adults when they are suspected of committing a crime. The fact that they are also detailed for children reflects the fact that children are more likely than adults to have their important rights violated when they are suspected of committing a crime.
Paragraph 3 and 4
Paragraphs 3 and 4 provide similar directions. It is about the establishment of a special, particular system by the state for children who commit crimes. This system has to be different from the way in which adults are treated when they commit a crime. This is the aspect of paragraphs 3 and 4 that is very different in nature from paragraph 2. In paragraph 3(a), there is a provision regarding the age at which a child cannot recognize the gravity and seriousness of the crime that he or she committed. The Committee on the Rights of the Child has notified countries around the world that the minimum age at which a child can be aware of “responsibility for the crime” and “sense of guilt” and at which he or she can be examined for the crime with full “recognition” and “understanding” should be set as high as possible and that efforts should be made not to lower these minimum ages. Paragraph 3(b) states measures for treating children other than by law. Paragraph 4 provides specific examples of these. As mentioned above, these are mainly assistance through “orders for protection, guidance and supervision,” “counseling,” “probation,” “foster care,” “education and vocational training,” etc., all of which are various types of treatment to which children should receive. In other words, States Parties have a responsibility to make these various options available to children who have committed crimes. This paragraph also takes into account the fact that “a certain number of children commit crimes due to the environment in which they grow up,” which is the background of the content of Paragraph 1, and requires states to take measures to facilitate their mental recovery, healthy reintegration into society, and growth as a human being.