Article 40: Youth criminal justice

Convention text

1.

If children are suspected of, accused of, or found guilty of a criminal offence, they have the right to be treated with respect. This is agreed by the countries that have signed the Convention. The way they are treated must not make them feel bad about themselves and must be appropriate to their age. It is important that the child learns to respect the rights of others and receives support to take part in society again.

2. 

In particular, the countries that have signed the Convention promise that:

  1. children are not suspected of, accused of, or found guilty of something that was not a criminal offence at the time it happened;
  2. if a child is suspected of or accused of a criminal offence:
  • they are presumed innocent until proven guilty;
  • they are told promptly what they are accused of. If necessary, their parents or guardian inform them;
  • they have the right to a lawyer or another person who can help to defend them in court;
  • their case is dealt with quickly by a judge or another impartial authority. Their lawyer, or another person who can help defend them, is present. Their parents or guardian are also present, unless this is not in the best interests of the child;
  • they are not forced to tell the court what happened or to admit guilt;
  • they can have witnesses questioned, including witnesses for and against them;
  • they have the right to ask a higher court to review the case and the sentence if they are found guilty by a lower court;
  • they receive free assistance from an interpreter if they do not understand or speak the language used;
  • their privacy is protected, not only when the child is suspected of a criminal offence and appears before a court, but also after conviction.
     

  • 3.

    The countries that have signed the Convention must do their best to organise youth criminal justice properly. They must do this through laws and procedures, and through courts and other institutions for children who are suspected of or prosecuted for a criminal offence. This also includes:

  • setting a minimum age at which children can be held responsible under youth criminal justice. If younger children do something that is against the law, it is not a criminal offence;
  • where possible, not bringing children before a court but taking other measures instead. This is only allowed if the child’s human rights are respected and the child receives all the protection they are entitled to under the law.

4.

If a child has done something that is against the law, the way the child is treated must not be harmful to their well-being. The treatment must be appropriate to what the child has done and to the child’s circumstances. The countries that have signed the Convention must ensure this. They do this, among other things, by providing care, guidance, supervision and support to help the child take part in society again, as well as education and vocational training programmes.

Key point

Children are subject to youth criminal justice. This means they have the right to a special approach that is appropriate to their age and development..

Explanation

Children who are suspected of, prosecuted for, or found guilty of a criminal offence have the right, under youth criminal justice, to a special approach that is appropriate to their age and development. This approach must not make them feel bad about themselves and must help them take part in society again.

Fair trial

Every child has the right to a fair trial. This means that the judge listens carefully to the child’s account and considers whether the child has actually done something wrong. The child also has the right to a lawyer or another person who can help to defend them in court.

Alternatives to going to court

The government must, as far as possible, look for alternatives to going to court for children. This can be done by using other measures. In the Netherlands, for example, Halt has a legal role in dealing with offending behaviour by young people in an educational way. There are also special rules in criminal law in the Netherlands for children and young people aged 12 to 23. For example, a youth court judge may impose a fine, an educational measure or community service. Custodial sentences must only be used in serious cases, because detaining children is only allowed if there is no other option. This is set out in Article 37: Inhuman punishment and detention.

Children under the age of 12

If a child under the age of 12 does something that is against the law, they do not have to go to court. The police may still stop the child, check what they are carrying, and take them to the police station to ask what happened.

More information

General Comment No. 24 on the Convention provides more information about youth criminal justice.

Helping is better than punishing

According to the Convention, it is better to help children than to punish them. Many children who do something that is against the law are dealing with other problems. For example, they may have difficulties at home and receive little guidance or support. They may also be more vulnerable to peer pressure, for example because they have an intellectual disability, whether mild or more severe. It is therefore important to understand why a child does things that are not allowed and to provide support. In many cases, the whole family needs help and guidance to make sure that the child does not commit offences again.

Sometimes no lawyer and no higher court

The Netherlands has made separate arrangements about this Article of the Convention. If a child has done something that is against the law but it is not very serious, a judge may deal with the case without the child being provided with a lawyer. In such cases, the child may also not be able to ask a higher court to review the case and the sentence.