International comparative information on the minimum age of criminal responsibility provided by the Department of Justice and Constitutional Development in support of the proposed raising of the minimum age of criminal capacity as provided for in the Child Justice Bill, 49 of 2002.

 

  1. International standards
  2. There is no clear international standard regarding the age at which criminal responsibility should be set. The United Nations Convention on the Rights of the Child simply requires States Parties to establish a "minimum age below which children shall be presumed not to have the capacity to infringe the penal law" (Art 40(3)(a). The UN Standard Minimum Rules for the Administration of Juvenile Justice (1985) adds to this principle that "the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity." (Rule 4.1) This does at least provide an indication that the grounds for deciding on the age should not be arbitrary.

  3. Worldwide data

The attached data has been obtained from the UNICEF International Research Centre in Florence, Italy. It provides comprehensive and up-to-date information (June 2002) on the minimum age of criminal responsibility in all countries of the world,

 

  1. International trends - UN Committee drafts "General Comment"
  2. Compliance with the United Nations Convention on the Rights of the Child is monitored by the international Committee on the Rights of the Child, which sits in Geneva and to which all countries must present reports 2 years after ratification and every 5 years thereafter. In their concluding observations to countries that have reported to the Committee, the Committee has repeatedly criticised countries with minimum ages of 10 and below. In order to deal more effectively with this problem the Committee has drafted a "General Comment" in order set a guideline for a minimum age of criminal responsibility that is compatible with the Convention. Paragraphs 7 of the draft General Comment on the MACR (Minimum age of Criminal Responsibility), attached hereto at Appendix 3, summarises the committee’s findings as follows:

    "Regarding current State party practices, 179 States parties have either explicit MACRs or age limits that serve in practice as MACRs. These MACRs range from the age of 6 years to the age of 18 years, while the overall average is 11.5 years, and the median is 12 years (i.e. an equal number of States parties have MACRs above and below the age of 12). The Committee notes that these figures are significantly influenced by the large number of States parties (34) with a MACR of 7 years, virtually all of which derive their provisions from historic English common law. In the past 25 years, States parties have formed an unmistakable trend to raise their MACRs, and approximately 15 more are currently deliberating official proposals to do the same. There are very few exceptions to this general trend. From these findings it can be concluded that international MACR standards, as interpreted by current State party practices, effectively place the norm at 12 years. Likewise, the Committee has repeatedly advised in its Concluding Observations that State parties increase MACRs that are lower than 12 years, and that States parties increase proposed MACRs (i.e. under legislative consideration) that are lower than 12 years."

  3. Countries that have recently reformed their law relating to juvenile justice.

Looking at international averages is not necessarily an automatic gauge of good practice, as many countries have outdated legislation and are living with minimum ages of criminal capacity determined by colonially- inherited law. It is therefore important to look at the minimum ages in those countries that have reformed their legislation since 1989 when the UN Convention on the Rights of the Child came into operation.

Country

Legislation and date

Minimum age of criminal responsibility

Ireland

Children Act, 2001. Raised the minimum age from 7 to 12, retained doli incapax between 12 and 14 years.

12

(doli incapax 12-14)

Uganda

Minimum age was raised from 7 to 12 years by the Uganda Children Act, 1996. Doli incapax was repealed.

12

Australia

Minimum age was raised from 8 years to 10 years by the Crimes Amendment Act, 1995

10

(doli incapax 10-14)

New Zealand

Children,Young Persons and their Families Act, 1989.

14

(except for murder/manslaughter where 10 applies, with

doli incapax presumption.)

Table 1: Worldwide ACR Provisions by Country*

Country

ACR

Serious Crimes ACR

Doli Incapax

Afghanistan

7

-

-

Albania

16

14

-

Algeria

13

-

-

Andorra

16

-

-

Angola

16

-

-

Antigua and Barbuda

8

-

-

Argentina

18

16

-

Armenia

16

14

-

Australia

10

-

10-14

Austria

16

14

14-19

Azerbaijan

16

14

-

Bahamas

7

-

-

Bahrain

15

-

-

Bangladesh

7

-

7-12

Barbados

11

-

-

Belarus

16

14

-

Belgium

16

-

-

Belize

9

-

9-12

Benin

13

-

-

Bhutan

-

-

-

Bolivia

12

-

-

Bosnia and Herzegovina

14

-

-

Botswana

8

-

8-14

Brazil

12

-

-

Brunei Darussalam

7

-

-

Bulgaria

14

-

14-18

Burkina Faso

13

-

13-16

Burundi

13

-

-

Cambodia

-

-

-

Cameroon

10

-

-

Canada

12

-

-

Cape Verde

16

-

-

Central African Republic

14

-

-

Chad

13

-

-

Chile

16

-

16-18

China

16

14

-

Colombia

12

-

-

Comoros

13

-

-

Congo

13

-

-

Cook Islands

10

-

-

Costa Rica

12

-

-

Côte d'Ivoire

10

-

-

Croatia

14

-

-

Cuba

16

-

-

Cyprus

7

-

7-12

Czech Republic

15

-

-

Democratic People's Republic of Korea

14

-

-

Democratic Republic of the Congo

-

-

-

Denmark

15

-

-

Djibouti

13

-

-

Dominica

12

-

-

Dominican Republic

12

-

-

East Timor

12

-

-

Ecuador

12

-

-

Egypt

7

-

-

El Salvador

12

-

-

Equatorial Guinea

18

-

-

Eritrea

12

-

-

Estonia

15

13

-

Ethiopia

9

-

-

Fiji

10

-

10-12

Finland

15

-

-

France

13

-

13-18

Gabon

13

-

-

Gambia

7

-

7-12

Georgia

16

14

-

Germany

14

-

-

Ghana

12

-

-

Greece

12

-

-

Grenada

7

-

-

Guatemala

-

-

-

Guinea

13

-

13-18

Guinea-Bissau

16

-

-

Guyana

10

-

-

Haiti

13

-

-

Honduras

12

-

-

Hungary

14

-

-

Iceland

15

-

-

India

7

-

7-12

Indonesia

8

-

-

Iran (Islamic Republic of)

9/15

-

-

Iraq

9

-

-

Ireland

12

-

12-14

Israel

12

-

-

Italy

14

-

14-18

Jamaica

12

-

-

Japan

14

-

-

Jordan

7

-

7-12

Kazakhstan

16

14

-

Kenya

8

-

8-12

Kiribati

10

-

10-14

Kuwait

7

-

-

Kyrgyzstan

16

14

-

Lao People's Democratic Republic

15

-

-

Latvia

16

14

-

Lebanon

7

-

-

Lesotho

7

-

7-14

Liberia

16

-

-

Libyan Arab Jamahiriya

14

-

14-18

Liechtenstein

14

-

14-18

Lithuania

16

14

-

Luxembourg

16

-

-

Macedonia, Former Yugoslav Republic of

14

-

-

Madagascar

13

-

13-16

Malawi

7

-

7-12

Malaysia

10

-

10-14

Maldives

15

7

-

Mali

13

-

13-18

Malta

9

-

9-14

Marshall Islands

14

10

10-14

Mauritania

14

-

14-16

Mauritius

-

-

0-14

Mexico

6-12

-

-

Micronesia (Federated States of)

-

-

-

Monaco

13

-

-

Mongolia

16

14

-

Morocco

12

-

-

Mozambique

16

-

10-14

Myanmar

7

-

7-12

Namibia

7

-

7-14

Nauru

-

-

-

Nepal

10

-

-

Netherlands

12

-

-

New Zealand

14

10

10-14

Nicaragua

13

-

-

Niger

13

-

13-18

Nigeria

7

-

7-12

Niue

10

-

10-14

Norway

15

-

-

Oman

9

-

-

Pakistan

7

0

7-12

Palau

10

-

10-14

Panama

14

-

-

Papua New Guinea

7

-

-

Paraguay

14

-

14-17

Peru

12

-

-

Philippines

9

-

9-15

Poland

-

-

-

Portugal

16

-

-

Qatar

7

-

7-18

Republic of Korea

14

-

-

Republic of Moldova

16

14

-

Romania

14

-

14-16

Russian Federation

16

14

-

Rwanda

14

-

-

Saint Kitts and Nevis

8

-

-

Saint Lucia

8

-

-

Saint Vincent and the Grenadines

8

-

-

Samoa

8

-

8-14

San Marino

12

-

12-18

Sao Tome and Principe

16

-

-

Saudi Arabia

7

-

-

Senegal

-

-

-

Seychelles

7

-

7-12

Sierra Leone

10

-

-

Singapore

7

-

7-12

Slovakia

15

-

-

Slovenia

14

-

-

Solomon Islands

8

-

8-12

Somalia

14/15

-

-

South Africa

7

-

7-14

Spain

14

-

-

Sri Lanka

8

-

8-12

Sudan

7

0

-

Suriname

10

-

-

Swaziland

7

-

7-14

Sweden

15

-

-

Switzerland

7

-

-

Syrian Arab Republic

7

-

-

Tajikistan

16

14

-

Thailand

7

-

-

Togo

13

-

-

Tonga

7

-

7-12

Trinidad and Tobago

7

-

-

Tunisia

13

-

13-15

Turkey

11

-

11-15

Turkmenistan

16

14

-

Tuvalu

10

-

10-14

Uganda

12

-

-

Ukraine

16

14

-

United Arab Emirates

7

-

7-n/a

United Kingdom of Great Britain and Northern Ireland

8/10

-

-

United Republic of Tanzania

7

-

7-12

United States of America

6-10

-

7-14

Uruguay

18

-

-

Uzbekistan

16

13/14

-

Vanuatu

10

-

10-14

Venezuela

12

-

-

Viet Nam

16

14

-

Yemen

7

-

-

Yugoslavia

14

-

-

Zambia

8

-

-

Zimbabwe

7

-

7-14

Appendix 1: ACR Provisions by UNICEF Region*

Americas and the Caribbean

Country

ACR

Serious Crimes ACR

Doli Incapax

Antigua and Barbuda

8

-

-

Argentina

18

16

-

Bahamas

7

-

-

Barbados

11

-

-

Belize

9

-

9-12

Bolivia

12

-

-

Brazil

12

-

-

Chile

16

-

16-18

Colombia

12

-

-

Costa Rica

12

-

-

Cuba

16

-

-

Dominica

12

-

-

Dominican Republic

12

-

-

Ecuador

12

-

-

El Salvador

12

-

-

Grenada

7

-

-

Guatemala

-

-

-

Guyana

10

-

-

Haiti

13

-

-

Honduras

12

-

-

Jamaica

12

-

-

Mexico

6-12

-

-

Nicaragua

13

-

-

Panama

14

-

-

Paraguay

14

-

14-17

Peru

12

-

-

Saint Kitts and Nevis

8

-

-

Saint Lucia

8

-

-

Saint Vincent and the Grenadines

8

-

-

Suriname

10

-

-

Trinidad and Tobago

7

-

-

Uruguay

18

-

-

Venezuela

12

-

-

 

Central and Eastern Europe, Commonwealth of Independent States

and the Baltic States

Country

ACR

Serious Crimes ACR

Doli Incapax

Albania

16

14

-

Armenia

16

14

-

Azerbaijan

16

14

-

Belarus

16

14

-

Bosnia and Herzegovina

14

-

-

Bulgaria

14

-

14-18

Croatia

14

-

-

Czech Republic

15

-

-

Estonia

15

13

-

Georgia

16

14

-

Hungary

14

-

-

Kazakhstan

16

14

-

Kyrgyzstan

16

14

-

Latvia

16

14

-

Lithuania

16

14

-

Macedonia, Former Yugoslav Republic of

14

-

-

Poland

-

-

-

Republic of Moldova

16

14

-

Romania

14

-

14-16

Russian Federation

16

14

-

Slovakia

15

-

-

Slovenia

14

-

-

Tajikistan

16

14

-

Turkey

11

-

11-15

Turkmenistan

16

14

-

Ukraine

16

14

-

Uzbekistan

16

13/14

-

Yugoslavia

14

-

-

 

 

East Asia and Pacific

Country

ACR

Serious Crimes ACR

Doli Incapax

Brunei Darussalam

7

-

-

Cambodia

-

-

-

China

16

14

-

Cook Islands

10

-

-

Democratic People's Republic of Korea

14

-

-

East Timor

12

-

-

Fiji

10

-

10-12

Indonesia

8

-

-

Kiribati

10

-

10-14

Lao People's Democratic Republic

15

-

-

Malaysia

10

-

10-14

Marshall Islands

14

10

10-14

Micronesia (Federated States of)

-

-

-

Mongolia

16

14

-

Myanmar

7

-

7-12

Nauru

-

-

-

Niue

10

-

10-14

Palau

10

-

10-14

Papua New Guinea

7

-

-

Philippines

9

-

9-15

Samoa

8

-

8-14

Singapore

7

-

7-12

Solomon Islands

8

-

8-12

Thailand

7

-

-

Tonga

7

-

7-12

Tuvalu

10

-

10-14

Vanuatu

10

-

10-14

Viet Nam

16

14

-

 

Eastern and Southern Africa

Country

ACR

Serious Crimes ACR

Doli Incapax

Angola

16

-

-

Botswana

8

-

8-14

Burundi

13

-

-

Comoros

13

-

-

Eritrea

12

-

-

Ethiopia

9

-

-

Kenya

8

-

8-12

Lesotho

7

-

7-14

Madagascar

13

-

13-16

Malawi

7

-

7-12

Mauritius

-

-

0-14

Mozambique

16

-

10-14

Namibia

7

-

7-14

Rwanda

14

-

-

Seychelles

7

-

7-12

Somalia

14/15

-

-

South Africa

7

-

7-14

Swaziland

7

-

7-14

Uganda

12

-

-

United Republic of Tanzania

7

-

7-12

Zambia

8

-

-

Zimbabwe

7

-

7-14

 

Middle East and Northern Africa

Country

ACR

Serious Crimes ACR

Doli Incapax

Algeria

13

-

-

Bahrain

15

-

-

Cyprus

7

-

7-12

Djibouti

13

-

-

Egypt

7

-

-

Iran (Islamic Republic of)

9/15

-

-

Iraq

9

-

-

Israel

12

-

-

Jordan

7

-

7-12

Kuwait

7

-

-

Lebanon

7

-

-

Libyan Arab Jamahiriya

14

-

14-18

Morocco

12

-

-

Oman

9

-

-

Qatar

7

-

7-18

Saudi Arabia

7

-

-

Sudan

7

0

-

Syrian Arab Republic

7

-

-

Tunisia

13

-

13-15

United Arab Emirates

7

-

7-n/a

Yemen

7

-

-

 

 

South Asia

Country

ACR

Serious Crimes ACR

Doli Incapax

Afghanistan

7

-

-

Bangladesh

7

-

7-12

Bhutan

-

-

-

India

7

-

7-12

Maldives

15

7

-

Nepal

10

-

-

Pakistan

7

0

7-12

Sri Lanka

8

-

8-12

West and Central Africa

Country

ACR

Serious Crimes ACR

Doli Incapax

Benin

13

-

-

Burkina Faso

13

-

13-16

Cameroon

10

-

-

Cape Verde

16

-

-

Central African Republic

14

-

-

Chad

13

-

-

Congo

13

-

-

Côte d'Ivoire

10

-

-

Democratic Republic of the Congo

-

-

-

Equatorial Guinea

18

-

-

Gabon

13

-

-

Gambia

7

-

7-12

Ghana

12

-

-

Guinea

13

-

13-18

Guinea-Bissau

16

-

-

Liberia

16

-

-

Mali

13

-

13-18

Mauritania

14

-

14-16

Niger

13

-

13-18

Nigeria

7

-

7-12

Sao Tome and Principe

16

-

-

Senegal

-

-

-

Sierra Leone

10

-

-

Togo

13

-

-

 

Western Europe, North America, Australia, New Zealand, Japan,

and Republic of Korea

 

Country

ACR

Serious Crimes ACR

Doli Incapax

Andorra

16

-

-

Australia

10

-

10-14

Austria

16

14

14-19

Belgium

16

-

-

Canada

12

-

-

Denmark

15

-

-

Finland

15

-

-

France

13

-

13-18

Germany

14

-

-

Greece

12

-

-

Iceland

15

-

-

Ireland

12

-

12-14

Italy

14

-

14-18

Japan

14

-

-

Liechtenstein

14

-

14-18

Luxembourg

16

-

-

Malta

9

-

9-14

Monaco

13

-

-

Netherlands

12

-

-

New Zealand

14

10

10-14

Norway

15

-

-

Portugal

16

-

-

Republic of Korea

14

-

-

San Marino

12

-

12-18

Spain

14

-

-

Sweden

15

-

-

Switzerland

7

-

-

United Kingdom of Great Britain and Northern Ireland

8/10

-

-

United States of America

6-10

-

7-14


* The "-" symbol in this table signifies that the relevant age limit does not exist or is not known to exist in the respective country.

The Draft Penal Code, which is still being finalized, establishes an ACR at 13 years.

A draft Code de la protection de l’enfance proposes an ACR of 13 years.

The Children and Adolescents Code of 1996 would have established an ACR of 12. Although Congress adopted the Code in 1996, its entry into force was postponed several times and finally suspended indefinitely by Congress in 2000.

Children under 14 who have acted with discernment, without any official lower age limit, bear criminal responsibility.

The ACR is 9 lunar years (8 years and 9 months) for girls and 15 lunar years (14 years and 7 months) for boys.

Out of 31 States and the Distrito Federal, 21 jurisdictions establish official ACRs with the following distribution: 6 years (1), 7 years (1), 8 years (2), 10 years (1), 11 years (14), and 12 years (2). Laws in other jurisdictions do not indicate any ACR.

National codified law sets the ACR at 14, while Islamic law and customary/traditional law – which are more influential than national law – both set it at 15.

The ACR is 8 in Scotland, and 10 in Northern Ireland, England, and Wales.

Out of 50 States and the District of Columbia, 16 States establish statutory ACRs with the following distribution: 6 years (1), 7 years (3), 8 years (1), and 10 years (11). The remaining jurisdictions apparently derive their ACRs and doli incapax provisions from English common law, but the exact provisions may vary significantly.

Although national law sets the ACR at 7, with doli incapax provisions for children between 7 and 12, it is neither enforced nor applied evenly throughout Pakistan. For example, two of the four provinces establish their own ACRs, but these are apparently not fully implemented either. Regarding serious offenses, the 1979 Hudood Ordinance holds all Pakistanis criminally responsible – regardless of age - for offenses such as rape, adultery, the use of alcohol and drugs, theft, armed robbery, and slander.

Although ACR provisions are not entirely clear, in part due to the absence of a published criminal code, juvenile justice laws specify that children ages 7 and higher are answerable for their acts.

The Child Justice Bill - approved by the Cabinet in November 2001 and anticipated for Parliamentary debate in 2002 – raises the ACR to 10 and extends a doli incapax presumption of innocence for children from 10 to under 14.

Sudan’s ACR provisions are not clear, but children as young as 7 can commit criminal offenses. Also, children of all ages are held criminally responsible for alcohol consumption, drug consumption, and sexual relations outside of marriage.

The Conseil national approved a bill in March 2002 that would raise the ACR to 10, and returned this bill to the Conseil des Etats for further consideration.

Technically, children below 12 are not criminally responsible, but situación irregular provisions clearly permit sanctions of a penal-correctional nature against them.

Technically, children below 12 are not criminally responsible, but situación irregular provisions clearly permit sanctions of a penal-correctional nature against them.

Current law technically prevents the deprivation of liberty for children under 12, which does not signify a true ACR, and loopholes allow for situación irregular-style sanctions of a penal-correctional nature against such children anyway.

The Criminal Code and Muslim law are both legally recognized sources for the ACR. Under the Criminal Code, the ACR is 13. Under Muslim law, there are no fixed age limits, as physical maturity confers criminal responsibility on boys, while marriage confers criminal responsibility upon girls.

Although Libyan Arab Jamahiriya generally states its ACR as 14, criminal proceedings may be brought against children as young as 7.

The ACR corresponds to responsibility in adult criminal court, and children below it are only subject to juvenile court proceedings and measures of custody, protection, prevention or education. Children 16-18 may only bear criminal responsibility, in adult criminal court, when such measures are deemed insufficient.

The ACR corresponds to criminal responsibility in adult criminal court. Technically, children below 16 are not criminally responsible, but situación irregular provisions clearly permit sanctions of a penal-correctional nature against them.

The ACR coincides with the age of penal majority, and children below it are generally only subject to juvenile court proceedings and measures of custody, protection or education. Children 16-18 may only bear criminal responsibility, in adult criminal court, if such measures are deemed insufficient. Also in cases where these measures are deemed insufficient, juvenile courts may initiate transfers of children even under 16 to adult criminal court, apparently without any lower age limit.

Even though the ACR is generally stated as 16, the Penal Code allows children between 10 and 14 to be held criminally liable if they act with full exercise of their intellectual faculties.

There are two classes of contingent ACRs for serious crimes: 13 for murder with servere circumstances, and 14 for other serious crimes.

The ACR and Serious Crimes ACR both correspond to criminal responsibility in adult criminal court. Technically, children below these ages are not criminally responsible, but situación irregular provisions clearly permit sanctions of a penal-correctional nature against them.

Technically, children below 18 may not be charged with a crime, but situación irregular provisions clearly permit sanctions of a penal-correctional nature against them. In 2001, after six years of debate, the House of Representatives approved a draft Code of Children and Adolescents that would effectively set an ACR of 14 years. The Senate is expected to consider the draft Code in 2002.

General Comment of the Committee on the Rights of the Child

The minimum age of criminal responsibility (MACR)

First Draft (20 December 2002 )

 

  1. Article 40(3)(a) of the Convention on the Rights of the Child obliges States parties to establish "a minimum age below which children shall be presumed not to have the capacity to infringe the penal law." This minimum age of criminal responsibility (MACR) is fundamental for the rights of children both above and below its threshold who come into contact with juvenile justice systems. Among States parties, an array of historical, ideological, and cultural factors have led to the establishment of different MACRs ranging from 6 to 18 years. These factors also influence how different MACRs are interpreted and applied, and raise substantive implications across this spectrum. The Committee issues this General Comment in order to clarify the Convention’s principles with regard to the MACR, to provide guidance to States parties on a number of core ramifications of the MACR, and to specify States parties’ obligations under the Convention in the context of the MACR.
  2.  

    Definition of the MACR

  3. The MACR is the lowest statutory age at which children may potentially be held criminally liable for infringements of the penal law in a given State party. According to the provisions and principles of the Convention, the Committee interprets the MACR strictly as an invariable and country-wide age limit that each State party must choose, establish, and apply equally to all children within its jurisdiction at all times. The equal application of a MACR does not imply that all children beginning at that MACR should face criminal proceedings or be found criminally responsible; instead, it signifies that all children in the State party become potentially responsible under penal law beginning at the same age, without discrimination of any kind. In particular, a child younger than the respective MACR at the time of an alleged act must not bear any criminal responsibility whatsoever, and should face only non-penal measures according to his or her best interests as a state response to his or her actions (see infra paragraph 13). A child who is at or older than the respective MACR at the time of an alleged offence may potentially undergo criminal proceedings, be judged criminally responsible, and face appropriate penal-correctional sanctions, in accordance with his or her best interests and other provisions and principles of the Convention, and other international juvenile justice standards, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, and the Vienna Guidelines for Action on Children in the Criminal Justice System.
  4. States parties should note the important distinctions among the MACR, the minimum legal age for the deprivation of liberty, and the age of penal majority, details of which States parties are requested to provide in their Initial Reports and/or Periodic Reports. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty define the deprivation of liberty as "any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority." As suggested in the General Guidelines for Periodic Reports, this definition includes deprivation of liberty "by arrest, detention and imprisonment, inter alia in the areas of administration of justice, asylum-seeking and placement of children in welfare and health institutions." In contrast, the age of penal majority is the lowest statutory age at which children may potentially be held criminally responsible within the adult criminal justice system and courts for infringements of the penal law. Indeed, there are similarities among the MACR and the latter two age limits, and they may even coincide or overlap at times, yet they remain fundamentally distinct age limits which neither define nor substitute for each other.
  5. The Committee expresses concern that many States parties’ MACR-related provisions are incompatible with the foregoing definition of the MACR. In particular, such provisions include multiple MACRs within a State party by region or political subdivision, multiple MACRs within a State party according to the gravity of the alleged offence, and MACR provisions that inherently sanction or facilitate discrimination, particularly on the basis of gender or socio-economic status. The Committee calls upon all States parties to review their MACR provisions as a matter of priority and to undertake all legislative reform necessary to ensure the compatibility of their provisions with the Convention and the understanding of the MACR delineated in this General Comment. States parties should provide detailed information in all reports to the Committee on their MACR provisions and any measures taken to bring these provisions into alignment with the definition of the MACR expressed in this General Comment.
  6.  

    Lowest MACR that is Compatible with the Convention

  7. The Committee dedicates special attention to several primary factors in considering the lowest MACR that is compatible with the Convention. In particular, the Committee underscores the mandate of one of the Convention’s guiding principles, the obligation in Article 3(1) that "[i]n all actions concerning children . . . the best interests of the child shall be a primary consideration." This obligation is viewed within the full, interdependent context of the Convention’s provisions, and within the context of the broad, legitimate aims of juvenile justice systems. Additionally, Article 40(1) stipulates "the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner . . . 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." This right clearly extends to children younger than MACRs - who due to their age should be excluded from allegation, accusation, and recognition of having infringed the penal law – and further illustrates the Convention’s principles in the present context. The Committee applies such principles carefully in weighing the desirability of non-penal responses to children younger than MACRs, as compared to the possibility for penal and other sanctions for children at and above MACRs (see infra paragraph 13).
  8. The Committee also takes into direct consideration the United Nations Standard Minimum Rules for the Administration of Juvenile Justice. Rule 4.1 notes that the MACR "shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity," while the subsequent Commentary emphasizes "moral and psychological components of criminal responsibility," "discernment and understanding," and the "close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities." While the Committee acknowledges the insights of various academic disciplines in this respect, it also recognizes that such considerations imply some degree of relativity among children of the various States parties, due to factors such as culture, history, and upbringing of children. These and other broader differences among State parties are reflected to varying degrees among MACR practices, and indeed they lend support for a significant range of discretion for States parties in choosing their MACRs. As such, current States parties’ practices on the MACR are a substantive factor for consideration.
  9. Regarding current State party practices, 179 States parties have either explicit MACRs or age limits that serve in practice as MACRs. These MACRs range from the age of 6 years to the age of 18 years, while the overall average is 11.5 years, and the median is 12 years (i.e., an equal number of States parties have MACRs above and below the age of 12). The Committee notes that these figures are significantly influenced by the large number of States parties (34) with an MACR of 7 years, virtually all of which derive their provisions from historic English common law. In the past 25 years, States parties have formed an unmistakable trend to raise their MACRs, as over 20 States parties have established or raised their MACRs, and approximately 15 more are currently deliberating official proposals to do the same. There are very few exceptions to this general trend. From these findings it can be concluded that international MACR standards, as interpreted by current State party practices, effectively place the norm at 12 years. Likewise, the Committee has repeatedly advised in its Concluding Observations that States parties increase MACRs that are lower than 12 years, and that States parties increase proposed MACRs (i.e., under legislative consideration) that are lower than 12 years.
  10. In light of these and other considerations, the Committee finds that the age of 12 years constitutes the lowest MACR that is compatible with the Convention. This finding should not be interpreted in any way as a recommendation to designate MACRs of 12 years, nor should it be interpreted in any way as an endorsement of one uniform, international MACR. Instead, it represents the Committee’s conclusion that any MACR below 12 years is incompatible with the objectives and principles of the Convention. States parties should enact legislative changes as necessary to ensure compatibility with this standard, and should provide detailed information in their reports to the Committee on measures taken or envisaged to enact such changes.
  11.  

    The Rebuttable Presumption of Innocence and the MACR

  12. In approximately 60 States parties, the concept of Doli Incapax (incapable of doing harm) and its rebuttable presumption of innocence play an important role in setting and applying the MACR. This concept evolved in English common law beginning in the 1300s, inspired directly by historic Roman law. French criminal law eventually incorporated the concept as well, and British and French legal influences carried it to roughly 50 of the nearly 60 countries that maintain such provisions today. In a broad sense, Doli Incapax provisions and parallel provisions that may not necessarily be termed Doli Incapax signify an absolute presumption of innocence below the MACR, and a rebuttable presumption of innocence between the MACR and a higher age limit. Typically, individual judges appraise children on a case-by-case basis, whether according to certain pre-determined criteria or not, and decide if children between the two age limits may potentially bear criminal responsibility or not.
  13. The current use of such provisions is of serious concern to the Committee for two reasons. First, in the majority of the relevant States parties, the presumption of innocence is rebuttable for children beginning at an age below 12 years, and frequently beginning even at very low ages such as 7 or 8 years. As discussed elsewhere in this General Comment, the Committee understands the MACR to be an age limit below which children shall face neither criminal responsibility nor procedures related to criminal responsibility. Furthermore, as discussed in paragraphs 5-8, the Committee finds that only MACRs of 12 years and higher are compatible with the objectives and principles of the Convention. Therefore, any rebuttable presumption of innocence that exposes children below the age of 12 years to the possibility of criminal responsibility is considered to be incompatible with the Convention. States parties that retain a rebuttable presumption of innocence should make all legislative amendments necessary to ensure that, at a minimum, all children below the age of 12 enjoy an absolute presumption of innocence.
  14. Secondly, the Committee expresses concern because, in cases where the presumption of innocence is challenged for children between the two age limits, the assessment of individual children is usually based on criteria of a subjective and arbitrary nature. Of particular concern, criteria such as the attainment of puberty, the age of discernment, and the personality of the child inherently discriminate against individual children or among groups of children, or seriously risk such discrimination, in violation of Article 2 of the Convention. As such, where States parties maintain provisions for a rebuttable presumption of innocence for children, assessment for rebuttal should be based on acceptable objective criteria. Furthermore, all such assessments should be completed objectively and without delay by a competent, independent and impartial judge or other authority. In this context, States parties should include detailed information in their reports to the Committee on any provisions for a rebuttable presumption of innocence, their practical implementation and usage, and on all measures taken or envisaged to ensure that such provisions and practices meet the standards set forth in this General Comment.
  15.  

    Lack of Birth Registration and Proof of Age

  16. Article 7 of the Convention obliges States parties to register all children "immediately after birth." Birth registration is a lynchpin for all children’s rights, and it carries special significance for providing proof of age and ensuring practical meaning and application of the MACR. As such, States parties should adopt all appropriate measures to register and to provide proof of age to all children who are not registered immediately after birth, or whose registration record has been lost or destroyed for any reason. In any case where a child alleged as or accused of having infringed the penal law still has not been registered or does not otherwise have legally recognized proof of age, and where there is a reasonable doubt as to whether a child is older or younger than the MACR, a competent, independent and impartial authority should determine objectively and without delay the child’s estimated age. In particular, the competent authority should be independent with respect to the parties responsible for, and impartial with respect to the possibility of, the child’s criminal prosecution. To this effect, States parties should include detailed information in their reports to the Committee on measures taken or envisaged to ensure birth registration and proof of age as noted here.
  17.  

    Children Younger than the MACR

  18. A State party’s designation of its MACR signals both its willingness and its obligation to provide appropriate non-penal responses to all children younger than that MACR who, but for their age, would otherwise be alleged as or accused of infringing the penal law. States parties should systematically ensure appropriate responses to all such children according to the best interests of the child. These responses might include social services, positive youth development activities, treatment, and counselling. While it is possible to assign such measures in judicial proceedings that exclude criminal responsibility and the implications thereof, it is generally appropriate and desirable to provide responses to children younger than MACRs, pursuant to Article 40(3)(b), "without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected." It should also be noted in this context that all children younger than MACRs should be treated in a manner consistent with the Convention and human rights standards at all times, and that in particular, international juvenile justice standards are applicable to such children. Just as children beneath the MACR should not be subject to criminal prosecution or responsibility, appropriate consequences for the acts of such children must neither imply nor reflect criminal responsibility, nor under any circumstances should they serve as a substitute for or act as a mechanism of criminal penalty, punishment, or corrections. States parties should provide detailed information in their reports to the Committee on responses to children younger than their respective MACRs who have apparently committed acts otherwise considered infringements of the penal law, including data on the number of children concerned, disaggregated by age, gender, region, rural/urban area, social and ethnic origin, and reason for the intervention.
  19. In this respect, the Committee expresses grave concern at the frequent use of deprivation of liberty by States parties as a response to the actions of children below MACRs. The Committee has consistently referred to the principles of the Convention and international juvenile justice standards –that, even in the broadest sense, the deprivation of liberty must be used in conformity with the law, used only in exceptional cases and as a disposition of last resort, and used only for the minimum necessary period. In consideration of children below MACRs in particular, and in light of the foregoing discussion, the Committee finds that appropriate and legitimate uses of the deprivation of liberty are even more extraordinary and exceptional in nature. In its General Guidelines for Periodic Reports, the Committee requests States parties to provide information on "the number of children deprived of liberty, unlawfully, arbitrarily and within the law, as well as on the period of deprivation of liberty, including data disaggregated by gender, age, region, rural/urban area, and national, social and ethnic origin, and the reasons for such deprivation of liberty." States parties are requested to include this information in all reports to the Committee, and to additionally include such detailed information as it specifically relates to children beneath respective MACRs who are deprived of their liberty, including by arrest,for any reason, in any setting, and for any period of time.
  20. The Committee notes with concern other special risks that children commonly face for being younger than MACRs. In particular, law enforcement and other authorities may informally process or treat children below MACRs in ways that are incompatible with children’s lack of criminal responsibility. Such children may also face heightened risks for instrumental use by adults for criminal activities, and for vigilante justice and violence, often in connection with real or perceived notions of the impunity of children below MACRs for their actions. In light of these common risks, States parties should adopt all measures necessary to ensure appropriate handling by authorities of children below MACRs; to create universal public awareness of the rights and special concerns of children below MACRs, including the encouragement of the mass media to play an active role in such efforts; and to ensure protection of children below MACRs against instrumental use by adults and vigilante justice. To this end, the Committee requests detailed information on all such measures that are undertaken or envisaged, as well as difficulties encountered in this respect.
  21.  

    Customary, Traditional and Religious Law Systems that Confer Criminal Responsibility

  22. The Committee acknowledges that a significant proportion of children world-wide live under the primary guidance of customary, traditional, or religious law systems, rather than under the guidance of respective State party statutes. In many alternative law systems, the initial conferral of criminal responsibility to children features visibly among well-established practices, as it is often integrally linked to broader norms for maturity, rites of passage, initiation ceremonies, or scriptural religious interpretation. As such, alternative law practices, not statutory MACR provisions, frequently act as the sole mechanisms for the initial conferral of criminal responsibility upon children. In this context, and among other provisions, Article 30 of the Convention guarantees the right of indigenous children and of children belonging to ethnic or religious minorities to enjoy their own culture, in community with other members of their own group, and to profess and practice their own religion. Furthermore, Article 4 of the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities instructs that "States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards." Even though customary, traditional, and religious law systems do not necessarily apply to minorities alone, the Committee emphasizes the principles embodied in these international standards for its consideration of alternative law practices that confer criminal responsibility.
  23. While the Committee broadly supports the rights of minorities and the children belonging to them to enjoy, practice, and develop their own customs, traditions, and religions, it is concerned that certain practices which mark the initial onset of criminal responsibility for children under alternative law systems are incompatible with the Convention. Among these, the Committee expresses particular concern that some practices are contrary to the guiding principle of non-discrimination, such as the conferral of initial criminal responsibility on the basis of puberty, marriage, or pregnancy. States parties should act in consultation and cooperation with minorities, indigenous groups, and any other groups using alternative law systems to ensure the conformity to the Convention of their practices for the conferral of criminal responsibility to children.
  24. In its General Guidelines for Periodic Reports, the Committee requires in the context of Article 30 that States parties indicate "[t]he ethnic, religious or linguistic minorities or indigenous groups existing within the State party’s jurisdiction," as well as "[t]he measures adopted to ensure that in the implementation of the rights recognized in article 30 due consideration is taken of other provisions of the Convention, including in the areas of civil rights, particularly in relation to . . . the administration of juvenile justice." The Committee requests that States parties include the foregoing information in all their reports to the Committee, in addition to detailed information on any practices by minorities, by indigenous groups, or by alternative law systems that confer criminal responsibility on children. The Committee also requests information on States parties’ official recognition of and policies on such practices, including in particular the measures taken or envisaged in consultation and cooperation with relevant groups to ensure the compatibility of such practices with the Convention.

 

Potential Criminal Responsibility of Children for Genocide, War Crimes, and Crimes against Humanity

19 The possibility that children may be held criminally responsible for genocide, war crimes, or crimes against humanity is a particularly complicated issue for children’s rights, which requires comprehensive examination and is, in the opinion of the Committee on the Rights of the Child, beyond the scope of this General Comment.

Technical Assistance

20. States parties should seek technical assistance as appropriate from, inter alia, OHCHR, the United Nations Centre for International Crime Prevention, the International Network on Juvenile Justice, UNICEF, and through the United Nations Coordination Panel on Technical Advice and Assistance on Juvenile Justice, with particular regard to the following points: alignment of State party legislation with the MACR standards set forth in this General Comment; effective systems of birth registration and proof of age for all children; comprehensive planning and provision of appropriate responses to all children younger than MACRs who come into contact with juvenile justice systems; efforts to ensure that the principles and provisions of the Convention, particularly with respect to children below MACRs, are widely known and understood by adults and children alike; and other points as mentioned elsewhere in this General Comment.