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The minimum age for criminal responsibility

 

Article 40.3 of the CRC requires States to promote "the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe penal law". While the CRC does not establish a desirable minimum age for criminal responsibility, other international standards such as the Beijing Rules do however recommend that this age be based on emotional, mental and intellectual maturity, and not be too low.[1] The Committee’s Guidelines for Periodic Reports also require States Parties to indicate “the applicable minimum age of criminal responsibility”.[2]More recently, the Committee has further clarified that “a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable”.[3] However, variations and confusion about this age remain prevalent and further research is necessary to explore and expose the impact this has on the right to education, as well as on other children’s rights.
 
An overview comparative table summarising the findings of this research is available here – for the detailed excerpts these figures are drawn from please consult our country database, under the heading 'National law and policies on minimum ages'. The methodology employed in this research is described in detail here.
 
Assessing the developing maturity or capacity of the child to commit a criminal offence is somewhat subjective, and there are no agreed indicators (for example, while some countries use puberty as an indicator of maturity, others rely on psychological assessments). Moreover, the issue is complicated by a lack of clarity in art.40 of the CRC itself. It is not immediately clear how to interpret "a minimum age" since many countries have more than one minimum age for criminal responsibility. In fact, the range of ages generally follows this pattern:
a) an absolute minimum below which the child is conclusively presumed to lack capacity to commit a crime (doli incapax);
b) a minimum age for deprivation of liberty;
c) an age of criminal or penal majority above which there is a rebuttable presumption of capacity and therefore the possibility of being tried as an adult (below this age there is a burden of proof on the prosecution to show that the accused child had developed sufficient capacity).
 
In order to clarify the issue, the CRC Committee developed, not without difficulties,[4]General Comment No. 10 with a detailed section on the minimum age for criminal responsibility (MACR). Here States Parties are encouraged “to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.[5]Furthermore, the Committee expressed its concern at the practice of setting exceptions allowing a lower minimum age for serious crimes and recommended that “States parties set a MACR that does not allow, by way of exception, the use of a lower age”.[6]
 
The data presented in this research reflect to a certain extent the confusion that still exists over this topic despite the guiding opinions of the Committee. Some countries provide information on what appears to be the absolute minimum age of criminal responsibility and nevertheless continue to provide details on the administration of justice which seem to contradict or undermine the effective establishment of such an age (i.e. where children below this age may be arrested or temporarily detained or otherwise brought before a juvenile court). Many countries report that children can be held criminally responsible for serious crimes at a younger age than for minor offences. Often the lists of these serious crimes are somewhat elastic and range from murder to malicious hooliganism or from terrorism to minor traffic offences, thus adding to the mystification of the issue.
 
This research focuses on the absolute minimum age of criminal responsibility (case (a) above), and does not deal with the complexities of other ages (cases (b) and (c) above). The rule of interpretation is to record only the age below which there is no possibility for evidence to show that the child fulfils the criteria for criminal responsibility, that is to say that below that age he or she is fully exempt from being criminally liable. Overall, the research shows that this is the most complete area in terms of established minimum ages: in fact there are only 11 countries with no minimum age for criminal responsibility and only 14 with no or unclear information. Compared to the other areas under study this is good. On the other hand, though, it is worrisome to notice that 31 countries still consider a child criminally responsible at 7. When this is analysed in combination with the end of compulsory education, numbers become even more worrisome.
 
The link between the minimum age for completion of compulsory education and the minimum age for criminal responsibility
In a large number of countries, children are considered mature enough to take responsibility for their actions at or near the age at which they are required to begin their compulsory education. As shown in Figure 8, at least 142 countries hold children criminally responsible for at least some deviant behaviour during the age of compulsory education (often taken as 6-15).
 
Min. age 4 crim. resp..JPG
Min. age 4 crim. resp..JPG
 
One important area for future research would be to investigate the various measures of custody, reform, correction or protection that children in conflict with the law may be exposed to, and the extent to which these measures include adequate educational provision in full respect of the 4As.[7] The establishment of a very low minimum age for criminal responsibility could have a detrimental impact on the child and on his or her educational process and development. This would not only go against the principle of respect for the child’s life, survival and development, but also against one of the principal aims of the right to education according to which the child’s respect for the human rights and freedoms of others should be reinforced (acceptability). As poignantly put by the Committee, “if the key actors in juvenile justice, such as police officers, prosecutors, judges and probation officers, do not fully respect and protect these guarantees, how can they expect that with such poor examples the child will respect the human rights and fundamental freedom of others?”[8]
 
This also leads to the key question of education as a preventative measure for safeguarding children from entering into conflict with the law. A successful socialisation and integration of all children into society very much depends on their ability not simply to access education but to enjoy an education that is acceptable, relevant and adaptable, and which responds to their special needs, interests and concerns. This is all the more true for those children who are at the greatest risk of becoming involved in criminal activities. Setting a minimum age for criminal responsibility which clashes with compulsory education sends worrisome signals both about the value of education and about the capacity of society to offer children a proper preparation for adult life and participation in the development of their society.


[1]United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), General Assembly resolution 40/33, annex, paragraph 4.1.
[2] CRC Committee, Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child, UN document CRC/C/58/Rev.2, 2010, paragraph 39 (e)(i)
[3] CRC Committee, General Comment No. 10: children’s rights in juvenile justice, UN document CRC/C/GC/10, 2007, paragraph 32.
[4] As for the minimum ages of criminal responsibility (MACRs): “When the Committee on the Rights of the Child considered issuing a General Comment specifically on MACRs in 2002, consensus proved impossible”. D. Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility (Farnham: Ashgate, 2009), p. xiv.
[5] CRC Committee, General Comment No. 10: children’s rights in juvenile justice, UN document CRC/C/GC/10, 2007, paragraph 32.
[6] Ibid., paragraph 34.
[7] On this, see The right to education of persons in detention, Report of the Special Rapporteur on the right to education, UN document A/HRC/11/8, 2 April 2009, especially paragraphs 37-46.
[8]Ibid., paragraph 13