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BACKGROUND ON JUVENILE JUSTICE ACT

Presidential Decree no. 603 otherwise known as the Child and Youth Welfare
Code was signed into law on December 10, 1974 and became effective six
months after its approval. This code mentions in Chapter 3, articles 189-204,
the care and treatment of youthful offenders from the time of apprehension
up to the termination of the case.

However, on January 17, 1980 the Judiciary Reorganization Act or Batasang


Pambansa 129 abolished the Juvenile and Domestic Relations Courts. Section
23 of that law authorized the Supreme Court to designate certain branches
of the Regional and Municipal Courts to act exclusively on juvenile and
domestic relations cases. However, these courts functioned also as courts of
general jurisdiction which meant that separate proceedings for youthful
offenders were not possible. This in spite of the fact, that the Philippines had
signed all the International Treaties concerning the rights of children

In the final years of the Marcos era, crime became hardened in the street.
Between 1976 and 1983 murder, robbery, theft, rape and homicide rose from
37% to 58% of all crimes committed. Delinquent youth doubled from 3,814 in
1987 to 6,778 in 1989. The majority (59.1 %) apprehended were between 17
and 21 years old, while another 31.8% were between 13 and 16 years old.
Only 2.3 % were preteens. This was the situation based on data given by the
Department of Social Welfare.

Jailing of children in the Philippines is routine despite the fact that is


forbidden by Philippine laws such as the Special Child Protection Act (RA
7610 Article VI[10][a]), the Presidential Decree 603 and RA 9344. The
abusive practice, detrimental and dangerous to the child, is forbidden by the
International Covenant on Civil and Political Rights (Article 10[2][b]) and the
Convention on the Rights of the Child (Article 37[c]).[7

INTERNATIONAL STANDARDS AND THE MINIMUM AGE OF CRIMINAL


RESPONSIBILITY
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children-briefing-4-v6-web_0.pdf
Setting the minimum age

Under Article 40(3) of the CRC, States parties are encouraged to establish a
minimum age below which children are presumed not to have the capacity to
infringe the criminal law. There is much controversy about what should be
the most appropriate age of criminal responsibility and there are no
categorical international standards in this regard. In General Comment No.
10, the Committee on the Rights of the Child concludes that a minimum age
of criminal responsibility below the age of 12 years is considered by the
Committee not to be internationally acceptable. At the same time it stresses
that States parties should not lower their age of criminal responsibility to 12
where it has already been set higher and strongly encourages States to
introduce a higher minimum age of criminal responsibility, for instance 14 or
16 years of age. Certainly there is nothing to prevent States from having 18
as their minimum age of criminal responsibility and a number of countries
have chosen to do so including Brazil.

Guidance is also found in Rule 4 of the Beijing Rules which recommends that
any minimum age of criminal responsibility shall not be fixed at too low an
age level, bearing in mind the facts of emotional, mental and intellectual
maturity.4 The Commentary to this Rule states that the modern approach is
to consider whether a child can live up to the moral and psychological
components of criminal responsibility; that is, whether a child, by virtue of
her or his individual discernment and understanding, can be held responsible
for essentially anti-social behaviour. The Rules advise that in general there
should be a close relationship between the notion of criminal responsibility
and other social rights and responsibilities (such as marital status, civil
majority, etc).

Under Article 12 of the CRC, when a child is the subject of any administrative
or judicial proceedings, he or she has the right to be heard directly or
through a representative or an appropriate body, in a manner consistent with
the procedural rules of national law. General Comment No.10 states that: A
fair trial requires that the child alleged as or accused of having infringed the
penal law be able to effectively participate in the trial, and therefore needs
to comprehend the charges, and possible consequences and penalties, in
order to direct the legal representative, to challenge witnesses, to provide an
account of events, and to make appropriate decisions about evidence,
testimony and the measure(s) to be imposed. Article 14 of the Beijing Rules
provides that the proceedings should be conducted in an atmosphere of
understanding to allow the child to participate and to express himself/herself
freely. Taking into account the childs age and maturity may also require
modified courtroom procedures and practices. The implication is that
children must be able to participate effectively in trials but cannot do so if
they are not sufficiently mature.
In international criminal law, the issue of the minimum age of criminal
responsibility has not been addressed. The statutes of the International
Criminal Tribunals for Former Yugoslavia and Rwanda do not include any
provisions governing the age of criminal responsibility, nor have they
indicted anyone under 18. The Rome Statute of the International Criminal
Court states that the court shall have no jurisdiction over any person who
was under the age of 18 at the time of the alleged commission of the
offence. This is a jurisdictional provision and in effect defers the issue to
national law.

SUMMARY OF RELEVANT INTERNATIONAL INSTRUMENTS AND


PHILIPPINE LEGISLATION

https://resourcecentre.savethechildren.net/sites/default/files/documents/323
5.pdf

INTERNATIONAL LAWS

Various international instruments set down standards and procedures by


which CICL should be treated from the time of arrest through all the steps in
the process. These include the International Covenant on Civil and Political
Rights (1966); the UN CRC (1989), which is the first international instrument
that adopted a comprehensive specific child rights approach; and other
international instruments concerning juvenile justice. Although international
minimum standards for most aspects of childrens justice exist as a guide for
all States, the specific legal national regulation is left to the ratifying States.
In addition to the UN CRC, the UN has set out various rules and guidelines to
assist states in drawing up national laws for childrens justice. These include
the UN Standard Minimum Rules for the Administration of Juvenile Justice
(Beijing Rules 1985); the UN Guidelines for the Prevention of Juvenile
Delinquency (Riyadh Guidelines 1990); the UN Standard Minimum Rules for
Non-Custodial Sentences (Tokyo Rules 1990); the UN Rules for the Protection
of Juveniles Deprived of their Liberty (JDL Rules 1990) and the Vienna
Guidelines (1997), which describes how the UN CRC, Rules and Guidelines
can be put together in practice.

PHILIPPINE LEGISLATION

The Philippine Constitution of 1987 addresses the protection of children. In


addition, the Philippine Congress and the Supreme Court have provided a
specific set of laws and rules for dealing with CICL. These rules include the
following:

Republic Act (RA) 8369 (1 ct (RA) 8369 997), or the Family Courts Act.
RA8369 established family courts all over the country and their jurisdiction.

Rule on on Juveniles in Conflict with the Law. Issued by the Supreme Court
in Law February 2002, this rule now implements Presidential Decree (PD) 603
and other laws. It supersedes the Rules and Regulation on the Apprehension,
Investigation, Prosecution and Rehabilitation of Youth Offenders (1995) and
the Revised Rules on Criminal Procedure for CICL (1932; though still
applicable for adult offenders) but both these laws are supplementary on
those areas not covered by the Rule on Juveniles in Conflict with the Law
(such as the procedure for preliminary investigation and bail).

Supreme Court Administrative Circular No. 14-93. . 14-93. This instructs


that all disputes should be subject to barangay conciliation before filing a
case in court unless the maximum penalty is over one year or the maximum
fine is Php 5,000 (around US$89 in July 20047 ).

Rule on the Commitment of Children. This ruling took effect in April 2002
(Administrative Memorandum [AM] No. 02-1-19-SC). It is the procedure
applied in court when a child is legally entrusted to the care of the
Department of Social Welfare and Development (DSWD) or any duly licensed
child-placement or child-care agency or individual (parent/ guardian or any
interested party). This Rule applies to: (1) a dependent child, without parent/
guardian, or whose parents/guardian for good reason wish to be relieved of
care and custody and so is dependent upon public support; (2) an
abandoned child; and (3) a physically or emotionally neglected child. If the
CICL is found to be one of these children, the DSWD or any licensed child-
placement or child-care agency may file a petition for the commitment of the
child.

R.A. 7610 (1991), R.A. 7610 (1991), or R.A. 7610 (1991), Special Protection
of Children against Child Abuse, Exploitation and Discrimination

Rule on Examination of Child Witness, issued by the Supreme Court and


effective beginning December 2000.

BARANGAY LEGISLATION
Barangay legislation is very important in undertaking diversion from the
formal justice system. It is based on two major legislations, PD 603 and the
Katarungang Pambarangay (Barangay Justice System).

PD 603 (1974) mandates the establishment of the barangay council for the
protection of children (BCPC), which is a multi-sectoral body tasked with
formulating policies and programs to promote and protect childrens rights at
the barangay level.

The Katarungang Pambarangay ambarangay was set in place with the


promulgation of PD 1508 in 1978. It was strengthened by provisions in the
Local Government Code of 1991 and emphasised by the Supreme Court in its
Administrative Circular No. 14-93 issued in July 1993. Under the Katarungang
Pambarangay, conciliation can be performed by a Lupong Tagapamayapa
(peace-and-order committee) for all disputes where the parties involved are
from the same barangay. The law prescribes a maximum penalty of one-year
imprisonment or a fine of Php 5,000 (US$ 89) and recourse to the barangay,
with certain exceptions, as a precondition before filing a case in court or any
government office.

LOCAL ORDINANCES

The Local Government Code gives the city, the municipality and the
barangay the power to enact laws at their respective levels of governance.
Local authorities have produced both penal and non-penal ordinances. In the
three study areas, there are local penal ordinances that apply only to
children such as violation of curfew, substance abuse, anti-peddling, smoking
and use of tobacco, loitering and playing video games. In Cebu City, the
major ordinance violated is City Ordinance (CO) 1361, which rules against
littering. With the enforcement of this ordinance, children are arrested while
seeking food, plastic articles and bottles from the rubbish, a graphic example
of survival offending. The ultimate punishment of custody is sometimes
imposed, ranging from one day to one year. Although graduated fines are
often the most likely sentences, failure to pay could still lead ultimately to
custody. The Metro Manila report prsents examples of these local ordinances
in the cities studied.

In Davao, the Davao City Childrens Welfare Code became an ordinance in


1994 with the UN CRC as its framework. Despite this, it did not address
issues concerning CICL. It has a curfew provision for children less than 15 but
stipulates that law enforcers should escort these children home. It also
emphasises parents responsibility to keep their children at home which, if
ignored by their children, could result in the parents being punished by doing
community service. Unfortunately, the law enforcers still follow the city laws
on curfew circa 1957, which regarded curfew breakers as law offenders. As a
result, children are locked up in congested police stations overnight. This is
strictly against the new Code and is an example of how these local
ordinances are interpreted in a way that suits the convenience of the
enforcers and ignores the rights of the child.

MINIMUM AGE DETERMINED


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).

STATISTICS

By 2001, jailed children in the Philippines was attracting international media


attention. The Australian government-owned television network,
the Australian Broadcasting Corporation, ran a documentary on the issue in
which it stated that children as young as eight are being held in adult prisons
in the Philippines in contravention of international statutes and the countrys
own laws.[3]
In September 2005, it was estimated that over 4,000 children were in jails
and detention centers all over the country many of them mixed with
adults.[2]
Another estimate states there are an estimated 20,000 children in prison in
the Philippines throughout a single year.[4]
By May 6, 2005, it was estimated there were 2,100 children in jails across the
Philippines, 20 of them on death row.[5]
Getting information on children in jail is difficult. "No one knows what goes
on inside of prisons because no one is allowed in," Father Cullen said during
an interview with the Western Catholic Reporter, the official newspaper of
the Archdiocese of Edmonton.
REASONS

Amnesty International stated that Filipino children who come into conflict
with the law are often from marginalized groups including street youth, drug
users, and those with interrupted education, who have limited access to the
family and societal structures meant to protect them. These children straddle
the child and adult worlds and, in some ways, get the worst of each. Even
before arrest, children who come into conflict with the law tend to represent
the most disadvantaged and marginalized sectors of society. Many are
fleeing difficult home situations, often exacerbated by abuse and poverty
and resulting in an interrupted education.[8]
"These children in prison are frequently mixed with adult prisoners and
sexually abused in the over packed cells. Here eighty to a hundred prisoners
squat for 24 hours taking turns at lying down so congested are the small
cells. The heat and stench is overpowering, the food is only a few cents a day
and disease, malnutrition and tuberculosis are the daily hazard suffered by
the children."[4]
Children in jail are at risk of sickness and death from contagious diseases
such as TB, HIV/AIDS and hepatitis

Today, there are two very different approaches to juvenile crime. One is to
lock up more and more young offenders, at an increasingly young age. The
other trend - in the spirit of the UN Convention on the Rights of the Child - is
to avoid criminalisation and to seek family-based or other social alternatives
to imprisonment. I am arguing for the second approach. (CRIN)

PROFILE OF CHILDREN IN CONFLICT WITH THE LAW

https://resourcecentre.savethechildren.net/sites/default/files/documents/323
5.pdf

POVERTY BACKGROUND Poverty is a major factor in relation to CICL and is at


the root of survival offending. Survival offending involves committing a
violation or offence while in the process of carrying out ones livelihood or in
the act of survival. Violation of laws against peddling or selling goods on the
street, or against littering, as well as petty thieving are examples of survival
offending. So are being and working on the streets, both often categorised as
loitering or being a vagrant. Unlike the better-off, poverty means not
being able to settle with the police or pay the money required for bail.

The case studies show that poverty is one of the factors invariably linked to
childrens vulnerability and one of the tipping factors in producing domestic
violence. All these put together contribute significantly to putting children at
risk and to pushing them to live outside their homes and among their
barkada (gang or peer group) or to running away from home altogether.
These situations seem to dramatically increase the chance of offending.

Research quoted in the three studies states that a third of the Philippines
84.5 million population in 2002 live below the governments set poverty line
of Php 38 per person per day (68 US cents). Other independent studies (IBON
Foundation) using government data estimate that 77% of the people are not
earning enough to maintain a decent standard of living and that it is even
worse in rural areas where almost all (92%) rural families are poor. Figures
from the National Statistics Offices Family Income and Expenditure Survey
(2000) presents a more distinct picture of poverty and the dismal state of
Filipino children: 27% of homes have no electricity; 20% have no access to
safe drinking water; about 33% of family heads are unemployed or uunder-
employed (as of January 2002, 10% of the total workforce, or 3.4 million,
were unemployed); 15% of families have working children; and 16% and 42%
of those with children aged 6-12 and 13-16, respectively, are not able to
send their children to school.

GENERAL CHARACTERISTICS OF CHILDREN IN CONFLICT WITH THE


LAW

Sex. Findings from all the studies show that . more boys than girls come into
conflict with the law. In the Cebu study, police records in 1999-2001 revealed
that the majority of children arrested were boys (79%). In Davao City, of the
497 arrested by the police (January-June 2002), the majority (83%) were also
boys. These findings were corroborated by the Metro Manila study, which
found that the majority (89%) of the 706 CICL handled by the Family Courts
in 2001-2002 were boys. Boys also dominated the prisons, with 95% in Cebu
in 1999-2001 and 91% in Davao as of November 2002.

Age. The average age of children arrested . in Cebu City over the study
period was 14.4 years. Very few children below the age of 14 years were held
in custody and the proportion of older children in custody increases with age.
In Davao, children as young as 5 or 6 could be rounded up but were then
handed over to the DSWD.

Education. Majority of the children in the . studies have reached Grade 6. In


the case of Metro Manila and Davao, 38% and 36%, respectively, have been
in high school. In Cebu, 8 out of 10 were out of school at the time of the
offence while in Metro Manila, majority have dropped out by the age of 14.
Few children had no formal education at all (5% and 1% in Davao and Metro
Manila, respectively). According to the Cebu study, children stopped
schooling because of the lack of financial support or because of peer
influence. Families amilies. CICL in Metro Manila usually . come from families
with an average of seven members. About half (47%) of CICL covered by the
study lived with parents, 30% with the mother alone and only 5% with non-
relatives. The Metro Manila study also revealed that 20% of the CICL sampled
had fathers who were unemployed and the average monthly income per
family was Php 5,530 (US$ 98). In Cebu, majority of the CICL covered by the
study had parents who were alive and were living together. However, 60% of
the children were not living with their parents when arrested.

Family Violence. Of the CICL presented . in the case studies, nine discussed
mostly about their family background, six of whom clearly came from violent,
neglectful or uncaring homes. This appeared to have been a major factor to
these children becoming at risk and to three of them running away from
home. Of the six, four highlighted the significant role of their parents either
by blaming them for what happened (2 cases) or by realising the need to
change because of their parents being more loving (1 case) or more
concerned, that is, guiding and monitoring them (1 case). More than half
(54%) of the 28 CICL held at the Community Scouts Center in Cebu said that
they have been abused by family members. The extent of domestic abuse
can be gleaned from figures presented in the Cebu study, which showed that
of the 82 CICL in custody who were asked about domestic violence, only 30%
(21 boys and 3 girls) admitted to having been abused (see Table 3).

Social Environment. In Davao, the adult FGD participants particularly


linked offending to poverty, lack of parenting skills, early marriage and the
breakdown of the family system, while both children and adults saw
pornography and peer influence and the lack of education and recreational
facilities as contributory factors. In the Metro Manila study, 121 out of the
706 CICL, or 17%, were working before they were arrested (of which, 58%
were street vendors). Only a few said they were members of gangs (2% to
4%). In Cebu, 80% said they were members of a barkada. It is estimated that
about 23% are members of gangs. Of the nine boys in the Cebu case studies,
all but one was highly influenced by the barkada or close friends to perform
deviant behaviour

MIMIMUM AGES OF CRIMINAL RESPONSIBILITY IN ASIA

Afghanistan
No child under the age of 12 can be held criminally responsible [Juvenile
Code, Article 5(1)]. However, during its review of Afghanistan in 2011, the
Committee on the Rights of the Child criticised the State for detaining
children under the age of criminal responsibility in Juvenile Rehabilitation
Centres. [UN Committee on the Rights of the Child, Concluding observations
on Afghanistan's initial state report, CRC/C/AFG/CO/1, 8 April 2011, paras. 74
and 75]

Bahrain
The Penal Code provides that no person who was younger than 15 at the
time an alleged offence was committed may be held liable under the Code,
but must be subject to the Juveniles Law. In effect, 15 is the age of criminal
majority, the age at which children can be tried under the criminal justice
system that applies to adults. Children older than 15 can be subject to the
penalties under the Penal Code. [Penal Code, article 32].

Bangladesh
No person can be held criminally responsible for an offence allegedly
committed while they were under the age of 9. [Penal Code, Section 83]

Bhutan
No child below the age of 10 may be held criminally liable for a criminal
offence. [Penal Code 2004, Article 114.]

Brunei Darussalam
No one can be held criminally responsible for an offence committed while
under the age of 7. Children older than 7 but younger than 12 can only be
held criminally responsible where they have sufficient maturity of
understanding to judge the nature and consequences of their actions at the
time of the offence.

The Syariah Penal Code

No child can be held criminally responsible where he or she is not mumaiyiz


(able to differentiate the matter) [Syariah Penal Code, Section 12]. Children
who are able to differentiate the matter but who have not reached puberty
(are not baligh), cannot be sentenced to hadd or qisas punishments. [Syariah
Penal Code, Section 13]

Cambodia
Children as young as 14 can be convicted of a criminal offence if the
circumstances of the offence or the personality of the minor justify doing so.
However; children younger than 14 can be subjected to measures of
surveillance, education, protection and assistance. [Criminal Code, article
39]

China
Mainland China
Generally, people can be held criminally responsible from the age of 16, but
children can be held criminally responsible for intentional homicide,
intentionally hurting another person so as to cause serious injury of death,
rape, robbery, drug-trafficking, arson, explosion or poisoning from the age of
14. [Criminal Law of the People's republic of China, Article 17]

Hong Kong Special Autonomous Region


No one may be held criminally responsible for an action carried out while
under the age of 10. [Juvenile Offenders Ordinance, Section 3]

Macau Special Autonomous Region


Under the Penal Code, persons under the age of 16 are exempt from
punishment [Penal Code, Article 18]. However the minimum age of criminal
responsibility is effective set at 12 by Law No. 2/2007, which sets out the
scheme of child protection education of young offenders. [See Law No.
2/2007, Article 1.

India
No person can be held criminally responsible for an act committed while he
or she was under the age of seven [Indian Penal Code, Section 82] and no
person can be held criminally responsible for an act committed while under
12 while of immature understanding. A child will be considered to be of
immature understanding when he or she has not attained sufficient
maturity of understanding to judge the nature and consequences of his
conduct on that occasion. [Indian Penal Code 1860, Section 83]

Indonesia
People can be held criminally responsible for their actions from the age of 8
[See Third and fourth periodic reports of Indonesia to the UN Committee on
the Rights of the Child, CRC/C/IND/3-4, 31 October 2012, para. 165]. As of
2012, a bill that would raise the minimum age of criminal responsibility was
under consideration, but at the time of writing, it had not been enacted. [See
Inter Press Service, Commission seeks rehabilitation, not detention, 10
February 2012]

Iran, Islamic Republic of


The Civil Code defines puberty as 15 lunar years for boys, 9 lunar years for
girls [Article 1210, Note 1. The Civil Code had previously set the age of
maturity at 18, but this was lowered to 15 for boys and 9 for girls by
amendments in 1982 (FIDH (International Federation for Human Rights),
2009, IRAN/Death Penalty: A state terror policy, Paris: FIDH)] (i.e. age 14
years and 7 months for boys and 8 years an 9 months for girls). [Cipriani, D.
(2009), Childrens Rights and the Minimum Age of Criminal Responsibility: A
Global Perspective, Farnham: Ashgate Publishing Limited, p.200]

Iraq
Children can be held criminally responsible for offences committed from the
age of 9. [Juvenile Welfare Law No. 76 of 1983, Articles 47(1) and 108]

Israel
No person can be held criminally responsible for an act committed while
under the age of 12. [Penal Law of Israel-626/1996, Section 34F]

Under Israeli military law applied in the West Bank, no person under the age
of 12 can be arrested or prosecuted in a military court. [Military Order 1651,
Section 191]

Japan
The Penal Code asserts that no one can be punished under the criminal law
for any act carried out while under the age of 14 [Penal Code, Article 40].
However, amendments made to the Juvenile Act in 2007 permitted the
Family Courts to commit children as young as 11 to Juvenile Training Schools
under the administration of the Ministry of Justice Correction Bureau.

Jordan
Jordan has reported that children can be held criminally responsible from the
age of 7 [Juveniles Act, Law No. 24 of 1968, Article 36. As per Third periodic
report of Jordan to the UN Committee on the Rights of the Child, CRC/C/JOR/3,
2 March 2006, para. 53]. In July 2014, the lower house of the Jordanian
parliament passed a draft juvenile law that would raise the minimum age of
criminal responsibility to 12 years, though at the time this report was
finalised, the amendment had not entered into force. [Penal Reform
International, Jordan moves towards restorative justice and adoption of non-
custodial alternatives for children 9 July 2014]

Kazakhstan
A person can be held criminally liable for any offence committed while over
the age of 16 [Criminal Code, Article 15(1)]. For offences specifically listed in
the criminal code children can be held criminally responsible from the age of
14. Generally speaking the lower age limit only applies to more serious
offences involving violence, though vandalism and deliberate damage to
transport vehicles or roads are also included on the list of offences for which
a lower minimum age of criminal responsibility is applied. [Criminal Code,
Article 15(2)]

Where a juvenile offender has reached either of these ages for criminal
liability, but while committing the crime of a lesser or medium gravity, he
or she was not aware of the nature or social danger of his acts as a result of
mental retardation, he or she will not be held liable. [Criminal Code, Article
15(3)]

Korea, Democratic People's Republic of (North Korea)

No person may be held criminally responsible for an offence committed while


under the age of 14. [The Criminal Code, Art. 11 and the Criminal Procedure
Law, Article 53 as per Combined third and fourth periodic reports of the
Democratic People's Republic of Korea to the UN Committee on the Rights of
the Child, CRC/C/PRK/4, 15 January 2008, paras. 14 and 232]

Korea, Republic of
No one can be punished for an offence committed while under the age of 14
[Criminal Act, Article 9]. Children can be subject to protection measures from
the age of 12, which include placement in child welfare institutions, juvenile
protection institutions and juvenile training schools or reformatories. [For
further reading, see Cipriani, D. (2009), Childrens Rights and the Minimum
Age of Criminal Responsibility: A Global Perspective, Farnham: Ashgate
Publishing Limited, p. 213]

Kuwait
Persons under the age of seven cannot be held criminally responsible
[Juveniles Act, Article 6]. Children aged seven to 15 who commit unlawful
acts may be subject to penalties under the Juvenile Act, including detention
in an institution. [Juvenile Act No. 3 of 1983, Article 6]

Kyrgyzstan
Children aged 16 at the time of an alleged offence may be held criminally
liable for any offence [Criminal Code, Article 18(1)]. For a number of offences
specifically listed in the Criminal Code, children can be held criminally
responsible from the age of 14. [See Criminal Code, Article 18(2)]

Laos, People's Democratic Republic of


No one can be held criminally responsible for an action carried out while
under the age of 15.[ Penal Law, Articles 7 and 17]

Lebanon
Children under the age of seven (7) cannot be held criminally responsible.
[Law Number 422 of 2002 on the protection of juveniles in conflict with the
law or at risk, Article 3.]

Malaysia
Malaysia has a dual system of secular and Islamic law, which has resulted in
a number of different minimum ages of responsibility depending on which
branch of the law is applicable.

Under the Penal Code, a person can be held criminally responsible from
the age of 10. [Penal Code, Article 82. See also Child Act Article 2]
Under the Syariah Criminal Offences (Federal Territories) Act 1997,
Muslim children can be held criminally responsible from the onset of puberty.
[Syariah Criminal Offences (Federal Territories) Act 1997, Articles 2 and 51]

Offences under the Internal Security Act can be prosecuted regardless


of age. [Essential (Security Cases) Regulations 1975, Article 3]

Maldives
The Penal Code 2014 does not set a clear minimum age of criminal
responsibility, but frames the issue using the excuse of lack of maturity. A
person is excused of a criminal offence if he or she lacks the maturity of an
adult and as a result lacks lacks the capacity to accurately perceive the
physical consequences of his or her conduct; to appreciate the wrongfulness
of his or her conduct; or to control his or her conduct. People under the age
of 15 are conclusively presumed to be excused of any criminal offence with
which he or she is accused. A person aged 15 to 18 is presumed to be
excused of any criminal offence unless the prosecution rebut the
presumption of immaturity. A person who was under the age of 18 at the
time of an alleged offence and meets the requirements of this excuse must
be transferred to the Juvenile Court, which has exclusive jurisdiction in any
subsequent proceedings.[Penal Code 2014, Section 53]

However; this restriction does not apply to offences punishable under Sharia
law or for violent felony offences, for which the penalty is postponed until the
child reaches the age of 18.]

Mongolia.
Children can be held criminally responsible for all offences from the age of 16
and for specifically named offences from the age of 14. [Criminal Code,
Article 21(1) and (2)]

Myanmar.
No person can be held criminally responsible for an offence carried out while
under the age of seven. Children aged seven to 12 may only be held
criminally responsible where they have attained sufficient maturity of
understanding to judge the nature and consequences of their conduct.
[Child Law, Section 28(a) and (b)]

Nepal.
The Children's Act provides that no child can be punished for a criminal act if
he or she was under 10 years old at the time of the offence. Children aged
10 years to 13 years inclusive, can only be given a warning for offences that
carry a maximum penalty of a fine. [Children's Act, Section 11(1) and (2)]

Oman.
No one can be subject to criminal penalties for an offence committed while
under the age of nine. Where the age of a suspect is not established it shall
be evaluated by the judge. [Penal Code, Article 104]

Pakistan.
Under the Penal Code, no one can be held criminally responsible for an
offence carried out while under the age of seven (7). Children older than
seven and younger than twelve can only be punished under the Penal Code
where they have attained sufficient maturity of understanding to judge the
nature and consequences of [his or her] conduct on that occasion. [Penal
Code, Sections 82 and 83]

Palestine, Occupied Territories.

West Bank.
Children under Palestinian criminal law can be held criminally responsible
from the age of 12. [Palestinian Child Law, Article 67 as amended]

Under Israeli military law as it applies to child offenders, no person under the
age of 12 can be arrested or prosecuted in a military court. [Military Order
1651, Section 191]

Philippines.
No one can be held criminally responsible for an act carried out while under
the age of 15. Children aged older than 15 but younger than 18 can only be
held criminally responsible where they have acted with discernment.
[Republic Act No. 10630, Section 6]
.Qatar.

Children under the age of seven cannot be held criminally responsible. [Law
No. II of 2004, the Penal Code, Article 53]

Saudi Arabia.
The minimum age for criminal responsibility has reportedly been raised from
7 to 12, but reports are inconsistent and the rise would not apply to girls or
in qisas cases.. The Detention Regulation and the Juvenile Homes Regulation
1975 define a juvenile as below the age of 18.

Singapore.
Children can be held criminally responsible for offences committed from the
age of seven (7). Children aged older than seven but younger than 12 cannot
be held criminally responsible unless they have attained sufficient maturity
of understanding to judge the nature and consequence of [their] conduct on
that occasion. [Penal Code, Sections 82 and 83]

Sri Lanka.
No person can be held criminally responsible for an offence committed while
under the age of eight (8). A child older than eight but younger than 12 can
only be held criminally responsible if he or she has attained sufficient
maturity of understanding to judge of the nature and consequence of his [or
her] conduct on that occasion. [Penal Code, Sections 75 and 76]

Syria.
A child under the age of 10 at the time of an alleged criminal offence cannot
be held criminally responsible. [Juvenile Act 1974, Article 10 (as amended by
Legislative Decree No. 52 of 2003]

Tajikistan.
Children can be held criminally responsible for any offence from the age of
16, but from the age of 14 for certain named offences, usually involving
violence. However, the UN Committee on the Rights of the Child has
expressed concern that children under the age of 14 are frequently
subjected to arrest, pretrial detention and deprivation of liberty in closed
institutions. [Criminal Code, Article 23(1) and (2); CRC/C/TJK/CO/2, 5
February 2010, para. 72]]

Thailand.
No person can be held criminally responsible for an offence committed while
under the age of seven (7). A child older than seven but younger than 14
cannot be punished, but can be subjected a number of sentences including
detention in a school or place of training and instruction. [Penal Code,
Sections 73 and 74(1)-(5)]

Timor-Leste.
Children under 16 are exempt from criminal liability. For persons aged over
16 but younger than 21 criminal penalties are provided for in specific
legislation. [Penal Code, Article 20]

Turkmenistan.
Children are criminally liable for all offences from the age of 16 and for
certain named offences from the age of 14. [Penal Code, Articles 21]

United Arab Emirates.


The minimum age of criminal responsibility under criminal law is seven.
Under Shari'a law, children typically become liable for Islamic punishments at
the onset of puberty.

Uzbekistan.
Persons can be held criminally responsible for all offences committed after
they have reached the age of 16, and for intentional killing from the age of
13, and for other specifically named offences from the age of 14. [Criminal
Code, Article 17]

Viet Nam.
A child aged 14 or older can be held criminally responsible for very serious
crimes intentionally committed or particularly serious crimes. A child aged
16 or older can be held criminally responsible for any offence.

Children aged 14 to 18 are classified as juvenile offenders if they are


convicted of a criminal offence. [Criminal Code, Articles 12 and 68]

Yemen.
No one can be held criminally responsible for an act committed while under
the age of seven.1 [Republican Decree, Law No. 12 of 1994 concerning
crimes and penalties, Section 31]

Countries that have lowered the minimum age of criminal responsibility

Hungary
Hungary enacted a new Criminal Code in 2012 which reduced the minimum
age of criminal responsibility from 14 to 12 for homicide, voluntary
manslaughter, battery, robbery and plundering, provided that the child had
the capacity to understand the nature and consequences of his or her act.
For all other offences, children can be held responsible from the age of 14.

Panama
Articles 2 and 4 of Law No. 6/2010 reduced the MACR from 14 to 12.

WHY NOT LOWERED IT

According to the Psychological Association of the Philippines (PAP) are


against this amendment and take the stand that the minimum age of
criminal responsibility should NOT be lowered. Strenghtening the juvenile
justice system through the strict implementation of existing laws that
prosecute adult who coerce children to engage in criminal behaviour and
protect and rehabilitate children in conflict with the law (CICL) through
restorative means.

Scientific research on adolescent development and juvenile delinquency


provide evidence that children and adolescents differ significantly from
adults in decision-making, propensity to engage in risky behaviour, impulse
control, identity development, and overall maturity. The developmental
immaturity of juveniles mitigates their criminal culapability. Although they
may be able to discern right from wrong action, it is their capability to act in
ways consistent with that knowledge that is compromised by several factors
at this stage:

A JUSTICE SYSTEM FOCUSED UPON REHABILITATION


https://www.penalreform.org/wp-content/uploads/2013/05/justice-for-
children-briefing-4-v6-web_0.pdf

The Committee on the Rights of the Child makes it clear that children who
are over the minimum age of criminal responsibility and in conflict with the
law have a lesser culpability than adults because they differ from adults in
their physical and psychological development, and their emotional and
educational needs. States must accommodate these differences by
establishing justice procedures for children that guarantee their right to a fair
trial and that are focused upon rehabilitation of the child rather than on
punishment or retribution. These procedures must be in full compliance with
all provisions of the CRC including the following:

- In all actions concerning children, the best interests of the child shall
be a primary consideration. While best interests has not been
precisely defined, General Comment No. 10 states that [t]he
protection of the best interests of the child means, for instance, that
the traditional objectives of criminal justice, such as repression/
retribution, must give way to rehabilitation and restorative justice
objectives in dealing with child offenders. This can be done in concert
with attention to effective public safety.

- The obligation to promote the childs reintegration into society so that


they can assume a constructive role in society.
- The obligation to deal with children without resort to judicial
proceedings (provided that human rights and legal safeguards are fully
respected) in most cases.

-There will always be a need for secure accommodation for the very
small minority of children over the age of criminal responsibility who
commit serious violent offences and who pose a significant risk to
themselves or their communities. However, a child can only be
arrested, detained or imprisoned as a measure of last resort and for
the shortest possible time. Detention before trial should only be used
in exceptional circumstances (where the child is an immediate danger
to himself/ herself or others) and should only be used for limited
periods of time. Bail and other forms of conditional release should be
accompanied by measures to support and supervise the child during
this period. Detention following conviction must only be used as a last
resort and for the shortest possible time in situations where a child is
convicted of a violent offence or has been involved in persistent
serious offending and there is no other appropriate response.
RECOMMENDATIONS

We suggest that the High Commissioner considers the following


recommendations
for his report to the Human Rights Council:

To Governments:
Stop lowering the age of criminal responsibility and thereby criminalising
more and more children, and stop detaining children for minor and/or first
time offences
Amend laws and practices so that children are never detained as
punishment, but only as a last resort for the shortest period possible,
specifically only when they are assessed as being a serious risk to others or
for their own safety, and where that risk cannot be reduced to an acceptable
level without detention
Never to detain children in penal settings
Ensure that any necessary restriction of liberty is authorised by a legal
process with the child independently represented and that detention is
frequently reviewed
Cooperate with and support the forthcoming UN Global Study on Children
Deprived of Liberty.

To the Human Rights Council:


Ensure that the issue of States lowering minimum ages of criminal
responsibility is addressed by the Council
Ensure that the obligations enshrined in the Convention on the Rights of
the Child are implemented with respect to detention of children and
treatment of children in the criminal justice system
Urge the Secretary General to carry out the Global Study on Children
Deprived of Liberty in the most effective way possible by appointing an
independent expert to undertake the study.

https://www.unicef.org/rosa/Criminal_Responsibility_08July_05(final_copy).pdf

Summary of CRC Guidance In summary, the Committee encourages a single,


invariable, and country-wide MACR in each State party - one which is set as
high as possible, and which is applied uniformly to all children at all times.
More specifically, the guidance developed under the CRC includes the
following: l MACRs Must Be 13 Years of Age or Higher l In Law and in Practice,
No Child Younger than the MACR Should Ever Face Criminal Procedures or
Sanctions Only Protective and Educative Measures l Doli incapax is
Problematic as a System, But It Should Only Be Revoked if the MACR is Also
Increased To At Least 13 Years of Age l Puberty Should Never Mark the Onset
of Criminal Responsibility l The Same MACR Must Apply Regardless of the
Seriousness of the Alleged Offense l The Same MACR Must Apply Throughout
the State Party l The MACR Must Refer to the Age of the Child at the Time of
the Alleged Offense In view of this guidance, and as seen in Table 1 and the
foregoing discussion, current South Asian MACR provisions fall short in
various respects. Indeed, the very highest MACRs in South Asia 10 years of
age in Bhutan and Nepal still fall 3 years short of the minimum acceptable
age. However, the MACR is often far more complex in practice than by its
legal definition, and its practical problems are widespread in South Asia. The
following section examines other faces of the MACR and their implications for
childrens rights.

General Recommendations
Amend current MACR provisions and practices, as necessary, to meet the
standards which have evolved under the CRC:
- Increase the MACR to at least 13 years, and stipulate by law that it is the
sole relevant age limit with respect to all alleged crimes.
- Upon increasing the MACR to at least 13, revoke doli incapax provisions in
their entirety (in Bangladesh, India, Pakistan, and Sri Lanka).
- Specify that childrens ages shall be CONCLUSION AND
RECOMMENDATIONS 28 assessed and considered as at the time of their
alleged commission of offenses.
- Stipulate that the same MACR applies immediately and uniformly
throughout the country without exception, and that it is not subject to
derogation by separate existing or future special legislation (including, inter
alia, martial law, anti-terrorism legislation, emergency legislation,
state/provincial laws, etc.).
- Ensure that, in law and in practice, children younger than the MACR who
are in conflict with the law face appropriate protective and educative
measures of accountability, and never criminal procedures or sanctions.
- Amend current laws so that criminal responsibility neither depends upon
nor is implied by puberty.
- Pursue broader juvenile justice reforms, as needed and in tandem with
MACR amendments, to ensure the respect of all childrens rights.
- Expand childrens rights training programs to include all relevant officials
and personnel involved in the juvenile justice system.
- Strengthen current efforts to register all children at birth, and undertake
further measures to provide proof of age and identity to all children who
were not already registered at birth.
- Devise practical, uniform procedures for prompt and accurate estimation of
childrens ages in cases where no reliable proof of age is available.
- Expand appropriate programs and services for children in conflict with the
law, and make a variety of non-punitive programs available for children
younger than the MACR.
- Take all steps necessary to prevent the instrumentalization of children for
criminal purposes, and ensure appropriate responses and services to all
exploited children.
- Engage media outlets and associations to encourage informed and
responsible coverage of childrens issues.
- Conduct comprehensive public awareness and education campaigns on
childrens rights and juvenile justice.
- Ensure that traditional justice systems respect childrens rights in their
handling of children accused of crimes.

The age of criminal responsibility in practice


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children-briefing-4-v6-web_0.pdf
In practical terms the international standards mean that a separate justice
system for all children should be established. This should be engaged from
the moment of first contact until all involvement with the system is
concluded. It should apply regardless of the nature of the offence and should
consist of separate and specialist authorities and institutions, including
separate units within police stations and separate courts which are furnished
and arranged in a childfriendly manner and staffed by specialised judges. As
far as possible, cases should be dealt with without resort to judicial
proceedings but instead through alternative dispute resolution, diversion and
different community-based sentences for children who are found to have
committed a crime. All those working in the justice system for children
including lawyers, judges, the police, the probation service, prison service
and social services should receive regular, ongoing, specialised training.

https://resourcecentre.savethechildren.net/sites/default/files/documents/323
5.pdf
Wherever possible, childrens difficulties should be resolved in their
respective communities, with the resolution depending on the seriousness of
the offence or whether it is a further offence. This may range from a warning
given by the police to mediation with a written agreement. This is the
essence of what is called diversion. Diversion is the generic term given to
describe the various processes that may be used to ensure that CICL are
prevented from entering the formal justice system. Restorative justice e
justice, as opposed to retributive justice (or justice attained by punishing or
sanctioning the offender, which is the spirit of the existing justice system in
the Philippines), is increasingly seen as an effective way by which diversion
can be done.
Restorative justice involves bringing together the offender and the victim in
mediation in a community setting, using respected community members as
mediators. These elements were common to most traditional community
justice systems and had, as they do today, the goal of restoring balance and
harmony in the community by the offender making some form of reparation
and/or apology to the victim to repair the harm done. The offender
experiences justice in a very real way by facing his/her victim, confronting
the offence and hopefully working out a solution that is acceptable and
mutually beneficial to all parties concerned. Although most common at the
community level, restorative justice can take place while a child is in pre-trial
detention or even after finding guilt and being sentenced by a court. Its use
in contemporary times, however, requires that the offender admits to the
offence, that certain justice safeguards are met and that the childs rights
are not infringed.

https://resourcecentre.savethechildren.net/sites/default/files/documents/3235.pdf
IMPROVING THE TREATMENT AND REDUCING THE NUMBER OF CICL IN METRO
MANILA In the Metro Manila case studies, the nine CICL interviewed were asked their opinions
concerning the gaps and problems in the administration of justice and their suggestions for
improvement. Their comments on diversion have already been described above.
Of the nine children, seven had been arrested for the first time (one for a second time and one for
a third time). Only two mentioned violence by the police. In one case, a child claimed that a
plastic bag was put over his head to force a confession. Four of the CICL described how the
investigation process and the court hearing were opened to the media and/or the public. In two
cases, the media filmed CICL being interviewed without the latters permission; one was with
the barangay captain and the other at the police station.
The children gave the following suggestions to help improve justice administration among
children.
Age of criminal criminal responsibility. When asked . what the minimum age of criminal
responsibility should be (which currently stands at nine years20 ), three different answers came
out: 20 (one response), 18 years (three responses) and 13 years (one response). It is interesting
how this seems to fit the study on discernment conducted by PAYO (see the section, Related
Studies).
Role of parents. Seven of the CICL interviewed emphasised the importance of parents talking
and explaining to children why they should behave in a certain way instead of beating them
because, as one boy said, this only leads children to display aggressive behaviour.
Diversion. Seven supported the use of di- . version when dealing with cases of CICL.
Presence of female police. The children felt there should be more female police officers.
Procedure for arrest. Three children said the rights of the child and the reasons for arrest
should be explained immediately upon apprehension. Prevention at the bar ention at the barangay
level. Two children believed that barangay officials and staff have a role in helping children and
keeping them out of jail. It would help if there are more recreational facilities for children of all
ages within the barangay. Children should not loiter on the streets; they are less likely to be on
the streets if they are studying full time. Parallel to this, round-ups of children should not be
allowed to take place.
Procedure in court. Two children suggested . that the court ask the child for his/her side of the
story on what happened, as well as her/his views. They also said that the public should be kept
out of the court.
Custodial care. The need for more funding for custodial places for children especially for food
was also recognised. These facilities should also provide opportunities for children to finish their
studies and gain access to books, conduct open forums (two responses) and provide guidance.
Custody for children was also seen as something that should not be pursued, although one said
that this was all right if the child was really at fault

EFFECTS
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Depriving children of their liberty can lead to long-term and costly


psychological and physical damage, whilst overcrowding and poor detention
conditions threaten their development, health and well-being. The removal of
children from their family and community networks as well as from
educational or vocational opportunities at critical and formative periods in
their lives can compound social and economic disadvantage and
marginalisation. Exposure to criminal influences and violent behaviour whilst
in detention, and in the worst instances, exposure to adult offenders, is likely
to encourage repeat offending. This in turn will make it more likely that
young children will build up a criminal record which makes subsequent
custodial sentences more likely in the future. Criminal prosecution can easily
become a default response to offending and make it less likely that more
appropriate protection and welfare services to respond to childrens
behaviour are developed and implemented.
In some instances, children under the minimum age of criminal responsibility
may be at risk of being used by adults for criminal activities and this is
sometimes proposed as a reason not to raise the age of criminal
responsibility. However, if children are discovered to be exploited in this way
then they should be provided with appropriate protection and the adults
responsible prosecuted.
There are also challenges in how children below the minimum age of criminal
responsibility who come into conflict with the law are treated. In many
countries local administrative bodies (often Commissions of Minors) can
apply disciplinary measures to children under the minimum age of criminal
responsibility which includes placing them in special educational institutions
and depriving them of their liberty for long periods of time. The behaviour of
children under the age of criminal responsibility should be addressed through
appropriate and targeted interventions that are proven to be in their best
interests. They should never be taken through the criminal justice system.
Such interventions can include educational measures or supervision by social
workers.
At the other end of the spectrum, the age of criminal majority is the age at
which offenders no longer have any additional protections under the CRC and
are treated in the same way as adults. This is commonly held at 18 years of
age but in many countries it sits at 16 or 17. Furthermore, certain measures
can effectively lower the age of criminal majority; for example, some
countries allow childrens cases to be transferred to adult courts on the basis
of the crime being too serious to be dealt with in the childrens justice
system12 or because the child is accused alongside adult co-defendants.
Research from the US has suggested, perhaps not surprisingly, that
transferring children to adult courts results in high rates of pretrial detention,
more severe sentences, placement of children in adult facilities and overall it
has served to increase rates of recidivism.
Conversely, in some countries the age of criminal majority is effectively
extended above 18 and people aged between 18 and 21 are treated
differently from adults particularly in relation to the sentences they receive
and the type of detention facilities to which they are sent. In the Philippines
for example, more lenient custodial sentences are given to adults up to the
age of 21 and in Germany, offenders who are over 18 but under 21, can be
transferred from adult to youth courts. In some countries, offenders are
allowed to remain in youth detention facilities after they have reached the
age of majority.
https://resourcecentre.savethechildren.net/sites/default/files/documents/3235.pdf
EFFECT OF JAIL EXPERIENCE ON CICL
According to the Cebu study, of the 93 CICL in jails who were interviewed, majority shared that
their experience in jail had affected their lives negatively. The social workers and jail staff who
were interviewed confirmed this. Most of the CICL were first offenders. Moreover, they were
concerned about finding work, afraid they would be teased if they return to school or afraid
simply of the general prejudice from society. About one-fourth (24%) said they were used to
being in custody and that they could adjust to life in jail easily as they did not have to do
anything. Some (15%) claimed that custody had not affected their life, adding that they have
become hardened and were no longer afraid of jail and of committing further offence. One first
time male offender said: Nagkadugay wala na makaapekto kay nisamot kaisog ug bugoy
gihapon (It has not affected me. The longer I stay here, the more I become unruly). As one
correctional staff member shared, Some CICL were like puppies when they first entered the jail;
a few days later, they become rough.