Download Article 40: Child Criminal Justice (Commentary on the United by Geraldine Van Bueren PDF

By Geraldine Van Bueren

This quantity constitutes a observation on Article forty of the United countries conference at the Rights of the kid. it's a part of the sequence, A observation at the United international locations conference at the Rights of the kid, which supplies an editorial via article research of all important, organizational and procedural provisions of the CRC and its not obligatory Protocols. for each article, a comparability with similar human rights provisions is made, by way of an in-depth exploration of the character and scope of nation tasks deriving from that article. The sequence constitutes a vital software for actors within the box of young children rights, together with lecturers, scholars, judges, grassroots staff, governmental, non- governmental and foreign officials. The sequence is backed by means of the Belgian Federal technology coverage workplace.

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Additional info for Article 40: Child Criminal Justice (Commentary on the United Nations Convention on the Rights of the Child, 40)

Example text

291. 50 E. Buss, ‘The Missed Opportunity in Gault’, University of Chicago Law Review, No. 70, 2003, p. 39. 46 THE SCOPE OF ARTICLE 40 19 32. For children in the jurisdiction of States Parties to the CRC, the matter is to be determined ‘without delay’. 51 In K v Lord Advocate, the Privy Council found that a breach of the right to a fair trial had occurred where a period of 27–28 months had elapsed in bringing the case to trial for no justifiable reason. 52 33. The child’s right to the presence of legal or other appropriate assistance enshrined in Article 40(2)(b)(iii) is qualified by the phrase, ‘unless it is not considered to be in the interest of the child’ so as to take into account the more informal approaches to juvenile justice which some States have adopted.

The Beijing Rules also provide guidance to States seeking to make diversions an effective and attractive option. The police and prosecution agencies should be empowered to dispose of such cases at their discretion in accordance both with their legal systems and with the principles contained in the Beijing Rules. 48. The development of minimum standards and guidelines for diversion programmes would assist in raising the profile of diversionary measures among States. While the discretion to use diversionary measures would remain with prosecution agencies, the establishment of minimum standards might assist in ensuring that the measures are not used in an arbitrary manner.

In defining the avoidance of harm, the Beijing Commentary specifically cites as examples ‘the use of harsh language, physical violence or exposure to the environment’. The Beijing Rules’ prohibition of ‘harm’ is broader than the customary prohibition of torture, cruel, inhuman and degrading treatment and punishment. Both the Beijing Rules and the CRC are based on the principle that any involvement in the 67 Art. 5(5). 26 CHAPTER THREE child criminal justice system can be ‘harmful’ per se, even though—as the Beijing Commentary points out—compassion and kind firmness ought to be important elements in any such process.

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