Submission nr 2

NICRO WRITTEN SUBMISSION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE CHILD JUSTICE BILL [49 of 2002]

Submission made by L Muntingh (Deputy Executive Director)

01 March 2003

This submission deals with age and criminal capacity and presents comparative figures for different countries. All these countries have ratified the UN Convention of the Rights of the Child save for the United States of America. Countries are further categorised into regions and it is found that in all except two regions, the majority of countries use a minimum age of criminal capacity higher than 10 years. Comparisons are also made between South Africa, developing countries and countries in transition. The comparisons confirm the trend across numerous jurisdictions to set the age of criminal capacity at age ten years or higher.

Age of criminal capacity [1]

There is no clear international standard regarding the minimum age at which criminal responsibility can be reasonably imputed to an individual. There are substantial disparities between different countries.

Table 1 Age of criminal capacity per country

YEARS	COUNTRY	Status of ratification of the CRC	Comment
6-12	Mexico	21 Sept 90
7	Australia	17 Dec 90	Federal offences 7-10 years as State and Territory laws are applied. Capital Territory 8 years, New South Wales, Northern Territory, Queensland and Western Australia 10 years. Tasmania 7 years.
	Bangladesh	03 Aug 90
	Barbados	09 Oct 90
	Belize	02 May 90
	Gambia	08 Aug 90
	Ghana	05 Feb 90
	Grenada	05 Nov 90
	India	11 Dec 92 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Ireland	28 Sept 92
	Jordan	24 May 91
	Kuwait	21 Oct 91
	Lebanon	14 May 91
	Lesotho	10 Mar 92
	Libya	16 Apr 93 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Malawi	03 Jan 91 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Maldives	11 Feb 91
	Myanmar	15 Jul 91 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Namibia	01 Oct 90
	Niger	30 Sep 90
	Pakistan	12 Nov 90
	Quatar	04 Apr 95
	Sudan	03 Aug 90
	Switzerland	24 Feb 97
	Syria	15 Jul 93
	Tanzania (United Rep. of)	11 Jun 91
	Thailand	27 Mar 92 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Trinidad and Tobago	06 Dec 91
	United Arab Emirates	03 Jan 97 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	United States	16 Feb 9 s	1. Age determination by state, minimum age is 7 in most states under common law 2. The dates listed refers to the date of ratification, unless followed by “s” which signifies signature only.
	Yemen	01 May 91
8	Indonesia	05 Sept 90
	Kenya	31 Jul 90
	Saint Kitts and Nevis	24 Jul 90
	Saint Vincent and the Grenadines	26 Oct 93
	UK (Scotland)	16 Dec 91
9	Ethiopia	14 May 91 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Iran	13 Jul 94	Age 9 for girls and 15 for boys
	Malta	30 sep 90
	Oman	09 Dec 96 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Philippines	21 Aug 90
10	Cameroon	11 Jan 93
	Cote d’Ivoire	04 Feb 91
	Fiji	13 Aug 93
	Marshall Islands	05 Oct 93
	Nepal	14 Sep 90
	New Zealand	06 Apr 93
	Palau	04 Aug 95 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Saudi Arabia	26 Jan 96 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Sierra Leone	18 Jun 90
	Surinam	02 Mar 93
	UK (England)	16 Dec 91
	UK (Isle of Man)	16 Dec 91
	UK (Wales)	16 Dec 91
	Ukraine	28 Aug 91
	Vanuatu	07 Jul 93
11	Turkey	04 Apr 95
12	Cambodia	15 Oct 92 a	1. The dates listed refers to the date of ratification, unless followed by “a” which signifies accession 2. Minimum age is not specified but minors aged below 12 years may not be held in pre-trial detention.
	Greece	11 May 93
	Guatemala	06 June 90
	Honduras	10 Aug 90
	Israel	03 Oct 91
	Jamaica	14 May 91
	Korea (Democratic People’s Rep. of)	21 Sep 90
	Morocco	21 Jun 93
	Netherlands	06 Feb 95
	Spain	06 Dec 90
	Uganda	17 Aug 90
13	Algeria	16 Apr 93
	Benin	03 Aug 90
	Burkina Faso	31 Aug 90
	Burundi	19 Oct 90
	Central African Rep.	23 Apr 92
	Chad	02 Oct 90
	Comoros	23 Jun 93	Two approaches exists; French based Civil and Criminal Codes which states 13 years. The other approach, Muslim Law, states the physical maturity confers civil and criminal responsibility on a male child (usually 14-15 years).
	Djibouti	06 Dec 90
	France	08 Aug 90
	Gabon	09 Feb 94
	Mali	21 Sep 90
	Monaco	21 Jun 93 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Niger	30 Sep 90
	Poland	07 Jun 91
	Tunisia	31 Jan 92
	Uzbekistan	29 Jun 94 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
14	Austria	06 Aug 92	Young people under the age of 16 years cannot be prosecuted for misdemeanours
	Bulgaria	03 Jun 91
	China	03 Mar 92
	Georgia	02 Jun 94 a	1. The dates listed refers to the date of ratification, unless followed by “a” which signifies accession 2. The criminal capacity age of 14 years applies only to exceptionally serious crime such as murder, rape, grievous bodily harm and robbery. For other types of crimes the age of criminal capacity is 16.
	Germany	06 Mar 92
	Hungary	08 Oct 91
	Italy	05 Sep 91
	Japan	22 Apr 94
	Kyrgyztan	07 Oct 94 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Latvia	15 Apr 92 a	1. The dates listed refers to the date of ratification, unless followed by “a” which signifies accession. 2. The criminal capacity age of 14 years applies only exceptionally serious crime such as murder, rape, grievous bodily harm and robbery. For other types of crimes the age of criminal capacity is 16
	Liechtenstein	22 Dec 95
	Lithuania	31 Jan 92 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Macedonia (the former Yugoslav Rep. of)	02 Dec 93 d	The dates listed refers to the date of ratification, unless followed by “d” which signifies succession
	Moldova (Rep. of)	26 Jan 93 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Russian Federation	17 Aug 90
	Vietnam	28 Feb 90
15	Bahrain	13 Feb 92 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Czech Rep.	22 Fed 93 d	The dates listed refers to the date of ratification, unless followed by “d” which signifies succession
	Denmark	19 Jul 91
	Finland	21 Jun 91
	Iraq	15 Jun 94 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Laos	08 May 91 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Norway	08 Jan 91
	Slovakia	28 May 93 d	The dates listed refers to the date of ratification, unless followed by “d” which signifies succession
	Sweden	29 Jun 90
16	Andorra	01 Jan 96
	Argentina	05 Dec 90
	Armenia	23 Jun 93 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Bolivia	26 Jun 90
	Cape Verde	04 Jun 92 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Chile	13 Aug 90
	Cuba	21 Aug 91
	Democratic Rep. of Congo	28 Sep 90
	Guinea-Bissau	21 Aug 90
	Mauritania	16 May 91
	Micronesia (Federated States of)	05 May 93 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Mozambique	26 Apr 94
	Portugal	21 Sep 90
18	Belgium	16 Dec 91	An act characterized as an offence is not dealt with under the criminal law, but at federal level under juvenile court.
	Brazil	25 Sep 90	Official age of criminal responsibility, from age 12 children’s action is subject to juvenile legal proceedings.
	Colombia	28 Jan 91	Official age of criminal responsibility, from age 12 children’s action is subject to juvenile legal proceedings.
	Ecuador	23 Mar 90
	Guinea	13 Jul 90 a	The dates listed refers to the date of ratification, unless followed by; “a” which signifies accession
	Panama	12 Dec 90	Official age of criminal responsibility, from age 12 children’s action is subject to juvenile legal proceedings.
	Peru	05 Sep 90	Official age of criminal responsibility, from age 12 children’s action is subject to juvenile legal proceedings.
	Venezuela	14 Sep 90

Overview comparisons

Geographical spread

The following graph shows the number of countries per age category. The single highest category is countries with an age of criminal capacity set at 7 years. The next highest category is 14 years, and a total of 16 countries apply this.

If the same data is presented in a cumulative graph as shown below it clearly shows where the majority of countries have determined minimum age of criminal capacity

In the following table the age of criminal capacity is presented per region of the world. The highest number of countries per age category is printed in bold. Given the debates around the age of criminal capacity as proposed in the Child Justice Bill comparisons with other regions will be made according to this age. The following can be concluded from the figures:

Amongst African countries there are two distinct groups, those that are applying 7 as the minimum age (10 out of 35 countries listed or 29%) and those who apply 13 years as the minimum age (11 out of 35 or 31%)
Out of the total group of African countries listed only 12 out of 35 or 34% apply a minimum age of less than 10 years.
In overview the majority of countries apply a minimum age of three to four years above the proposed age of 10 years.
Eastern and Central Europe have no countries that apply a minimum age below 10 years.

Table 2 Age of criminal capacity per region

Region	6	7	8	9	10	11	12	13	14	15	16	18
Africa		10	1	1	3		2	12			5	1
SE Asia		5	1	1	2		2		3	1
W-Europe		2	1	1	3		3	2	4	4	2	1
E and Central Europe					1			1	8	2	1
S-America	1	4	2		1		3				4	6
N America		1
Australasia		1		1	4						1
Middle East		7		1	1	1	1	1	1	2
Total	1	30	5	5	15	1	11	15	16	9	13	8

If one uses 10 years as the dividing line (see following table), it is only in the Middle East and North America that there are more countries applying a minimum age of below 10 years. All other regions of the world apply in majority a minimum age of higher than 10 years. In the case of N-America it should be noted that only the USA was listed.

Table 3 Age of criminal capacity, numbers and percentages above and below 10 years

Region	Below 10 years		Above 10 years	Total	% Below 10 years	% Above 10 years
Africa	12		23	35	34.3	65.7
SE Asia	7		8	15	46.7	53.3
W Europe	4		19	23	17.4	82.6
E & C Europe		0	13	13	0.0	100.0
S America	7		14	21	33.3	66.7
N America	1		0	1	100.0	0.0
Australasia	2		5	7	28.6	71.4
Middle East	8		7	15	53.3	46.7

Developing countries and countries in transition

One can further compare South Africa with other countries that are in transition and developing countries . The issues of comparability here refers more to socio-economic, political and crime trends, than a comparability in relation to legislation and constitution. The perspective adopted here is therefore more of a sociological one than a legalistic one to assess how these societies were affected by and responding to crime. One should also be mindful of the history of these countries and the legal traditions and practices that were adopted over time from former rulers or colonizers.

This term “countries in transition’ refer specifically to the countries that formed part of the now dissolved USSR[2]. Whilst there are obvious differences between these countries and South Africa, there are also some striking similarities. These countries, and South Africa, are going through processes of deliberate social, economic and political change. Once the democratization process started or were at least announced, the role of government diminished quickly, opening the door for new social, criminal and political forces to emerge.

Although there are differences in the victimization rates there are still within a similar range as illustrated in the table below, presenting victimization rates for selected offences in South Africa and in countries in transition[3] [4].

Table 4 Victimisation rates in South Africa and countries in transition

Offence	South Africa	Countries in transition
Burglary	6.3	3.6
Attempted burglary	3.7	3.5
Theft from car	14.0	14.1
Theft of car	7.6	2.1
Sexual assault	2.3	1.8
Assault with force	5.6	2.2
Robbery	4.6	2.3

In all the developing countries (including South Africa) surveyed by UNICRI, theft of personal property was the most frequent type of victimization followed by burglary and robbery. Compared to industrialised countries the victimization of developing countries and countries in transition are more similar[5].

The following can be concluded:

There are strong similarities between the victimization rates of South Africa, the countries in transition and the developing countries
When comparing the ages of criminal capacities between the countries as they are grouped in Table 2, it is clear that the eastern and central European countries (the countries in transition) are well above 10 years and that a similar trend is found in the developing countries from Africa and South America and SE Asia.
Therefore, despite the economic, social, political and demographic pressures on these countries, there is a clear trend to establish and/or uphold an age of criminal capacity that is 10 years or above.

END

[1] CRC Country reports (1992-1996); Juvenile Justice and Juvenile Delinquency in Central and Eastern Europe, 1995; United Nations, Implementation of UN mandates on Juvenile Justice in ESCAP, 1994; Geert Cappelaere, Children’s Rights Centre, University of Gent, Belgium. www.right-to-education.org.

[2] Zvekic, U (1998) Criminal Victimisation in Countries in Transition, UN Interregional Crime and Justice Research Institute, Publication No 61, Rome.

[3] Alvazzi Del Frate, A (1998) Victim of Crime in the Developing World, UN Interregional Crime and Justice Research Institute, Publication No 57, Rome.

[4] Zvekic, U (1998) Criminal Victimisation in Countries in Transition, UN Interregional Crime and Justice Research Institute, Publication No 61, Rome.

[5] Alvazzi Del Frate, A (1998) Victim of Crime in the Developing World, UN Interregional Crime and Justice Research Institute, Publication No 57, Rome., p 134