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:

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:

 

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