40. 1. States Parties recognize the right
of every child alleged as, accused of, or recognized as having infringed the
penal law to be treated in a manner consistent with the promotion of the child’s
sense of dignity and worth, which reinforces the child’s respect for the human
rights and fundamental freedoms of others and which takes into account the
child’s age and the desirability of promoting the child’s reintegration and the
child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of
international instruments, States Parties shall, in particular, ensure that:
a) No child shall be alleged as, be accused of, or recognized as
having infringed the penal law by reason of acts or omissions that were not
prohibited by national or international law at the time they were committed;
b) Every child alleged as or accused of having infringed the penal
law has at least the following guarantees:
i) To be presumed innocent until proven guilty according to law;
ii) To be informed promptly and directly of the charges against him
or her, and, if appropriate, through his or her parents or legal guardians, and
to have legal or other appropriate assistance in the preparation and
presentation of his or her defence;
iii) To have the matter determined without delay by a competent,
independent and impartial authority or judicial body in a fair hearing according
to law, in the presence of legal or other appropriate assistance and, unless it
is considered not to be in the best interest of the child, in particular, taking
into account his or her age or situation, his or her parents or legal guardians;
iv) Not to be compelled to give testimony or to confess guilt; to
examine or have examined adverse witnesses and to obtain the participation and
examination of witnesses on his or her behalf under conditions of equality;
v) If considered to have infringed the penal law, to have this
decision and any measures imposed in consequence thereof reviewed by a higher
competent, independent and impartial authority or judicial body according to
law;
vi) To have the free assistance of an interpreter if the child
cannot understand or speak the language used;
vii) To have his or her privacy fully respected at all stages of the
proceedings.
3. States Parties shall seek to promote the establishment of laws,
procedures, authorities and institutions specifically applicable to children
alleged as, accused of, or recognized as having infringed the penal law, and, in
particular:
a) The establishment of a minimum age below which children shall
be presumed not to have the capacity to infringe the penal law;
b) Whenever appropriate and desirable, measures for dealing with
such children without resorting to judicial proceedings, providing that human
rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision
orders; counselling; probation; foster care; education and vocational training
programmes and other alternatives to institutional care shall be available to
ensure that children are dealt with in a manner appropriate to their well-being
and proportionate both to their circumstances and the offence.