CRC/C/GC/24
in the majority of cases. States parties should continually extend the range of offences for
which diversion is possible, including serious offences where appropriate.
25.
It is left to the discretion of States parties to decide on the exact nature and content of
the measures of diversion, and to take the necessary legislative and other measures for their
implementation. Nonetheless, on the basis of the information provided in the reports from
some States parties, it is clear that a variety of community-based programmes have been
developed, such as community service, supervision and guidance by social workers or
probation officers, family conferencing and other forms of restorative justice including
restitution to and compensation of victims.
26.
States parties should take measures of diversion as an integral part of their juvenile
justice system, and ensure that children’s human rights and legal safeguards are thereby fully
respected and protected (art. 40 (3) (b)).
27.
The Committee emphasizes the following:
• Diversion should be used only when there is compelling evidence that the child
committed the alleged offence, that he/she freely and voluntarily admits
responsibility, and that no intimidation or pressure has been used to obtain that
admission and, finally, that the admission will not be used against him/her in any
subsequent legal proceeding;
• The child must freely and voluntarily give consent to the diversion, a consent that
should be based on adequate and specific information on the nature, content and
duration of the measure, and on the consequences of a failure to cooperate, carry out
and complete the measure.;
• The law should indicate the cases in which diversion is possible, and the powers of
the police, prosecutors and/or other agencies to make decisions in this regard should
be regulated and reviewed. All State officials and actors participating in the diversion
process should receive the necessary training and support;
• The child must be given the opportunity to seek legal or other appropriate assistance
on the appropriateness of the diversion offered by the competent authorities, and on
the possibility of review of the measure;
• The completion of the diversion by the child should result in a definite and final
closure of the case. Although confidential records can be kept of diversion for
administrative and review purposes, they should not be viewed as “criminal records”
and a child who has been previously diverted must not be seen as having a previous
conviction. If any registration takes place of this event, access to that information
should be given exclusively and for a limited period of time, e.g. for a maximum of
one year, to the competent authorities authorized to deal with children in conflict with
the law.
Interventions in the context of judicial proceedings (disposition)
28.
When judicial proceedings are initiated by the competent authority, the principles of
a fair and just trial must be applied (see section D below). At the same time, the juvenile
justice system should provide ample opportunities to deal with children in conflict with the
law by using social and/or educational measures, and to strictly limit the use of deprivation
of liberty, and in particular pre-trial detention, as a measure of last resort. From the moment
of arrest, and during the disposition phase of the proceedings, deprivation of liberty must be
used only as a measure of last resort and for the shortest appropriate period of time (art. 37
(b)). This means that States parties should have in place a well-trained probation service to
allow for the maximum and effective use of measures such as guidance and supervision
orders, probation, community monitoring or day report centres, and the possibility of early
release from detention.
29.
The Committee reminds States parties that, pursuant to article 40 (1) of CRC,
promoting reintegration requires that a child who is or has been in conflict with the law
should be protected from actions or attitudes that hamper the child’s full participation in
his/her community, such as stigmatization, social isolation, or negative publicity.
8