Council of Europe

Round table 1 – Milestones in international justice for children
Polonca Končar
President of the European Committee of Social Rights

I thank you for the floor and this opportunity to draw your attention to two of the Council of Europe's key human rights treaties, the European Social Charter (ESC) and the monitoring system set up to ensure their implementation, the European Committee of Social Rights (ECSR). Perhaps it is not sufficiently known that the ESC contains different provisions on the protection of children's rights. Some of these deal explicitly and exclusively with the protection of children and young persons, such as Article 7 – the right of children and young persons to protection, which relates to the issue of children's work, and Article 17 – the right of children and young persons to appropriate social, legal and economic protection.

There are also articles and/or paragraphs that are interpreted by the European Committee of Social Rights as covering important aspects of child protection relating to rights, such as:

• Article 15 – the right of persons with disabilities to independence, social integration and participation in the life of community;

• Article 16 – the right of the family to social, legal and economic protection;

• Article 19 – the right of migrant workers and their families to protection and assistance.

A third category of provisions derives from Article E of the revised European Social Charter, according to which “the enjoyment of the rights set forth in the Charter shall be secured without discrimination on any ground such as race, colour, sex … or other status”.

The ESC is an internationally agreed, legally binding instrument that engages state responsibility as a matter of law and not just policy. The ECSR, the body responsible for monitoring state compliance with the Charter on the basis of national reports, has developed substantial case law under Article 7 and Article 17 on children's rights. In its interpretation of these provisions in 2000 (Conclusions XV-2) the committee stated that it took into account that the provisions of Article 17.1 integrates into the Charter rights that are guaranteed by the United Nations Convention on the Rights of the Child. For this reason, Article 17 is interpreted in the light of the UN Convention and the observations and conclusions of the UN Committee on the Rights of the Child.

The ECSR has focused its examination of national situations on the following issues:
 
 • the legal status of the child;

 • the right to education;

 • children in public care;

 • the protection of children from violence, ill-treatment and abuse;

 • offenders.

Some examples of these are found in the following.

The ECSR insists that Article 17 guarantees the right of a child to know in principle his or her origins. It examines the procedures that are available for establishing maternity and paternity, in particular situations where establishing maternity or paternity is not possible and where the right of a child to know his or her origins is restricted.

The right of children with disabilities to education is, in principle, examined under Article 15. The ECSR insists that children with disabilities must have access to mainstream education facilities. Education and training must be made available within the framework of ordinary schemes, and only when this is not possible, through special facilities. Legislation should prohibit discrimination on the basis of disability in the field of education. Such legislation should, at minimum, require compelling justification for special or a segregated educational system and confer an effective remedy for those who have been unlawfully excluded, segregated or otherwise denied an effective right to education.

Any restriction or limitation of parents’ custodial rights should be based on criteria laid down in legislation, and should not go beyond what is necessary for the protection and best interests of the child and the rehabilitation of the family. Long-term care of children outside their homes should take place primarily in suitable foster families, and in institutions only when necessary.

To comply with Article 17, states’ domestic law must prohibit and penalise all forms of violence against children, meaning acts or behaviour likely to affect the physical integrity, dignity, development or psychological wellbeing of children. States must act with due diligence to ensure that corporal punishment is eliminated in practice.

As regards children and criminal law, the ECSR recommends that the age of criminal responsibility not be too low. Criminal procedures relating to children and young persons must be adapted to their age and proceedings involving minors must be conducted rapidly. Minors should be detained only exceptionally, such as pending trail for serious offences. Detainment should be separate from that of adults and for short periods of time. Prison sentences should only exceptionally be imposed on young offenders; these should be of short duration and the length of sentence must be laid down by a court. Young offenders should not serve their sentence with adult prisoners.

The right to be protected against sexual exploitation requires the state to criminalise all acts of sexual exploitation. In this respect, a states party to the Charters need not adopt a specific mode of criminalisation of the activities involved, but it must be ensured that criminal proceedings can be initiated in respect of these acts. Furthermore, according to ECSR case law, states must criminalise the defined activities as applying to all children under 18 years of age, irrespective of lower national ages of sexual consent. Child victims of sexual exploitation should not be prosecuted for any act connected with exploitation.

In addition to examining periodic reports from contracting parties – a procedure known under many international other legal instruments – the ECSR also investigates collective complaints. The collective complaints procedure was introduced by the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (6 November 1995). This procedure is intended to increase the role of social partners (European and national) on one hand, and INGOs and NGOs on the other, in the monitoring system of the ESC. The procedure is not complex and it is accessible. There is no victim requirement, and as it is not an individual procedure, issues of capacity do not arise. There is no need to exhaust domestic remedies. The procedure is adversarial and carried out in writing. But if the ECSR decides that the facts can not be established on the basis of written documents, a public hearing may be conducted. But whatever the procedure used, it will be a relatively speedy one.

As of September 2007, 44 collective complaints had been lodged and quite a number of them concern children’s rights and issues, among which:

• child labour;

• the right of children with disabilities to education;

• the right of children to protection against violence, notably corporal punishment;

• access to health care for children of irregular migrants.

The collective complaints procedure has enabled the ECSR to develop its case law, under the provisions of the ESC, on the protection of children faced with very concrete situations. Two examples in particular can be cited. In Collective Complaint No. 13/2002, the ECSR points out that the underlying vision of Article 15 is one of equal citizenship for persons with disabilities and, fittingly, the primary rights are those of “independence, social integration and participation in the life of community”. Securing the right to education for children and others with disabilities plays an important role in advancing these citizenship rights.

In Collective Complaint No. 14/2003 the ECSR points out that Article 17 protects in a general manner the right of children and young persons, including children of irregular migrants and unaccompanied children, to care and assistance, including medical assistance.