Children's access to the European Court of Human Rights
Judge at the European Court of Human Rights
May I first join Françoise Tulkens in thanking the organisers of this conference on behalf of the Court. It is indeed a great honour for we judges of the European Court of Human Rights to participate in these proceedings. It is in my capacity as a judge of the Court that I will attempt to make a modest contribution to our debate this morning.
Yesterday Ruth Farrugia traced the milestones in the development of conventions and treaties on children's rights. The international community's efforts to promote the concept of children's rights have substantially changed the status of children. They are no longer mere ciphers and have instead become full-fledged owners of rights. Rather than passive subjects, they are now active agents.
The participation in this round table session of Ms Macaulay, Ms Seifu and Mr Moschos shows the strong international momentum gained by children's rights thanks, in particular, to governments' and international organisations' commitment to this cause.
The European Union and other organisations, such as UNICEF, the Office of the UN High Commissioner for Human Rights and the WHO, have placed this topic on their agendas. I am convinced that interaction between all these players will make it possible to implement, and give greater force to, a long-term strategy in support of children's rights.
In the excellent address she gave yesterday Françoise Tulkens pointed out that the European Convention on Human Rights contains no specific provisions regarding minors.
However, Article 1 of the Convention provides that the enjoyment of all the rights and freedoms set forth therein shall be guaranteed to everyone.
Is it not true that children are persons just like adults? I think it would be inconceivable to attempt to argue the opposite. This being the case, children therefore enjoy all the rights guaranteed by the Convention and its protocols on an equal footing with adults.
The only problem is how they are to assert these rights.
I will therefore attempt to describe the current situation regarding minors' access to the European Court of Human Rights and how their applications are dealt with, before providing some food for thought on the practical improvements that could be made in this respect.
A. The current situation
Article 34 of the Convention does not impose any requirement concerning the legal capacity of individuals wishing to apply to the Court. It provides that the Court may receive an application from any person claiming to be the victim of a violation of one of the rights set forth in the Convention.
A minor may consequently lodge an application with the Court even if he or she is not entitled to bring an action before the national courts.
However, another admissibility issue may then arise. The requirement that applicants must exhaust domestic remedies before applying to the Court may impede minors from having access to the Court in certain cases. We shall see later how the Court could attempt to overcome this obstacle.
What happens in practice? Few children lodge applications on their own
In matters of family law it is mostly parents who apply to the Court with a view to defending their own interests and what they consider to be their children's interests.
There have nonetheless been a few applications lodged directly by child victims or perpetrators of criminal offences (although not enough bearing in mind the number of children whose rights are violated in the member states).
An example is the Aydin v. Turkey judgment of 25 September 1997 concerning the rape and torture of a seventeen-year-old girl while in police custody.
As regards under-age offenders, mention can be made of the Tyrer v. United Kingdom judgment of 25 April 1978 concerning a fifteen-year-old sentenced to judicial corporal punishment, which we already discussed yesterday.
Who is entitled to represent children before the Court?
It goes without saying that, during their first years of life, children have neither the reasoning capacity nor the autonomy to bring a case before the Court, and it is first and foremost for their parents or legal representatives to safeguard their rights and interests.
I nonetheless wish to underline that as a result of the way in which Article 34 of the Convention is interpreted the conditions governing individual applications are not necessarily identical to national criteria regarding locus standi.
For instance, in the Scozzari and Giunta v. Italy judgment of July 2000 the Court held that a mother deprived of her parental rights was entitled, as her children's natural mother, to bring an application before the Court on their behalf with a view to safeguarding their interests, in particular in the event of a dispute with the person to whom the authorities had entrusted the care of the children.
This also explains why a minor who has no locus standi under national law may bring a case before the Court without being represented by a normally appointed guardian or a guardian ad litem, as did the boy beaten by his stepfather in the case of A v. the United Kingdom, which the Court decided on 23 September 1998.
The Court reiterated this principle in its recent decision of May 2007 in the case of Giusto-Bornacin v. Italy, stating that a too restrictive or purely technical approach regarding children's representation before the Convention bodies must be avoided. Account must be taken of the links between the child and his or her representatives, the object and purpose of the application and any conflict of interest.
I would therefore say that the Court has a benevolent attitude towards access by minors, which is consistent with its basic approach to individual rights, geared to safeguarding tangible, effective rights rather than purely hypothetical ones.
2. Dealing with applications
Yesterday Françoise Tulkens reminded us of the Court's key decisions in the field of children's rights and took a look at a number of new case-law developments.
My address will focus more on how applications concerning minors are dealt with from a procedural standpoint.
a) Supervision by the Court of procedural guarantees afforded to minors in the national courts
The Court has already had occasion to review the procedural guarantees applicable under national law when minors assert their rights in the national courts.
Criminal cases involving vulnerable individuals
Here, the leading decision is the judgment given on 26 March 1985 in the case of X and Y v. the Netherlands. It concerned the rape of a mentally handicapped sixteen-year-old girl, in the children's home where she lived, by the son-in-law of the institution's directress. Her father was not legally entitled to lodge a complaint on his daughter's behalf, and the daughter was mentally unfit to do so. The Court held that the criminal-law provisions then in force in the Netherlands failed to guarantee practical, effective protection and the daughter had therefore been a victim of a violation of Article 8.
Another important issue is a child's capability to participate in trial proceedings against him or her.
In the case of S.C. v. the United Kingdom, determined by the Court on 15 June 2004, the applicant, who was eleven years old at the time of commission of the offence, was tried by an adult court and sentenced to two and a half years' detention. The Court reiterated that, in the case of a child, it is essential that he be dealt with "in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings ..., including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition."
The Court's aim was doubtless to adopt a realistic approach. It held that "'effective participation' in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court."
Reference can also be made to the Court's decisions along the same lines in the cases of V. and T. v. the United Kingdom of December 1999 concerning the conviction of two eleven-year-old boys for the abduction, and subsequent murder, of a two-year-old child taken from a shopping precinct.
The child's opinion
As regards the importance attached to a child's opinion, in a case concerning custody of the applicant's daughter, who did not wish to receive visits from her father, the Court accepted the Helsinki Court of Appeal's finding that the child (then aged twelve) "had become sufficiently mature for her views to be taken into account and that access should therefore not be accorded against her own wishes" (Hokkanen v. Finland judgment of 23 September 1994).
In its Sahin v. Germany judgment of 8 July 2003 the Court also found a violation of Article 8 in so far as the German courts had failed to question the child concerned so as to obtain correct and complete information on her relationship with her father.
b) With regard to procedure before the Court itself, what guarantees does the Convention offer regarding the handling of applications involving minors?
I would first point out that the Court makes a considerable effort to safeguard the anonymity of under-age applicants, whether at the applicant's request or of its own motion. Moreover, it does not hesitate to order that its hearings should be held in camera, inter alia in cases concerning the placement of children in care and the refusal of parental access (in this connection see the Grand Chamber judgment in the case of O. v. the United Kingdom of 8 July 1987).
Rule 41 of the Rules of Court provides that a chamber or its President may decide to give priority to a particular application. Under the rules currently in force, such priority treatment may be granted, inter alia, to applications raising serious issues of an urgent, topical and/or irreversible nature. These include applications concerning children's rights.
Nonetheless, although the Court has consistently maintained that the national courts must decide child custody cases with particular speed, on conducting a brief examination of the Court's case-law I was unable to find any evidence that applications to Strasbourg in such cases are treated as a matter of priority.
I believe that the Court should be encouraged to give priority to such cases as part of its efforts to improve the processing of these applications. Moreover, in a recent report the relevant sub-group of the Court's committee on working methods underlined the need for an active policy in this field.
At the same time, in a few cases the Court has applied Rule 39 of its Rules of Court concerning interim measures. In the case of Eskinazi-Chellouche v. Turkey it decided on 6 December 2005 to request Turkey, as an interim measure, to suspend the enforcement of a decision to return a minor to Israel, in accordance with the Hague Convention, until the application had been determined on the merits.
Can the situation I have just described be deemed satisfactory? What improvements might be envisaged to facilitate access to the Court for minors and expedite the processing of their applications?
I would say that efforts should be made on two levels. Upstream, it is naturally necessary to inform children and young people of their rights and assist them in asserting these rights. Downstream, the Court should, in my opinion, improve its approach concerning applications involving minors.
As I said at the very beginning of my address, few applications are lodged directly by under-age applicants. I believe that education and information at national level are the key to encouraging children to speak out for their rights. The right to appropriate information is a prerequisite for children to be able to assert other rights.
• Each country should set up public or private information agencies for young people, aimed firstly at promoting the exercise of children's rights and secondly at providing information and advice on how to lodge an application. These agencies should operate in partnership with local bar associations, child welfare services, non-judicial institutions - such as mediators - and NGOs, which have a significant role to play as a source of information and assistance for potential applicants. This is an essential measure, since it enables minors not only to speak out but also to be represented in the national courts, possibly by an ad hoc administrator in the event of a conflict of interest with their legal representative.
• Take advantage of the web-site currently being developed on children's rights in order to publish an announcement explaining, in language suitable for children, the role of the Court and the possibilities of access to it.
At the level of the Court itself, I consider that thought should be given to a number of points, some of which I have already raised:
• Systematic identification of applications involving minors from the very moment they are lodged. The registry should pay attention to the age of applicants and rapidly report any such applications to the respondent country's judge and the rapporteur.
• Ensure that cases involving children's rights are more systematically given priority, in accordance with Rule 41 of the Rules of Court.
• Encourage third-party intervention in proceedings, particularly by specialist child welfare bodies, and even invite such interventions, so that the bodies concerned can contribute their expert knowledge, skills and experience. Similarly, the Court should pay heed to the risk of conflicts of interest between minors and their legal representatives (which sometimes arise in cases coming within the family law sphere) and encourage use of the legal aid system to ensure that a child has his or her own counsel or legal representative where necessary.
In this connection, mention can be made of the Bouamar v. Belgium judgment of 29 February 1988 (concerning the importance of representation by counsel in the national courts) and the Siliadin v. France judgment of 26 July 2005 (concerning the role played by an association - the "Committee against modern slavery" - in filing a complaint and assisting an applicant during court proceedings).
• Consider the admissibility problem posed by failure to exhaust domestic remedies, where a minor has been unable to assert his or her rights in the national courts.
• Pay more specific attention to the applicant's age where a violation complained of concerns a minor, as we already discussed yesterday.
I will rapidly cite two examples concerning conditions of detention:
In the Georgiev v. Bulgaria case, which was decided on 15 December 2005, the applicant, a minor at the time, was arrested, kept in police custody and then placed in provisional detention in an investigation facility for one and a half months. He complained of the conditions under which he was detained.
While holding that detention under similar conditions for a longer period could be considered to breach Article 3 of the Convention, the Court found that, in the case under consideration, the treatment complained of did not exceed the threshold of severity required for a finding of a violation of that article, especially since it was relatively brief. (paragraph 66)
A dissenting opinion was issued to the effect that, when assessing the circumstances of the case, account had to be taken of the fact that the applicant was seventeen years old at the time when he was placed in detention.
The Salduz v. Turkey judgment of 15 May 2007 concerned a seventeen-year-old who was held in police custody for five days without access to a lawyer. Having noted that the right to benefit from the assistance of a lawyer from the initial stages of questioning by the police could be subject to restriction for good cause, the Court held that in the case under consideration, in the light of the entirety of the proceedings, the applicant was not deprived of a fair hearing.
Here too, a dissenting opinion was issued regretting that the Court did not take more specific account of the fact that the applicant was a minor.
Before setting out my conclusions, may I first say a few words on the issue of execution of the Court's judgments. What would be the point of the right of access to a court, if it was possible to lodge an application and obtain a fair hearing only for the judgment not to be executed? If court decisions are not executed the right to a court becomes an empty shell.
With specific regard to the execution of judgments concerning minors, a number of questions arise, particularly from the standpoint of individual measures. For example:
• How can a minor's participation or representation before the Committee of Ministers be guaranteed, especially as, more often than not, by the execution stage the applicant is no longer under age?.
• How can the most appropriate individual measure be determined where national law offers a number of alternatives or the minor's own situation has changed?
• Do the child's interests remain the same where a judgment is executed years after the violation occurred?
As we can see, in view of the multiplicity of circumstances of cases involving minors, the solutions are often complex. Here too, the time factor is very important. The Chair of this round table session, Christos Giakoumopoulos, is perfectly aware of these issues and can doubtless tell us more about the difficulties encountered.
As already mentioned, the European Convention on Human Rights draws no distinction between the holders of rights to be safeguarded.
Nonetheless it is important that the rights of vulnerable individuals, such as minors, should not be purely fictitious. The fact that children have rights on paper does not mean much, if we do not make their rights an effective reality. At the same time, reality often shows just how fragile the legislative framework is.
Everyone is aware of the gulf that exists between the legal and political commitments and the fate of many children in Europe.
Building a Europe for and with children entails taking a number of policy measures to change the way in which children's rights are observed and enforced. This necessitates coordination of the efforts at the international, national and local levels. I am confident that the fruitful discussions taking place at this conference will help us identify the obstacles and address the means of eliminating them.