Child-friendly justice

BACKGROUND
 Introduction
  Group of Specialists (CJ-S-CH)
 Youth Consultation

GUIDELINES
 Introduction to the Guidelines
  Text of the Guidelines
 Related texts and documents

ACTIVITIES
 Events

RESOURCES
  Databases, Materials and Links

 

PUBLICATIONS
 

 


Strasbourg, 30 June 2008
 

CDDH(2008)009 rev
 

STEERING COMMITTEE FOR HUMAN RIGHTS
(CDDH)

 

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    MEETING THE NEEDS OF CHILDREN
    MS STEFANIE SCHMAHL, COUNCIL OF EUROPE EXPERT
    PROFESSOR OF PUBLIC INTERNATIONAL LAW AND EUROPEAN LAW (GERMANY)

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BUILDING A EUROPE FOR AND WITH CHILDREN:
TOWARDS A STRATEGY FOR 2009-2011
Conference
organised under the auspices of
the Swedish Presidency
of the Committee of Ministers of the Council of Europe

Stockholm, 8-10 September 2008

Seminar 3
Towards European guidelines on child-friendly justice
Identifying good principles and sharing examples of good practices

The opinions expressed in this work are the responsibility of the author(s) and do not necessarily reflect the official policy of the Council of Europe.

Child-Friendly Justice
Existing international and European standards: meeting the needs of children

REPORT
A. European and International Human Rights Instruments Protecting Children’s Rights in Judicial Proceedings

The Council of Europe has several standard-setting texts whose purpose is to promote and protect children’s rights. The most important of these are conventions, which are legally binding instruments. Some of the most relevant conventions establish monitoring mechanisms which strongly influence the development of standards. Under these conventions, the European Convention on Human Rights1 which has established the European Court of Human Rights as monitoring body is the most outstanding one. Individuals, including children, which are victims of a violation of the rights and guarantees set out in the Convention may lodge applications with the Court. The violation must have been committed by one of the 47 states bound by the Convention.
The Convention does not expressly contain provisions specifically aimed at protecting the rights of the child with the exception of Article 5 § 1 (d), which, under certain circumstances, authorises lawful detention of minors. Although the text of the Convention makes few specific references to children, some of its articles have been used by the European Court of Human Rights and the former Commission to protect and promote children’s rights. The articles most frequently invoked to protect children are Article 2 (right to life), Article 3 (prohibition of torture), Article 4 (prohibition of slavery and forced labour), Article 5 (right to liberty and security), Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life). As regards children’s rights in judicial proceedings, including their rights prior to accessing courts and after judicial decision, Article 3 (prohibition of torture), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life) and – notably – Article 6 (right to a fair trial) play a prominent role.
Besides the European Convention on Human Rights, the Council of Europe disposes of other standard-setting texts which might be relevant for child-friendly justice. The (Revised) European Social Charter2, which complements the European Convention on Human Rights in the field of economic and social rights, contains several provisions relating to children. For instance, Article 16 protects the rights of children as family members. Rights relating exclusively to children are Article 7 (the right of children and young persons to protection) and Article 17 (the right of children and young persons to social, legal and economic protection).
Several Council of Europe Conventions make specific reference to the child as potential victim of criminal offences. The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse3 establishes several preventive measures that include the screening, recruitment and training of people working in contact with children, making children are aware of the risks and teaching them to protect themselves, as well as monitoring measures for (potential) offenders. The Convention also establishes programmes to support victims, and sets up help lines for children. The Council of Europe Convention on Action against Trafficking in Human Beings4 recognises that all forms of trafficking in human beings are a violation of human rights and requires states to protect its victims. Specific provisions take into account the vulnerability of children and their need for special protection and assistance.
Further Council of Europe Conventions relate to the civil status of children. The European Convention on the Legal Status of Children born out of Wedlock5 has the objective to assimilate the legal status of a child born out of wedlock with that of a child born in wedlock, and contributes to the harmonisation of the national laws in this field. The European Convention on the Adoption of Children6 follows a similar approach by eliminating the difference in treatment between children born in and out of wedlock, and by providing that the adoptive child should be consulted prior to its adoption. The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children7 aims to provide solutions concerning custody when parents live in different European states and to ensure the enforcement of decisions relating to the custody of and access to children. The Convention on Contact concerning Children8 determines the general principles to be applied when making or amending contact orders or agreements and establishes appropriate guarantees to ensure the proper exercise of such a contact. Finally, the European Convention on the Exercise of Children’s Rights9 stipulates several procedural measures in order to allow children to exercise their rights, including the obligation to provide them with the relevant information to do so, in particular in family proceedings before judicial authorities. Among the types of family proceedings of special interest for children are those concerning custody, residence, access, questions of parentage, legal guardianship and protection from cruel or degrading treatment.
In many cases, the European Court on Human Rights further relies on international human rights instruments in order to constitute the legal background for child-friendly justice. Under these instruments, the UN Convention on the Rights of the Child10 remains the cornerstone of child protection in international law. It has been ratified by all member states of the Council of Europe who are all expected to develop national action plans to ensure its full implementation in the light of the best interest of the child (Article 3). As regards the place of the child in judicial proceedings, that Convention contains several important provisions. For instance, Article 37 provides that neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age. Article 40 provides, inter alia, the right of every child alleged as, accused of, or recognised 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. To this end, the states parties shall, in particular, ensure that the child’s privacy is fully respected at all stages of proceedings.
The International Covenant on Civil and Political Rights11 establishes with Article 14 a provision which broadly corresponds to Article 6 of the European Convention on Human Rights. Concerning juvenile persons, Article 14 § 4 states that the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
The UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Bejing Rules”) were adopted by the UN General Assembly on 29 November 1985.12 These Rules are not binding in international law, but they may reflect an international consensus. As regards the age of criminal responsibility, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. The juvenile’s privacy shall be respected at all stages in order to avoid harm being caused to the child by undue publicity. The guiding principles in adjudication and disposition are the well-being of the juvenile even in penal cases. Therefore, the reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child. Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum. In a very similar way, the UN Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh Guidelines”), which were adopted by the UN General Assembly on 14 December 1990,13 aim to reduce and prevent juvenile delinquency. In order to achieve this aim, states should, inter alia, avoid criminalizing and penalizing a child for behaviour that does not cause serious damage to the development of the child or harm to others. Although these Guidelines are not legally binding, they should be interpreted and implemented within the broad framework of the UN human rights conventions.

B. Focus and Structure of the Report

The report will focus primarily on the case-law relating to the European Convention on Human Rights. The case-law of the European Court of Human Rights (in the following: the Court) relates to individual cases, but gives an indication of the interpretation of standards set by the Convention and the remedies needed to avoid future violations. Where appropriate, other European as well as international human rights instruments relevant to child-friendly justice will be highlighted as well.
The structure of the report is divided into three main chapters: The first chapter (C.) will concentrate on juvenile defendants in penal proceedings on the one hand, and on children as witnesses in criminal proceedings on the other. The second part (D.) is dedicated to the protection of juveniles in cases where they are deprived of their liberty in the name of their own protection as well as to cases where minors are held in asylum-seekers detention centres. Thirdly, the protection of children in family law procedures, especially in access, residence and custody matters, will be analysed (E.). Each chapter will take regard – where necessary – to different stages of legal proceedings, by concentrating on the place of children prior to accessing courts, their place in judicial proceedings as well as their situation after the judicial decision, especially in enforcement procedures. The report will conclude with some final remarks (F.).

C. Protection of Children in Criminal Proceedings

I. Juveniles in Conflict with the Law
Children and juveniles who commit crimes present a problem to any system of criminal justice, because they are less mature than adults.
1. Minimum Age of Criminal Responsibility
One consequent difficulty lies in deciding whether children are sufficiently mature to be held responsible for their actions under the criminal law, and if so, what should be the minimum age of criminal responsibility. According to the Court’s case-law, the attribution to a ten- or eleven-year-old child of criminal responsibility in respect of acts committed in that juvenile age could not, in itself, give rise to a violation of Article 3 or Article 6 of the Convention.14 The Court observes that there is not yet a commonly accepted minimum age for the attribution of criminal responsibility in Europe. Likewise, it cannot be said that the trial on criminal charges of a child of ten or eleven years as such violates the fair trial guarantee under Article 6 § 1 as long as he or she is able to participate effectively in the trial.15
As far as the age of criminal responsibility is concerned, I do not share the conclusion of the Court that no clear tendency can be ascertained from developments amongst European States and from international instruments. Only very few of the Contracting States of the European Convention are prepared to find criminal responsibility at an age low as, or lower than, ten years. The general standard of relative criminal responsibility in the Contracting States begins at the age of thirteen or fourteen, and provides for full criminal responsibility at the age of eighteen or above.16 Furthermore, even if Rule 4 of the “Beijing Rules” does not specify a minimum age of criminal responsibility, the very warning that the age should not be fixed too low indicates that criminal responsibility and maturity are related concepts. In a similar manner Article 40 § 3 (a) of the UN Convention on the Rights of the Child obliges the states parties to seek to promote the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe penal law. The UN Committee on the Rights of the Child has recently concluded that a minimum age of criminal responsibility below the age of twelve years is considered not to be internationally acceptable.17 In Europe, it seems that it is the view of the vast majority of the Contracting States of the European Convention that the maturity and capacity to infringe penal law is not present in children below the age of thirteen or fourteen.
2. Requirements of the Trial Procedure
If juveniles are held criminally responsible, they do not necessarily have to be tried. According to Article 40 § 3 of the UN Convention on the Rights of the Child, the states parties shall seek to promote measures for dealing with children having infringed the penal law without resorting to judicial proceedings, whenever appropriate. In the opinion of the UN Committee on the Rights of the Child this should be notably the case with children who commit minor offences. In order to avoid stigmatisation, community-based programmes should be preferable to criminal law procedures in court.18
When judicial proceedings are initiated, juveniles facing criminal charges and trial are as fully entitled as adults to benefit from all the Convention requirements for a fair trial according to Article 6.19 However, ordinary trial procedure will not be appropriate if a child is too immature for such a procedure to provide him or her with a fair trial. Already under Article 25 of the (legally not binding) Universal Declaration of Human Rights,20 childhood is entitled to special care and assistance. States, therefore, should afford, in accordance with Article 40 § 3 of the UN Convention on the Rights of the Child, the children the necessary protection and assistance, by promoting the establishment of laws, procedures, authorities and institutions applicable to children alleged as, accused of, or recognised as having infringed the penal law. Also the Court finds it essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities.21
The difficulties arising from the penal treatment of young offenders have been faced, in many penal systems, by setting up juvenile courts under specific procedural rules to apply penal or protective measures aiming at the correction or re-education of the minor rather than the punishment of criminal acts for which the juvenile is not fully responsible. The educational and psychological aspects of the treatment are essential and the qualifications and functions of a juvenile judge should be seen in terms of these purposes.22 By that way, the organisation of the penal proceedings in a manner that a single judge deals with the case from pre-trial investigation until the execution of the sentence in order to develop a relationship of trust between the juvenile judge on the one hand and the minor and his parents or guardian on the other are reasonable grounds to attain these objectives. Accordingly, the Court does not see the cumulative exercise of these functions by one juvenile judge as constituting a violation of Article 6 § 1. This is all the more valid when the defendant’s interests are looked after by a lawyer, who assists him at all, including pre-trial, stages of the proceedings.23
Some national penal systems do not have set up juvenile courts, and juveniles are thus tried by adult courts. In these cases, account must be taken that formalities and ritual of adult courts might be incomprehensible for a child. According to the Court, Article 6 § 1 does not require that a child on trial for criminal offence should understand or be capable of understanding every point of law or evidential detail. Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and all the exchanges which take place in the courtroom.24 This is why Article 6 § 3 (c) emphasises the importance of the right to legal representation. However, effective participation in the context of this provision presupposes that the accused has a broad understanding of the nature of the trial process, including the significance of any penalty which may be imposed.25 For that reason, juvenile defendants must be, in any case, represented by skilled and child-experienced lawyers, otherwise there is a breach of Article 6 § 1.26
The situation is different in cases where the juvenile defendant is intellectually very backward. Such a child should not be tried by an adult court. In the case “S.C. v. the United Kingdom”, for instance, the juvenile defendant was an eleven-year-old boy with the mental age of, at best, an eight-year-old. The child seemed to have had very little comprehension of the role of the jury in the proceedings. Even more strikingly, he did not seem to have grasped the fact that he risked a custodial sentence and, even once sentence had been passed and he had been taken down to the holding cells, he appeared confused and obviously expected to be able to go home. Against this background, the Court rightly considered that, when the decision is taken to deal with a child, who risks not being able to participate effectively because of his young age and limited intellectual capacity, it is essential that he be tried in a specialist tribunal which is able to give full consideration to, and make proper allowance for, the handicaps under which he labours, and adapt its procedure accordingly.27
Formal proceedings of adult courts might not only be incomprehensible but also intimidating for a child. Adult proceedings can be expected to produce a lasting harmful psychological effect on a child, and a high level of suffering. In cases where the defendant is a young child of about ten or eleven years of age, particular features of the trial procedures may, therefore, give rise to a violation of Article 3, regardless whether the criminal proceedings against the juvenile offender are motivated by an intention on the part of the state to humiliate the applicant or cause him suffering or not.28 Besides the nature of the treatment, its effect on the child is a further relevant criterion in connection with Article 3. In contrast to the opinion of the Court expressed in “V. v. the United Kingdom”, in cases where the accused is placed in a specially raised dock for the whole trial and thus is object of high levels of public and media interest and animosity, a violation of Article 3 is not excluded.29 In a more recent case, the Court explicitly demands that special measures have to be taken to modify the adult courts’ procedure in order the attenuate the rigours of an adult trial in view of the defendant’s young age.30 For example, the legal professionals should not wear wigs and gowns and the juvenile defendant shall be allowed to sit next to his legal representative or social worker.31
Another problem arises when the trial is held in public and when the names of the juvenile offenders are permitted to be published after their conviction. The Court considers that there is an international tendency in favour of the protection of the privacy of juvenile defendants, which is shown by Article 40 § 2 (b) (vii) of the UN Convention on the Rights of the Child, by Rule 8 of the “Beijing Rules” and Rule 8 of the Committee of Ministers Recommendation no. R 87(20).32 Moreover, Article 6 § 1 of the Convention states that the press and public may be excluded from all or part of the trial where the interests of juveniles so require. However, the Court did not find, in the cases of “T. and V. v. the United Kingdom”, the existence of such a trend determinative of the question whether the trial in public amounted to ill-treatment attaining the minimum level of severity necessary to bring it within the scope of Article 3.33 Nevertheless, states should assure that juvenile defendants are not confronted with a high level of public and media interest that might lead to an atmosphere in the courtroom which is particularly tense or intimidating.34
3. Sentencing Juveniles: Tariff Approach
If children are tried and convicted, they then regularly have to be sentenced. However, the decision to initiate a formal criminal law procedure does not necessarily mean that this procedure must be completed with a formal court sentence for a child. Alternatives to a court conviction are possible.35
The punitive element inherent in a tariff approach against a juvenile itself does not give rise to a breach of Article 3. Likewise, the Court does not see that the Convention prohibits states from subjecting a young person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public.36 Merely an unjustifiable and persistent failure to fix a tariff, leaving the detainee in uncertainty over many years as to his future, might give rise, according to the Court, to an issue under Article 3. Therefore, in the cases of “V. and T. v. the United Kingdom”, in view of the relatively short period of time during which no tariff had been in force, the Court did not find that such issue arose.37
Again, I do not share the position of the Court. As the joint partly dissenting opinion of Judges Pastor Ridruejo, Ress, Makarczyk, Tulkens and Butkevych in “V. and T. v. the United Kingdom” rightly lays down, a sentence of detention for an indefinite period entails an enormous amount of uncertainty and anxiety for any person. For persons as vulnerable as children this kind of sentence inevitably adds another element of suffering. Article 3 imposes a positive obligation on states to protect victims against crimes of violence by providing effective deterrence. However, in circumstances where the offenders are themselves children at the time of the crime and trial, I do not consider that the positive obligation under Article 3 in respect of the victims of an offence can justify the complete suspension of the rights of the offender. This is all the more valid as all considerations centred on an assessment of the young offender’s dangerousness to society must also take into account any developments in the young offender’s personality and attitude as he or she grows older. A failure to have regard to the changes that inevitably occur with maturation would mean that young persons would be treated as having forfeited their liberty for the rest of their lives, a fact which the Court itself holds as being able to give rise to questions under Article 3.38 This is also the reason why Article 37 (a) of the UN Convention on the Rights of the Child explicitly prohibits a life sentence without parole.
4. Prison Detention of Juveniles
Article 5 § 1 of the European Convention establishes in sub-paragraphs (a) and (c) different conditions regarding pre-trial detention and detention after conviction. However, prison detention for minors should be a measure of last resort for dealing with juvenile delinquency in all stages of criminal proceedings, including pre-trial investigation and post-trial incarceration.39
a) Pre-trial Detention
Specifically, member states shall exclude the remand in custody of minors, apart from exceptional cases of very serious criminal offences committed by older juveniles.40 Where possible, alternatives to remand in custody should be used for juvenile suspects, such as placements with relatives, foster families or other forms of supported accommodation.41
In cases where young offenders are arrested because the suspicion against them reaches the level required by Article 5 § 1 (c), they have to be assigned a lawyer and their parents or legal representatives have to be informed of the detention.42 Furthermore, Article 5 § 3 requires that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) shall be entitled to trial within a reasonable time or to release pending trial. Even if Article 5 § 3 does not imply a maximum length of pre-trial detention, the reasonable time of detention must be assessed in each case according to its special feature, notably having regard to the age and personality of the deprived person.43 The length of remand in custody of minors should, therefore, be restricted in comparison to adults. This does not only follow from § 7 of the Recommendation no. R 87/2044 but also from Article 37 (b) of the UN Convention on the Rights of the Child, according to which the detention of a child shall be for the shortest appropriate period of time. The latest relevant recommendation of the Committee of Ministers of the Council of Europe in this field – the recommendation concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, adopted on 24 September 200345 –, even concretises the reasonable time-period of pre-trial detention of juveniles. According to § 16 of this recommendation, a remand in custody of juveniles should not be for longer than six months before the commencement of the trial. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances. For example, the detention of a minor which was held for observation in a specialist centre for eight months was not regarded as being so excessive or unjustifiable as to cast doubt on the genuine purpose of the detention i.e. to obtain psycho-medical reports.46
However, in cases where the national authorities do not take the applicant’s young age into consideration at all, a pre-trial detention of a minor for an ever shorter time-period than six months might give rise to a breach of Article 5 § 3. In the case “Selçuk v. Turkey” the Court rightly held that, as the national authorities never took the applicant’s age into consideration when deciding on his continued detention, which already lasted for more than four months, there was a breach of Article 5 § 3.47 This is all the more valid as, in the concrete situation, there was not an expectation of a heavy sentence and no previous conviction of the sixteen-year-old applicant.48 In the case “Nart v. Turkey”, the Court even went further and found that a pre-trial detention of a seventeen-year-old person that lasted merely forty eight days contravened Article 5 § 3, although the person had a criminal record and had been charged with a serious crime (i.e. armed robbery).49
b) Detention After Conviction
As already pointed out, offending acts committed by juveniles should normally be dealt with only by means of custodial, protective or educative measures and not by means of criminal sanctions. It is not appropriate to sentence juveniles in the same way as an adult, if their immaturity has the consequence that they are less culpable or that reformative measures are more likely to be effective. The sentence of detention therefore has to take into account the defendant’s age and the conditions of detention, which means that the detention imposed on children must be as short as possible and sentences must have regard, as the guiding factor, to the well-being of the child. This follows in a general way from Article 5 § 1 (d), according to which the detention of a minor is only permitted by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority. The purpose of this provision is to protect the individual from arbitrariness with special consideration of the lesser maturity of minors.
During the last decades, these requisites have been concretised in various ways. Article 37 (c) of the UN Convention on the Right of the Child states that every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save exceptional circumstances. To the same way, § 11 and § 35 of the recommendation of the Committee of Ministers on the European Prison Rules,50 establish that children under the age of eighteen years should not be detained in a prison for adults, but in an establishment designed for their purpose. If children are nevertheless exceptionally held in a prison for adults there shall be special regulations that take account of their status and needs. For instance, prisoners who are children have to have access to the social, psychological and educational services, religious care and recreational programmes or equivalents to them that are available to children in the community. Furthermore, children in adult prisons regularly shall be kept in a part of the prison that is separate from that used by adults. The case-law of the European Social Committee and the UN Committee on the Rights of the Child as well as the UN General Assembly “Havana Rules” strongly underline this reasoning.51
A similar attitude is visible in the Court’s case-law. The Court notes that the confinement of a juvenile in a prison does not necessarily contravene Article 5 § 1 (d), first limb, even if it is not in itself such as to provide for the person’s educational supervision. As is apparent from the words “for the purpose of”, the detention referred to in the text is a means of ensuring that the person concerned is placed under educational supervision, but the placement does not necessarily have to be an immediate one. Article 5 § 1 (d) does not preclude an interim custody measure being used as a preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however, the imprisonment must be speedily followed by actual application of such a regime in a setting designed and with sufficient resources for the purpose.52 Therefore, the Court, in the case “Bouamar v. Belgium”, where a minor with a disturbed personality and suspected of certain offences was ordered on nine successive occasions to be placed in a prison in conditions of virtual isolation and without the assistance of staff with educational training rightly held that these detentions could not be regarded as furthering any educational aim. Even though each of the nine placements was only for a concrete and short period of time each of up to fifteen days, the placement orders, taken together, were not compatible with Article 5 § 1 (d). Their fruitless repetition had the effect of making them less and less lawful.53 Furthermore, the Court did not accept, in that case, the Belgium Government’s argument that each of the placement orders recorded that it was materially impossible to find an individual or an institution able to accept the juvenile applicant immediately. A state that chooses a system of educational supervision with a view to carrying out its policy on juvenile delinquency, is consequently under the obligation to put in place appropriate institutional facilities which meet the demands of security and the educational objectives.54
c) Review of Lawfulness of Detention of Juveniles
According to Article 5 § 4 everyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The scope of the obligation under Article 5 § 4 is not identical in all circumstances or for every kind of deprivation of liberty. In a case of a juvenile, it is essential not only that the individual concerned should have the opportunity to be heard in person but that he should also have the effective assistance of a lawyer. The mere fact that the juvenile himself appears in person before the court does not afford him the necessary safeguards.55 Furthermore, an especially speedy judicial review has to be taken in cases of detention of minors.56 This requisite is also reflected in Article 37 (d) of the UN Convention on the Rights of the Child, according to which any child deprived of liberty has the right to a prompt decision on his or her action to challenge the legality of the deprivation of his/her liberty. The standard “prompt” indicates a narrow and strong interpretation of the time-limits which therefore should be much shorter than the one for adults.
5. Expulsion of Juvenile Foreigners Convicted of Criminal Offences
Another possible state’s reaction to delinquency lies in expelling aliens who have seriously infringed the law. Nevertheless, according to the Court’s established case-law under Article 8 on the expulsion of foreigners convicted of criminal offences, states should not only take the nature and gravity of the offences committed into account, but also must have regard to the solidity of social, cultural and family ties the convicted person has with the host country.57 Therefore the Court, in the case “Maslov v. Austria”, considered that the imposition and enforcement of an exclusion order, even of a limited duration (ten years), against a person who had been a minor when the exclusion order was imposed and just reached the age of majority, namely eighteen years, in the course of the expulsion proceedings, constituted an interference with his right to respect for his private and family life.58 Even though the exclusion order served a legitimate aim, i.e. the prevention of disorder or crime,59 the Austrian judicial authorities did not take sufficiently into account that the person to be expelled was a young adult who had not yet founded a family of his own, that he had already come to Austria during his childhood and had family, social and linguistic ties only with Austria and not with his country of origin and that, additionally, the offences committed by him were – with one exception – of a non-violent nature.60 Consequently, the Court found that there had been a violation of Article 8.
The judgment of the Court is to be agreed with. It stands in line with various Council of Europe instruments, in particular with the Committee of Ministers Recommendation Rec. (2000)15 concerning the security of long-term migrants and Rec. (2002)4 on the legal status of persons admitted for family reunification, as well as with European Union law which also provides for particular protection of minors against expulsion.61 Furthermore, the UN Committee on the Rights of the Child regularly expresses its concern about the increasing number of persons below the age of eighteen placed in detention or being subject to expulsion measures, and therefore recommends with regard to Article 40 of the UN Convention on the Rights of the Child that appropriate measures to promote the recovery and social integration of children involved in the juvenile justice system be taken.62 However, this does not mean, of course, that juvenile delinquents could never be expelled from the host country. The Court has made it clear, in several cases, that very serious violent offences, such as aggravated rape, assault and manslaughter, can justify expulsion even if they were committed by a minor and irrespective to the fact that the minor was born in the host country or moved there in his early childhood.63
II. Children as Witnesses in Criminal Proceedings
The possible role of children and juveniles in criminal proceedings is not limited to their place as defendants. They also serve as witnesses, especially in criminal proceedings concerning sexual offences of which they have been victims. Such proceedings are often conceived as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in cases involving a minor. Therefore the Court accepts, in accordance with Articles 30-36 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse,64 that in criminal proceedings concerning sexual abuse involving children certain measures can be reconciled with an adequate and effective exercise of the rights of the defence.65 Or in other words: Organising criminal proceedings in such a way as to protect the interests of juvenile witnesses, in particular in trial proceedings concerning sexual offences, is a relevant consideration, to be taken into account for the purposes of Article 6 § 1 and Article 6 § 3 (d). For the purposes of Article 6 § 3 (d) child victims are regarded as witnesses in cases where their statements are used in evidence against the defendant.66
Whereas the admissibility of evidence including the right to examine or have examined witnesses must normally be produced at a public hearing, in the presence of the accused with a view to adversarial argument,67 there are exceptions to this principle. In appropriate cases, the principle of fair trial requires that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular where interests coming within the ambit of Article 8 of the Convention are at stake. Article 6 § 3 (d) does not grant the accused an unlimited right to secure the appearance of witnesses in court.68 The Contracting States have to organise their criminal proceedings in such a way that the interests of witnesses, and in particular juvenile victims, are not unjustifiably imperilled.69
On the other hand, in cases of sexual abuse where the statements made by a child are virtually the sole or the decisive evidence on which the courts’ findings of guilt are based, it must be carefully examined whether the defendant is still provided with an adequate opportunity to exercise his defence rights.70 As a rule, a conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge.71 Accordingly, the Court has held in the case “A. M. v. Italy” that there was a violation of Article 6 § 1, in conjunction with Article 6 § 3 (d), noting that in convicting the applicant in the case of sexual offence on a minor the domestic court relied solely on the statements made in the United States before trial and that the applicant was at no stage in the proceedings confronted with his accusers.72 The same is true when the applicant – like it was the case in “P.S. v. Germany” – is convicted of having sexually abused an eight-year-old girl, without this girl having been questioned, at any stage of the proceedings, by a judge, and the applicant having had no opportunity of observing the demeanour of this witness under direct or indirect questioning.73 No hearing of the child as possible victim and, additionally, a delay of about eighteen months between the event in question and the preparation of a psychological expert opinion on the child’s credibility do not enable the defence to challenge the evidence of the child.74
In similar cases where the victims of the alleged sexual offences were interviewed by the police during the investigations, but the court later merely relied on their recorded statements (in written, audio- or video-taped forms) without the alleged offender or his counsel having been able, at any time, to put questions to the child witness, the Court equally found that the use of this evidence involved such limitations on the rights of the defence that the defendant could not be said to have received a fair trial according to Article 6 § 1 taken together with Article 6 § 3 (d).75 The situation is even more critical when the witness is a mentally challenged child who expresses himself with difficulty, and barely remembers the event in question. In those cases, written transcripts of the child’s statement that are very formal and contain elaborate sentences and thus, have obviously been worded by the investigating judge, do not serve as a proper and adequate opportunity for the defendant to challenge the witness statements as they do not reflect the mentally handicapped child’s manner of expressing himself. The Court consequently noted, in the case “Kovač v. Croatia” that the defendant did not have a fair trial.76
The situation fundamentally changes, however, in cases where the child – mentally handicapped or not – never appears personally before the courts but serves as witness in a police interview during the pre-trial investigation which is held at the request of the defendant’s counsel and which is audio- or videotaped. The Court, in the case “S.N. v. Sweden”, noting that the videotape of the first police interview with the ten-year-old boy was shown during the trial and that the audio-record of the second police interview with the boy was played back before the court and the defendant’s counsel had the opportunity to put questions – via the interviewing policemen – to the child, held that it cannot be said that the applicant was denied his right under Article 6 § 3 (d).77 This judgment of the Court is fully to be agreed with. In cases where the courts and the defendant have the opportunity of assessing the reliability of the evidence given by a child victim, there is no breach of the principle of fair trial. In order to test the reliability of the child victim in a less invasive manner than direct questioning, several sophisticated methods might be applied, such as having the child interviewed in the presence of a psychologist with questions being put in writing by the defence, or in a studio enabling the applicant or his lawyer to be present indirectly at such an interview, via video-link or one-way mirror.78 Of course, if neither the defendant nor his counsel avail themselves of the possibility to put questions to the child during pre-trial investigation, although the opportunity has been afforded to them, there is no violation of Article 6 § 1 taken together with Article 6 § 3 (d).79
Nevertheless, evidence obtained from a child witness even under the pre-described conditions should always be treated with extreme care as the rights of the defence cannot be secured to the extent normally required by Article 6 § 3 (d).80 The questioning of children during investigations must therefore meet high standards with regard to procedure and content. The national courts must take into account the fact that some of the information given by a child is vague and uncertain and lacking in detail. The court must also have regard to the possibly leading nature of some questions put to the child during the police interviews.81 One possible step in such cases is to call for forensic-psychology experts, who have special training in and knowledge of the matter.82 They would protect the child against deliberate or involuntary harm caused by the proceedings and help the police and courts in the assessment of the victim’s behaviour and testimony. Furthermore, the involvement of forensic experts would serve as a counterbalancing procedure to compensate sufficiently the handicaps under which the defence labours.83

D. Protection of Children in Administrative Proceedings

I. Detention of Children in the Name of Their Self-Protection
Children are not only deprived of their liberty in cases of pre-trial detention or detention after conviction. They are also deprived of their liberty in the name of their own protection. This was the case, for instance, with the applicant in “D.G. v. Ireland”: The juvenile applicant referred to his being a child at risk, namely dangerous to himself and potentially to others and that he had a history of criminal activity. Even though he was a minor in need of special care, he was detained in a penal institution where male offenders between 16 and 21 were committed either while on remand or after sentencing. The Court found a violation of Article 5 § 1 (d), although the detention orders impugned in that case, were made against the background of enduring and considerable efforts by various authorities to ensure the best possible care and upbringing for the applicant. Nevertheless, if a state chooses a constitutional system of educational supervision implemented through court orders to deal with juveniles at risk, it is obliged to put in place appropriate institutional facilities which meet the security and educational demands of that system.84
The applicant in “D.G. v Ireland” further considered that his incarceration amounted to punishment within the meaning of that term in Article 3, but the Court did not share this view. The Court accepted that the intent of the order of detention was protective and that, without more, it could not be concluded that it constituted punishment.85 Neither did the Court consider that the detention in a penal institution could, of itself, constitute inhuman or degrading treatment. At least this conclusion applies when the juvenile is detained in a prison where a significant portion of the detainees are the same age as, or close in age to him. Even assuming that the feelings of depression, frustration and anger are caused by an incarceration, there have to be further strong moments to demonstrate that the impact of a protective detention amounts to treatment falling within the scope of Article 3.86
II. Detention of Children Pending Extradition and Expulsion
Article 5 § 1 (d) is not the only provision which permits the detention of a minor. It contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or for the purpose of bringing them before the competent legal authority to decide. Another ground for a minor’s detention may be seen in Article 5 § 1 (f) which permits the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
However, the Court’s case-law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. This is especially the case where a foreign unaccompanied minor is held in an asylum-seekers detention centre. The Court has recently stated in “Mubilanzila Mayeka and Kaniki Mitunga v. Belgium” that a state violated its positive obligations emanating from Article 3 of the Convention to take requisite measures and precautions to protect a child by deporting a young applicant, who was only five years old and was unaccompanied by her parents and had no one to look after her, which caused her “extreme anxiety and demonstrated […] a total lack of humanity towards someone of her age and in her situation”.87 In the same case, the Court also concluded that there had been a violation of Article 5 § 1 as a result of the applicant’s detention, during two months, in a closed centre intended for illegal immigrants that was not adapted to her young age.88 No measures were taken to ensure that the girl received proper counselling and educational assistance from qualified personnel special mandated for this purpose. The fact that the girl received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The uncoordinated attention she received was far from adequate.89

E. Protection of Children in Family Proceedings

According to Article 9 of the UN Convention on the Rights of the Child, states parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interest. Against this international human rights background, it also follows from Articles 6 and 8 of the Convention that there is one of the basic requirements in relation to parents’ rights of access to their children that there exist legal safeguards designed to secure the effective protection of the rights of parents and children to respect for their family life.
I. Legal Representation in Family Proceedings
As a first rule emanating from the states’ positive obligations inherent in Article 8 of the Convention, children have to have access to the courts either in person or via legal representatives. Parents for instance might be entitled to complain on behalf of their children in cases where a conflict arises over a minor’s interests opposing the parents and the national authorities having custody over the child.90 In cases where the holders of parental responsibilities are precluded from representing the child as a result of a conflict of interests with the latter, the child shall have the right to apply, in person or through other persons or bodies, for a special representative in proceedings before a court or an administrative authority.91
II. Hearing the Child in Access, Residence and Custody Matters
Another positive state obligation following implicitly from Article 8 of the Convention is that the domestic courts should assess the difficult question of the child’s best interests on the basis of a reasoned and up-to-date psychological report, and that the child, if possible, should be heard by the psychological expert and the court in access, residence and custody matters.92 Even if the will and the wishes of a child cannot be decisive for the question of access and residence, it is nevertheless important to know the child’s answer to the question whether he or she would like to see her parent in order for the expert to ascertain the child’s true wishes.93
On the other hand, it would be going too far to say that domestic courts are always required to hear a child in court on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned.94 For instance, in cases the child is only about four to five years old, and the expert reaches the conclusion that a direct questioning and hearing of the child in court would entail a risk for the child and that such a risk could not be avoided by special arrangements in court, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development.95 Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents.96
However, regard must be taken on the fact that namely fathers of children born out of wedlock are often in a rather difficult position, in that they have to prove, under various national laws, that personal contact with the child would be in the child’s interest, whereas normally for children born within a marital relationship this interest is presumed and access can be denied only where it is contrary to the best interests of the child. If fathers of children born out of wedlock are denied the opportunity to speak directly to their children, either outside or inside the courtroom, even with the psychological expert present, it is not excluded that there is a violation of Article 8 taken alone or taken in conjunction with Article 14 of the Convention.97 The situation is different when the decision refusing access is based on the clear wish of a thirteen-year-old girl, not to see her natural father. Forcing that girl, who was mature enough to determine herself and her desiderata, to see him against her expressed will would seriously disturb her emotional and psychological balance, and therefore the domestic courts decisions were indeed taken in the interest of the child.98
Similar aspects are valid regarding the request for a visiting arrangement. Also here, the interest of the child, under certain circumstances, may override the interests of the parents. Nevertheless, it is necessary to rely on an expert advice and psychological expert evidence in order to evaluate the child’s statements. The combination of the refusal to order an independent psychological report and the absence of a hearing before the domestic courts reveals an insufficient involvement of the applicant in the decision-making process. Against this background the Court rightly concluded, in the case “Elsholz v. Germany”, that the national authorities overstepped their margin of appreciation, thereby violating the applicant’s rights under Article 8 of the Convention.99
III. Speedy Procedure in Access, Residence and Custody Matters
It is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child.100 In this connection, the Court regularly recalls that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. However, there may in addition be positive obligations inherent in effective respect for family life which may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals.101
In this context regard must therefore be given to the length of the local authority’s decision-making process and of any related judicial proceedings. The Court has repeatedly stressed that in cases concerning a person’s relationship with his or her child, there is a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter102 and might curtail the family relations between a child and one or both parents.103 An effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time.104 Therefore, in cases relating to child access and custody, special diligence is required in view of the possible consequences which the excessive length of proceedings may have;105 such issues should be dealt with speedily in order to avoid alienation between parent and child.106
This duty is decisive in assessing whether a case concerning access to children had been heard within a reasonable time as required by Article 6 § 1 of the Convention and also forms part of the procedural requirements implicit in Article 8.107 For instance, custody proceedings which are pending for more than five years and five months before the first-instance court may amount to a violation of Article 8, especially when the child has been left at very young age in the factual custody of his father.108 The same conclusion might be applied in cases where the mother and her children have been separated merely for a year and a half.109 On the other hand, cases that have to be regarded as extremely complex because of the number of persons involved and, in particular, because of the child’s fragile psychological situation, may be evaluated differently. The Court, in the case “Glesmann v. Germany”, noted that the length of proceedings before the civil courts, notably before the District Court which lasted four years and five months to decide the access case and a little more than three years to decide the case on parental authority, could still be regarded as being reasonable, given that the District Court, with consent of all the parties of the proceedings, undertook time-consuming efforts to improve the personal relationship between the parent and the child in order to avoid alienation.110
Also in cases concerning the enforcement of decisions in the sphere of family law (enforcement of both access and custody rights), the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the special circumstances of each case.111 Also here, regard has to be taken to the argument that the passage of time can have irremediable consequences for relations between the child and the parent who does not live with the child. The Court therefore held, in the case “Hokkanen v. Finland”, that the non-enforcement of a parent’s right of access for a period of approximately three years and a half constituted a breach of Article 8.112 Furthermore, regard has to be taken to the fact that tardiness or even the lack of enforcement may change the very assessment as to what is in the bests interests of the child.113 The state therefore shall be obliged at the enforcement stage to review whether a given decision is still in the best interests of the child.114
IV. Speedy Procedure in Child Abduction Cases
Speedy procedure is also necessary in child abduction cases. The positive obligations imposed on states by Article 8 include taking measures to ensure a parent’s reunification with his or her child.115 The Court has already interpreted these positive obligations in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction,116 Article 7 of which contains a non-exhaustive list of measures to be taken by states in order to secure the prompt return of the child, including the institution of judicial proceedings. For instance, the authorities have the obligation to take all necessary measures to prevent further harm to the child or prejudice to the interested parties. In matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation, such cases requiring urgent handling, as the passage of time can have irremediable consequences for the relations between the children and the parent who does not live with them.117 Indeed, Article 11 of the Hague Convention imposes a six-week time-limit for the required decision, failing which the decision body may be requested to give reasons for the delay. Therefore and because the European Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights,118 national authorities fail to fulfill their positive obligations under Article 8 when a period of more than eighteen months elapses from the date on which the first applicant lodged his request for the return of the child to the date of the final decision.119 Also periods of inactivity that last for eight months were considered as being in violation of Article 8.120 Furthermore, the national authorities are obliged to arrange – where possible – preparatory contacts between the parent and the children in order to encourage a positive development of the relations between them and with a view to obtaining the return of the child. These previous arrangements should involve social workers or psychologists.121
Finally, the failure to enforce a final decision in child abduction cases for approximately one and a half years or even two years equally violates Article 8 of the Convention.122 Even though coercive measures are not desirable in this sensitive area of family law, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives.123 The mere imposition of a fine and a subsequent detention order, neither of which appear to have been enforced, do not reflect an adequate and effective effort of the state’s authorities to reunite the parent with his or her child.124
V. Public Hearing and Public Pronouncement of Judgments in Residence and Custody Matters
Not only Article 8 but also Article 6 of the Convention plays a prominent role in family proceedings. While Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life, Article 6 affords a procedural safeguard, namely the right to a court in the determination of one’s civil rights and obligations.125 The general requirement to hold a public hearing according to Article 6 § 1 must therefore be taken into account in residence and custody matters.126 Nevertheless, Article 6 § 1 is subject to several exceptions. This is already apparent from the text itself, which contains the provision that the press and public may be excluded from all or part of the trial where the interests of juveniles or the private life of the parties so require. Moreover, it is established in the Court’s case-law that, even in a criminal-law context where there is a high expectation of publicity, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice.127
The Court therefore considers, in the case “B. and P. v. the United Kingdom”, that proceedings concerning the residence of children following parents’ divorce or separation are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice.128 To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact opinions open to the child, it is essential that the parents and other witnesses feel able to express themselves frankly and candidly on highly personal issues without fear of public curiosity or comment. While Article 6 § 1 states a general rule that civil proceedings should take place in public, the Court does not find it inconsistent with this provision for a state to designate an entire class of cases as an exception of the general rule where required by the interests of juveniles or the protection of the private life of the parties.129 This is all the more valid when the tribunals have a discretion to hold proceedings involving children matters in public if merited by the special features of the case.130 Nevertheless, the conclusions might be different in cases where not a dispute between family members over a child’s residence but the transfer of custody of a child to a public institution is at stake. In the sphere where an individual opposes the state, the reasons for excluding a case from public scrutiny must be subject to careful examination. Therefore the Court found, in the case “Moser v. Austria”, that the lack of a public hearing caused by the national courts which simply followed a long-established practice to hold hearings in camera without considering the special feature of the case was in breach of Article 6 § 1.131
According to the Court, there is a logical relationship between the public nature of the proceedings and the public pronouncement of the judgment which is the result of those proceedings. Therefore, if courts are entitled to hold proceedings in camera, they are also entitled not to pronounce the judgment publicly.132 Anyone who can establish an interest may consult or obtain a copy of the full text of the orders and/or judgments of courts in child residence cases.133 On the other hand, in cases where a dispense of a public hearing is not justified in the circumstance, like it was the case in “Moser v. Austria”, the decisions have to be rendered in public.134
I do not fully share the Court’s standpoint in the matter. Article 6 § 1 expresses the need that the judgment is pronounced publicly in unqualified terms. In this respect Article 6 differs from the equivalent provision in Article 14 of the International Covenant on Civil and Political Rights. Obviously, stricter standards have been imposed as regards the publication of court judgments than as regards the public character of the underlying proceedings. This stricter approach is explained as reflecting the view that some of the factors which might justify a secret hearing would not justify delivery of the judgment in private.135 What has taken place in a private hearing does not have to be fully reflected in a publicly pronounced judgment and care can be taken to ensure that names and other information which might lead to identification of the parties or details of family’s personal life can be omitted from the judgment without affecting the clarity of the approach and the solution by the court to the issues arising in the case, which should be made public in order to achieve the purpose of public scrutiny.136

F. Conclusions

Against this human rights background, five main conclusions can be established in order to safeguard the needs of children before, in and after judicial proceedings:
Cases filed by or relating to children should be treated with the urgency they deserve. A speedy procedure should apply to all kind of proceedings involving minors – be they of criminal, administrative or civil nature.137
Cases concerning children are frequently very complex, and it would be worth considering the possibility for any court, the national courts as well as the European Court of Human Rights itself, to specially train some judges on children-related issues or to designate one or more of them as judge rapporteurs for children-related issues. In criminal proceedings states should establish juvenile courts either as separate units or as part of existing regional/district courts.138 Furthermore, also law enforcement and other relevant personnel of both sexes, should be trained to respond to the special needs of young persons before, in and after judicial proceedings, especially in enforcement procedures and in cases of detention of minors.139
Equal access to justice is an essential dimension of the equality before the law. Access to justice necessarily includes the access to information, which means in the case of children, that child-friendly versions of relevant national civil and criminal (procedural) codes as well as the relevant Council of Europe treaties should be accessible.140 To the same way counselling, and where appropriate, legal representation especially trained for children-related issues should be guaranteed.141 Several human rights bodies – like the UN Committee of the Rights of the Child – already have considered it opportune to create independent ombudspersons, commissioners for children and child advocacy services in order to monitor and assist the child for improved communication with national and international bodies.142 The assistance given to children is even more urgent in cases where the rights of street children, children with disabilities, children belonging to minorities, children who are indigenous or girl children are at stake, as those are more particularly vulnerable to violence and abuse.143
In cases where a hearing of the child is necessary, the courts should be able to order the hearing to take place without the presence of public. If the child is a victim of a sexual abuse and serves as witness, he or she should be heard in the courtroom without being present, notably through the use of appropriate communication technologies.144
Finally, a juvenile justice policy without a set of measures aimed at preventing juvenile delinquency suffers from serious shortcomings. Therefore emphasis should be placed on prevention policies facilitating the successful socialization and integration of all children.145


1 ETS No. 5.

2 ETS No. 163.

3 CETS No. 210, not yet in force.

4 CETS No. 197.

5 ETS No. 85.

6 ETS No. 58.

7 ETS No. 105.

8 ETS No. 192.

9 ETS No. 160.

10 GA/RES/44/15 of 5 December 1989.

11 999 UNTS 171.

12 GA/RES/40/33 of 29 November 1985.

13 GA/RES/45/112 of 14 December 1990.

14 V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, §§ 73 et seq.; T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, §§ 72 et seq.

15 V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, § 86; T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, § 84; S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, § 27.


16 Cf. the joint partly dissenting opinion of Judges Pastor Ridruejo, Ress, Makarczyk, Tulkens and Butkevych in V. v. the United Kingdom, judgment of 16 December 1999, no. 24888/94, § 1.

17 Rules 16-18 of the General Comment No. 10 (2007) on children’s rights in juvenile justice, adopted by the UN Committee on the Rights of the Child on 9 February 2007, UN-Doc. CRC/C/GC/10.

18 See Rules 12 and 13 of the General Comment No. 10, cited in footnote 17.

19 As to the various requirements following from Article 6 see Karen Reid, A Practioner’s Guide to the European Convention on Human Rights, 2003, pp. 49 et seq. Further see Articles 40 and 41 of the UN Convention on the Rights of the Child and Rules 23 (a)-23(l) of the General Comment No. 10, cited in footnote 17.

20 GA/RES/217 A (III) of 10 December 1948 (UN Doc. A/810, p. 71).

21 T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, §§ 84 et seq.; S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, § 28.


22 Cf. the concurring opinion of Judge Morenilla in Nortier v. the Netherlands, judgment of 24 August 1993, no. 13924/88, § 3.

23 Nortier v. the Netherlands, judgment of 24 August 1993, no. 13924/88, §§ 33 et seq.

24 S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, § 29.

25 Stanford v. the United Kingdom, judgment of 23 February 1994, no. 16757/90, § 30; S.C. v. United Kingdom, judgment of 15 June 2004, no. 60958/00, § 29.

26 V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, § 90; T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, § 88; S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, 35.


27 S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, §§ 32 et seq.

28 Differently V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, § 79; T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, § 77.


29 As to the facts cf. V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, §§ 88-89.

30 S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, §§ 29 et seq.


31 S.C. v. the United Kingdom, judgment of 15 June 2004, no. 60958/00, § 30.

32 Recommendation no. R 87(20) of the Committee of Ministers of the Council of Europe on social reactions to juvenile delinquency, adopted on 17 September 1987, at the 410th meeting of the Ministers’ Deputies.

33 V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, § 77; T. v. United Kingdom, judgment of 16 December 1999, no. 24724/94, § 75.


34 See Rule 23(l) of the General Comment No. 10, cited in footnote 17.

35 As to more details cf. Rule 24 of the General Comment No. 10, cited in footnote 17.

36 Hussain v. the United Kingdom, judgment of 21 February 1996, no. 21928/93, §§ 53-54.

37 V. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24888/94, § 99; T. v. the United Kingdom, judgment (GC) of 16 December 1999, no. 24724/94, § 98.


38 Hussain v. the United Kingdom, judgment of 21 February 1996, no. 21928/93, § 54.

39 See Article 37 (b) of the UN Convention on the Rights of the Child as well as Rule 10 of the General Comment No. 10, cited in footnote 17.

40 See § 7 of the Recommendation no. R 87/20, cited in footnote 32.

41 See § 17 of the Recommendation of the Committee of Ministers Rec 2003/20, adopted on 24 September 2003.

42 Okkali v. Turkey, judgment of 17 October 2006, no. 52067/99, §§ 69 et seq. See also Article 37 (d) of the UN Convention on the Rights of the Child.

43 Nart v. Turkey, judgment of 6 May 2008, no. 20817/04, §§ 29 et seq.

44 Cited in footnote 32.

45 Rec. 2003/20, adopted at the 853rd meeting of the Ministers’ Deputies.

46 X v. Switzerland, decision of the European Commission of Human Rights of 14 December 1979, no. 8500/79, 18. D.R. 238, 246.

47 Selçuk v. Turkey, judgment of 10 January 2006, no. 21768/02, § 32, § 35.

48 Selçuk v. Turkey, judgment of 10 January 2006, no. 21768/02, § 34.

49 Nart v. Turkey, judgment of 6 May 2008, no. 20817/04, §§ 30, 34. But see also the joint partly dissenting opinion of Judges Türmen and Mularoni in that case, who considered that the applicant’s detention was in conformity with the “reasonable time” requirement of Article 5 § 3.

50 Rec 2006/2, adopted on 11 January 2006.

51 See e.g. the Conclusions No. XVII-2 (Turkey) of the European Committee on Social Rights regarding Article 17 of the European Social Charter; the Concluding Observations of the UN Committee on the Rights of the Child of 9 July 2001 (Turkey), UN-Doc. CRC/C/15/Add. 152, §§ 65 et seq., as well as the UN Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”) adopted by the General Assembly on 14 December 1990, UN-Doc. GA/RES/45/113.

52 Bouamar v. Belgium, judgment of 29 February 1988, no. 9106/80, §§ 50 et seq.

53 Bouamar v. Belgium, judgment of 29 February 1988, no. 9106/80, §§ 52 et seq.

54 Bouamar v. Belgium, judgment of 29 February 1988, no. 9106/80, § 52. See also Rule 28 (c) of the General Comment No. 10, cited in footnote 17.


55 Bouamar v. Belgium, judgment of 29 February 1988, no. 9106/80, § 60.

56 Bouamar v. Belgium, judgment of 29 February 1988, no. 9106/80, § 63. But see also the separate opinion of Judge de Meyer in the case, who considered that the time-period of the judicial review was in balance with the potential and actual effects of the interim measures taken.

57 As to the various criteria to be taken into account see Üner v. the Netherlands, judgment (GC) of 18 October 2006, no. 46410/99, §§ 57-58. See also Kaya v. Germany, judgment of 28 June 2007, no. 31753/02, § 53.

58 Maslov v. Autria, judgment (GC) of 23 June 2008, no. 1638/03, § 62.

59 Maslov v. Autria, judgment (GC) of 23 June 2008, no. 1638/03, § 67.

60 Maslov v. Autria, judgment (GC) of 23 June 2008, no. 1638/03, §§ 71-73, §§ 81-100.

61 See Article 28 § 3 (b) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

62 See the Concluding Observations on the Second Periodic Report of Austria of 31 March 2005, UN Doc. CRC/C/15/Add.251, §§ 53, 54, as well as Rule 71 of the General Comment No. 10, cited in footnote 17.

63 Üner v. the Netherlands, judgment (GC) of 18 October 2006, no. 46410/99, §§ 55 et seq.; Hizir Kilic v. Denmark, decision of 22 January 2007, no. 20277/05, § 16.

64 See also – as regards child victims of trafficking in human beings – Article 28 § 3 and Article 30 of the Council of Europe Convention on Action against Trafficking in Human Beings.

65 S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 47; F and M v. Finland, judgment of 17 July 2007, no. 22508/02, § 58; Kovač v. Croatia, judgment of 12 July 2007, no. 503/05, § 27; W.S. v. Poland, judgment of 19 June 2007, no. 21508/02, § 57; B. v. Finland, judgment of 24 April 2007, no. 17122/02, § 43.

66 B. v. Finland, judgment of 24 April 2007, no. 17122/02, § 42.

67 S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 44; F and M v. Finland, judgment of 17 July 2007, no. 22508/02, § 56.

68 A.M. v. Italy, judgment of 14 December 1999, no. 37019/97, § 25; S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 44; A.H. v. Finland, judgment of 10 May 2007, no. 46604/99, § 42.

69 Doorson v. the Netherlands, judgment of 26 March 1996, no. 20524/92, § 70; P.S. v. Germany, judgment of 20 December 2001, no. 33900/96, § 22.

70 S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 46; W. v. Finland, judgment of 24 April 2007, no. 14151/92, § 47.

71 Doorson v. the Netherlands, judgment of 26 March 1996, no. 20524/92, § 76; A.H. v. Finland, judgment of 10 May 2007, no. 46604/99, § 40.

72 A.M. v. Italy, judgment of 14 December 1999, no. 37019/97, § 26.

73 P.S. v. Germany, judgment of 20 December 2001, no. 33900/96, § 26.

74 P.S. v. Germany, judgment of 20 December 2001, no. 33900/96, § 29.

75 W.S. v. Poland, judgment of 19 June 2007, no. 21508/02, §§ 60 et seq.; F and M v. Finland, judgment of 17 July 2007, no. 22508/02, § 69; A.H. v. Finland, judgment of 10 May 2007, no. 46604/99, § 44; W. v. Finland, judgment of 24 April 2007, no. 14151/92, §§ 46-47.

76 Kovač v. Croatia, judgment of 12 July 2007, no. 503/05, §§ 30 et seq.

77 S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, §§ 49 et seq.

78 W.S. v. Poland, judgment of 19 June 2007, no. 21508/02, § 61; Kovač v. Croatia, judgment of 12 July 2007, no. 503/05, § 30. See also Articles 35 and 36 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

79 B. v. Finland, judgment of 24 April 2007, no. 17122/02, §§ 44 et seq.

80 Doorson v. the Netherlands, judgment of 26 March 1996, no. 20524/92, § 76; S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 53.

81 S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96, § 53.

82 In this context, see also Ž. v. Latvia, judgment of 24 January 2008, no. 14755/03, § 45 and § 96. Further see Article 35 § 1 (c)-(f) of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

83 As to this proposal cf. the dissenting opinion of Judges Türmen and Maruste in S.N. v. Sweden, judgment of 2 July 2002, no. 34209/96.

84 D.G. v. Ireland, judgment of 16 May 2002, no. 39474/98, § 79.

85 D.G. v. Ireland, judgment of 16 May 2002, no. 39474/98, § 96.

86 D.G. v. Ireland, judgment of 16 May 2002, no. 39474/98, § 98.

87 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, judgment 12 October 2006, no. 13178/03, § 69.

88 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, judgment 12 October 2006, no. 13178/03, § 103.

89 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, judgment 12 October 2006, no. 13178/03, § 101, §§ 50 et seq.

90 Scozzari and Giunta v. Italy, judgment of 13 July 2000, nos. 39221/98 and 41963/98, § 138; Moser v. Austria, judgment of 21 September 2006, no. 12643/02, § 60; Roda and Bonfatti v. Italy, judgment of 21 November 2006, no. 10427/02, §§ 82-83.

91 See Article 4 of the European Convention on the Exercise of Children’s Rights, and Rule 19 (p) of the General Comment No. 2 (2002) on the role of independent national human rights institutions in the promotion and protection of the rights of the child, adopted by the UN Committee on the Rights of the Child on 15 November 2002, UN-Doc. CRC/GC/2002/2.

92 Elsholz v. Germany, judgment (GC) of 13 July 2000, no. 25735/94, §§ 52 et seq.

93 See Article 6 of the Convention on Contact concerning Children, and Article 6 (c) of the European Convention on the Exercise of Children’s Rights. Also in adoption cases, the views of the child with respect to the proposed adoption should be taken into account, see Article 9 § 2 (f) of the European Convention on the Adoption of Children.

94 Kutzner v. Germany, judgment of 26 February 2002, no. 46544/99, §§ 65-66; Sommerfeld v. Germany, judgment (GC) of 8 July 2003, no. 31871/96, § 71; Covezzi and Morselli v. Italy, judgment of 9 May 2003, no. 52763/99, §§ 108 et seq.


95 Elsholz v. Germany, judgment (GC) of 13 July 2000, no. 25735/94, § 50; Sahin v. Germany, judgment (GC) of 8 July 2003, no. 30943/96, § 74.

96 Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, no. 31679/96, § 94; Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 128; Elsholz v. Germany, judgment (GC) of 13 July 2000, no. 25735/94, § 50; T.P. and K.M. v. the United Kingdom, judgment (GC) of 10 May 2001, no. 28945/95, § 71; Sahin v. Germany, judgment (GC) of 8 July 2003, no. 30943/96, § 65; Sommerfeld v. Germany, judgment (GC) of 8 July 2003, no. 31871/96, § 64.

97 See the partly dissenting opinion of Judge Rozakis joined by Judge Tulkens in Sahin v. Germany, judgment (GC) of 8 July 2003, no. 30943/96, § 4, as well as the partly dissenting opinion of Judge Ress joined by Judges Pastor Ridruejo and Türmen, ibid., § 5.

98 Sommerfeld v. Germany, judgment (GC) of 8 July 2003, no. 31871/96, § 65. However, see also the partly dissenting opinion of Judge Ress joined by Judges Pastor Ridruejo and Türmen in the instant case, § 3, according to which a more thorough approach should have been taken and an effective and genuine chance of participation should have been given to the natural father, because the alienation of the child from her natural father could be perceived by the strong influence of her mother and her stepfather.

99 Elsholz v. Germany, judgment (GC) of 13 July 2000, no. 25735/94, § 53. Dissenting as to the margin of appreciation: Judge Baka joined by Judges Palm, Hedigan and Levits, ibid.

100 Olsson v. Sweden (No. 1), judgment of 24 March 1988, no. 10465/83, § 72; Scozzari and Giunta v. Italy, judgment of 13 July 2000, nos. 39221/98 and 41963/98, § 148. See also Yildirim v. Austria, decision of 19 October 1999, no. 34308/9, and Shofman v. Russia, judgment of 24 November 2005, no. 74826/01, § 39, where the Court accepted, in both cases, that the introduction of a time-limit for the institution of paternity proceedings was justified by the desire to ensure legal certainty in family relations and to protect the interests of the child.

101 Kosmopoulou v. Greece, judgment of 5 February 2004, no. 60457/00, § 43-46; Roda and Bonfatti v. Italy, judgment of 21 November 2006, no. 10427/02, § 110; Kaplan v. Austria, judgment of 18 January 2007, no. 45983/99, § 32; Glesmann v. Germany, judgment of 10 January 2008, no. 25706/03, § 104.

102 Hoppe v. Germany, judgment of 5 December 2002, no. 28422/95, § 54; Kaplan v. Austria, judgment of 18 January 2007, no. 45983/99, § 32.

103 Elsholz v. Germany, judgment (GC) of 13 July 2000, no. 25735/94, § 49; Sahin v. Germany, judgment (GC) of 8 July 2003, no. 30943/96, § 65; Sommerfeld v. Germany, judgment (GC) of 8 July 2003, no. 31871/96, § 63; P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, § 81. See also Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, no. 31679/96, § 94; Iglesias Gil and A.U.I. v. Spain, judgment of 29 April 2003, no. 56673/00, §§ 49 et seq.

104 W. v. the United Kingdom, judgment of 8 July 1987, no. 9749/82, § 65; P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, § 93.

105 Hokkanen v. Finland, judgment of 23 September 1994, no. 19823/92, §§ 69-72; Sassné Sári v. Hungary, judgment of 4 March 2008, no. 1056/05, § 14. See also Article 7 of the European Convention on the Exercise of Children’s Rights.

106 Glesmann v. Germany, judgment of 10 January 2008, no. 25706/03, §§ 80, 85. See further Tur v. Poland, judgment of 23 October 2007, no. 21695/05, § 55, and Rózsa v. Hungary, judgment of 29 January 2008, no. 22671/04, § 19.

107 Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 110; Hoppe v. Germany, judgment of 5 December 2002, no. 28422/95, § 52.

108 Kaplan v. Austria, judgment of 18 January 2007, no. 45983/99, §§ 32, 33, 35. See also Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 119.

109 Scozzari and Giunta v. Italy, judgment of 13 July 2000, nos. 39221/98 and 41963/98, § 173.

110 See Glesmann v. Germany, judgment of 10 January 2008, no. 25706/03, § 85 with the joint partly dissenting opinion of Judges Lorenzen, Tsatsa-Nikolovska and Borrego Borrego. On the other hand, see also the case Nanning v. Germany, judgment of 12 July 2007, no. 39741/02, §§ 44-49, where the Court held that the proceedings pending for four years before the Regional Court exceeded the “reasonable time” requirement, although the Court acknowledged that the case was particularly complex. Similarly T. and Others v. Finland, judgment of 13 December 2005, no. 27744/95, §§ 63 et seq., where the complexity of the case caused a delay of almost three years for which the Court, however, did not find sufficient justification.

111 Hokkanen v. Finland, judgment of 23 September 1994, no. 19823/92, § 62; Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 111; V.A.M. v. Serbia, judgment of 13 March 2007, no. 39177/05, §§ 133 et seq.; P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, § 82.

112 Hokkanen v. Finland, judgment of 23 September 1994, no. 19823/92, § 62. Similarly V.A.M. v. Serbia, judgment of 13 March 2007, no. 39177/05, §§ 139 et seq.

113 See the illustrative dissenting opinion of Judge Zupančič joined by Judges Pantîru and Türmen in Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96.

114 Sylvester v. Austria, judgment of 24 April 2003, nos. 36812/97 and 40104/98, §§ 60, 63.

115 Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, no. 31679/96, § 94; Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 127; Karadžić v. Croatia, judgment of 15 December 2005, no. 35030/04, § 51; Josub Caras v. Romania, judgment of 27 July 2006, no. 7198/04, §§ 32 et seq.

116 1343 U.N.T.S. 89.

117 Ignaccolo-Zenide v. Romaniy, judgment of 25 January 2000, no. 31679/96, § 102, Nuutinen v. Finland, judgment of 27 June 2000, no. 32842/96, § 110; Bajrami v. Albania, judgment of 12 December 2006, no. 35853/04, § 53.

118 Iglesias Gil and A.U.I. v. Spain, judgment of 29 April 2003, no. 56673/00, § 51; Karadžić v. Croatia, judgment of 15 December 2005, no. 35030/04, § 54; P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, § 85.

119 Josub Caras v. Romania, judgment of 27 July 2006, no. 7198/04, §§ 38 et seq.

120 P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, §§ 89 et seq.

121 See Article 7 (f) of the Hague Convention (1980) as well as Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, no. 31679/96, §§ 112 et seq.

122 See Karadžić v. Croatia, judgment of 15 December 2005, no. 35030/04, § 60, as well as Bajrami v. Albania, judgment of 12 December 2006, no. 35853/04, § 66.

123 Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, no. 31679/96, § 106; Karadžić v. Croatia, judgment of 15 December 2005, no. 35030/04, § 61.

124 Karadžić v. Croatia, judgment of 15 December 2005, no. 35030/04, §§ 60 et seq.

125 McMichael v. the United Kingdom, judgment of 24 February 1995, no. 16424/90, § 91; Sylvester v. Austria, judgment of 24 April 2003, nos. 36812/97 and 40104/98, § 76; P.P. v. Poland, judgment of 8 January 2008, no. 8677/03, § 101.

126 Moser v. Austria, judgment of 21 September 2006, no. 12643/02, § 91.

127 B. and P. v. The United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, § 37.

128 B. and P. v. the United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, § 38.

129 B. and P. v. the United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, § 39, with further references.

130 B. and P. v. the United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, § 40. But see also the dissenting opinion of Judge Loucaides joined by Judge Tulkens in the instant case.

131 Moser v. Austria, judgment of 21 September 2006, no. 12643/02, §§ 95 et seq.

132 B. and P. v. the United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, §§ 47 et seq.

133 B. and P. v. the United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97, §§ 47 et seq.; see also Sutter v. Switzerland, judgment of 22 February 1984, no. 8209/78, §§ 33-34.

134 Moser v. Austria, judgment of 21 September 2006, no. 12643/02, §§ 102 et seq.

135 Cf. the concurring opinion of Judge Sir Bratza in B. and P. v. The United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97.

136 See the dissenting opinion of Judge Loucaides joined by Judge Tulkens in B. and P. v. The United Kingdom, judgment of 24 April 2001, nos. 36337/97 and 35974/97.

137 See Article 30 § 3 of the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, and Article 7 of the European Convention on the Exercise of Children’s Rights.

138 See Rule 31 of the General Comment No. 10, cited in footnote 17.

139 See Rule 58 of the “Riyadh Guidelines”, Article 17 of the (Revised) European Social Charter, Article 31 § 2 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, and Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings.

140 See Article 31 § 6 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 15 of the Council of Europe Convention on Action against Trafficking in Human Beings, and Article 3 of the European Convention on the Exercise of Children’s Rights.

141 See Article 31 § 3 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; Article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings, and Articles 4, 5 and 9 of the European Convention on the Exercise of Children’s Rights.

142 See Rule 57 of the „Riyadh Guidelines”, and General Comment No. 2 (2002), cited in footnote 91.

143 See General Comment No. 10, cited in footnote 17.

144 See Article 36 § 2 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

145 Rule 7 of the General Comment No. 10, cited in footnote 17.