Building a Europe for and with children
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Round table 1: Milestones in international justice for children The European Convention on Human Rights and children’s rights Françoise Tulkens I should first like to thank you for inviting the European Court of Human Rights to take part in your conference. We at the Court are anxious to contribute, to the extent that our resources permit, to the development of better, or more accurately, fairer international justice for children. I feel it is important that the various contributions to this first round table were preceded by the report from Professor Ruth Farrugia, who provided us with an outstanding introduction to the main international instruments (general and specific) dealing with children’s rights. This gives us an idea of the nature, scope and limitations of the different instruments that children and young people can and must employ at both international and regional level. It is interesting to note that the European Union is also developing a European strategy on the rights of the child based on Article 24 of the Charter of Fundamental Rights, which recognises children’s rights. Where fundamental rights are concerned, I believe that one approach does not exhaust the whole subject and that complementarities and synergies must be created between the different instruments. I feel this is all the more essential in that the problem today is perhaps less a shortage than an overabundance of instruments, which confronts those involved with such a wide range of texts that it is sometimes difficult to know which to use and how. This situation is reflected among human rights NGOs, which in certain cases explains the need for co-ordination and a common platform. Where children’s rights are concerned, the European Convention on Human Rights possesses two characteristics that distinguish it from the other instruments already or yet to be analysed. First, unlike the UN’s International Convention on the Rights of the Child, the 1950 European Convention on Human Rights has no provision relating specifically to children and young people, even if some rights, such as, for example, the right to education (Article 2 of Protocol No 1) apply particularly to children. On the other hand, Article 1 of the Convention provides that states “shall secure” - and not “undertake to secure” as in most international treaties - to “everyone” the rights and freedoms defined therein. Children’s rights are therefore human rights, and children are fully entitled to human rights. Secondly, the supervision machinery set up by the Convention to ensure compliance with States’ commitments under the Convention takes the form of a fully judicial body, the European Court of Human Rights. In line with Article 1 of the Convention, Article 34 provides that the Court may receive applications from “any person” claiming to be the victim of a violation of the rights set forth therein. So there is no distinction in the text between men and women, foreigners and nationals, adults and minors: a child not of full age may apply directly to the European Court of Human Rights. Let us not forget that the Court also deals with inter-State applications, ie cases where a State refers to the Court an alleged breach of the provisions of the Convention by another State (Article 33 of the Convention). I am well aware that little use is made of this possibility in general, and no doubt even less where children’s rights are concerned, but it is useful sometimes to reactivate dormant provisions. It should however be noted that, in the inter-State application Cyprus v. Turkey, on which the Court delivered a judgment on 10 May 2001, educational issues were addressed: first, the Court held that there had been a violation of Article 10 of the Convention in respect of Greek Cypriots living in the north of the island insofar as school-books destined for use in their primary school had been subject, during the period under consideration, to excessive measures of censorship ; secondly, the Court also concluded that there had been a violation of Article 2 of Protocol No 1 insofar as no appropriate secondary-school facilities were available to Greek Cypriots . While it is important to restate the principle that everyone may apply to the Court, we must avoid the fiction that children and young people can exercise fundamental rights in the same way as adults. As with many vulnerable categories, access to justice and, a fortiori, international justice is not a straightforward matter. There are legal as well as economic, social and cultural obstacles. It is precisely in this regard that proposals and suggestions will have to be made to ensure that children’s enjoyment of the rights safeguarded by the Convention is concrete and effective, and not purely theoretical. In this connection, the Court could or should possibly take a closer look at the possibility of accepting in some cases collective actions which would enable associations or groups not directly affected by the alleged violation to speak, as it were, on behalf of those who have no voice. More technically, the requirement that cases can only be brought before the Court once domestic remedies have been exhausted may in some cases represent an obstacle to minors being able to apply to the Court if they lack legal capacity in their own legal system. In keeping with its case-law, the Court might therefore consider the possibility, in some situations, of waiving this condition for admissibility of applications. All these questions warrant consideration and in-depth study. Isabelle Berro-Lefèvre and myself have opted for a two-pronged approach. This afternoon I shall try to show you, within the Court’s case-law, the nature and subject-matter of cases that have been submitted by, or concern, children. I shall confine myself to recent decisions as it is important to see what problems children are faced with today in terms of fundamental rights. Tomorrow, Isabelle Berro-Lefèvre will draw lessons from this with reference to the more specific issue of children’s access to the Court. I shall refer to certain articles of the Convention which I consider to be the most significant, although the case-law could also be analysed in terms of major themes which could be used to provide a structure for the study, such as children’s right to protection or the rights and freedoms granted to children by the case-law of the Court. I shall confine myself to supplying the raw materials that will enable you who are in the front line to appreciate the relevance and limitations of this case-law, to criticise it and to point out both its grey areas and the prospects for the future. Where general principles are concerned, the following should be stressed: one of the golden rules guiding and aiding the Court’s interpretative work is that the Convention is a living instrument which must adapt to the realities of the society in which we live. This is why the Court is obliged to adopt an open, dynamic, finalist and teleological method of interpretation, which may seem surprising, but which is essential. As Ricoeur put it, “the meaning of a text is not behind the text but in front of it” . In this connection, the development, alongside negative obligations, of positive obligations upon States, and the horizontal application of the Convention, extending to and including relations between individuals, have played an important role in the field of children’s rights. As we shall see, the same applies to the extension of procedural safeguards. Moreover, it is interesting to observe, in both domestic and international law, that significant changes or innovations in justice systems often originate in the juvenile courts. It is as if this were a more open and more flexible area allowing new approaches to develop. Article 3 Article 3 of the Convention, which prohibits torture and inhuman and degrading treatment and punishment, enshrines an absolute right to which no exceptions are allowed under any circumstances whatsoever. Since 1999, the Court has stressed that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (Selmouni v. France judgment of 28 July 1999). Furthermore, it is an established fact that, in assessing the seriousness of the treatment that has been inflicted, the Court takes account of the victims’ personal characteristics, and particularly their age. I do not intend to discuss here the issue of corporal punishment, on which there is an established body of case-law, even if such punishment has not yet been totally eradicated in the Council of Europe member countries . I shall confine myself to three currently sensitive areas, which are those of asylum and immigration, detained minors and violence in the family. Asylum and immigration The Mubilanzila Mayeka and Kaniki Mitunga v Belgium judgment of 12 October 2006 concerns the holding of a five-year-old girl at an airport transit centre for adults and her removal from the country without the provision of any psychological or educational support by qualified staff. It should be noted here that both the mother and the daughter were applicants. The Court observes that the applicant's position was characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by Article 3 of the Convention, it is important to bear in mind that this is the decisive factor and that it takes precedence over considerations relating to the applicant's status as an illegal immigrant. The Belgian state therefore owed her a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3. In the Court's view, the applicant's detention in such conditions demonstrated a lack of humanity to such a degree that it amounted to inhuman treatment . Article 3 is also found to have been violated by reason of the failure to provide adequate preparation, supervision and safeguards for the girl’s deportation . Police violence and conditions of detention In the Assenov and others v Bulgaria judgment of 28 October 1998, the applicant was a minor aged 14 when he was arrested and taken into police custody. On the merits, the Court considers that it is impossible to establish on the basis of the available evidence whether or not the applicant’s injuries were caused by the police as alleged. On the other hand, where an individual raises an arguable claim to have been ill-treated in breach of Article 3, that provision read in conjunction with Article 1 requires by implication that there should be an effective official investigation. So it was here, in this judgment, which concerns a minor, that the Court found for the first time a procedural breach of Article 3 based on the lack of an official investigation. This was a creative way for the Court to get around the sometimes very great difficulty for minors to provide proof of ill-treatment and to impose on States the positive obligation to conduct an investigation. The Bati and others v Turkey judgment of 3 June 2004 concerned ill-treatment inflicted on young prisoners. In the Court’s view, the particularly violent and painful treatment inflicted on the applicants harmed not only their physical integrity but also their mental integrity. Taken as a whole and bearing in mind their duration and the aim pursued (obtaining confessions), these acts were described by the Court as torture. More generally, the Court has ruled on several occasions that vulnerable persons, and particularly minors, are entitled to State protection, in the form of effective deterrence, against any serious infringement of the rights set forth in Article 3, which presupposes special diligence on the part of the State to ensure that these persons enjoy conditions of detention that are consistent with respect for human dignity. Moreover, the European Prison Rules require prison regimes to take due account of the age of prisoners. Lastly, the Okkali v Turkey judgment of 17 October 2006 gave the Court the opportunity for further development of its case-law relating to the State’s positive obligations in criminal proceedings. The applicant was a boy aged 12 who had suffered ill-treatment in a police station. His complaint resulted in the police officers receiving minimum sentences, with a stay of execution. Furthermore, his action for damages was dismissed as being time-barred. The Court considers that, as a minor, the applicant should have enjoyed greater protection and that the authorities failed to take account of his particular vulnerability. Moreover, the proceedings resulted in impunity for persons who had committed acts in breach of the absolute prohibition laid down in Article 3. In applying and interpreting national legislation, the judges had used their discretion to lessen the consequences of an extremely serious unlawful act rather than to show that such acts could in no way be tolerated. As it had been applied, the criminal-law system had had no dissuasive effect capable of ensuring the effective prevention of unlawful acts such as these. In view of their outcome, the impugned criminal proceedings had failed to provide appropriate redress for an infringement of the principle enshrined in Article 3. This provision had therefore been violated. In the case of minors deprived of their liberty, the reports drawn up by the Committee for the Prevention of Torture should also be taken into account and carefully examined. These reports, based on the committee’s on-the-spot visits, raise in a particularly pertinent way the serious problems posed by the detention of minors. Abuse and violence within the family The Court has also given several rulings under Article 3 on acts of physical violence against children within the family. In such judgments as A v United Kingdom of 23 September 1998, Z and others v United Kingdom of 10 May 2001 or E and others v United Kingdom of 26 November 2002, the Court reiterated the positive obligation upon the State to take measures designed to ensure that children are not subjected to inhuman or degrading treatment, including such ill-treatment administered by private individuals, which was the case here as the individual in question was the stepfather. This, then, is horizontal application of the Convention. In addition to criminal sanctions, the Court requires States to introduce reasonable measures to prevent ill-treatment. In some cases it is the law which does not provide adequate protection and must be amended . In other cases it is the system which has failed in its duty to protect children or, at the very least, to minimise the risks: the authorities, and more especially the social services, knew or should have known that the children were faced with a real danger . Article 4 In the Siliadin v France judgment of 26 July 2005, concerning a girl of Togolese nationality who was subjected to what is now termed domestic slavery, the Court for the first time applied Article 4 of the Convention, which prohibits slavery and forced labour. It says that the applicant was held in a state of servitude and that French legislation did not provide adequate protection as such acts were not offences under criminal law. In other words, “States’ positive obligations (…) must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation” . The Court points out that it “has previously stated that children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity”, in accordance, moreover, with the United Nations Convention on the Rights of the Child (Articles 19 and 37) . It is important to note that this case came before the Court because the girl’s case was taken up by voluntary organisations, in particular the Committee against Modern Slavery. Article 5 According to its own wording, Article 5, which safeguards the right to liberty and security, applies to “everyone”. The safeguard obviously extends to minors, and this is a point which does not lend itself to controversy. Among the cases in which deprivation of liberty is allowed, Article 5 § 1 d) provides for the detention of a minor by lawful order for the purpose of educational supervision. Recently, in the D G v Ireland judgment of 16 May 2002, the Court ruled that, in the absence of accommodation appropriate to a regime of educational supervision, the detention of a minor in prison for several months was unlawful . In the Selçuk v Turkey judgment of 10 January 2006, the applicant, who was a minor at the time of the events (age 16), was remanded in custody for four months before being released. Having regard particularly to the fact that the applicant was a minor at the time, the Court found that the authorities had failed to convincingly demonstrate the need for the applicant’s detention on remand for that period (Article 5 § 3). Generally speaking, in their initial contacts with young people, I think that the police and the judicial authorities should be mindful of young people’s particular vulnerability and the fact that this first experience may set them irrevocably on the path to delinquency. Lastly, in the Mubilanzila Mayeka and Kaniki Mitunga v Belgium judgment of 12 October 2006, which I have already mentioned, the further question arose of whether the five-year-old girl’s detention under paragraph f) of Article 5 – “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country” – was in fact lawful within the meaning of that provision. In this connection, the Court notes that the child was detained in a closed centre intended for illegal immigrants in the same conditions as adults, which were not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor . In these circumstances, the Court considered that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the applicant's right to liberty . Article 6 Article 6 enshrines the right to law and to a fair trial. This is indeed the very heart of the justice system in a democratic society: in place of conflict and attempts to settle it through violence, the right of access to a court paves the way for a just decision. An important question here is the child’s ability to participate in proceedings. In the S C v United Kingdom judgment of 15 June 2004, the Court notes that it is essential that the child 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 intention is no doubt to be realistic. “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. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence” . Another significant question concerns the child’s right to be heard. In the Sahin v Germany judgment of 8 July 2003, the Court held that there had been a violation not only of Article 6 but also of Article 8 insofar as the German courts had not given the child a hearing to obtain full and accurate information on his relationship with his father. Lastly, from a criminal-law standpoint, the protection system to which children in many countries have been subject obviously has some pernicious effects. In the R v United Kingdom decision of 4 January 2007, for instance, the Court held that the warning given by the police to a minor who had indecently assaulted girls at his school did not fall within the scope of the guarantees of a fair trial since it did not involve the determination of a criminal charge. Article 8 Article 8 secures the right to respect for private and family life. Here at the European Court of Human Rights we obviously have a large body of litigation relating to compliance with this provision in connection with the placement of children in care and the whole issue of custody and access rights in divorce proceedings. Parents have the right to live with their children just as children have the right to live with their parents. I do not have time to deal with such complex, delicate and sensitive matters in this brief statement. I shall therefore confine myself to what I consider to be three new issues. The right to know one’s origins In some recent judgments the Court has recognised the right of children to know their origins, the identity of their parents and the circumstances of their birth . In the cases of Mikulic v Croatia (judgment of 7 February 2002) and Ebru and Tayfun Engin Çolak v Turkey (judgment of 30 May 2006), the Court recognised the right of a child to know the details of his or her parentage. In the Odièvre v France judgment of 13 February 2003, the Court held that “birth, and in particular the circumstances in which a child is born, forms part of a child's (…) private life guaranteed by Article 8 of the Convention (…)” , while in the Jäggi v Switzerland judgment of 13 July 2006, the Court went so far as to say that the right to know one’s parentage lay at the heart of the right to private life . In this currently sensitive area in which developments are obviously speeding up as a result of the growth of biotechnology, the Court is increasingly confronted with conflicts between fundamental rights: the child’s right to know his or her parentage versus the right of the mother, for example, to preserve her anonymity or her privacy or the father’s right not to submit to DNA tests . In my view, these conflicts of rights are currently the most difficult for the Court to resolve because they call for an original resolution method. How can rights which, on the face of it, warrant equal respect be weighed against each other? In the Mikulic judgment, the Court adopted a procedural approach to this: if the system does not make it obligatory for the father to submit to a DNA test, other means must be employed to enable an independent authority to determine the applicant’s paternity. Consent to adoption The V S v Germany decision of 22 May 2007 raises an interesting and novel question: it concerns the consent of the applicant, who is a minor, to the adoption of her child. She had given birth to her child when she was 16 and, after consenting to adoption, she subsequently changed her mind. She complains that her consent given in writing before a notary had been authenticated despite her being a minor and without any need for the approval of her mother as legal guardian, as required by the Civil Code. The Civil Code states that consent by a minor to the adoption of her child is a legal act of a personal nature not requiring any approval by the legal guardians or the guardianship court, as in the provisions relating to the marriage of a minor. The issue here is the difference in the protection afforded to a minor as regards marriage, on the one hand, and consent to the adoption of her own child, on the other. The question is all the more crucial in that consent to adoption is irrevocable, with far-reaching consequences such as the permanent severing of all family ties with the child. On the other hand, a marriage can be dissolved, and even before that a judicial separation is possible. The Court nevertheless declared the application inadmissible, saying that its task is not to replace the domestic authorities, which in principle are in a better position that the international courts to weigh up the competing interests because of their direct contact with the context of the case and all the parties concerned”. The Court therefore considered that the national authorities had not exceeded their margin of discretion in this case, especially as it had found no consensus among the Contracting States regarding the manner of dealing with adoption issues. Foreign and immigrant minors Regarding the expulsion of under-age offenders, the Jakupovic v Austria judgment of 6 February 2003 concerned offences committed while the applicant was still a minor. The Court considered that very weighty reasons had to be put forward to justify the expulsion of a young person (16 years old), alone, to a country (Serbia) which had recently experienced a period of armed conflict with all its adverse effects on living conditions and with no evidence of close relatives living there. In the Radovanovic v Austria judgment of 22 April 2004, the Court also found a violation of Article 8: the case concerned the deportation of a foreign national who had lived in Austria since his childhood and had been convicted while still a minor of aggravated robbery and burglary. In addition to his sentence, an unlimited residence prohibition was issued against him. Without overlooking the gravity of the offences committed by the applicant, the Court notes that he committed them while still a minor, that he had no previous criminal record and that part of his sentence was suspended. In the Mubilanzila Mayeka and Kaniki Mitunga v Belgium judgment of 12 October 2006, which I have already mentioned, the Court adds an interesting element: “since the applicant was an unaccompanied foreign minor, the Belgian State was under an obligation to facilitate the family's reunification” . Article 9 The recently communicated Grzelak v Poland application concerns the lack of suitable alternative arrangements for State primary school pupils who have chosen not to attend religious instruction. The applicants are the parents of the child concerned and the case is based on Article 9 read together with Article 14 of the Convention. Article 2 of Protocol No 1 One application pending before the Grand Chamber and another which has been communicated concern the situation of Roma children at school. In the D H and others v Czech Republic application, the applicants complain under Article 2 of Protocol No 1 read together with Article 14 of the Convention that they were placed in special schools for children with intellectual disabilities. While disputing the reliability of the tests performed and claiming that their parents had not been adequately informed about the consequences of their agreeing to the placement, the applicants argue that their placement in special schools was a widespread practice creating segregation and racial discrimination. In the Sampanis and others v Greece application (communicated on 20 February 2007), the applicants complain about the failure of the authorities to invite them to enrol their children of school age in the municipal primary school, causing them to miss a year of schooling. Moreover, even after their children had been enrolled in primary school, the heads of the school gave in to pressure from parents and required children of Roma origin initially to attend evening classes reserved specifically for them, then to receive schooling in premises separate from the main school premises. I felt it was important to mention these two cases because they are virtually the only ones where very little use is made of Article 14 of the Convention, which is the natural basis for prohibition of the discrimination suffered, as we know, especially by vulnerable applicants. Conclusion Children’s rights are a crucial issue requiring thorough consideration, and that is what we are all trying to do at the moment. However, this does not exhaust the whole subject. The basic issues facing young people are not only legal but also social, economic and cultural. The major divisions in our society are to be found among children too: poverty, exclusion and discrimination. Respect for children’s rights must go hand in hand with development of their basic needs: children must be included in our policies to improve well-being. Rights are never an end in themselves. They are a means towards a fairer, more cohesive society for everyone. This, in my view, is the significance and the strength of the Council of Europe’s programme on “Building a Europe for and with children”.
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