The European Court of Human Rights and Children’s Rights

1. The European Court of Human Rights andChildren’s Rights ENOC Training Workshop The Hague 4-5 June 2012 Vincent A. De Gaetano

2. Convention for the Protection of Human Rights and Fundamental Freedoms Signed – Rome 4 November 1950 Into force – September 1953 List of civil rights and political rights + enforcement mechanism Gradual evolution

3. Signatories to the Convention Originally: signed by thirteen countries --Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Turkey, the UK and the Saar Protectorate Today: signed and ratified by 47 states – from the largest (Russian Federation, Turkey, France, Germany, Spain) to some of the smallest (San Marino, Andorra, Liechtenstein, Monaco, Malta)

4. Enforcement mechanism of the Convention European Commission of Human Rights (set up in 1954) European Court of Human Rights (1959) Committee of Ministers

5. Major reform – Protocol No. 11 – as from 1 November 1998 Adjudicative function of Committee of Ministers abolished (Comm. of Min. retaining only supervision of execution of Court’s judgments) Commission abolished > screening function transferred to Court Full time Court established Recognition of right of individual petition becomes compulsory for all Contracting States Recognition of compulsory jurisdiction of the Court becomes obligatory.

6. Types of applications Individual applications (the individual against the State) State applications (a State against another State) also known as inter-state applications e.g. Ireland v. the United Kingdom Cyprus v. Turkey Georgia v. Russia

7. The “first rights” Substantively, the Convention was much more modest than the Universal Declaration of Human rights. Only those rights were originally listed which the framers of the Convention believed could be effectively enforced : right to life, prohibition of torture and of inhuman or degrading treatment or punishment, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry – and the right to have these rights secured effectively and without discrimination.

8. The more important Protocols (substantively) Protocol no 1 Protection of property Right to education Right to free elections Protocol no 4 Prohibition of imprisonment for debt Freedom of movement Prohibition of expulsion of nationals Prohibition of collective expulsion of aliens Protocols no 6 & 13 Abolition of the death penalty Protocol no 7 Procedural safeguards relating to the expulsion of aliens Right of appeal in criminal matters Compensation for wrongful convictions Right not to be tried or punished twice Equality between spouses Protocol no 12 General prohibition of discrimination

9. HowtheCourtworks Plenary – 47 judges – administrative functions only Grand Chamber – 17 judges (+ 3 substitutes and 3 reserves) Grand Chamber Panel – 5 judges each (the panel only decides on “leave to appeal” to the G.C.) Chamber (or Section) – 7 judges (+ 2 or 3 substitutes). There are in all five Sections Committee – 3 judges Single judge formation – today the most important judicial formation for weeding out unmeritorious applications

11. A few statistics In 2010 over 60,000 new applications were received 90 to 95 % of all applications are dismissed at single judge formation Country with most number of applications allocated to judicial formation last year – Russia – 84,775 Country with least number of applications allocated to judicial formation last year – San Marino – 32 Total number of judgments delivered last year – 1,499 Total number of applications struck out last year by decision or judgment following a friendly settlement or unilateral declaration – 1,223

12. Some basic principles • Subsidiarity • Art. 1 – “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention. • Exhaustion of domestic remedies • “Fourth instance” • Margin of appreciation • Proportionality

13. The Convention does not explicitly refer to children’s rights. • The only direct reference to minors is in the context of a “denial of a right” – a minor may be deprived of his liberty in the situation envisaged in Art. 5(1)(d) –“the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority…”. • There may be an implicit or veiled reference in Art. 2 of Protocol 1 – Right to education – to children in so far as there is a reference to respecting “the right of parents to ensure [such] education and teaching in conformity with their [i.e. the parents’] own religious and philosophical convictions.”

14. Principles applicable in relations to children’s rights • Children fall under “everyone” in Art. 1 and under “any person” in Article 34 • Some Articles necessarily lend themselves more to issues involving children – e.g. Art. 8 (right to respect of family life) and Art. 2 of Protocol 1 (right to education) • The ECtHR gives special attention to children because it considers them as being a “vulnerable” group (see Siliadin v. France 26/7/05 §§ 112, 143) • The role of States’ “positive obligations”

15. Positive obligations “Positive obligations is a label used to describe the circumstances in which a Contracting Party is required to take action in order to secure to those within its jurisdiction the rights protected by the Convention. Though positive obligations were once thought to be the exception rather than the rule, there are now hardly any provisions of the Convention under which positive obligations have not been recognised.” Jacobs, White and Ovey The European Convention on Human Rights

16. Positive obligations - 2 The concept of positive obligations is particularly useful where protection is sought not from interference by the State but from interference by third parties (i.e. non State actors). e.g. (negative obligation) Tyrer v. United Kingdom 25/4/1978 – judicial corporal punishment in Isle of Man – 15-year old boy was found guilty of causing actual bodily harm on another pupil at school. He was sentenced to caning (he was required to take of his trousers and underpants, bend over a table, and while two policemen held him down a third would strike him three times with a birch.

17. Positive obligations – 2 continued The ECtHR considered this punishment a form of “institutionalised violence” in violation of Art. 3, and the law on the Island had to be changed. e.g. (positive obligation) A v. United Kingdom 23/9/1998 – a supposedly ‘difficult’ 9-year old was caned several times with considerable force by his step-father, causing bruising and physical pain. The step-father was tried for assault causing actual bodily harm but was acquitted because English law at the time allowed for a defence of ‘reasonable punishment’. The ECtHR found a violation of Art. 3 because the State had failed to take positive steps to protect a vulnerable category.

18. Positive obligations – 2 continued § “It remains to be determined whether the State should be held responsible, under Art. 3, for the beating of the applicant by his stepfather. The Court considers that the obligation of the High Contracting Parties under Art. 1…to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Art. 3, requires States to take measures designed to ensure that individuals within their jurisdictions are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals…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.”

19. Selection of cases involving minors Art. 2 Abdurashidova v. Russia 8 April 2010: police armed assault on a house to apprehend suspects – the authorities failed to take reasonable measures to prevent the real and immediate danger to which a child’s life was clearly exposed; also failure to conduct an effective investigation into the circumstances of the child’s death.

20. Art. 3 C.A.S. and C.S. v. Romania 20 April 2012: the applicants are son (1990) and father (1954). The case concerned a seven-year-old’s complaint that it had taken the authorities to investigate his repeated rape by a man, eventually acquitted, who had forced his way into the family flat when the boy had come home alone from school in a period from January to April 1998. C.A.S. alleged in particular that the violent sexual abuse to which he had been subjected was of such gravity that it had amounted to torture, and that the proceedings had been slanted, the domestic courts having blamed his parents and, to a certain extent him, for not reacting sooner. Both applicants further complained that their family life had been destroyed and that they had been forced to leave the town in which they lived to rebuild a normal life. The ECtHR found a violation of both Art. 3 and of Art 8.

21. Arts. 14 & 2 of Prot. 1 Sampanis and Others v. Greece 5 June 2008. This case concerns Greek children of Roma origin, who were being segregated immediately and placed into separate classes. No attempt was made to subject them, either initially or later, to see whether each one was able to join the main school or regular class. The ECtHR found that the difference in treatment between children of Roma origin and other children was neither objectively justified nor reasonable, and was therefore discriminatory, and there was thus a violation of both Articles of the Convention.

22. Priority At the domestic level: In general the ECtHR insists that childcare proceedings (whether direct or collateral) should be managed with particular expedition or “special diligence”. What is acceptable for a property case or an administrative law case is generally not acceptable in childcare proceedings (e.g. a delay of almost two years to decide on an application for access to a child was held in H. v. UK 8 July 1987 to amount to both a violation of Art. 6 and of Art. 8. Whether the length of child care proceedings will disclose a violation of Art. 8 will depend largely on the prejudicial effect on the outcome of the proceedings. Protracted criminal proceedings (against an adult) which have the direct consequence of seriously curtailing enjoyment of family life may also raise issues. A delay at one stage may be acceptable if the overall duration of the proceedings is in compliance with the “special diligence” requirement for childcare proceedings. See also §§ 76-77 of Adam v. Germany 4 December 2008.

23. Priority continued At the Convention level – Rule 41 of the Rules of Court applies – “In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it. The Chamber, or its President, may, however derogate from these criteria so as to give priority to a particular application.”

24. Current hierarchy of priorities • Urgent applications (in particular risk to life or health of the applicant, other circumstances linked to the personal or family situation of the applicant – particularly where the well-being of a child is at issue – and applications where a Rule 39 injunction has been issued. • Applications raising questions capable of having an impact of the effectiveness of the Convention System – e.g. a structural or endemic situation that the ECtHR has not yet examined, pilot-judgment procedure – applications raising an important question of general interest – i.e. the outcome is capable of having implications for domestic systems – and inter-State cases. • Applications which prima facie raise as main complaints issues under Articles 2, 3, 4 or 5(1) of the Convention (the so called “core rights”) • (other categories are irrelevant)

25. Does a child have the right to bring a case before the ECtHR unassisted? • The short answer is YES. Examples are: • Tyrer v. UK 25/4/78 • Bouamar v. Belgium 29/2/88 • Aydin v. Turkey 25/9/97 (the applicant was a 17 year old girl). • A. v. United Kingdom (the boy who applied to the Commission in 1994 was then 10 years old – the Commission declared the application admissible). • Zehenter v. Austria 16/7/09 – the applicant was under guardianship for mental reasons. She applied to the ECtHR unassisted. The Court, at § 39, referring to Art. 43, said “There is no obligation in general, or for persons lacking legal capacity in particular, to be represented at the initial stage of the proceedings [before the ECtHR].”

26. Other relevant cases: Who can represent a minor before the ECtHR? Scozzari and Giunta v. Italy 13/7/2000 Giusto and Others v. Italy 15/5/2007 The minor can also be represented by an NGO Siliadin v. France 26/7/07 BUT there may be practical problems: • Clarity of application and supply of all relevant material • Exhaustion of domestic remedies • Need to be legally represented at a later stage • Execution of the ECtHR at a later stage