The European Court of The European Court of Human Rights andHuman Rights andChildren’s RightsChildren’s Rights

ENOC Training WorkshopENOC Training Workshop

The HagueThe Hague

4-5 June 20124-5 June 2012

Vincent A. De GaetanoVincent A. De Gaetano

Convention for the Protection of Convention for the Protection of Human Rights and Fundamental Human Rights and Fundamental

FreedomsFreedoms

Signed – Rome 4 November 1950Signed – Rome 4 November 1950 Into force – September 1953Into force – September 1953 List of civil rights and political rights List of civil rights and political rights

+ enforcement mechanism+ enforcement mechanism Gradual evolutionGradual evolution

Signatories to the Signatories to the ConventionConvention

Originally: signed by thirteen countries --Originally: signed by thirteen countries --Belgium, Denmark, France, Germany, Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Turkey, the UK Netherlands, Norway, Turkey, the UK and the Saar Protectorateand the Saar Protectorate

Today: signed and ratified by 47 states – Today: signed and ratified by 47 states – from the largest (Russian Federation, from the largest (Russian Federation, Turkey, France, Germany, Spain) to some Turkey, France, Germany, Spain) to some of the smallest (San Marino, Andorra, of the smallest (San Marino, Andorra, Liechtenstein, Monaco, Malta)Liechtenstein, Monaco, Malta)

Enforcement mechanism of the Enforcement mechanism of the ConventionConvention

European Commission of Human European Commission of Human Rights (set up in 1954)Rights (set up in 1954)

European Court of Human Rights European Court of Human Rights (1959)(1959)

Committee of MinistersCommittee of Ministers

Major reform – Protocol No. 11 – as Major reform – Protocol No. 11 – as from 1 November 1998from 1 November 1998

Adjudicative function of Committee of Adjudicative function of Committee of Ministers abolishedMinisters abolished (Comm. of Min. (Comm. of Min. retaining only supervision of execution retaining only supervision of execution of Court’s judgments)of Court’s judgments)

Commission abolished Commission abolished > screening > screening function transferred to Courtfunction transferred to Court

Full time Court Full time Court establishedestablished Recognition ofRecognition of right of individual right of individual

petitionpetition becomes compulsory for all becomes compulsory for all Contracting StatesContracting States

Recognition of Recognition of compulsory jurisdiction of compulsory jurisdiction of the Courtthe Court becomes obligatory. becomes obligatory.

Types of applicationsTypes of applications

Individual applications (the individual Individual applications (the individual against the State)against the State)

State applications (a State against State applications (a State against another State) also known as inter-state another State) also known as inter-state

applicationsapplicationse.g. e.g. Ireland v. the United KingdomIreland v. the United Kingdom

Cyprus v. TurkeyCyprus v. TurkeyGeorgia v. RussiaGeorgia v. Russia

The “first rights”The “first rights”

Substantively, the Convention was much more modest Substantively, the Convention was much more modest than the Universal Declaration of Human rights.than the Universal Declaration of Human rights.

Only those rights were originally listed which the Only those rights were originally listed which the framers of the Convention believed could be framers of the Convention believed could be effectively enforced : effectively enforced :

right to life, prohibition of torture and of inhuman or right to life, prohibition of torture and of inhuman or degrading treatment or punishment, prohibition of degrading treatment or punishment, prohibition of slavery and forced labour, right to liberty and slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without security, right to a fair trial, no punishment without law, right to respect for private and family life, law, right to respect for private and family life, freedom of thought, conscience and religion, freedom freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, of expression, freedom of assembly and association, right to marry – and the right to have these rights right to marry – and the right to have these rights secured effectively and without discrimination.secured effectively and without discrimination.

The more important Protocols The more important Protocols (substantively)(substantively)

Protocol no 1Protocol no 1Protection of propertyProtection of propertyRight to educationRight to educationRight to free electionsRight to free elections

Protocol no 4Protocol no 4Prohibition of imprisonment for debtProhibition of imprisonment for debtFreedom of movementFreedom of movementProhibition of expulsion of nationalsProhibition of expulsion of nationalsProhibition of collective expulsion of aliensProhibition of collective expulsion of aliens

Protocols no 6 & 13Protocols no 6 & 13Abolition of the death penaltyAbolition of the death penalty

Protocol no 7Protocol no 7Procedural safeguards relating to the expulsion of aliensProcedural safeguards relating to the expulsion of aliensRight of appeal in criminal mattersRight of appeal in criminal mattersCompensation for wrongful convictionsCompensation for wrongful convictionsRight not to be tried or punished twiceRight not to be tried or punished twiceEquality between spousesEquality between spouses

Protocol no 12Protocol no 12General prohibition of discriminationGeneral prohibition of discrimination

PlenaryPlenary – 47 judges – administrative – 47 judges – administrative functions onlyfunctions only

Grand ChamberGrand Chamber – 17 judges (+ 3 – 17 judges (+ 3 substitutes and 3 reserves)substitutes and 3 reserves)

Grand Chamber PanelGrand Chamber Panel – 5 judges each (the – 5 judges each (the panel only decides on “leave to appeal” to panel only decides on “leave to appeal” to the G.C.)the G.C.)

ChamberChamber (or Section) – 7 judges (+ 2 or 3 (or Section) – 7 judges (+ 2 or 3 substitutes). There are in all five Sectionssubstitutes). There are in all five Sections

CommitteeCommittee – 3 judges – 3 judges Single judge formation Single judge formation – today the most – today the most

important judicial formation for weeding out important judicial formation for weeding out unmeritorious applicationsunmeritorious applications

In 2010 over 60,000 new applications were receivedIn 2010 over 60,000 new applications were received 90 to 95 % of all applications are dismissed at single judge 90 to 95 % of all applications are dismissed at single judge

formationformation Country with most number of applications allocated to Country with most number of applications allocated to

judicial formation last year – Russia – 84,775judicial formation last year – Russia – 84,775 Country with least number of applications allocated to Country with least number of applications allocated to

judicial formation last year – San Marino – 32judicial formation last year – San Marino – 32 Total number of judgments delivered last year – 1,499Total number of judgments delivered last year – 1,499 Total number of applications struck out last year by Total number of applications struck out last year by

decision or judgment following a friendly settlement or decision or judgment following a friendly settlement or unilateral declaration – 1,223unilateral declaration – 1,223

Some basic principlesSome basic principles

SubsidiaritySubsidiarity Art. 1 – “The High Contracting Parties shall secure to Art. 1 – “The High Contracting Parties shall secure to

everyone within their jurisdictioneveryone within their jurisdiction the rights and freedoms the rights and freedoms defined in Section 1 of the Convention.defined in Section 1 of the Convention.

1.1. Exhaustion of domestic remediesExhaustion of domestic remedies

2.2. ““Fourth instance”Fourth instance”

Margin of appreciationMargin of appreciation ProportionalityProportionality

The Convention does not explicitly refer to The Convention does not explicitly refer to children’s rights.children’s rights.

The only direct reference to minors is in the The only direct reference to minors is in the context of a “denial of a right” – a minor may be context of a “denial of a right” – a minor may be deprived of his liberty in the situation envisaged in deprived of his liberty in the situation envisaged in Art. 5(1)(d) –Art. 5(1)(d) – “the detention of a minor by lawful “the detention of a minor by lawful order for the purpose of educational supervision or order for the purpose of educational supervision or his lawful detention for the purpose of bringing him his lawful detention for the purpose of bringing him before the competent legal authority…”.before the competent legal authority…”.

There may be an implicit or veiled reference in Art. There may be an implicit or veiled reference in Art. 2 of Protocol 1 – Right to education – to children in 2 of Protocol 1 – Right to education – to children in so far as there is a reference to respecting so far as there is a reference to respecting “the “the right of parents to ensure [such] education and right of parents to ensure [such] education and teaching in conformity with their [i.e. the parents’] teaching in conformity with their [i.e. the parents’] own religious and philosophical convictions.”own religious and philosophical convictions.”

Principles applicable in relations to children’s Principles applicable in relations to children’s rightsrights

Children fall under “everyone” in Art. 1 and under Children fall under “everyone” in Art. 1 and under “any person” in Article 34“any person” in Article 34

Some Articles necessarily lend themselves more Some Articles necessarily lend themselves more to issues involving children – e.g. Art. 8 (right to to issues involving children – e.g. Art. 8 (right to respect of family life) and Art. 2 of Protocol 1 respect of family life) and Art. 2 of Protocol 1 (right to education)(right to education)

The ECtHR gives special attention to children The ECtHR gives special attention to children because it considers them as being a because it considers them as being a “vulnerable” group (see “vulnerable” group (see Siliadin v. FranceSiliadin v. France 26/7/05 26/7/05 §§ 112, 143)§§ 112, 143)

The role of States’ “positive obligations”The role of States’ “positive obligations”

Positive obligationsPositive obligations

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

Jacobs, White and OveyJacobs, White and Ovey

The European Convention on Human RightsThe European Convention on Human Rights

Positive obligations - 2Positive obligations - 2

The concept of positive obligations is particularly The concept of positive obligations is particularly useful where protection is sought not from useful where protection is sought not from interference by the State but from interference by interference by the State but from interference by third parties (i.e. non State actors).third parties (i.e. non State actors).

e.g. (negative obligation) e.g. (negative obligation) Tyrer v. United Tyrer v. United Kingdom Kingdom 25/4/1978 – judicial corporal 25/4/1978 – judicial corporal punishment in Isle of Man – 15-year old boy was punishment in Isle of Man – 15-year old boy was found guilty of causing actual bodily harm on found guilty of causing actual bodily harm on another pupil at school. He was sentenced to another pupil at school. He was sentenced to caning (he was required to take of his trousers caning (he was required to take of his trousers and underpants, bend over a table, and while two and underpants, bend over a table, and while two policemen held him down a third would strike him policemen held him down a third would strike him three times with a birch.three times with a birch.

Positive obligations – 2 continuedPositive obligations – 2 continued

The ECtHR considered this punishment a form of The ECtHR considered this punishment a form of “institutionalised violence” in violation of Art. 3, “institutionalised violence” in violation of Art. 3, and the law on the Island had to be changed.and the law on the Island had to be changed.

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

Positive obligations – 2 continuedPositive obligations – 2 continued

§ “It remains to be determined whether the State should be § “It remains to be determined whether the State should be held responsible, under Art. 3, for the beating of the held responsible, under Art. 3, for the beating of the applicant by his stepfather. The Court considers that the applicant by his stepfather. The Court considers that the obligation of the High Contracting Parties under Art. 1…to obligation of the High Contracting Parties under Art. 1…to secure to everyone within their jurisdiction the rights and secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with freedoms defined in the Convention, taken together with Art. 3, requires States to take measures designed to ensure Art. 3, requires States to take measures designed to ensure that individuals within their jurisdictions are not subjected that individuals within their jurisdictions are not subjected to torture or inhuman or degrading treatment or to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by punishment, including such ill-treatment administered by private individuals…Children and other vulnerable private individuals…Children and other vulnerable individuals, in particular, are entitled to State protection in individuals, in particular, are entitled to State protection in the form of effective deterrence, against such serious the form of effective deterrence, against such serious breaches of personal integrity.”breaches of personal integrity.”

Selection of cases involving minorsSelection of cases involving minors

Art. 2Art. 2

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

Art. 3Art. 3

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

Arts. 14 & 2 of Prot. 1Arts. 14 & 2 of Prot. 1

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

PriorityPriority

At the domestic level: In general the ECtHR insists that childcare proceedings At the domestic level: In general the ECtHR insists that childcare proceedings (whether direct or collateral) should be managed with particular expedition (whether direct or collateral) should be managed with particular expedition or “special diligence”. What is acceptable for a property case or an or “special diligence”. What is acceptable for a property case or an administrative law case is generally not acceptable in childcare administrative law case is generally not acceptable in childcare proceedings (e.g. a delay of almost two years to decide on an application proceedings (e.g. a delay of almost two years to decide on an application for access to a child was held in for access to a child was held in H. v. UK H. v. UK 8 July 1987 to amount to both a 8 July 1987 to amount to both a violation of Art. 6 and of Art. 8. Whether the length of child care 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 proceedings will disclose a violation of Art. 8 will depend largely on the prejudicial effect on the outcome of the proceedings. Protracted criminal prejudicial effect on the outcome of the proceedings. Protracted criminal proceedings (against an adult) which have the direct consequence of proceedings (against an adult) which have the direct consequence of seriously curtailing enjoyment of family life may also raise issues. A delay 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 at one stage may be acceptable if the overall duration of the proceedings is in compliance with the “special diligence” requirement for childcare in compliance with the “special diligence” requirement for childcare proceedings. See also proceedings. See also §§ 76-77 of §§ 76-77 of Adam v. Germany Adam v. Germany 4 December 2008.4 December 2008.

Priority Priority continuedcontinued

At the Convention level – Rule 41 of the Rules of Court applies –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 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 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 of criteria fixed by it. The Chamber, or its President, may, however derogate from these criteria so as to give priority to a particular derogate from these criteria so as to give priority to a particular application.”application.”

Current hierarchy of prioritiesCurrent hierarchy of priorities

1.1. Urgent Urgent applications (in particular risk to life or health of the applications (in particular risk to life or health of the applicant, other circumstances linked to the personal or family applicant, other circumstances linked to the personal or family situation of the applicant – particularly where situation of the applicant – particularly where the well-being the well-being of a child is at issueof a child is at issue – and applications where a Rule 39 – and applications where a Rule 39 injunction has been issued.injunction has been issued.

2.2. Applications raising questions capable of having an Applications raising questions capable of having an impact of impact of the effectiveness of the Convention System the effectiveness of the Convention System – e.g. a – e.g. a structural or endemic situation that the ECtHR has not yet structural or endemic situation that the ECtHR has not yet examined, pilot-judgment procedure – applications raising an examined, pilot-judgment procedure – applications raising an important question of general interest important question of general interest – i.e. the outcome is – i.e. the outcome is capable of having implications for domestic systems – and capable of having implications for domestic systems – and inter-State casesinter-State cases..

3.3. Applications which Applications which prima facieprima facie raise as main complaints issues raise as main complaints issues under under Articles 2, 3, 4 or 5(1) Articles 2, 3, 4 or 5(1) of the Convention (the so of the Convention (the so called “core rights”)called “core rights”)

4.4. (other categories are irrelevant)(other categories are irrelevant)

Does a child have the right to bring a case before the Does a child have the right to bring a case before the ECtHR unassisted?ECtHR unassisted?

The short answer is YES. Examples are:The short answer is YES. Examples are:1.1. Tyrer v. UK 25/4/78Tyrer v. UK 25/4/782.2. Bouamar v. Belgium 29/2/88Bouamar v. Belgium 29/2/883.3. Aydin v. Turkey 25/9/97 (the applicant was a 17 year old Aydin v. Turkey 25/9/97 (the applicant was a 17 year old

girl).girl).4.4. A. v. United Kingdom (the boy who applied to the A. v. United Kingdom (the boy who applied to the

Commission in 1994 was then 10 years old – the Commission in 1994 was then 10 years old – the Commission declared the application admissible).Commission declared the application admissible).

5.5. Zehenter v. Austria 16/7/09 – the applicant was under Zehenter v. Austria 16/7/09 – the applicant was under guardianship for mental reasons. She applied to the guardianship for mental reasons. She applied to the ECtHR unassisted. The Court, at § 39, referring to Art. 43, ECtHR unassisted. The Court, at § 39, referring to Art. 43, said “There is no obligation in general, or for persons said “There is no obligation in general, or for persons lacking legal capacity in particular, to be represented at lacking legal capacity in particular, to be represented at the initial stage of the proceedings [before the ECtHR].”the initial stage of the proceedings [before the ECtHR].”

Other relevant cases: Other relevant cases:

Who can represent a minor before the ECtHR?Who can represent a minor before the ECtHR?

Scozzari and Giunta v. Italy 13/7/2000Scozzari and Giunta v. Italy 13/7/2000

Giusto and Others v. Italy 15/5/2007Giusto and Others v. Italy 15/5/2007

The minor can also be represented by an NGO The minor can also be represented by an NGO

Siliadin v. France 26/7/07Siliadin v. France 26/7/07

BUT there may be practical problems:BUT there may be practical problems: Clarity of application and supply of all relevant materialClarity of application and supply of all relevant material Exhaustion of domestic remediesExhaustion of domestic remedies Need to be legally represented at a later stageNeed to be legally represented at a later stage Execution of the ECtHR at a later stageExecution of the ECtHR at a later stage