Protecting Children’s Procedural Rights Through the European Social Charter

By Karolína Babická, Legal Adviser at the International Commission of Jurists, and Maroš Matiaško, Senior legal counsel at the Forum for Human Rights.

On 17 March 2021 the decision of the European Committee on Social Rights (ECSR) in the collective complaint No. 148/2017 ICJ v Czech Republic, was made public. The Committee found a violation of Article 17 of the 1961 European Social Charter, on the grounds that children below the age of criminal responsibility, accused or suspected of having breached the law lacked of access to legal assistance and the possibility of diversions in proceedings against them. 

The complaint was brought to the ECSR in 2017 by the International Commission of Jurists (ICJ) and Forum for Human Rights, a Czech and Slovak civil society organisation.

Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.

Children concerned by the complaint

In the Czech Republic, the age of criminal responsibility is 15 years of age, which is slightly higher than average for countries in Europe.

Yet, even though children below the age of criminal responsibility cannot be held criminally liable, they often are partially subjected to pretrial criminal proceedings resulting in concrete sanctions imposed by the juvenile court. These sanctions may even include deprivation of liberty in an “educational correction centre”, “children’s homes with schools” or “psychiatric hospitals”.

The Czech Juvenile Justice Act (218/2003 Sb.) covers two age groups of youth: children below the age of criminal responsibility (under the age of 15) and juveniles (aged 15-18). When it comes to this latter group of juveines, according to the law they are always entitled to access to professional legal assistance, from the start of the pre-trial stage of the proceedings, where as  the younger children are not. Further, they do not have access to the so-called “diversions” (alternatives in the proceedings) based on restorative justice principles, for example settlement or conditional termination or withdrawal of criminal proceedings. Without such diversions, the state prosecutor must always bring the case to the court. As a result, the children below the age of 15 are subjected to formal judicial proceedings, including when accused of petty offences.

To give an example submitted in the complaint itself:

“Jakub was 14 years old when he allegedly committed an assault against his teacher at his school. Immediately after the incident, he was detained at the school director’s office and then taken to the police station where he was held for approximately seven hours. During that time he was not allowed to contact anybody and was interrogated without being informed about the right to remain silent, in the absence of a lawyer or his parents. He was also subjected to fingerprinting and extracting DNA, again in the absence of a lawyer or his parents.“

There have also been cases of children, including some with serious intellectual disability, being interrogated for many hours by the police, being put under pressure, without any access to procedural guarantees especially without access a legal adviser.

From the official statistics that were presented to the Committee, it is clear that approximately one-third of all children in the juvenile justice system are below the age of criminal responsibility in the Czech Republic.

The decision of the ECSR

The Committee delivered a clear decision that all children regardless of their age must have access to procedural rights when accused of having committed a crime, including children below the age of criminal responsibility.

The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter.

Article 17 specifically protects the “effective exercise of the right of mothers and children to social and economic protection,” and provides that “the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services.”

The Committee found a violation of Article 17 ESCharter based on 2 grounds:

(I.) On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four rationales:

(1) Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.

(2) Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.

(3) Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.

(4) The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.

(II.) In relation to the second legal ground, the Committee emphasised that diversion (alternatives to proceedings, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases. Diversion options should be available from as early as possible after contact with the system, before a trial commences, and throughout the proceedings, a prescription also as reflected in the latest General Comment No. 24 of the Committee on the Rights of the Child. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system. The Committee emphasised the need for including as much as possible the restorative justice principles.

The decision effectively counteracts  the  paternalistic attitudes that underlie as the welfare approach towards young children who enter the juvenile justice system. The Committee made  clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, in line with the rights-based approach on which the Convention on the Rights of the Child (CRC) is founded.

On the applicability of the European Social Charter on civil and political rights

One important aspect of the decision, and one with broader consequences beyond the immediate subjet matter of the case,  is that the ESCR stressed once again the interdependence and indivisibility of economic, social and cultural rights and civil and political rights.

In its observations on admissibility, the Government had claimed that the complaint was incompatible ratione materiae with the Charter, since Article 17 of the 1961 Charter as ratified by the Czech Republic strives to ensure social and economic protection of mothers and children, but not the right to a fair trial of children below the age of criminal responsibility. The Government argued that, in principle, the Charter does not and should not protect civil and political rights.

The Committee however made it clear that the Charter contains comprehensive provisions protecting the fundamental rights and human dignity of children – that is, persons aged under 18. And the Committee was thus bound to interpret the rights under the Charter in light of the principle of indivisibility and interrelatedness of human rights.

The Committee clarified that it considers that Article 17 of the Charter embodying the indivisibility of human rights as it imposes on States Parties obligations to prohibit and penalise all forms of violence against children, including all forms of corporal punishment, as well as positive obligations to ensure the accommodation, basic care and protection of children, including children in conflict with the law.

The Committee thereby affirmed the core principle that all human rights are universal, indivisible and interdependent and interrelated, remaining consistent with its past jurisprudence.

The potential impact of the decision

Most  can probably imagine the adverse impact of unnecessarily dragging young children in court for petty offences, or placing the children in closed institutions in such a young age. A system which does not allow for diversion based on restorative justice principles, such as settlement or withdrawal of the proceedings is clearly destined to devastate or at least highly negatively impact children’s lives. To reflect the Article 40 of the CRC and the CRC Committee’s  recent General Comment No 24 on children’s rights in the child justice system, the common and ultimate objective for all professionals in the justice system should be to support the child as a human being to develop their potential. With the already overcome protective approach towards children, State authorities do often deny children their human rights.

The decision of the ESCR should shed light on and change the law and practice in the Czech Republic, but also in other countries Europe and contribute to reforming how children below the age of criminal responsibility in conflict with the law are actually treated across European States, when they come into contact with the criminal justice system including in the pre-stage of the proceedings.