Original published on Tuesday, 22 December 2015 on EU LAW ANALYSIS
“If we don’t stand up for children, then we don’t stand for much.”
by Marian Wright Edelman (*)
Effective human rights protection is fundamental to any concept of fairness in the criminal justice system. Fairness, however, is relative: it may require different levels of protection in different circumstances.
Children require special measures of protection to take account of their particular vulnerability and needs (UN CRC Committee, General Comment 10, para 10). International standards confirm state obligations in this regard (e.g. UN Convention on the Rights of the Child (CRC),UN Standard Minimum Rules for the Administration of Juvenile Justice, the Council of EuropeGuidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.). The need for extra protection has also been confirmed by the ECtHR which has stated that the right to a fair trial under Article 6 requires 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 and that steps are taken to promote his ability to understand and participate in the proceeding”(T v. UK, No. 24724/94, 16 December 1999, at ).
The Commission states that approximately 1 million children face criminal justice proceedings in the EU each year (around 12% of the total) (Commission Staff Working Document 2013). It has gathered data on child justice and its reports shows wide variability in practice and procedure between States. The EU has now agreed the text of a Directive to establish specific procedural safeguards for child suspects. This is the fifth in a series of six EU-specific standards, all in the form of Directives, which have been agreed under a Roadmap for strengthening the procedural rights in criminal proceedings (on the fourth measure, on presumption of innocence, see discussion here; on the sixth proposal, on legal aid, see discussion here). The Directives attempt to promote consistency in procedural protection within the criminal justice systems of EU Member States. Measure E of the Roadmap requires special safeguards to be created for vulnerable suspects. A Recommendation setting out procedural safeguards for vulnerable persons has already been published. This post deals with the recently agreed Directive on child suspects.
The Directive is a lengthy and rather complex document with 39 Recitals and 25 operative Articles. The text has now been agreed subject to reservations by Romania (in relation Article 2(3) and Article 9 (1)) and by Poland (in relation to Article 6(8) (b)). Ireland, the UK and Denmark are not participating in the instrument. Member States will have three years to transpose the Directive from the date of its entry into force (Article 23).
The Directive’s purpose is “to establish procedural safeguards to ensure that children who are suspected or accused in criminal proceedings are able to understand and follow those proceedings, to enable such children to exercise their right to a fair trial and to prevent re-offending by children and foster their social integration” (Recital 1). Children already benefit from all the human rights guarantees available to adults but the Directive notes that “experience has shown that this in itself does not always provide a sufficient degree of trust in the criminal justice systems of other Member States” (Recital 3). The ECHR remains the baseline for any assessment of the efficacy of new standards. Recital 35 notes that a “higher level of protection should not constitute an obstacle to the mutual recognition of judicial decisions that those minimum rules are designed to facilitate. The level of protection should never fall below the standards provided by the Charter or by the ECHR, as interpreted in the case law of the Court of Justice of the European Union and the European Court of Human Rights.”
Legislation which promotes children’s rights is welcome. However, to be of genuine value, a separate document for child suspects should add to and build on existing standards in a child specific way. It must also address the obstacles which prevent current standards working: it must prioritise the best interests of the child and remove any vagueness and discretion which may facilitate non-compliance. Fundamentally, it must also be effectively implemented in practice. This post will consider some of the key elements of the Directive. It will conclude that the picture is not entirely rosy.
Article 3 defines a “child” as “a person below the age of 18 years”. The relevant point at which age is assessed is the age at which the individual becomes subject to proceedings (Recitals 8 and 9) rather than the age at the time of the offence. In the case of uncertainty, there is a presumption that the person is a child. Under Article 2(3), the Directive also applies where a child comes of age during proceedings but only where the application of the Directive, or some of its provisions, “is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned”. Even then. however, Member States may decide that this Directive does not apply when the person reaches 21. The Directive simply “encourages” Member States to apply the procedural safeguards where the person is older than 18 and below 21. The UN Committee on the CRC has stated in General Comment 10 that “every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice”. It is very disappointing that the Directive fails to follow this approach.
The Directive lays down “minimum rules” for children in criminal and in European Arrest Warrant (EAW) proceedings (Article 1). It does not affect national rules determining the age of criminal responsibility (Article 2(5)). It applies from the time children are suspected or accused in criminal proceedings until the final determination of the case including sentencing and appeal (Article 2 (1)). The Directive also applies to children who are not suspects or accused persons but who, in the course of questioning by the police or by another law enforcement authority, become so (Article 2(4)). This mirrors Article 2(3) of the Directive on the right of access to a lawyer.
Article 17 confirms that the rights set out in Articles 4, 5, 6, 8, 10, 11, 12, 13, 14, 15 and 18 of the Directive also apply to EAW proceedings from the time of arrest in the executing Member State (Article 17). It should also be remembered that, although the Directive seeks to give children rights in EAW proceedings, Article 3(3) of the Framework Decision on the EAWactually provides a ground for mandatory non-execution of the EAW where a person, “owing to his age” cannot be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State.
Another concern is that the Directive restricts its application in respect of minor offences (Recitals 11a-11c). Article 2(5a) confirms that, in respect of minor offences, where Member States’ law provides for a sanction by to be imposed by “an authority other than a court having jurisdiction in criminal matters” and the imposition of such a sanction may be appealed or referred to such a court or where deprivation of liberty cannot be imposed as a sanction, the Directive only applies to the proceedings before a court having jurisdiction in criminal matters. A ‘minor’ offence is not defined and there is no penalty threshold. In C-60/12 Baláž, 14 November 2013 confirmed that ‘having jurisdiction in criminal matters’ means that a court “must apply a procedure which satisfies the essential characteristics of criminal procedure, without, however, it being necessary for that court to have jurisdiction in criminal matters alone” (at ). This is “an autonomous concept of Union law” (at ).
It is disappointing that the Directive is only guaranteed to “fully apply” where a child is deprived of liberty irrespective of the stage of the criminal proceedings. The restrictions on minor offences mirror those in other Directives (Article 1 (3) of the Directive on the Right to Interpretation and Translation, Article 2(2) of the Directive of the Right to Information, and Article 2 (4) of the Directive on the Right of Access to a Lawyer). But there is no justification for the imposition of this clause and no explanation of how it sits with current ECHR obligations. In terms of the exemption for ‘minor offences’, the ECtHR does not distinguish between different types of offences: the protection afforded by Article 6 is engaged as soon as a ‘criminal charge’ is brought against an individual. Engel and Others v The Netherlands No. 5100/71, 8 June 1976 confirms that, when determining whether a ‘criminal charge’ exists, specific criteria will be considered: (a) the classification of the offence under the domestic legal system; (b) the nature of the offence; and (c) the potential nature and severity of the penalty. Even a seemingly minor offence may have serious consequences for the child. It is disappointing to apply this unnecessarily restrictive approach to a document designed to protect vulnerable suspects.
The Directive sets out a series of rights.
RIGHT TO INFORMATION: Article 4 creates a duty to inform child suspects “promptly” about their rights in Directive of the Right to Information and about general aspects of the conduct of the proceedings. The Letter of Rights required by Directive of the Right to Information should also set out a child’s rights under this Directive (Article 4(2)).
Article 4 distinguishes between those rights in the Directive which children are to be informed about “promptly” and those they are to be informed about at the at the “earliest appropriate stage in the proceedings”. There is no justification for such a distinction. Further, worryingly, under Article 4 (1a), this information can be given orally rather than in writing which undermines the protection. There is no requirement that either an appropriate adult or lawyer is present when this information is handed over or that the information is given in a child-friendly form (the Directive merely talks of “simple and accessible language”). The Council of Europe Guidelineson child friendly justice require information and advice to be provided in a manner adapted to their age and maturity, in a language which they can understand and which is gender- and culture-sensitive. This is particularly important when the age of criminal responsibility varies wildly within the EU (e.g. it is 10 in England and 15 in Denmark). Handing information to a child is no guarantee they will be able to understand or use it and a process to verify the child’s comprehension should have been established.
RIGHT OF THE CHILD TO HAVE THE HOLDER OF PARENTAL RESPONSIBILITY INFORMED: Article 3 defines the “holder of parental responsibility” (PR) to mean “any person having parental responsibility over a child”. Parental responsibility means “all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term includes rights of custody and rights of access.”
Under Article 5, the state must ensure that the holder of parental responsibility is provided “as soon as possible” with the information that the child receives in accordance with Article 4 (see also Recitals 15 and 15a). However, Article 5(2), provides specific grounds for using another appropriate adult, albeit one nominated by the child and accepted as such by the competent authority. The grounds include: if (a) it would be contrary to the best interests of the child to provide it to the holder of PR or (b) no holder of parental responsibility can be reached after reasonable efforts have been made to do so or his or her identity is unknown or (c) because, on the basis of objective and factual circumstances, providing information to the holder of PR could substantially jeopardise the criminal proceedings to provide it to the holder of PR.
Further, if the child has not nominated another appropriate adult, or if this nominated adult is not acceptable to the competent authority, “taking into account the best interests of the child”, the competent authorities may provide the information to another person, including someone from an authority or responsible for the protection or welfare of children. As soon as any of these grounds cease to exist, the information should be provided to the holder of PR. Provisions which too readily allow the state to appoint the adult supporting the child are of concern.
RIGHT TO ASSISTANCE BY A LAWYER: The ECtHR has confirmed that, in order for the right to a fair trial to remain “practical and effective”, access to a lawyer should be provided from the first police interrogation (Salduz v. Turkey, No. 36391/02, 27 November 2008). Suspects are particularly vulnerable at the investigation stage and evidence gathered may determine the outcome of the case. The right of access to legal assistance is particularly important for vulnerable suspect such as minors (see for example, S.C. v. the United Kingdom, No. 60958/00, 15 June 2004).
Article 6 re-affirms the right of access to a lawyer. It also confirms that the right is about exercising the “rights of defence effectively” (Article 1a.). Under Article 6(2), this assistance should occur “without undue delay once [Member States] are made aware that they are suspected or accused of having committed a criminal offence” from whatever point is earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.
Under Article 6(3) (see also Recital 16a), assistance “includes” (so is not limited to): the right to meet in private and communicate with the lawyer representing them. The confidentiality of communications between the child and their lawyer is protected under Article 6(4) (see also Recitals 17c and 17d); the right to be assisted by a lawyer when they are questioned, and that “the lawyer can participate effectively during questioning” (as with other Directives this participation is “shall be in accordance with procedures under national law); and the right to be assisted by a lawyer during investigative or evidence-gathering act such as: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.
However, Recital 16b also sets out the circumstances in which the right to a lawyer does not arise, e.g. including verifying the child’s identity, whether they have a weapon or taking fingerprints or photographs. These acts potentially carry significant consequences and it is unhelpful to have limited the scope in this way.
Further, despite the importance of this right, a series of derogations and discretionary provisions potentially undercut the protection. For example, there is a proportionality clause in Article 6 (5) (see also Recital 17) which permits Member States, provided that this is in conformity with the right to a fair trial, to derogate from the obligations set out in Article 6(2) where assistance by a lawyer “is not proportionate in the light of the circumstances of the case, taking into account the seriousness of the offence, the complexity of the case and the measures that could be taken in respect of the alleged offence, it being understood that the best interests of the child shall always be a primary consideration”. Further, under Article 6(8), “in exceptional circumstances and only at the pre-trial stage”, Member States may temporarily derogate from the duty to provide the assistance of a lawyer “to the extent justified in the light of the particular circumstances of the case” on one of the following “compelling reasons”: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious offence. In applying this paragraph “the best interests of the child” must be taken into account. This can only be decided on “a case-by-case basis” either by a judicial authority or other competent authority on condition that the decision can be submitted to judicial review.
Finally, whereas the Directive on the right to a lawyer permits suspects or accused persons to waive their right, the original Commission proposal prohibited waiver in the case of children. It is disappointing this has been dropped. Ensuring every child gets legal representation would have been an important step forward in ensuring rights are protected.
RIGHT TO AN INDIVIDUAL ASSESSMENT: Article 7 requires Member States to assess children individually to ensure that their specific needs concerning protection, education, training and social integration are taken into account. The costs are generally to be met by the state (Article 21). The assessment shall “take into account the personality and maturity of the child, their economic, social and family background, as well as any specific vulnerabilities of the child” (Article 7(2) and Recital 19a). The nature and extent of the assessment will depend on the circumstances of the case (Article 7 (2a)). The assessment should “be carried out with close involvement of the child” and be conducted by “qualified personnel, following, as far as possible, a multidisciplinary approach and involving, where appropriate, the holder of parental responsibility or another appropriate adult and/or specialist professional” (Article 7 (5)). If circumstances change, an assessment may be updated (Article 7(6)).
The individual assessment, which should take place at the earliest appropriate stage of the proceedings and, before indictment (Article 7(4a)), will note information which might be of use by the competent authorities when making decisions about the child. However, the absence of an early individual assessment will not stop an indictment being presented if this “is in the best interests of the child” provided that the individual assessment is available at the beginning of the trial (Article 7(4b) and Recital 19d). Additionally, derogation from this provision is possible if “warranted by the circumstances of the case, and provided that this is compatible with the child’s best interests” (Article 7 (7) and Recital 19e). Again, the creation of rule accompanied by exceptions may compromise consistency.
RIGHT TO A MEDICAL EXAMINATION: Children who are deprived of liberty have the right to a medical examination without undue delay (Article 8 and Recital 20). One concern here is that the Directive uses the term ‘undue delay’ rather than requiring the examination to be done promptly (compare this with that set out in in General Comment 10). The examination can be required by the competent authorities or by (a) the child, (b) the holder of PR responsibility or another appropriate adult as referred to in Article 5; or (c) the child’s lawyer (Article 8(2). The costs are generally to be met by the state (Article 21).
The examination is to assess the general mental and physical health of the child. The examination should be as non-invasive as possible and carried out by a physician or another qualified professional. It will be recorded in writing (Article 8 (3)) and may lead to medical assistance or may help determine the capacity of the child to face questioning, other investigative or evidence gathering acts or any measures taken or envisaged against the child (Article 8(1a)). It can be repeated where required (Article 8(4)).
The Directive should have guaranteed a right of access to medical treatment if directed by a doctor.
The restriction of this protection to those who are deprived of their liberty is a concern as medical examinations may be important to any child facing criminal proceedings. Deprivation of liberty is not defined but presumably is intended to relate solely to those detained in prison. In the juvenile justice system, children may also be obliged to reside with foster carers or have their liberty restricted in other very significant ways. The ECtHR has said that the “difference between deprivation of and restriction upon liberty is … merely one of degree or intensity, and not one of nature or substance” Guzzardi v Italy. No. 7367/76, 6 November 1980. This issue is not addressed in the Directive.
AUDIO-VISUAL RECORDING OF QUESTIONING: Member States will have to ensure that questioning of children by police or other law enforcement authorities is audio-visually recorded but only “when this is proportionate in the circumstances of the case, taking into account inter alia whether a lawyer is present or not and whether the child is deprived of liberty or not, it being understood that the child’s best interests shall always be a primary consideration” (Article 9 (1) and Recital 21a). The proportionality condition needlessly weakens this protection by introducing an unacceptably wide scope of discretion and consequently potential variability.
If there is no audio-visually recording, questioning is to be recorded in another appropriate manner, and including “by making written minutes, which are duly verified” (Article 9(2)). By whom? The child? This should have been more clearly set out.
LIMITATION OF DEPRIVATION OF LIBERTY: Article 10 is a welcome re-confirmation that any “deprivation of liberty of a child at any stage of the proceedings shall be for the shortest appropriate period of time” and that it should be a “last resort”. It also confirms that the “the age and individual situation of the child, and of the particular circumstances of the case” should be taken into account and sets out the need for a reasoned decision and periodic review. However, these really are the some of the most basic minimum requirements of lawful practice. Article 10 does not define deprivation of liberty, nor does it restate or refer to the clear requirements attached to any deprivation of liberty established by Article 5 ECHR and its case law which are also reflected in Article 48 of the EU Charter not least those concerning the need for prompt determination of the decision to detain.
Article 11 and Recital 25a confirm that competent authorities shall have recourse to alternative measures instead of detention but, again, this requirement is undermined by the requirement that this need only happen “where possible”.
SPECIFIC TREATMENT IN THE CASE OF DEPRIVATION OF LIBERTY: Article 12 details minimum requirements for children who are detained. They must be held separately from adults “unless it is considered in the child’s best interest not to do so” (in accordance with Article 37(c) of the UN CRC). In police custody, there is an additional exception as children need not be held separately if “in exceptional circumstances, it is not possible in practice to do so, provided that this is compatible with the child’s best interests” (Article 12 (1a) and Recital 26a). Additionally, Member States have a discretion to hold children separately when they reach the age of 18 years but they must still take into account the child’s individual circumstances as well as the best interests of children who are detained with them (Article 12(2)). However, General Comment 10 confirms that the ‘best interests’ test here should be interpreted narrowly and that “the child’s best interests” does not mean for the convenience of the States parties”. This requirement should have been replicated on the face of the Directive.
When in detention, Article 12(4) and Recitals 26c and 26d require Member States to take appropriate measures to: (a) ensure and preserve their health and their physical and mental development; (b) ensure their right to education and training, including for children with physical, sensory and learning disabilities; (c) ensure the effective and regular exercise of their right to family life; (d) ensure access to programmes that foster their development and their future integration into society; and (e) ensure respect for their freedom of religion or belief. These measures do not go far enough and do not match the standards set out in General Comment 10, paras. 85-89.
Children are also entitled to meet the holder of PR as soon as possible but only “where such meeting is compatible with investigative and operational requirements” and only where the provisions of Article 5 relating to the designation of another appropriate adult have not been applied (Article 12(5)). It is deeply disappointing that operational demands may be placed above a child’s right to see his/her parent/carer.
TIMELY AND DILIGENT TREATMENT OF CASES: Article 13 requires that all appropriate measures should be taken to ensure that criminal proceedings involving children “are treated as a matter of urgency and with due diligence”. This is in line with ECtHR case law on the right to a trial within a reasonable time. Under Article 18a an effective remedy under national law should be provided in the event of a breach of Directive rights.
The requirement that appropriate measures should also be taken to ensure that children are “always treated in a manner which protects their dignity and which is appropriate to their age, their special needs, their maturity and level of understanding, and bearing in mind any communication difficulties they may have” (Article 13 (2)) is welcome.
RIGHT TO PROTECTION OF PRIVACY: Article 14 protects the privacy of children during criminal proceedings. Court hearings involving children should ordinarily be held in the absence of the public, or courts or judges to decide to do so. This reflects current human rights standards in Article 6 ECHR (e.g., see T v. UK, No. 24724/94, 16 December 1999) and Article 47 of the EU Charter.
RIGHT OF THE CHILD TO BE ACCOMPANIED BY THE HOLDER OF PARENTAL RESPONSIBILITY DURING THE PROCEEDINGS: Article 15 and Recitals 29 and 29 confirm the right of the child to be accompanied by the holder of PR during court hearings. This can be limited on the same conditions as Article 5(2). Article 15 similarly permits the state to appoint an appropriate adult where an alternative is not acceptable.
Children also have the right to be accompanied during other stages of the proceedings but only where the state considers that: (a) it is in the interest of the child to be accompanied by that person; and (b) the presence of that person will not prejudice the criminal proceedings. The state is given total discretion and the Directive should have been far clearer on a child’s rights in this regard.
RIGHT OF CHILDREN TO APPEAR IN PERSON AT, AND PARTICIPATE IN, THEIR TRIAL: Article 16 confirms a child’s right to be present at, and participate effectively in, their own trial. This includes giving them the opportunity to be heard and to express their views. If a child is not present at their trial, the Directive provides the right to a new trial, or another legal remedy, in accordance with and under the conditions set out in Directive on the presumption of innocence. The requirements of Article 6 ECHR and Articles 47 and 48 of the EU Charter would require nothing less.
RIGHT TO LEGAL AID: Article 18 requires that national law in relation to legal aid guarantees the effective exercise of the right to be assisted by a lawyer as referred to in Article 6. The reference to national law does not help promote standards in view of the widespread inconsistency and variability (leading to the Commission’s Recommendation on the issue). The interests of justice test indicates that free legal assistance may be required for vulnerable groups such as minors (Quaranta v. Switzerland, No. 12744/87, 24 May 1991, para. 35. This could have been clearly restated.
TRAINING: Article 19 deals with training for law enforcement authorities, staff of detention facilities, the judiciary, prosecutors and lawyers. This is a welcome and potentially practical step and should be supported by further EU wide guidance drawn from universal standards.
DATA RECORDING: Article 20 requires that Member States send data to the Commission five years after the Directive enters into force (and every three years thereafter) showing how the Directive has been implemented. The absence of reliable data on children’s rights in criminal proceedings has previously been noted by the Commission (see the report here) so this is a welcome obligation.
Clear standards protecting children’s rights are welcome but, based on the summary above, I have the following general concerns:
- The failure to mainstream these protections: they are placed in a separate document which will need to be compared with others. Should, they not run like a thread through all the standards? Developing safeguards incrementally may invite inconsistency.
- While some of the Directive’s provisions are new and child-specific, others seem to be little more than a reiteration (and sometimes a partial one) of the minimum requirements which exists in relation to all defendants.
- The Directive does not always reflect international standards of protection.
- The Directive is made potentially less progressive by a series of exceptional and discretionary provisions which may facilitate variable practice.
Additionally, in reality, to make a difference any new standards must actually be enforced in practice. We must ask: will these standards work where others have failed?
(*) Debbie Sayers, Legal Research Consultant, http://interalia.org.uk