Children’s rights and the European Court of Human Rights
Children's rights and the European Court of Human Rights
The European Court of Human Rights (ECtHR) protects children’s rights in a dynamic way.
What is the European Court of Human Rights?
The European Court of Human Rights (ECtHR) is an international court established in 1959. The Court is based in Strasbourg (France). It interprets and applies the European Convention on Human Rights (ECHR), which is an international treaty only members States of the Council of Europe may sign. The Council of Europe is the continent’s leading human rights organization.
Greece is one of the 47 Council of Europe Member States and has ratified the European Convention on Human Rights and most of its Protocols
When can one apply to the European Court of Human Rights?
Independently of age and nationality, one may lodge an application with the European Court, if she or he considers that he or she has personally and directly been the victim of a violation of the rights set out in the European Convention or its Protocols. The alleged violation must have been committed by one of the States bound by the Convention.
Two fundamental requirements must be satisfied to lodge an application with the Court: 1) all the remedies in the State concerned that could provide redress for the alleged violation must have been used and 2) the application must be lodged within six months from the date of the final decision at domestic level.
The application is lodged in one of the Court’s official languages (English and French) or in one of the official languages of the States bound by the Convention. However, at a later stage, the proceedings take place in one of the Court’s official languages (English and French). Proceedings are conducted in writing. Public hearings are exceptional.
Children and the European Court of Human Rights
“Children are protected under the European Convention, even though the latter does not contain specific provisions (De Boer-Buquicchio, 1988). Only one Convention article refers hastily to children in the context of family relationships: Article 5 of Protocol 7 mentions the interests of the child in relation to the equality between spouses but this article actually welcomes measures taken by Member States that impose a difference in treatment between parents while serving children’s interests. No other Convention article includes the term ‘child.’ Only the terms ‘minor’ and ‘juveniles’ are used. In fact, article 5 § 1 d) regulates the detention of a ‘minor’ while article 6 § 1 authorizes the exclusion of the press and public from a trial in the interests of ‘juveniles.’
Despite the fact that the European Convention does not explicitly aim at protecting children, children can apply to the Court claiming the violation of the rights guaranteed by the Convention. More precisely, according to article 1 of the European Convention, the Member States “shall secure to everyone within their jurisdiction the rights and freedoms defined” in the Convention. Children are undoubtedly included in the term “everyone” (Couturier- Bourdinière, 2004). Moreover, legal capacity is not required for applying to the European Court of Human Rights (Sudre, 2008) and hence, a child can apply to the Court without the intervention of his or her legal representatives(De Boer-Buquicchio, 1988; Reid, 1998). However, it is not easy for children to introduce an application to the European Court; they face a number of practical problems such as lack of knowledge of the Strasbourg procedure, difficulties in obtaining legal assistance, and lack of financial resources. Moreover, because of their young age, they may not be able to speak, write or understand what is happening to them (see Reid, 1998). Therefore, children themselves rarely apply to the European Court especially in relation to cases regarding family life.
The majority of applications concerning children are introduced on their behalf by their parents or another member of their family. Furthermore, a large number of applications are introduced by one of the parents who claims to be a victim of a Convention violation; their allegations indirectly influence their children.” (Patsianta, Kyriaki. (2017) «European Court of Human Rights and right to respect for family life: the role of the best interests of the child in establishing equality between divorced parents». Canadian Journal of Children’s Rights 4 (1): 48 -70. DOI: https://doi.org/10.22215/cjcr.v4i1.93, p. 52-53)
The European Court of Human Rights has several times ruled on cases regarding children’s rights; it has indeed become a guardian of children’s rights in Europe. In its judgments, the Court refers systematically to the Convention on the Rights of the Child and to the concept of the best interests of the child.
Indicatively, the European Court has ruled on cases relating to:
• children the parents of whom are divorced or separated
• child adoption
• “non conventional” family structures such children born out of wedlock, families formed by same-sex couples, families where one of the parents is a transgender individual
• paternity issues
• children placed in institutions or foster care
• international child abduction
• different forms of violence against children such as domestic violence or mistreatment of children by their teachers in schools
• the right to education
• the right to freedom of religion
• juveniles offenders
• mistreatment of children by the police
• children the parents of whom have been incarcerated or have been convicted of criminal offences
• disclosure of children’s personal data
• fetuses and Assisted Reproductive Technology
• modern forms of slavery
• newborns
The case of Greece
Till now, not many cases, in relation to children, have been brought against Greece before the European Court of Human Rights. However, the Court’s rulings on these cases are of great interest.
These cases have to do with:
• the practice of certain registry offices in Greece indicating on birth certificates by the handwritten note “naming” when a child is named by a civil act and, thus, implying that he or she had not been christened (Stavropoulos and others v. Greece, 25 June 2020)
• the right to a fair hearing and the right to examine witnesses regarding a case where a child had been sexually abused by his father (Papadopoulos v. Greece, 14 May 2020)
• the obligation to leave Greece and the lifetime ban on returning there imposed on an Albanian national of Greek origin, father of a six year old boy (who was a Greek national), because he had been sentence to seven years’ imprisonment for purchasing drugs (Kolonja v. Greece, 19 May 2016)
• the rights of unaccompanied or separated children (Sh.D. and others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, 13 June 2019, H.A. and others v. Greece, 28 February 2019, Aarabi v. Greece, 2 April 2015, Mohamad v. Greece, 11 December 2014, Housein v. Greece, 24 October 2013, Barjamaj v. Greece, 2 May 2013, Rahimi v. Greece, 5 April 2011, Bubullima v. Greece, 28 October 2010)
• the detention with a view to deportation of an Afghan family in the Pagani detention centre on the island of Lesvos (Mahmundi and others v. Greece, 31 July 2012)
• the inhumane and degrading treatment of a boy of Roma origin by the police (Stefanou v. Greece, 22 April 2010)
• the schooling of Roma children (Lavida and others v. Greece, 30 May 2013, Sampani and others v. Greece, 11 December 2012, Sampanis and others v. Greece, 5 June 2008)
• the international abduction of a child and, more specifically, the inability of a mother living in France to exercise her custody rights, which had been awarded to her by the Greek tribunals, in relation to one of her sons; the child lived in Greece with his father and brother and did not wish to return to France with his mother (M.K. v. Greece, 1 February 2018)
• visiting rights of divorced parents and custody issues after parental divorce (Fourkiotis v. Greece 16 June 2016, Syngelidis v. Greece, 11 February 2010, Tsourlakis v. Greece, 15 October 2009, Kosmopoulou v. Greece, 5 February 2004)
• exclusion from school of two children of Albanian origin, aged 7 and 11, who were misdiagnosed of leprosy (Memlika v. Greece, 6 October 2015)
• the Greek system for exempting schoolchildren from religious education classes, which required parents to submit a solemn declaration saying that their children were not Orthodox Christians (Papageorgiou and others v. Greece, 31 October 2019)
• expulsion from school of two pupils, who were Jehovah’s witnesses and did not wish to participate in the school parade of the 28th of October (national holiday in Greece) because of their religious beliefs (Efstratiou v. Greece, 18 December 1996, Valsamis v. Greece, 18 December 1996)
• the right to respect for private life of a newborn; two photographs of the baby were taken without his parents’ permission, when he was one day old, in a sterile unit of the private clinic in which he was born, as part of the photography service offered to clients by the clinic that refused to hand over the negatives of the photographs to the parents (Reklos and Davourlis v. Greece, 15 January 2009)
What can children hope to obtain?
The European Court of Human Rights is not empowered to overrule national decisions or annul national laws.
If the Court finds that there has been a violation of children’s rights, it may award the applicant (child or parent) “just satisfaction”, a sum of money in compensation for certain forms of damage, which the Member State must pay.
A judgment condemning a Member State for infringing the Convention apply pressure on it: the Member State is forced to change its legislation and the national tribunals their case law in order to comply with the Court’s rulings and give an end to the Convention’s violation that could lead to further rulings condemning the State and forcing it to pay future applicants “just satisfaction”.