Bringing the Child’s Procedural Rights before the ECtHR through Interpretative Tools: Access to Justice, Participation and Representation
Published online by Cambridge University Press: 11 February 2021
Summary
ABSTRACT
The legal framework governing proceedings before the European Court of Human Rights (ECtHR) neither guarantees access to justice for children nor is it a child-sensitive procedure. Indeed, it does not allow for a direct hearing for children, nor does it provide them with an independent representative in cases of – potential or actual – conflict of interests. However, the Court has recently proved more conscious of such loopholes, and there is a trend towards the overcoming of such issues. The present contribution analyses this trend and justifies it by resorting to the interpretative reference to different international conventions, to the procedural rules of other international courts and tribunals dealing with similar issues and to the national law of some state parties to the European Convention on Human Rights (ECHR). Although the recent developments in the Court's case law could be explained by resorting to those interpretative tools, it will be suggested that the adoption of a specific provision in the Rules of Court, dealing with child access to the Strasbourg justice system and child representation in proceedings, would be the best solution for ensuring the adequate protection of children's procedural rights, while at the same time securing procedural fairness and legal certainty.
INTRODUCTION
The 1989 United Nations (UN) Convention on the Rights of the Child (CRC) marked a Copernican revolution in protecting children's rights. From that moment on, the child – who was previously seen as a passive and vulnerable human being who exclusively needed protection – once and for all acquired the dignity of a subject of rights and rights-holder, instead of a ‘mini-human with mini-rights’. Today, it is generally recognised that children have (legal) personality, distinct from that of their parents. Consequently, they should be able to exercise those rights and to seek redress in case of violations thereof. The ECtHR contributed to this development, although children's rights to participate and to be heard in proceedings have not yet been fully implemented.
Moreover, recent developments in the Strasbourg case law clearly show an increasing willingness to implement children's rights, following what has been defined by scholars as a ‘child-centric’ approach. As a matter of fact, the principle of the ‘best interest of the child’ is an object of European consensus, usually overriding, in the balancing process, conflicting interests.
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- Information
- European Yearbook on Human Rights 2020 , pp. 49 - 78Publisher: IntersentiaPrint publication year: 2020
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