Introduction

There has been a recent push, led by the UN Committee on the rights of the child (CRC Committee), to raise the minimum age of criminal responsibility (MACR) to at least 14, but preferably to 15 or 16 years old (CRC General Comment No. 24, 2019, para. 22). Although welcome, a high MACR can result in unintended consequences for children below the age of criminal responsibility.

Strictly speaking, a child below the MACR should not have any contact with the criminal justice system because the child cannot be found criminally responsible. However, the reality is that many children below the MACR have contact with the criminal justice system or receive some form of punishment under another name, such as ‘protective’ intervention.

The factual circumstances in ICJ v. Czech Republic illustrate this problem. In the Czech Republic, children under the age of 15 are not held criminally responsible, yet can be placed, even for petty offences, in institutional care for ‘protective treatment’ before legal proceedings and without the procedural guarantees associated with standard criminal proceedings.

In response to concerns surrounding a lack of procedural protection for these children, the International Commission of Jurists (ICJ) and the Forum for Human Rights brought a collective complaint¹against the Czech Republic to the European Committee of Social Rights (the ESR Committee) in ICJ v. Czech Republic.

The ESR Committee is a quasi-judicial body of the Council of Europe tasked with monitoring compliance with the 1961 European Social Charter (the Charter). Although it has no system for receiving individual complaints (c.f. the Optional Protocol on a Communications Procedure to the UN Convention on the Rights of the Child), the collective complaints mechanism provides a vehicle through which strategic litigants can seek systemic change.

The ESR Committee’s decision underscores the significance of affording procedural safeguards to children below the MACR in the criminal justice system, highlighting that the consequences of not upholding such rights can have consequences, such as deprivation of liberty, which will violate a child’s economic and social rights.

Procedural issues

Before addressing the merits of the complaint, the ESR Committee rejects the objections raised by the Government regarding the admissibility of the complaint. The ESR Committee rejects the State’s argument that the complaint is not admissible as the Charter does not protect civil and political rights such as procedural rights, referring to its previous jurisprudence and noting the indivisible and interrelated nature of human rights.

The complaint alleges that children below the MACR are subject to discrimination as opposed to those above the age of criminal responsibility: an allegation the Government also objects to for technical reasons. The ESR Committee decides not to consider the issue of discrimination, deeming the primary issue to be whether the rights in Article 17 of the Charter are effectively guaranteed.

Substantive issues and findings

The ICJ’s complaint alleged violations of Article 17 of the Charter on four grounds. Article 17 of the Charter provides children with the rights to economic and social protection and obliges States parties to “take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services”. Each ground concerned the State’s failure to ensure children below the MACR had access to certain procedural guarantees, including:

• (1) access to mandatory legal assistance in the pre-trial stage of proceedings;
• (2) access to the police file in the pre-trial stage of proceedings;
• (3) service of the final resolution of the police authority in their case and the right to appeal against that resolution; and
• (4) alternatives to formal judicial proceedings (diversion).

Ultimately, the ESR Committee found a violation of Article 17 of the Charter due to ground 1: the failure to provide mandatory legal assistance to children below the MACR; and ground 4: the failure to provide alternatives (diversion) to formal judicial proceedings for children below the MACR.

Grounds 2 and 3 were unsuccessful. Ground 2, which concerned access to police files, was rejected for lack of evidence: the ESR Committee found that children below the MACR or their legal representatives are indeed able to consult the police files and that the police can only deny this access for serious reasons. Turning to ground 3, the ESR Committee found that the child’s legal guardian will receive a notification of the resolution of the police authority not to proceed with the matter and held this to be sufficient. The ESR Committee also found that a remedy against the police authority’s resolution exists and any interested person, including the child, may complain. Therefore it found no violation of Article 17 on this ground (paras. 110-111).

The focus of this case note is therefore on the ESR Committee’s findings pertaining to the remaining grounds found to be violations of Article 17: the provision of mandatory legal assistance and diversion.

Mandatory legal assistance

A key consideration for the ESR Committee in its assessment of legal assistance is the relative immaturity of children below the MACR. Children below the MACR are not necessarily able to understand and follow pre-trial proceedings and therefore it cannot be assumed that they are able to defend themselves (para. 93). Lawyers can assist children to understanding their rights and relevant procedures, to build a defence, or prevent a compelled testimony or admission of guilt.

The ESR Committee also considered the potentially negative consequences of failure to ensure legal assistance for children below the MACR in the pre-trial stage of proceedings. A lack of legal assistance could negatively impact proceedings, thereby increasing the likelihood of a child being subjected to measures such as deprivation of liberty in institutions for ‘protective education’ or ‘protective treatment’ under domestic legislation (para. 94). Therefore, the ESR Committee found that the provision of legal assistance is required to secure social and economic protection under Article 17 of the Charter: a failure to do so could result in wide-ranging implications both for the child’s short-term circumstances and longer-term mental, moral and social development (para. 83).

The ESR Committee grounded its reasoning in specific child rights standards, including the Art. 40(2)(b)(ii) of the CRC; the CRC Committee's General Comment No. 24 (paras. 49-53); as well as other human rights standards (paras. 95-97).

Diversion

On the issue of diversion, a key consideration of the ESR Committee was, once again, the possible negative consequences of a failure to implement this procedural safeguard for children below the MACR. The ESR Committee notes that exposure to the criminal justice system has been demonstrated to cause harm to children, and to limit a child’s chance of becoming a responsible adult. Diversion can avoid stigmatisation and criminal records, is congruent with public safety and has proved to be cost effective. (para. 116). In that regard, the ESR Committee relies on the CRC Committee’s General Comment No. 24 in its reasoning.

According to the ESR Committee, the obligation to take all appropriate and necessary measures to ensure the effective exercise of a child’s right to social and economic protection under Article 17 of the Charter includes the obligation to develop and take measures to reduce the especially harmful effects of contact with the justice system. A primary way to do so is through the diversion of children away from formal criminal processes.

Commentary

This case centres around the MACR, which is a very topical issue in the field of international children’s rights and youth justice. Under the CRC, all States have the obligation to establish a MACR below which children shall be presumed not to have the capacity to infringe the penal law (Art. 40 (3) (a) CRC).

In its recent General Comment No. 24 (2019, para. 22), the CRC Committee takes the position - with reference to evidence in the field of child development and neuroscience - that the MACR should not be lower than 14 years, and should preferably be even higher, such as 15 or 16. In its general comment, the CRC Committee further highlights that, notwithstanding the importance of setting a high MACR, an effective approach ultimately depends on how each State Party deals with children above and below that age (para. 23). As to the latter, the CRC Committee argues that children below the MACR should be “provided with assistance and services according to their needs, by the appropriate authorities, and should not be viewed as children who have committed criminal offences” (para. 23). Beyond this, the CRC Committee provides very little guidance as to whether procedural guarantees for children in conflict with the law, laid down in Article 40 CRC, are also applicable when children below the MACR get involved in the justice system.

A likely explanation for the CRC Committee’s lack of guidance on this issue is that children who cannot be held criminally responsible should not be subject to any pre-trial or trial proceedings. From a children’s rights perspective, children who commit an offence when they are below the MACR should not be “viewed as children who have committed criminal offences” and certainly should not be subjected to (or potentially subjected to) procedures, sanctions or punishment typically associated with criminal justice systems and indicative of criminal responsibility. Instead, any response should focus on the needs of the child in terms of guidance, treatment, and support (also for the parents or others responsible for the upbringing of the child), while taking into account the child’s evolving capacities (Article 5 CRC). This could include a protection-type response (typically enshrined in either the civil law code or in a separate child protection act), or an alternative system aimed at restoration and reconciliation. In these contexts, it is important that the child and their parents or legal guardians are provided with assistance in efforts to find the best support for the child. This assistance should be upgraded to legal assistance if the court is approached for a child protection order, especially when out-of-home placement or deprivation of liberty of the child is a possibility. From this perspective, it could be argued that demanding and granting procedural criminal justice rights to children below the MACR – like the complainant and the ESR Committee do in the present case – ignores the fact that children should not be subject to any pre-trial and/or trial proceedings in the first place.²

However, it is also a reality that in many jurisdictions children below the MACR can be in contact with the justice system and be subject to (pre-)trial investigations and proceedings in response to allegedly committing an unlawful act, even though they cannot be held criminally liable. It is also a reality that in many jurisdictions procedures and interventions designed to respond to unlawful acts committed by children below the MACR are formally labelled as ‘child protection’ procedures and interventions. Yet, these can be equally intrusive as (and de facto very similar to) youth justice responses, but without the legal safeguards that are granted by, inter alia, Article 40 CRC.³ Such ‘child protection’ proceedings and interventions might be formally based on the child’s needs and best interests, but are nevertheless very much informed by the alleged offence (or ‘unlawful act’) and might have serious implications for the child, including deprivation of liberty (by placement for ‘protective treatment’). Subjecting children below the MACR to potentially lengthy and unspecified forms of deprivation of liberty or other intrusive interventions as a direct or indirect result of committing an offence (or ‘unlawful act’) without adequate legal safeguards, can mean that children below the MACR are de facto worse off than their older counterparts in the youth justice system.⁴

The ICJ’s complaint and the ESR Committee’s considerations in this case should be viewed against this background. The ESR Committee considers that, even though children below the MACR cannot be held criminally liable, they must be afforded adequate legal procedural protections if they are involved in pre-trial and trial proceedings as a result of allegedly committing an unlawful act. This is because those proceedings may have important consequences for a child’s social and economic protection, especially when - such as in the Czech Republic - those proceedings can result in ‘protective measures’ that deprive the child of his or her liberty (para. 86). The ESR Committee’s reasoning is progressive, holistic and methodical in the way it situates the Charter within the human rights and international law framework, including relevant provisions of the CRC, the interpretive work of the CRC Committee (General Comment 24), the case law of the European Court of Human Rights and the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice.⁵ The incorporation of international and regional standards demonstrates a (ongoing) willingness to see the Charter as a living instrument forming part of a multi-layered framework of international law and standards.

By considering that providing appropriate legal procedural protections to children in conflict with the law is required to ensure the social and economic protection of those children under Article 17 of the Charter, the ESR Committee, once again, brings fair trial and personal liberty rights - traditionally categorised as ‘civil and political rights’ - into the realm of ‘social and economic rights’, thereby blurring the distinction between the two categories of rights.⁶ The rationale behind this consideration is, according to the ESR Committee, that a failure to provide adequate legal procedural protections to children in youth justice proceedings is likely to have significant and wide-ranging implications both for the child’s short-term circumstances as well as for their longer term mental, moral and social development, which thus impairs the child’s right to social and economic protection. Subsequently, the ESR Committee uses diverse international children’s rights standards to interpret the scope of Article 17 of the Charter in its examination of the complaints regarding the (lack of) procedural rights of children below the MACR.

When it comes to the issue of mandatory legal assistance for children in the pre-trial stage of the proceedings, the ESR Committee’s considerations add a new dimension to the existing human rights standards. According to the established jurisprudence of the European Court of Human Rights, child suspects in criminal proceedings are entitled to legal assistance from the first police interrogation as part of their right to a fair trial under Article 6(1) ECHR (see: Salduz v Turkey, 2008; Panovits v Cyprus, 2008). Under Article 40 (2) (b) (ii) CRC every child alleged or accused of having infringed the penal law has the right to legal or other appropriate assistance from the outset of the proceedings.⁷ Moreover, following Article 6 of the EU Directive 2016/800, children who are suspects or accused persons in criminal proceedings shall - in principle⁸ - be provided with mandatory legal assistance in the pre-trial and trial stage, including before and during police interrogations.⁹ In the present case, the ESR Committee indicates that the right to mandatory legal assistance during the pre-trial stage of the proceedings does not exclusively apply to children who are suspected or accused of committing a criminal offence. The right to mandatory legal assistance can also apply to children below the MACR who are involved in legal proceedings as a result of their alleged involvement in an unlawful act and who potentially face intrusive interventions, such as placement in an institution, which can have significant consequences for their lives. In doing so, the ESR Committee’s considerations imply that the right to (mandatory¹⁰) legal assistance is not only an integral part of a child suspect’s right to a fair trial in criminal proceedings, but can also be part of a child’s right to social and economic protection under Article 17 of the Charter.

When it comes to the issue of diversion, the ESR Committee’s considerations extend the scope of the children’s rights obligation for States to establish measures for referring children away from the formal judicial system.¹¹Under Article 40 (3) (b) CRC, States Parties are required to provide measures for dealing with children in conflict with the law without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. According to the CRC Committee (General Comment No. 24; para. 18), these legal safeguards include, inter alia, the child’s free and voluntary consent to diversion, the child’s access to legal assistance and that diversion measures do not include deprivation of liberty. In its General Comment No. 24 (paras. 15-16), the CRC Committee states that diversion should be the preferred way of dealing with children in the majority of cases, as it avoids stigmatization and criminal records, yields good results for children, is congruent with public safety and has proved to be cost-effective. The ESR Committee follows this rationale and considers that ensuring the child’s right to social and economic protection under Article 17 of the Charter includes the State’s obligation to take measures to reduce the especially harmful effects of contact with the justice system and to ensure that the danger posed to the child’s wellbeing and development by such contact is limited, which - according to the ESR Committee - can be achieved through the diversion of children away from formal processes and into effective diversionary programmes. The ESR Committee makes clear that, under Article 17 of the Charter, the obligation to provide for diversion mechanisms is not limited to justice systems dealing with children ‘alleged as, accused of, or recognized as having infringed the penal law’ (cf. the text of Art. 40 (3) CRC), but also applies to equivalent systems that are designed to deal with children below the MACR who allegedly committed an unlawful act. Those systems, as far as they involve formal court proceedings, are equally obliged to provide alternatives to such formal proceedings as far as the abovementioned legal safeguards are respected.

Overall, the ESR Committee’s decision in the present case is an important and timely one, especially since the CRC Committee’s recent General Comment No. 24 explicitly urges States to raise their MACR. Nevertheless, the ESR Committee’s decision also gives rise to debate. From a principled standpoint, it could be argued that granting procedural youth justice rights to children below the MACR ignores that these children should not be subject to any pre-trial and/or trial(-like) proceedings in the first place. In doing so, the ESR Committee runs the risk of implicitly legitimizing such practices. The ESR Committee, however, seems to take a more pragmatic approach, based on the facts that were presented by the parties in this case, aimed at the improvement of the legal protections for children below the MACR who do get involved in pre-trial and trial proceedings. In doing so, the ESR Committee’s considerations implicitly address concerns regarding a high MACR, expressed by children’s rights scholars in response to General Comment No. 24, namely that large groups of children might end up in alternative systems and proceedings that are formally labelled as ‘child protection’ but are equally intrusive as the youth justice proceedings, but in which children are no longer protected by the procedural safeguards of Article 40 CRC, including fundamental fair trial rights.¹² This decision of the ESR Committee provides a solid socio-economic human rights argument that children below the MACR who are involved in legal proceedings as a response to them allegedly committing an unlawful act - regardless of the formal label of such proceedings - are entitled to protection by procedural safeguards suitable to the de facto nature of the proceedings and the possible consequences the proceedings may have for these children.

In conclusion, the ESR Committee’s decision in the present case, although not legally binding, should be taken seriously. Not only by the Czech Republic, but also by the authorities in other jurisdictions in Europe and beyond. Even though the ESR Committee could - or perhaps should - have made more explicit in its considerations that, as a starting point, children below the MACR should always be dealt with outside the justice system and should never be subject to any pre-trial and/or trial proceedings, the decision does send out a strong signal that children below the MACR are rights-holders too. In doing so, the ESR Committee’s considerations urge legislators, policymakers, practitioners, academics and other national and international stakeholders to seriously (re)consider how their system - regardless of its formal label - deals with children below the MACR when they allegedly commit an unlawful act, whether this system is in and of itself in accordance with international children’s rights standards, and whether children below the MACR are adequately protected by suitable procedural safeguards.

The authors would like to thank Professor J.E. Doek for his valuable comments on an earlier draft of this case note and on the case itself.