Introduction

On 24 May 2024, the Committee on the Rights of the Child (the Committee) adopted its views in Optional Protocol No 3 (OP3) communication No. 144/2021, ML and others v Georgia, concerning alleged violation of the rights of 57 children residing at the Ninotsminda Saint Nino orphanage. Primarily, the case related to a complaint of a failure of the State Party to discharge its obligation under Article 19 Convention on the Rights of the Child (CRC) to protect children from violence and abuse. However, multiple other rights violations were alleged, and the case is also notable for its treatment of the issue of admissibility. In this regard, it gives rise to an interesting contrast between the respective merits of the CRC OP3 procedure and applications to the European Court of Human Rights (ECtHR) as a means of addressing current and ongoing (as opposed to historical) child protection concerns.

Facts

The author of the complaint was an Executive Director of a national NGO named Partnership for Human Rights, who lodged the complaint on behalf of the 57 children. Concerns about the treatment of the children in the institution had been raised as early as 2015 in a report published by the Office of the Public Defender, and reiterated in a subsequent report in 2018. Among other issues, the reports referred to frequent physical and psychological bullying by other children, and frequent physical and psychological abuse by the caregivers at the institution (including both physical and degrading punishments). Notwithstanding these reports, the institution was granted a care license in 2016, and no monitoring of the institution took place between June 2020 and May 2021 (with officials from the Office of the Public Defender denied access to the institution on three occasions).

On foot of these concerns, the author took multiple actions at national level between April and June 2021, including requesting interim measures before the courts to ensure that the Office of the Public Defender was granted immediate and unhindered access to the orphanage to inspect the conditions and treatment of the children (which was denied); filing a request to be allowed to meet with children in the orphanage and provide them with independent legal assistance (to which no response was received); and filing petitions in the courts seeking the transfer of the children to another orphanage, as well as the de-institutionalisation of all children living in orphanages in the State Party. The first petition was partly upheld, and children with disabilities living at the Ninotsminda Saint Nino orphanage were transferred; while the other petition was still pending at the time that the Committee determined its views on the case.

Views Adopted by the Committee

Notwithstanding the fact that the outcome of one of the court petitions was still pending before the Court of Appeal, the Committee deemed the complaint admissible, finding that the court proceedings were unduly prolonged (para 10.7). It dismissed the State Party’s objection that the children had not consented to the complaint on the basis that the applicant had no possibility of obtaining such consent (having been denied access to the children). However, the application was only deemed admissible in respect of 15 children who remained living at the institution, and six others transferred to another institution which the author could not access. The Committee found that the author had failed to justify the failure to obtain the consent of the 36 children transferred from the orphanage in 2021, and declared the application inadmissible in respect of those children (para 10.6).

Once the complaint was deemed admissible, the core aspect of the complaint was relatively straightforward: the Committee noted the uncontested allegations of systematic physical and psychological mistreatment of the children over a period of several years, including “beatings, food restrictions, forcing children to stay in wet beds or wet clothes, covering their eyes with clothing, spilling cold water on them in the winter, forcing them to stay in certain positions without moving and to carry heavy objects and leaving them naked on the tiled floor … children being medicated to keep them calm and being abused by caregivers, who would threaten the children with more punishment if they reported the incidents” (para 11.3). Citing case law of the ECtHR, it noted that “the State’s positive obligation of protection assumes particular importance in the context of a public service with a duty to protect the health and well‑being of children, especially where those children are particularly vulnerable and are under the exclusive control of the authorities” (para 11.3), and found that there had been a violation of Article 19(1) CRC, read in conjunction with Articles 37(a), 20 and 23 CRC (para 11.7).

Further violations were found in respect of the failure to conduct a best interests assessment of the children during their placement and/or transfer to alternative care; failure to provide the children with access to an effective complaints mechanism or legal aid; failure to adequately monitor their care placements; and failure to effectively investigate the complaints of abuse. Accordingly, the Committee found violations of Articles 3, 12, 23 and 25 CRC (paras 11.12-11.15) The only aspect of the complaint to be rejected was a claim of age-based discrimination contrary to Article 2 CRC. The author had argued that the State Party had not reacted in the same way to the claims of violations of the rights of children in a residential institution it would have reacted to claims of violations of adults isolated in institutions or places of detention. However, the Committee found that the author had failed to substantiate this claim (para 10.10).

Commentary

Given the evidence in this case of extensive physical and psychological abuse of children, which took place against a backdrop of inadequate monitoring and which was followed by very limited investigations, the finding of the Committee that multiple provisions of the CRC were violated is unsurprising. This aspect of the decision does not especially elaborate on our understanding of child protection obligations under the CRC or the operation of the OP3 procedure, since it amounts to an application of clear and well-established principles to an equally clear set of facts.

A more noteworthy aspect of this part of the decision is the citation by the Committee (on several occasions) of case law of the ECtHR to support its analysis of the scope of the State Party’s child protection obligations. It has long been the case that the ECtHR makes reference to the CRC in determining the scope of child protection obligations arising under Articles 3, 4 and 8 of the European Convention on Human Rights (ECHR); this practice is becoming more frequent as time passes. ¹ It was always possible that the advent of the OP3 procedure would see this cross-pollination begin to work in the other direction also. Several previous OP3 opinions have made reference to case law of the ECtHR, but have done so primarily in the context of reciting the submissions made by the parties. BJ and PJ v Czech Republic in 2023 had made one broad reference to an ECtHR judgment in the reasoning of the Committee, but – as observed by Marit Skivenes and Marius Emberland – only to support an obligation already clearly established in the text of the CRC. ML and others v Georgia goes further that previous opinions of the Committee in directly relying on ECtHR case law in support of the Committee’s elaboration of the scope of obligations flowing from provisions of the CRC.

Using the case law of the ECtHR as a persuasive authority in the interpretation of the CRC brings the obvious advantage that the ECtHR has grappled with a large number of child protection cases giving rise to a wide range of fact patterns, allowing it to add the flesh of real cases to the skeleton of the broad rights guarantees at stake. ² This has delineated the boundaries of States’ obligations in a more concrete way than is possible in General Comments or Concluding Observations of the Committee on the Rights of the Child. A possible downside is that while all State Parties to the ECHR are also parties to the CRC (making reliance on the CRC by the ECtHR relatively uncontroversial), the same clearly cannot be said in reverse. Reliance by the Committee on the Rights of the Child on case law of the ECtHR in a case not concerning a State Party to the ECHR might raise a few more eyebrows. Nevertheless, there is little reason to believe that there is any real dissonance between the two systems in the context of child protection rights and obligations, and the advantages of a continuing dialogue between the Committee and the ECtHR on this issue appear to outweigh the disadvantages.

The most notable aspect of ML and others v Georgia relates to the manner in which the issue of admissibility was decided, and the implications of this for the effectiveness of the OP3 procedure as a means of responding to current and ongoing child protection concerns. Article 7(e) of OP3 stipulates that an application will be inadmissible if all available domestic remedies have not been exhausted; but makes an exception where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief. This is a slightly wider admissibility rule than applies under Article 34 the ECHR, which makes an exception for remedies that do not have a reasonable prospect of success, but no exception for remedies that would be unreasonably prolonged.

In ML and others v Georgia, proceedings had been before the domestic courts for just under three years. The State Party argued that the OP3 complaint had been lodged immediately after the first instance hearing had rejected her petition; the Appeals Court would need at least three months to consider the case, and the author had not given the State party any chance to prove the effectiveness of the domestic judicial system (para 4.4). However, the Committee noted that “the courts have still not taken a final decision on the author’s complaints after almost three years, without any reasonable justification”, and accordingly held that the domestic judicial proceedings were unreasonably prolonged (para 10.7).

The State Party had also argued that the failure of the author to await the outcome of pending investigations of complaints made by children who had lived in the orphanage amounted to a failure to exhaust domestic remedies. On this point, the Committee noted that all but one of the children had been denied victim status in these proceedings, and that some of these proceedings have become statute barred. Accordingly, the Committee found that these proceedings were ineffective (para 10.8).

Anyone familiar with the prevailing approach to the issue of admissibility in the case law of the ECtHR will attest to the high degree of likelihood that a case like ML and others v Georgia would have been declared inadmissible by the Court if the application had been made at the same point in time. Examples abound of ECtHR cases in which the Court found a failure to exhaust domestic remedies notwithstanding many years of domestic litigation (sometimes even including an apex court decision). In circumstances in which two separate and directly relevant sets of domestic legal proceedings remained live and underway, it is difficult to imagine the ECtHR agreeing to proceed to the merits of the case – especially after a period of just three years (which is not in any way unusual in cases that eventually find their way to Strasbourg).

The significance of this more flexible approach to admissibility is that it may render the CRC OP3 procedure a more effective mechanism than an application to the ECtHR for addressing rights violations in current and ongoing child protection cases (as distinct from historical cases where the conduct giving rise to the rights violation has ceased). While the ECtHR admissibility rules might theoretically allow an adult advocate to make an application to the Court on behalf of child victims denied access to justice, ³ the prevailing approach to the requirement to exhaust domestic remedies is that any and all possible avenues of recourse at national level must be exhausted before the ECtHR will agree to hear the case. Indeed, in some cases where an appeal has been taken to the highest level of the national court system, the ECtHR has nonetheless ruled the case inadmissible on the basis that some other form of potential remedy should have been pursued. ⁴

Accordingly, a period of several years (possibly stretching to 5-10 years in some national systems) would be likely to have passed before the applicant could clear the Article 34 hurdle in the ECtHR – following which the case would have taken several more years to work its way through the ECtHR process. Numerous well-known child protection judgments of the ECtHR were handed down many years after action was first taken in the national courts. ⁵

In contrast, the author of the complaint in ML and others v Georgia was able to make an admissible complaint under OP3 almost contemporaneously with actions taken at national level: the first application to a national court was made on 19 April 2021, while the OP3 application was made on 5 May 2021. Thus, while the disposal of the application by the Committee took three years (which is hardly a rapid response to an ongoing child protection concern), it still represents a much quicker process than would have been the case if the author had elected to pursue an application to the ECtHR. It also resulted in the decision being handed down while at least some of the children named in the complaint were still children, and while the rights violations complained of were still ongoing. For those reasons, the approach of the Committee to the “unreasonably prolonged” exception in Article 7(e) of OP3 (which can be contrasted with its approach in its 2019 opinion in Sacchi and others v Argentina and others)⁶ is to be welcomed.