The FRA opinions presented below build on the following key findings:
Findings regarding the recognition and respect of children’s rights in the area of justice, available on FRA’s website, show asymmetry in approaches to child participation in judicial proceedings among Member States, but also within Member States across various areas of regulation (i.e. criminal, civil or administrative law proceedings). This results from differing minimum age requirements regarding the right of children to express their views on their own and be heard in proceedings, if they are able and wish to do so. Child participation in the area of justice encompasses the right of children to be informed about proceedings affecting their lives and their right to be heard according to their age and maturity, as enshrined in Article 24 (1) of the EU Charter of Fundamental Rights and Article 12 of the UN Convention on the Rights of the Child (CRC). As acknowledged in the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the respect of this right serves the best interests of the child, a principle that is to be a primary consideration for all national authorities, including courts and legislative bodies.
A number of EU Member States do not apply strict minimum age requirements for children to have the opportunity to express their views and to be heard in any kind of criminal, civil or administrative law proceeding. Many Member States, however, do apply such minimum age requirements, without considering that, in light of Article 12 of the CRC and Article 24 (1) of the Charter, not only children’s age but also their maturity should be taken into account in view of implementing the right of children to be heard in proceedings. In this respect, several EU legislative measures provide for the need to take into account children’s views, needs and concerns in judicial proceedings. These include the Directive on special safeguards for children (Article 16); the Victims’ Rights Directive (Article 10); the Directive combating the sexual abuse and sexual exploitation of children and child pornography9 (Article 19); the Directive on preventing and combating trafficking in human beings and protecting its victims (Anti-Trafficking Directive)10 (Article 14); and Regulation Brussels II bis, as regards, for instance, judgments on parental responsibility (Article 23). To determine whether a child is capable of expressing its views on its own during a judicial proceeding, an individual assessment of the child, taking into account not only the child’s age but also other personal characteristics, should be a suitable and useful tool.
Most EU Member States provide, up to the age of 18, special support and procedural safeguards for children in criminal proceedings, regardless of whether they are involved in these as suspects/offenders, victims or witnesses. Such safeguards include audio-visual recording, forensic interviewing by specialist personnel, the closed-door rule, and psychosocial support. Some Member States also provide stronger protective measures for younger children in criminal proceedings (depending on the context, this can mean, for instance, children under 15, 14 or 12). However, a few Member States set the upper age limit for support and minimum procedural safeguards below 18; or set different age limits depending on the child’s role in a proceeding. In this respect, the Directive on special safeguards for children, as well as the Victims’ Rights Directive, establish minimum standards for all children under 18 who are suspects/offenders or victims as regards their support and procedural safeguards. Age and maturity, though, as well as a child’s gender, may call for further appropriate and more targeted protective measures, which can be better defined after an individual assessment of a child’s needs.
FRA evidence shows that, in all EU Member States, free legal aid is provided to all child suspects/offenders and is not subject to any age requirements. Similarly, it is also provided to victims, and not subject to any age requirements, in the vast majority of Member States. The majority of EU Member States, however, do not provide legal aid to child witnesses. Moreover, in the majority of Member States, free legal aid is conditioned on income requirements, regardless of whether the child’s role in a criminal proceeding is as suspect/ offender, victim or witness. As regards children and the relevant EU secondary legislation, their right to legal aid is explicitly laid down in Article 18 of the Directive on special safeguards for children. It obliges EU Member States to ensure that national law guarantees the effective exercise of a child’s right to be assisted by a lawyer in criminal proceedings. In the context of this directive, the term ‘child’ refers to persons under 18; consequently, Member States are not allowed to introduce age limits below the age of 18. Furthermore, the right to legal aid, without distinguishing on the ground of age, is also foreseen in Article 13 of the Victims’ Rights Directive regarding all victims, as well as in Article 15 (2) of the Anti-Trafficking Directive and Article 20 (2) of the Directive combating the sexual abuse and sexual exploitation of children and child pornography.
In most EU Member States, children under 18 involved in criminal proceedings as suspects/offenders cannot waive their right to a lawyer. The Directive on special safeguards for children does not explicitly exclude children from waiving this right. However, Article 6 (2) of the directive provides for Member States to ensure that child suspects/offenders shall be assisted by a lawyer. Article 6 (6) specifies that the Member States shall ensure that “deprivation of liberty is not imposed as a criminal sentence, unless the child has been assisted by a lawyer in such a way as to allow the child to exercise the rights of the defence effectively and, in any event, during the trial hearings before a court”.
Child offenders can be subject to custodial sanctions and measures, and be deprived of their liberty (i.e., detained) in all EU Member States. The minimum age for being subject to such sanctions and measures corresponds to the minimum age for criminal responsibility. Under Article 10 (2) of the Directive on special safeguards for children, deprivation of liberty is foreseen as a measure of last resort for child offenders. Article 11 of the directive calls on Member States to ensure that, where possible, the competent authorities apply alternatives to detention (alternative measures). In addition, Article 7 of the directive provides that an individual assessment should take place before a sanction is decided, considering, among other factors, the child’s maturity and age. Deprivation of liberty for children as a measure of last resort is also a principle enshrined in Article 37 (b) of the CRC and other UN soft law instruments, such as the UN Rules for the Protection of Juveniles Deprived of their Liberty. The principle is also endorsed by the Council of Europe in its Recommendation on the European Rules for juvenile offenders subject to sanctions or measures and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
Child detainees can be subjected to solitary confinement for a limited time period in the vast majority of EU Member States as a disciplinary or preventive measure, or as a protective measure. The minimum age set by Member States in this respect ranges from 10 to 16 years, and usually corresponds to the minimum age for criminal responsibility. At the EU level, the prohibition of torture, inhuman or degrading treatment and punishment is established under Article 4 of the EU Charter of Fundamental Rights. According to Article 24, the treatment of children by any public authority should have as a primary consideration the best interests of the child. In this context, Article 12 (5) of the Directive on special safeguards for children provides that, in cases of child detainees, Member States are bound to ensure and preserve the children’s health and physical and mental development. The European Committee for the Prevention of Torture (CPT) for its part notes that solitary confinement “can have an extremely damaging effect on the mental, somatic and social health of those concerned” and “should only be imposed in exceptional circumstances, as a last resort and for the shortest possible time”. As a principle, solitary confinement of child detainees, in particular as a disciplinary measure, is not justifiable from the perspective of the rights of the child and is contrary to the best interests of children, since it can harm their health and their physical and mental development.