5 - Fair trial guarantees for children

L'article 40 de la CRC fait référence aux enfants « présumés, accusés ou reconnus comme ayant enfreint la loi pénale ». L'article 6 de la CEDH couvre le droit à un procès équitable dans « la détermination de l'accusation pénale ». Du point de vue de la Cour européenne des droits de l'homme, le concept d'« accusation pénale » est autonome dans la mesure où la qualification en droit national n'est que le point de départ et non le seul critère déterminant pour évaluer si une personne a été inculpée pénalement. La raison d'être d'une interprétation autonome d'une accusation en matière pénale est d'éviter que les États membres excluent simplement l'application de l'article 6 de la Convention par des définitions adoptées dans le droit national. Cela pourrait aboutir à des résultats incompatibles avec l'objet et le but de cet article (voir parmi beaucoup d'autres Öztürk c. Allemagne, 21 février 1984, § 49, série A n° 73 ; ou Matyjek c. Pologne (déc.), n° 38184/ 03, § 45, 30 mai 2006).

La Cour EDH appliquera les critères d'Engel pour déterminer si l'article 6 CEDH -volet pénal- est applicable à une situation particulière (Engel et autres c. Pays-Bas, 8 juin 1976, § 82, série A n° 22).

The Engel criteria have been applied in the landmark case of Blokhin v Russia which concerned proceedings against a 12-year-old child arrested and subsequently placed in a temporary detention centre on suspicion of extortion.

Conversely, the Court has held that Article 6 (1) ECHR does not apply to proceeding which ended with a warning to a 14-year-old boy who had been accused of indecent assault against several girls at school. In so finding, the Court ruled that the purpose of the warning was largely preventive and not punitive, that there had been no deprivation of liberty imposed or other restriction and that a warning was not the equivalent of a conviction (R. v The United Kingdom, (dec) no33506/05).

The provisions of Article 6 (1) ECHR apply from the moment a child becomes a suspect until the completion of the last (ordinary) stages of the criminal trial. The European Court will assess the fairness of the proceedings looking at them as a whole (eg. Dvoski v Croatia, no. 25703/11, §76).

Similarly, in the collective complaint ICJ v Czech Republic  (ECSR, 148/2017 § 85) the European Committee on Social Rights has ruled on 17 March 2021 that:

“under Article 17 of the 1961 Charter children must benefit from an adequate level of protection, irrespective of the formal designation and nature of proceedings (criminal or civil) in national law. The Committee emphasises that the adoption of measures in light of the intention of the State to create a more protective system for children below the age of criminal responsibility should not result in children being provided with less and/or weaker legal procedural protection than adults”

The EU Procedural Safeguards Directive is not applicable to minor offences where deprivation of liberty cannot be imposed as a sanction and when a sanction is not imposed by a court. Similarly to Article 6 (1) ECHR, the provisions of the Procedural Safeguards Directive shall be applied from the moment children are made aware that they are suspects or accused persons (Recital 27).

Sections 2.1 to 2.11 below outline the fair trial guarantees for children developed in international instruments (with a particular focus on binding norms and case-law).

Under EU law, children have the right to receive information about the general aspects of the conduct of the proceedings (Recital 19 and Article 4 of the Procedural Safeguards Directive). The rights set out in the Procedural Safeguards Directive are to be complemented by the provisions of Directive 2012/13 of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (the “Right to Information Directive”).

The right to information applies from the moment children are made aware they are suspects or accused persons in criminal proceedings (Article 4(1) of the Procedural Safeguards Directive). Certain information is to be provided immediately (Article 4(1)(a) of the Procedural Safeguards Directive) whereas other information is to be given at the earliest appropriate stage of the proceedings (4(1)(b) Procedural Safeguards Directive). 

Under Article 4(1)(a) of the Procedural Safeguards Directive, and regardless of whether a child is detained or not, he or she should be informed of the following rights: 

1. The right to have the holder of parental responsibility informed, 
2. the right to be assisted by a lawyer
3. the right to protection of privacy
4. the right to be accompanied by the holder of parental responsibility 
5. the right to legal aid

In addition, under The Right to Information Directive (Article 3 (c), (d) and (e)), children shall have the following rights whenever they are suspects or accused in criminal proceedings:

1. the right to be informed of the charges
2. the right to interpretation and translation
3. the right to remain silent.

Further, Article 4(1)(b) of the Procedural Safeguards Directive lays down the obligation of the authorities to inform children of the following rights at the earliest appropriate stage in the proceedings:

1. the right to an individual assessment;
2. the right to a medical examination and the right to medical assistance;
3. the right to limitation of deprivation of liberty; alternative measures and periodic review of detention (See also Factsheet no. 3); 
4. the right to be accompanied by a holder of parental responsibilities during court hearings;
5. the right to appear in person at trial;
6. the right to effective remedies. 

Finally, specifically for suspects or accused who are detained, Article 4 of the Right to Information Directive lays down the right to receive a written Letter of Rights which they may keep in their possession. The Letter of Rights should include information concerning all the rights mentioned above as well as specific additional rights laid down under Article 4 of the Right to Information Directive. Under Article 7 of the Right to Information Directive, suspects or accused who are detained are entitled to access all materials in the possession of the authorities which can enable them to effectively challenge the lawfulness of their detention. 

It is further important to note that the information provided to children should be adapted to their age and maturity. Article 4 (2) of the Procedural Safeguards Directive provides that the information should be in a simple and accessible language. 

Article 6 (3) (a) of the ECHR equally enshrines the right to information. The ECtHR has relied on this right for children, stating that information should be adapted to them (Panovits v Cyprus; Blokhin v Russia). Failure to provide information could lead to a violation of Article 6 (1) -fairness of the proceedings seen in their entirety. The ECtHR has never found a violation of Article 6 (3) (a) solely on account of failure to provide adequate information to children suspected or accused of a criminal offense. 

Under the CRC, Article 40 (b) (ii) ensures children’s right to be informed promptly of the charges. In General Comment no. 24, the CRC Committee has clearly stated that providing children with an official document is not enough and that they should be given an oral explanation. 

Similarly, the Explanatory Protocol to the Council of Europe Child Friendly Justice Guidelines provides that children should be informed in a manner adapted to their age and maturity. 

Last but not least, it is important to note that children’s right to be informed in a manner suitable for their age and maturity is a core element of the concept of effective participation of children in criminal proceedings. The right to information is the first step in ensuring effective participation in the proceedings, and failure to implement it properly may result in a child’s inability to express his views adequately and participate effectively in the proceedings (in this sense see also Factsheet no 7. – Children’s right to effective participation as well as CRC Committee’s General Comment no. 12 (2009) – The right of the child to be heard, in particular § 41).

The right to an interpreter is connected to the right to effective participation, and should be assured so that all persons accused or suspected of criminal offences understand the proceedings against them (Article 40 (2) (vi) CRC; Article 6 (3) (a) ECHR; Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010). 

To date there have not been cases of international courts on the right to an interpreter specifically for children. 

The General Comment no. 24 provides that an interpreter should be trained to work with children. Paragraph 65 elaborates on the needs for adequate and effective assistance by well-trained professionals for children who experience communication barriers (in this sense see also Factsheet no 10).

This is a child specific guarantee and it is of utmost importance for their right to a fair trial in criminal proceedings. All the international instruments dedicated to children involved in criminal proceedings stress the importance of this right for children. The CRC provides it expressly under Article 40 (2) (b) (iii).

Under the Procedural Safeguards Directive, children should be accompanied by the holders of parental responsibility both during court proceedings and throughout other procedural steps. Also, where a holder of parental responsibilities cannot accompany the child, the child is entitled to nominate another responsible adult or in exceptional circumstances they can be accompanied by a representative of an institution responsible for the protection or welfare of children (Article 15). The possibility to nominate a responsible adult to accompany the child is exceptional and applies only where the presence of the holder of parental responsibility would be (i) contrary to the child’s best interests or (ii) they are unknown or cannot be reached or (iii) on the basis of concrete factual circumstances their presence would substantially jeopardize the criminal proceedings. Circumstances which could substantially jeopardize the criminal proceedings relate for example to destruction of evidence, interference with witnesses or where the adult might have been involved in the criminal activity together with the child. 

Moreover, the right to information (discussed under section 2.1. above) also applies to the holders of parental responsibilities who should be informed of all the aspects mentioned under Section 2.1. above (Article 5 Procedural Safeguards Directive). 

The holders of parental responsibilities/ responsible adults should be entitled to question witnesses (see for eg. Blokhin v Russia, §211). The ECtHR found it problematic for an applicant to be questioned in absence of his guardian (Panovits v Cyprus, §§ 75-76). It should also be noted that the presence of a guardian does not imply that other important procedural guarantees, such as the right to access a lawyer could be waived by the latter on behalf of the child (Panovits v Cyprus, § 74, see also Factsheet no 7 on the right to legal assistance)

The right not to incriminate oneself, or the right to remain silent is guaranteed, among other international instruments, under Article 40 (2) (b) (iv) of the CRC, Recital 29 of the Procedural Safeguards Directive and Article 6 ECHR. This right is closely connected to the right to legal assistance from the first interrogation and for this reason is further elaborated upon in Factsheet no. 7.

The manner of ensuring children’s right to legal assistance has a direct impact on the fairness of the entire criminal proceedings. Lack of access to a lawyer from the first interrogation may result in the nullity of the entire process (see for example Salduz v Turkey). Many international instruments refer to the right to legal assistance. Among them are: Article 40 (2) (b) (iv) of the CRC, Article 6 of the Procedural Safeguards Directive, Directive 2013/48/EU, Article 6 ECHR as well as in many other non-binding instruments such as the General Comment no 24 or the Child Friendly Justice Guidelines. 

Given its importance and specificity, the details of this right are further outlined in Factsheet no. 7 on the right to legal assistance. 

Article 7 of the Procedural Safeguards Directive lays down children’s right to an individual assessment. The right to an individual assessment is arguably linked to the right to effective participation of children in proceedings as it ensures that the authorities are capable of taking into account the specific needs of children during the criminal proceedings. Thus, the  individual assessment is arguably conducted in fulfillment of the child’s best interests. The Procedural Safeguards Directive specifies that the individual assessment should be carried out at the earliest appropriate stage of the proceedings and no later than at the beginning of the trial hearings (Article 7 (5) and (6)).

In line with the child’s right to participation, such assessment should be carried out with the close involvement of the child, by specialized personnel and it should be updated if circumstances change.

This right is equally specific to children and addresses the need to offset the power imbalance between children and the authorities. Article 9 of the Procedural Safeguards Directive provides that the questioning by police should be recorded where this is proportionate and if it is in the best interests of the child. In absence of an audio-visual recording minutes are to be kept which have been duly verified. Paragraph 60 of the General Comment no. 24 also mentions that audio-visual recordings are meant to safeguard children against coerced, unreliable or multiple testimonies (for further details regarding children’s rights at the police station, see Factsheet no. 2).

Article 16 of the Procedural Safeguards Directive lays down the right of children to appear in person and participate in their trial. The right to appear in person is closely linked to the right to be presumed innocent. Absence during trial results in the right to a retrial under the conditions of Directive 2016/343. The Court of Justice of the European Union has interpreted the right to presence in a case concerning an adult; it has found that this right is not violated provided that the accused has been properly informed, he has been assisted by a lawyer and he has decided unequivocally to not participate in one hearing (CJEU, Case C688/18). It may be that more guarantees will be needed to secure this right for children, however there is no case law to date of the CJEU on this topic. 

In the case of Güveç v Turkey (no 70337/01, §§127, 128), the ECtHR has found that the right to a fair trial had been breached as the applicant had not attended many hearings on the ground of medical reasons for which he had provided medical certificated. The Court also found that his inability to be present was not compensated by the presence of a lawyer.

The ECtHR has on several occasions considered situations where the same judges had decided on pre-trial detention or directed the investigations were members of the panel convicting the applicants (Nortier v The Netherlans, no 13924/88; Adamkiewicz v Poland 54729/00 or Romenskiy v Russia, no 22875/02). The Court has considered that the mere fact that a trial judge has already taken pre-trial decisions in a case, including decisions relating to detention, cannot in itself justify fears as to the judge’s impartiality. Special circumstances however may warrant a different conclusion. Such special circumstances relate to situations where the judge went beyond the finding of a suspicion and had assessed the guilt of the applicant. For example, in the case of Romenskiy v Russia, the Court found a violation of Article 6 (1) of the Convention on the ground that the judge extending the pretrial detention had also been on the panel convicting the applicant. When ruling on the pre-trial detention the judge refused the applicant’s release on the ground that ‘he had committed a serious crime’. This statement showed that the judge went beyond expressing a mere suspicion to a finding of guilt. The ECtHR will thus assess if the questions on which the judges rule prior to the trial phase overlap with the matter on which they decide as members of the panel in the criminal trial. If this is so, there is a risk that the judges preconceived ideas will impact on the fairness of the proceedings due to a lack of impartiality. 

The CRC Committee has drawn attention to the fact that military tribunals and state security courts are not independent and impartial courts (General Comment no. 24, § 96).

Under Article 6 (1) and 3 (d) of the ECHR, children suspected or accused of having infringed criminal law have the right to challenge and question witnesses. Failure to ensure this right is even more important for children and for adults and should in any event be secured if the testimonies of the witnesses had a decisive role in the investigation (Blokhin v Russia, §§ 212-216)

This right is also embedded in the notion of effective participation (Article 40 (2) (b) (iv) of the CRC and General Comment no. 24, §§ 46, 61)

Under Article 40 (2) (b) (v) of the CRC children have the right to review or appeal any finding of guilt. The CRC Committee has recommended that this should not apply only to the most serious offences and that states introduce automatic measures of review. The automatic measures of review should in any event exist for situations of deprivation of liberty or cases resulting in criminal records which have a substantial impact on the child’s opportunities in the future (General Comment no. 24, § 62).