Court/Judicial body: European Court of Human Rights
Date: 5 April 2011 CRC
Provisions: Article 3: Best interests of the child Article 37: Torture and deprivation of liberty
Other international provisions: European Convention on Human Rights (ECHR): Article 3 (Prohibition of torture), Article 5 (Right to liberty and security), Article 13 (Right to an effective remedy)
Domestic provisions: Greek Constitution: Article 5 (Right to develop freely one’s personality), Article 21 (Protection of family) Presidential Decree no 220/2007 implementing Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers
Background: The complainant in this case was 15 years old when he arrived in Greece from Afghanistan as an unaccompanied minor. Upon his arrival, he was arrested and sent to a detention camp for refugees pending deportation. While being detained, he was offered no information on the possibility to seek asylum and his other legal rights in a language that he could understand and he was placed among adults in poor conditions with regard to accommodation, hygiene and infrastructure. Following his release, as he was not appointed a legal guardian or offered any other assistance, the complainant was living on the streets until he received help by local NGOs.
Issue and resolution: Unaccompanied minors. The Court found that there had been a violation of the prohibition against torture or inhumane or degrading treatment, as well as the rights to liberty and to an effective remedy.
Court reasoning: The Court unanimously found a violation of the right to liberty and security in Article 5 of the ECHR because the detention appeared to be the result of automatic application of national legislation with no consideration of the particular circumstances of the complainant as an unaccompanied minor. The Court referred to the best interests principle in the CRC as well as in other legal instruments and concluded that the authorities’ failure to take this principle into account and failure to consider whether detention is a measure of last resort, as required by Article 37 of the CRC, meant that the detention of the complainant was unlawful and, therefore, violated his right to liberty. The Court underlined the extremely vulnerable position in which the complainant was found and also concluded that several other rights had been violated, namely, the right to be free from torture, inhumane or degrading treatment in so far as the conditions in the detention centre were so poor that they went against human dignity; the right to seek review of unlawful detention before a court as the complainant was not provided legal assistance or translation while being detained; and the right to an effective remedy.
Excerpt citing CRC and other relevant human rights as in full-text French decision: 108. […] La Cour note que l’ Article 3 de la Convention relative aux droits de l’enfant du 20 novembre 1989 dispose que l’intérêt supérieur de l’enfant doit être une considération primordiale, entre autres, des autorités administratives dans toutes les décisions qui les concernent. De surcroît, l’ Article 37 de la même Convention prévoit que la mise en détention d’un enfant ne doit être qu’une mesure de dernier ressort […]. En outre, le décret présidentiel no 220/2007 qui transpose en droit grec la Directive 2003/9/CE du Conseil de l’Union européenne relative à des normes minimales pour l’accueil des demandeurs d’asile dans les Etats membres prévoit aussi que l’intérêt supérieur de l’enfant constitue une considération primordiale pour les Etats membres […]. Enfin, la Cour note que, dans le contexte de sa jurisprudence sur l’ Article 8 de la Convention et la protection de la vie familiale, elle a déjà admis qu’il existe actuellement un large consensus – y compris en droit international – autour de l’idée que dans toutes les décisions concernant des enfants, leur intérêt supérieur doit primer […].
CRIN English translation: 108. […]. In this regard, the Court observes that Article 3 of the Convention on the Rights of the Child of 20 November 1989 sets out that the best interests of the child shall be a primary consideration of, among others, administrative authorities in all decisions concerning the child. Furthermore, Article 37 of the same Convention foresees that the detention of a child should only be a measure of last resort […]. In addition, the Presidential Decree no 220/2007 which implements in Greek law Directive 2003/9/EC of the Council of the European Union laying down minimum standards for the reception of asylum seekers in Member States also foresees that the best interests of the child constitute a primary consideration for the Member States. Finally, the Court observes that in its jurisprudence on Article 8 of the [European Convention of Human Rights] on the protection of family life, it has already been established that there exists a broad consensus – including international law norms – on the idea that in all decisions concerning children, their best interests must prevail […].
CRIN comments: CRIN believes this decision is consistent with the CRC. National authorities must always follow the best interests principle when making any decisions concerning children, but this is of particular importance, in relation to children belonging to vulnerable groups, such as unaccompanied minors.
Citation: Rahimi v. Greece, Application no. 8687/08, Council of Europe: European Court of Human Rights, 5 April 2011
Link to full judgement: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-104366