European Court of Human Rights
7 May 2015
Article 3: Best interests of the child
Other international provisions:
Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 1: Right to peaceful enjoyment of possessions
Charter of Fundamental Rights of the European Union, Article 24: The rights of the child
CRC General comment No. 14 (2013) on Article 3 (CRC/C/GC/14, 29 May 2013);
Constitution of the Republic of Croatia, Article 48: Property rights; Article 63: Obligation of the state to protect children and youth; and Article 65: Obligation of everyone to protect children.
Civil Obligations Act, Section 51: Permissible basis for contractual obligations; Section 52: Contracts void for lack of, or impermissible, basis; Section 103: Nullity of contracts contrary to the Constitution, law or morals; Section 110: Voidable contracts; Section 117: Expiration of right to claim contracts are voidable; and Section 139: Contracts voidable for obvious disproportionality in amount given.
Family Act: Section 121: Legal capacity; Section 192: Requirement to appoint a special guardian; and Section 265: Ability of parents to dispose of child’s property subject to consent of Social Welfare Centre.
Real Estate Transfer Tax Act, Section 9: Tax basis for real estate transactions.
Civil Procedure Act, Section 428a: Ability to apply ECHR decisions to make a petition to set aside the original domestic court decision and in reopened proceedings in Croatia.
The applicants, who are siblings, complained to the European Court of Human Rights (ECtHR) in relation to a property deal conducted on their behalf by their parents while they were children. Their parents and their father’s criminal defense lawyer (M.I.) sold a house owned by the applicants to M.I.’s mother-in-law in exchange for a much less valuable apartment and a small amount of money. The applicants argued that their right to peaceful enjoyment of their possessions under Protocol No. 1 to Article 1 of the European Convention had been violated for the failure to repent such an unfavourable transaction to be carried out on their behalf while they were children.
Issue and resolution:
Best interests of children and protection of children’s property rights. The Court held that the State had failed to protect the property rights of the children and to provide them with a reasonable opportunity to effectively challenge the measures interfering with their rights guaranteed by Article 1 of Protocol No. 1 of the ECHR.
The Court found the Croatian authorities had failed to evaluate whether the circumstances of the real estate transaction complied with the principle of the best interests of the child, and had thus failed to take the necessary measures to safeguard their proprietary interests as children and afford them a reasonable opportunity to effectively challenge the measures interfering with their rights guaranteed by Article 1 of Protocol No. 1, based on a number of facts. First, the Croatian civil courts had ruled against the children because they had not objected to the administrative decision of the local social welfare centre to permit the real estate sale transaction. However, the children were unable to do so at the time due to their legal incapacity and the absence of a special guardian. Second, the social welfare center had not conducted any independent investigation of the value of the property being transferred and did not question anyone other than their mother about the transaction. Finally, the proceedings at the social welfare center were in the control of M.I., whose mother-in-law was the buyer in the transaction and who had just represented the children’s mother’s husband (father of one of the children), Z.L., in criminal proceedings, and thus had a conflict of interest. In addition, Z.L. was also incarcerated at the time for attempted murder and unlawful possession of firearms following the proceedings where he had been represented by M.I., and the children’s mother had a drug abuse problem, alleged to have been known by the government at the time, further limiting the children’s ability to contest the administrative decision within the statutory period. Therefore, the unfavourable decisions of the social welfare center and the civil courts left the children with no effective domestic remedy.
Excerpt citing CRC and other relevant human rights
From the Court’s discussion of relevant international law:
1. Convention on the Rights of the Child 42. The relevant provision of the United Nations Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Croatia on 8 October 1991 (Official Gazette – International Agreements no. 12/1993), provides:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. …”
43. The Committee on the Rights of the Child has recently explained the content of this obligation in its “General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)” (CRC/C/GC/14, 29 May 2013) in the following terms:
“A. The best interests of the child: a right, a principle and a rule of procedure
1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified Article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child, and applies it is a dynamic concept that requires an assessment appropriate to the specific context.
4. The concept of the child’s best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. The Committee has already pointed out that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention.” It recalls that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the “child’s best interests” and no right could be compromised by a negative interpretation of the child’s best interests.
6. The Committee underlines that the child’s best interests is a threefold concept:
(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.
(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.
III. Nature and scope of the obligations of States parties
13. Each State party must respect and implement the right of the child to have his or her best interests assessed and taken as a primary consideration, and is under the obligation to take all necessary, deliberate and concrete measures for the full implementation of this right.
14. Article 3, paragraph 1, establishes a framework with three different types of obligations for States parties:
(a) The obligation to ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children;
(b) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child’s best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.
(c) The obligation to ensure that the interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.”
From the Court’s discussion of general principles applicable:
62. The Court has also held that where children are involved, their best interests must be taken into account (see, for example, X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance. Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014). Indeed, the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere, which expresses one of the fundamental values of that Convention (see paragraphs 42 and 43 above).
CRIN believes this decision is consistent with the CRC. Children have the right to have their best interests taken into account as a primary consideration, as well as the right to have their views given due weight, in all matters affecting the child. In addition, States must ensure children’s access to an effective remedy in order to ensure that children can enforce their rights.
Application no. 13712/11
Link to Full Judgment:
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