April 15, 2011
By Laurens Lavrysen*
In the recent case of Rahimi v. Greece, the European Court of Human Rights had to rule over the detention and the lack of care of a 15 year old Afghan unaccompanied minor. At arrival in Greece, he was placed in detention for two days, after which he was abandoned to live on the streets.
Despite the short duration of the detention, the Court found a violation of Art. 3 ECHR because of the dreadful detention circumstances and because of the applicant’s extremely vulnerable situation. In line with the recent Grand Chamber judgment of M.S.S. v. Belgium and Greece, the Court also concluded that the negligence of the Greek authorities to take adequate care of the applicant – the Court particularly emphasized the lack of action to provide him with a guardian – also amounted to a violation of Art. 3 ECHR.
Of particular importance is the applicant’s complaint about the legality of his detention. According to the Court, the length of the applicant’s detention could not be principally considered to be unreasonable to the aim of ensuring his expulsion. It however appeared that the legislation in question was applied automatically, without an examination of the specific situation of an unaccompanied minor. The Court attached decisive importance to the fact that the Greek authorities had not examined whether the detention was in the applicant’s best interest (Art. 3 UN Convention on the Rights of the Child) and whether the detention was used as a measure of last resort (Art. 37, b) UN Convention on the Rights of the Child). Therefore the Court doubted that authorities had acted in good faith and concluded that the detention had been in violation of Art. 5, § 1 ECHR.
The Court has thus clearly applied a procedural approach with regard to the provisions of the UN Convention on the Rights of the Child. This approach is not without a precedent: in the case of Anayo v. Germany (ECHR, 21 December 2010) the Court also attached decisive importance to the consideration of the child’s best interests. Because the German courts failed to consider whether denying the biological father access rights to his twin daughters was in their best interests, the Court concluded that there had been a violation of Art. 8 ECHR.
The clear advantage of such an approach is that it encourages domestic authorities to actively consider whether they act in compliance with the international obligations toward minors. The lack of such a consideration would lead to the finding of a violation in Strasbourg – insofar a link to a Convention right could be established. Such a “proceduralization” could therefore act as an important factor in preventing substantive violations of children’s rights. It lays the primary responsibility to protect children’s rights on the domestic authorities, thereby confirming the subsidiary nature of the Convention system.
A disadvantage of such an approach is that it does not give substantive guidance to domestic authorities on how to apply the rights of the child. A concept as the “best interests of the child” is very vague and the fact that authorities actively engage in a “best interests” consideration, does not exclude that the outcome of such an analysis might be quite child unfriendly. For the dangers of abuse of the concept of the “best interests of the child”, see my previous post.
In this regard, it is a pity that the Court did not refer to General Comment No. 6 of the Committee on the Right of the Child on the treatment of unaccompanied and separated children outside their country of origin, in which the Committee did give substantive guidance. “In application of Article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof.”
*Laurens Lavrysen works as a teaching assistant / Ph.D researcher at the Human Rights Centre of Ghent University. His research interest lies in the theory of positive obligations under the European Convention on Human Rights.