Dr. Gamze Erdem Türkelli is a Post-Doctoral Fellow Fundamental Research of Research Foundation (FWO) Flanders (File Number 12Q1719N) at the Law and Development Research Group, University of Antwerp Faculty of Law.
The NGO Helsinki Committee for Human Rights in Skopje (HCHR) brought a case before the ECtHR on behalf of L.R., an eight-year-old child with moderate mental disabilities, severe physical disabilities (cerebral palsy) and a speech impediment. L.R. had been in the care of state-run institutions since he was three months old. The NGO alleged that L.R. had suffered from ill-treatment and inadequate care in violation of Art. 3 of the European Convention. In 2013, North Macedonia’s Ombudsman visited a state-run institute and found L.R. tied to his bed, which subsequently gave rise to the NGO’s interest in his case. The Strasbourg Court unanimously held that there had been a violation of Art. 3 as L.R. had been placed in an institute that could not provide him with adequate or requisite care for his needs and had suffered inhuman and degrading treatment (L.R. v. North Macedonia, §95).This contribution does not focus on the substance of the case but addresses rather a procedural issue: the issue of the representation of a minor who is in a vulnerable situation before the European Court of Human Rights (ECtHR), raised by Judge Wojtyczek in his Partly Dissenting Opinion the case.
Besides the merits of the case, the admissibility decision was contested by North Macedonia, alleging that the NGO HCHR had no locus standi to bring an application before the ECtHR on behalf of L.R. (§42) The Court acknowledged that the NGO HCHR had lodged the application on behalf of L.R. “without producing a power of attorney or written authority from the applicant himself, his legal guardian or any other competent person” (§46).
In fact, L.R. had a state-appointed legal guardian (an institution, B. Social Welfare Centre) but accusations had been brought before domestic authorities and the ECtHR against the guardian for failure to adequately protect the interests of L.R. (§50).
The undesirability and risks of granting legal guardianship of children to institutions instead of physical persons who would be “personally accountable for his actions and omissions” were also noted by Judge Wojtyczek (Partly Dissenting Opinion of Judge Wojtyczek, §12).
The Court refered to L.R. as “a highly vulnerable person who is manifestly incapable of expressing any wishes or views regarding his own needs and interests, let alone wishes and views on whether to pursue any remedies” (§48). While the Court underscored the usual requirement that representatives should produce “specific and explicit instructions from the alleged victim” (§46), it decided to grant the NGO HCHR legal standing to act as L.R.’s representative based on “the exceptional circumstances of th[e] case and … the serious nature of the allegations” (§54) based on the test previously put forth in the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 104-111, ECHR 2014) judgment:
– vulnerability of the victim
– whether the legal guardian is likely to lodge an application with the ECtHR
– Contact between victim and representative
– Involvement of representative in domestic proceedings and locus standi in such proceedings. (L.R. v. N. Macedonia, §47)
Partly Dissenting Opinion of Judge Wojtyczek
Judge Wojtyczek delivered a partly dissenting opinion on the judgment. One point of contention was the representation of minors before the ECtHR, particularly when the child’s parents are unable to represent them in the proceedings before the ECtHR. While Judge Wojtyczek agreed with the position of the Court to exceptionally allow third persons to bring claims on behalf of those unable to do so themselves, he found inherent risks in allowing non-governmental organisations (NGOs) to undertake such action, particularly with regards to consideration for the best interests of the child in question:
[N]on-governmental organisations have their own views, objectives and interests, which are not necessarily identical with the best interests of the minor they represent. They are involved in numerous cases and are often engaged in lobbying for the promotion of their views as well as the interests they have decided to defend. Even if, apparently, this did not occur in the instant case, there is a risk that the case of a minor may be instrumentalised for the sake of achieving the organisation’s general objectives, for instance for the purposes of strategic litigation, which is by its nature directed towards general issues. (Partly Dissenting Opinion of Judge Wojtyczek, §12)
To guard against the risks of conflict of interest between the minor who is represented and the representing institution, Judge Wojtyczek made an appeal for the appointment of “a physical person as curator ad litem” during the proceedings before the ECtHR and the amendment of the ECtHR Rules of Court to respond to this need (Partly Dissenting Opinion of Judge Wojtyczek, §12).
The emphasis that Judge Wojtyczek laid was on the best interests of the child: that the child’s legal representative “should identify and defend his best interests and carefully prepare a pleading strategy accordingly” (Partly Dissenting Opinion of Judge Wojtyczek, §12).
Neither the Court’s judgment nor Judge Wojtyczek’s partly dissenting opinion specifically referenced the procedural rights of the child, particularly a child with disabilities, as relates to L.R.’s case and representation before competent domestic and international judicial bodies.
Art. 3.2 of the Optional Protocol on a Communications Procedure (OPIC) to the CRC is also cognizant of the risks of “manipulation” of the child in the proceedings and allows the Committee on the Rights of the Child (CRC Committee) to
include in its rules of procedure safeguards to prevent the manipulation of the child by those acting on his or her behalf and may decline to examine any communication that it considers not to be in the child’s best interests.
The principle of giving primary consideration to the best interests of the child, enshrined in Article 3 of the Convention on the Rights of the Child (CRC) which was not expressly referenced in the judgment, constituted the backbone of Judge Wojtyczek’s argument. In fact, in its jurisprudence, the Court has often referred to the best interests of the child to stand-in for the rights of the child (Osman v. Denmark; Rahimi v. Greece; Maslov v. Austria). According to General Comment 14 of the Committee on the Rights of the Child (CRC Committee), the best interests principle serves a threefold function: “a substantive right”, “a fundamental, interpretative legal principle” and a “rule of procedure” (CRC Committee, GC 14, §6). According to the Committee, the best interests assessment should be done on a case-by-case basis and should accord attention to the particularities of each child’s situation, including
circumstances [that] relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc. (GC 14, §48 (emphasis added))
The case-by-case individual assessment should of course always take the views of the child into consideration in line with Article 12 CRC in balancing the best interest of the child with their views. The case of L.R. presented particular difficulties in terms of substantive and procedural rights that should have been guaranteed to him in domestic procedures. L.R. had cognitive difficulties as well as hearing and speaking disabilities, which created physical and structural impediments to expressing his views. In addition, the state had delegated his legal guardianship not to a physical individual but to an institution, which had diffused the responsibility and obligations to protect his well-being. The NGO bringing the case before the ECtHR on behalf of L.R. raised concerns regarding the appropriate discharge of legal guardianship obligations by this institution.
In this specific case, it can be inferred that the case would not have been brought before the ECtHR without the involvement of the NGO in question. After becoming aware of L.R.’s case, the NGO had visited the child three times and followed up with relevant administrative authorities. It had also attempted to instigate criminal proceedings by lodging a criminal complaint alleging torture and other cruel, inhuman or degrading treatment or punishment and ill-treatment with the public prosecutor’s office against the institution where L.R. had been placed and its staff. (§51) In their testimonies, the director and the staff of the institution (RIBBS) stated that they had notified L.R.’s guardian (director of the B. Social Welfare Centre) that the institution and its staff were not qualified to care for L.R. The public prosecutor’s office rejected the criminal complaint after an assessment, which established that the actions of the director of L.R.’s legal guardian B. Welfare Centre, the director of the institution where he was placed and its care staff did not amount to alleged criminal conduct. L.R.’s legal guardian was informed of the decision and did not appeal. (§§16-20) Of course, it is evident that the guardian institution, whose director was investigated for criminal allegation linked to the case by the public prosecutor’s office, had a conflict of interest as the legal representative L.R.’s best interests. No administrative or judicial intervention was made at the domestic level to resolve the conflict of interest issue. The Court acknowledged, in relation specifically to L.R.’s guardian, that “it [could not] be expected that the person suspected of having been part of the applicant’s alleged overall neglect in violation of his rights under Article 3 of the Convention would make a complaint on those grounds before the Court”. (§50) Beyond the conflict of interest issue, the Ombudsman who was entitled to initiate judicial proceedings in L.R.’s case had not done so. (§44)
The risk that the best interests of the child may not be served by being represented by a third party such as an organization or institution that may have other interests or agendas is one that should indeed be kept in mind, particularly when the child in question has disabilities that may impede him or her from expressing his or her views. This holds true both at the domestic level and in international judicial processes. Hence, Judge Wojtyczek is clearly right to conclude that the Court missed an opportunity to adjudicate on the procedural matter and to note the necessity of designating for the child a court-appointed legal representative (curator ad litem).
Curator ad litem, guardian ad litem or court-appointed legal representative is a person appointed by a court to safeguard the best interests of those not in a position, particularly due to a lack of mental capacity, to represent or to delegate the representation of their best interests themselves in administrative or judicial proceedings.
The appointment of a legal representative for a child by a court is essentially a protection measure to ensure that the person representing the child has the obligation to exclusively represent the said child’s best interests. For that reason, a curator or guardian ad litem may be appointed in various situations, including in family law matters or criminal matters regarding children deprived of a family environment, and in cases where unborn children’s inheritance rights are in question. Such a measure may be particularly important when the protection or care of those who have the legal custody or guardianship of a child’s well-being, rights and best interests is not adequate, as was the case for L.R.
In 2014, the Concurring Opinion of Judge Pinto de Albuquerque in the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania had in fact made an appeal to “to rise above the specificities of the case, and address the question of principle raised by the case: what are the contours of the concept of representation of extremely vulnerable persons before the Court?” (Concurring Opinion of Judge Pinto de Albuquerque, §8). By relying on an ‘exceptionality’ argument in L.R. v. North Macedonia, the Court seems to have once again postponed the discussion of that fundamental question and has not clarified what norms should apply to the possibility of representation of children, particularly those with disabilities, by third parties such as non-governmental organisations, who do not have guardianship rights. It has also missed an opportunity to clarify whether a change to the Rules of Court should be made, as noted by Judge Wojtyczek, to allow for the possibility of appointing a curator or guardian ad litem in similar cases.
This contribution draws on Wouter Vandenhole, Gamze Erdem Türkelli and Sarah Lambrecht, Children’s Rights: A Commentary on the CRC and its Protocols, Edward Elgar, November 2019 and Wouter Vandenhole and Gamze Erdem Türkelli, “Best Interests of the Child” in Jonathan Todres and Shani King (editors), The Oxford Handbook of Children’s Rights Law, Oxford University Press, Forthcoming April 2020.