October 04, 2022
By Daniel Simon and Mark Klaassen
There are no reliable tools to determine a person’s exact chronological age. And yet, legal safeguards for asylum seekers depend on it to a large extent. The way states determine whether an asylum seeker is a minor or not remains a widely controversial topic. In fear of abuse of rights, different states use intrusive measures to determine the age of the applicant, or simply refuse to investigate the applicant’s age altogether. In the judgement of the European Court of Human Rights in Darbou and Camara v. Italy, the Court has ruled on this issue for the first time. In line with previous rulings of the Committee on the Rights of the Child, the Court found a violation of Articles 3, 8 and 13 ECHR. In this blog, we will discuss the reasoning of the Court from the perspective of international children’s rights, comparing the Court’s approach with that of the Committee. We will conclude that even though the Court’s findings are a welcome step signalling the relevance of age assessment as a human rights issue, the Court could have emphasised in stronger on the unreliability of radiological assessment method used.
The applicant is a Guinean national who, upon arrival on a makeshift vessel in Italy, declared that he was 17 years old. The Italian authorities issued a health insurance card with the applicant’s reported date of birth. Yet, without opening an asylum procedure, Italy transferred him to a reception facility for adults. The overcrowded and understaffed reception centre had only poor educational and recreational facilities and the bathrooms lacked proper heating and hot water. After a month, the Italian authorities conducted a medical age assessment procedure. Using the Greulich and Pyle method, an x-ray of the wrist was taken to determine whether the applicant was a minor. The applicant alleges that his consent to undergo this procedure was not acquired, he had not been provided with a copy of the outcome, no margin of error was indicated in the medical report, nor was an administrative or judicial decision regarding his age assessment communicated to him.
Two months later, the claimant applied to the Venice District Court to obtain the appointment of a legal guardian, which remained unsuccessful. Meanwhile, the applicant petitioned to the European Court of Human Rights and requested an interim measure to be placed in a reception facility for minors and to be appointed a legal guardian. After the Court granted the interim measure, the applicant was transferred to a reception centre for minors. In his application to the Court, the applicant complained that his treatment of the Italian authorities amounted to a violation of Articles 3, 8 and 13 ECHR.
The Court rules that the right to private life encompasses the right to development and the right to establish relationships. These rights are at stake if unaccompanied minors are not provided with certain safeguards. Moreover, a person’s age is part of a person’s identity. Therefore, an age assessment procedure is essential to guarantee the rights of children. The Court refrains from speculation regarding the age of the applicant. Instead, it establishes that the principle of the presumption of minor age is an inherent element of the protection of a foreign unaccompanied individual declaring to be a child. The presumption of minor age triggers procedural guarantees that must accompany the age assessment procedure. Borrowing from EU and domestic law standards the Court identified two primary procedural safeguards: the appointment of a legal guardian and the right to information. In the present case, no legal guardian was appointed for the applicant until the interim measure of the Court ordered this. Moreover, the Italian authorities did not give any information to the applicant about the medical age assessment procedure. Due to denying the applicant these procedural guarantees, he was prevented from applying for asylum and placed in an adult reception facility. The Court concludes that this violated Italy’s positive obligations under Article 8 ECHR.
On the merits of Article 3, the Court revisits its judgment in Tarakhel to clarify that reception conditions for children seeking asylum must be adapted to their age to ensure that those conditions do not create a situation of stress and anxiety with particularly traumatic consequences. The evidence supports the applicant’s claim that the reception facility was unsuitable for children. The applicant’s claim of minor age was initially uncontested. Yet, he was placed in an adult facility where he continued to be held after an age assessment procedure in breach of Article 8 until the Court intervened with an interim measure. Therefore, having regard to the length and conditions of the applicant’s stay in the adult reception centre, the Court concludes that Article 3 was breached.
Lastly, the Court found a violation in Article 13 in conjunction with Articles 3 and 8 because the government did not provide effective remedies to complain about the reception facilities or the age decision.
This is the first time that the Court has ruled on age assessment for (alleged) unaccompanied minors, applying the standards of the ECHR. This is a welcome addition to the increasing jurisprudence on this issue. In the context of the Convention on the Rights of the Child (CRC), the Committee on the Rights of the Child has held in General Comment 6 on the Treatment of Unaccompanied and Separated Children that children must be promptly identified upon arrival and have their age determined in a scientific, safe, child and gender-sensitive and fair manner. The Committee stresses that the importance of age assessment procedures lies in the fact that it determines entitlement to protection of the CRC. In N.B.F. v Spain, the Committee emphasised that procedural guarantees should prevent that a child is erroneously identified as an adult. The judgment of the ECtHR in Darboe and Camara follows this precedent by emphasising only procedural safeguards. However, while the Committee finds the use of radiological methods generally unreliable and calls upon states to refrain from using them, the Court makes no conclusive statements on the use of radiological age assessment methods. Recognising that this is the first time the Court has actually found violations in a case concerning age assessment, in our comments, we will focus on the Court’s choice not to discuss the accuracy, reliability and invasiveness of radiological age assessment methods. Furthermore, we will discuss the role of the presumption of minor age in the Court’s judgment before highlighting that the violations were found irrespectively of the outcome of the assessment procedure.
In the communication before the Court, the applicant highlights that the method used to determine his age via x-ray (Greulich and Pyle Method) is unreliable, because it extrapolates the findings of the Caucasian control group to other ethnicities. Moreover, he draws attention to the fact that the age assessment procedure was not based on a multidisciplinary approach, including a psychological evaluation of age, as required by national measures. Additionally, a third-party intervention has provided extensive medical criticism on the use of x-ray methods to determine age in general, including the Greulich and Pyle method. The interveners argued that all x-ray methods are invasive and too inaccurate to determine whether a person is a minor or an adult. Thus, they are unproportional for pursuing the government’s legitimate aim given the extreme vulnerability of unaccompanied minors. They urged the Court to clarify that ‘the requirements underpinning Article 8 cannot be fulfilled where non-holistic and intrusive medical age assessment methods are used as they have low evidential value […].’
The Court, however, ignores those arguments. Instead, it only focuses on the lack of procedural safeguards under Article 8 submitted by the applicant: the right to information and the appointment of a legal guardian. This is unfortunate, given the severe criticism of scholars on many of the used age assessment methods, particularly the Greulich and Pyle method. It is striking that the Committee on the Rights of the Child clarifies in different views that basing a decision on age solely on the Greulich and Pyle method violates the child’s right to private life and the best interest of the child. It does so by using a comparable approach to the Court but identifying scientific as an additional safeguard. A similar finding by the Court, regardless of whether it is based on a lack of proportionality or an additional safeguard , would have been highly relevant, as some EU countries continue to use the Greulich and Pyle and other x-ray methods.
Indeed, in the present judgment the Court ‘welcomes the guarantees’ in EU and international law to ensure a holistic and multidisciplinary age assessment procedure. However, the Court’s wording on this issue remains weak. Considering the lack of guidance on the use of methods in Article 25 (5) EU Procedural Directive, and the soft-law nature of the views of the Committee of the Rights of the Child, it still seems in compliance with European and international hard law to only conduct medical methods (even Greulich and Pyle) if the procedural guarantees are safeguarded. Thus, the Court missed its chance to set minimum standards for a medical method to be used in general and take a stance on the unreliability of the Greulich and Pyle method in particular. In the present case the arguments against this method were mostly outsourced to the annexed scientific literature. A fruitful third-party intervention in a pending case elaborated more thoroughly on the unreliability of the Greulich and Pyle method in the submission itself. Hence, it remains to be seen whether the Court evades this discussion anew.
The identified safeguards guiding the age assessment procedure flow from the presumption of minor age. The Court clarified that domestic, European, and international protection of children starts with identifying them correctly as minors. A wrong identification as an adult can lead to serious breaches of their rights. From this, the Court concludes that the presumption of minor age should apply during the age assessment procedure, which means that the person is treated as a child as long as it is not established that the person is in fact an adult.
State practice, however, shows that the presumption of minor age is often denied based on the applicant’s appearance, contradicting statements, or EURODAC data. Consequently, the applicant is treated as an adult, often without further age assessment. Unfortunately, the pressing question under what circumstances the presumption of minor age can be denied was not at stake in the present case. The applicant’s claim of minor age was not contested in the first place and was even confirmed by the government by issuing a health care card, including the declared age. Hence, the Court only expresses that there were no indications at that time that the claim was unfounded or unreasonable, leaving it to the states to interpret those terms in the future.
In our view the presumption of minor age must be granted as widely as possible. The Court notes the particular importance of the rights at stake in the age assessment procedure, namely all domestic, European, and international legislation protecting children. Additionally, it emphasises that the presumption of minor age is an inherent element of the protection of unaccompanied individuals declaring to be minors. Thus, it can be argued in line with Hämäläinen v. Finland, that the identified international consensus on the importance of guaranteeing safeguards to unaccompanied minors and the acknowledgement that the presumption of minor age is essential to guaranteeing those safeguards signals the need for a broad application of this principle, leaving a small margin of appreciation to the states.
Another argument for a wide application of the presumption of minor age can be found in soft law. The Human Rights Committee stated in O.Y.K.A. v. Denmark that even in cases a person declared falsely to be an adult before submitting they are a minor, the presumption of minor age should not automatically be denied. The applicant should be allowed to give an explanation because many unaccompanied minors are told to lie about their age. The poor choice to lie about age may be linked to the person being a minor.
Taken the procedural approach of the Court on the lack of respect for essential safeguards in the age assessment process in testing state compliance with Article 8, the finding that Italy has violated Article 3 by placing the applicant in an adult reception centre is unsurprising. The Court relied heavily on previous case law on Article 3 regarding reception facilities for (unaccompanied) minors. The Court makes notable references to Tarakhel v. Switzerland and Mayeka and Mitunga v. Belgium. However, it strikes us that the Court finds an Article 3 violation irrespectively of the outcome of the age assessment procedure. The Court states that it is not his ‘task to speculate whether or not the applicant was a minor’. In the present case, the applicant was later found to be an adult. Nevertheless, the Court links the breach of Article 3 solely to the fact that the age was determined through a procedure that violated the safeguards under Article 8. Hence, the presumption that the person is a minor continues if the age assessment procedure lacks the required procedural safeguards. In this way, the Court rightly emphasises that the special protection of minors extends to those persons that might be minors. It is up to the contracting parties to respect all procedural safeguards.
Important lessons can be distilled from the Court’s ruling in the present judgment. First and foremost, the presumption of minor age implies that the safeguards for minors apply to asylum seekers during the age assessment process. A lack of respect for these safeguards amounts to a violation of the ECHR. Not appointing a legal guardian and not informing the applicant properly of the age assessment process is at odds with the right to respect for private life and results in a violation of Article 8 ECHR. Placing an asylum seeker in a reception centre unsuitable for children violates the prohibition of inhuman and degrading treatment protected by Article 3 ECHR. And last, not granting the right to an effective remedy against the alleged violation of these provisions violates Article 13 ECHR. The procedural, and for that matter, the principled approach of the Court means that this all applies even if the applicant, in the end, is found to be an adult. It is a pity that the Court did not use the opportunity to rule on the unreliability and invasiveness of radiological methods. But undoubtedly, the Court will have the chance to rule on this issue again in a future case.
 The ruling concerns two applicants. However, the complaint of Mr Camara was declared inadmissible because his legal representative lost contact with him. We will not further address this issue.