Protection of minors and the European Court of Human Rights

AutorRéka Balázs

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“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace”.

Kofi Annan

I Introduction

All children have the right to protection. They have the right to survive, to be safe, to belong, to be heard, to receive adequate care and to grow up in a protective environment. Millions of children are not fully protected. Many of them deal with violence, abuse, neglect, exploitation, exclusion and discrimination every day. It is observable that in the last few decades the protection of children’s rights, considering the minors’ vulnerability, has become more and more important throughout the world1.

Children have the right to be protected from all forms of violence2: being hurt and mistreated, physically or mentally. Therefore the states should

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protect them from violence, abuse and neglect. Such violations limit their chances of surviving, growing, developing and pursuing their dreams3.

Protecting children’s rights is a central aim of international and European human rights law. Children are entitled to the same human rights and fundamental freedoms as all individuals, but as a particularly vulnerable group, children have been given special status and protection in the Convention on the Rights of the Child (CRC) and in one of the most important regional human rights treaties, in the European Convention on Human Rights (ECHR).

The study will focus on the ECHR and the European Court of Human Rights (ECtHR)’ case-law concerning the minors’ protection. The article begins with the positive obligation of states to the protection of children’s righst, declared by the Court. It then, in the second part of the study, goes on to the jurisdiction of the Court where some cases were selected from the Court’s case-law to present, demonstrating how important role has the ECtHR in the minors’ protection.

II The positive obligation of the states to the protection of children’s rights

The ECHR contains few references to children but these references were enough to leed to an increasing number of applications before the European Court of Human Rights. In the last few decades the jurisdiction of the Court has become more and more significant concerning the minor’s protection. Considering that a child is a vulnerable person (weak, defenceless and exposed), he/she is capable of being wounded or hurt physically or emotionally, many interpretive approaches have been instrumental in the development of ECHR case law in children’s cases, including the development of procedural obligations and rights protection4.

The European Court of Human Rights has adopted a two-pronged approach, dividing states’ obligations into negative obligations and positive obligations. On this basis, the Court today ensures broader protection for the rights secured in the Convention. The negative obligations essentially requires

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states not to interfere in the exercise of rights, while the positive obligations require states to be active in the field of right’s protection5.

In many cases the Court has found a positive duty on the part of the states to protect the minors. In such cases generally the state has inadequate structures in place to prevent these kinds of abuse. This can mean that the state does not provide adequate criminal sanctions for actions that violate children rights6.

According to the standpoint of the Court, the first and most important characteristic of the positive obligation of the states is that in practice national authorities are required to take the necessary measures to safeguard a right and to adopt reasonable and suitable measures to protect the rights of minors, designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment7.

Viewed in conjunction with the articles of the European Convention on Human Rights: Article 1 (obligation to respect human rights.) provides that states shall “secure to everyone within their jurisdiction the rights and freedoms”; then the positive duty to protect has been imposed in cases involving children under Articles 2 (right to life), 3, (prohibition of torture) 4 (prohibition of slavery and forced labour) and 8 (right to respect for private and family life)8. In connection with Article 2 the Court has held that the state has a duty to protect its inhabitants’ right to life. Subsequently, the Article 4 imposes an affirmative duty on states to prevent the exploitation of individuals through forced labour9. The Court has held under Article 3 that in cases where children are held in detention, the state holds a high duty of care (regarding the child’s physical and mental health)10. And under Article 8, the Court has

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found that states have a duty to take preventative measures against violations of privacy and family life11.

III Case-law of the european court of human rights

The ECtHR has analysed the most severe forms of violence against children under various articles of the ECHR. This chapter analyses the jurisdiction...

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