Assessment criteria

A

Compliance: Measures taken are satisfactory or largely satisfactory

B

Partial compliance: Measures taken are partially satisfactory, but additional information or action is required

C

Non-compliance: Reply received but measures taken are not satisfactory or do not implement the Views or are irrelevant to the Views

D

No reply: No cooperation or no reply received

M.B.S. v. Spain ( CRC/C/85/D/26/2017 )

M.B. v. Spain (CRC/C/85/D/28/201 7)

B.G. v. Spain , communication No. 38/2017 ( see L.D. and B.G. v Spain ( CRC/C/85/D/37/2017-CRC/C/85/D/38/2017 ) )

S.M.A. v. Spain ( CRC/C/85/D/40/2018)

C.O.C. v. Spain ( CRC/C/86/D/63/2018 )

R.Y.S. v. Spain ( CRC/C/86/D/76/2019 )

Date of adoption of Views:

28 September 2020 (M.B.S. v. Spain, M.B. v. Spain, B.G. v. Spain and S.M.A. v. Spain)

29 January 2021 (C.O.C. v. Spain)

4 February 2021 (R.Y.S. v. Spain)

Subject matter:

Age determination procedure in respect of an unaccompanied child; detention in a migrant detention centre for adults pending deportation

Articles violated:

Articles 3, 8, 12, and 20 (1) of the Convention and article 6 of the Optional Protocol (M.B.S. v. Spain, M.B. v. Spain and C.O.C. v. Spain)

Articles 3, 8, 12, and 20 (1) of the Convention (B.G. v. Spain and S.M.A. v. Spain)

Articles 3, 8, 12, 16, 20 (1), 22, 27 and 39 of the Convention (R.Y.S. v. Spain)

Remedy:

The State party must provide the author with effective reparations for the violations suffered. The State party is also under an obligation to prevent similar violations in the future. In that regard, the Committee recommends that the State party:

(a)Ensure that all procedures for determining the age of young persons claiming to be children are in line with the Convention and, in particular, that in the course of those procedures: (i) the documents submitted by the young person concerned are taken into consideration and, if issued or authenticated by the relevant State authority or embassy, accepted as genuine; (ii) the young person concerned is assigned a qualified legal representative or other representatives without delay and free of charge, any private lawyers chosen to represent the young person are recognized and all legal and other representatives are allowed to assist the young person during the age determination procedure; and (iii) genital examination as a method of age determination must never be performed on children;

(b)Ensure that unaccompanied young persons claiming to be under 18 years of age are assigned a competent guardian as soon as possible, even if the age determination procedure is still ongoing;

(c)Develop an effective and accessible redress mechanism that allows young unaccompanied migrants claiming to be under 18 years of age to apply for a review of any decrees declaring them adults issued by the authorities in cases where the age determination process was not accompanied by the safeguards needed to protect the best interests of the child and the right of the child to be heard;

(d)Provide training to immigration officers, police officers, officials of the public prosecution service, judges and other relevant professionals on the rights of migrant children and, in particular, on the Committee’s general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin and joint general comments No. 3 and No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families/No. 22 and No. 23 of the Committee on the Rights of the Child (2017) on the human rights of children in the context of international migration.

(e)Ensure that unaccompanied minors who are seeking asylum and claim to have been victims of violence receive qualified psychosocial counselling to facilitate their rehabilitation.

State party’s response:

In its submissions dated 23 April 2021, concerning communications No. 28/2017, No. 38/2017 and No. 40/2018, and 24 September 2021, concerning communications No. 26/2017, No. 63/2018 and No. 76/2019, the State party refers to the various aspects of the remedy requested by the Committee.

In relation to subparagraph (a) (i) of the remedy requested by the Committee, the State party submits that decision No. 307/2020 of 16 June 2020 of the Supreme Court is in line with the Committee’s Views, highlighting that the Court considered that an immigrant whose passport or equivalent identity document showed that he or she was a child could not be considered an undocumented alien to be subjected to age determination tests, given that there could be no reasonable justification for carrying out such tests when a valid passport was available. It was therefore necessary to carry out a proportionality test and to adequately assess the reasons why the document might be considered unreliable and why the individual should undergo an age determination test. In any case, whether the person concerned was documented or undocumented, medical examinations, especially if they were invasive, must not be applied indiscriminately for the purpose of age determination.

In relation to subparagraphs (a) (ii) and (b) of the remedy requested by the Committee, the State party submits that article 2 (e) of Law 1/1996 already provides free legal aid to unaccompanied foreign children. It adds that the new Organic Law 8/2021 of 4 June, for the integral protection of infancy and adolescence from violence, orders the Government to proceed in a 12-month period with regulations on age determination of unaccompanied children to “guarantee the compliance with international obligations … as well as the prevalence of the best interests of the child and his or her rights and dignity”. It explains that, in April 2021, a working group comprising members of the Ministries of Justice, Social Rights and Agenda 2030 and the Interior was formed to give effect to that legal mandate and is currently working on a legislative proposal to determine a new age assessment proceeding. It adds that the projected age assessment procedure will be judicial, preferential and urgent and that the best interests of the child shall prevail, guaranteeing the child’s right to be heard, the presumption of his or her status as a child, free legal aid and the right to be assisted by a legal representative from the beginning of the procedure and subjecting the judicial decision to appeal. The State party also mentions that a protocol on coordination efforts for determining the age of unaccompanied migrant children, promoted by the Ombudsperson of Andalucía, is expected to be approved in the near future and involved the participation of the Forensic Medical Council.

In relation to subparagraph (a) (iii) of the remedy requested by the Committee, the State party submits that, under the new Organic Law 8/2021 of 4 June, for the integral protection of infancy and adolescence from violence, “under no circumstances may full nudity, genital examinations or other particularly invasive medical tests be carried out”.

In relation to subparagraph (c) of the remedy requested by the Committee, the State party reiterates that it is not necessary to establish a mechanism for the judicial review of the public prosecutor’s decrees on the age of majority, given that the issue is already addressed in the law. It refers to decision No. 680/2020 of 5 June 2020 of the Supreme Court, wherein the Court states that the decrees are “sufficiently relevant for us to have no doubt as to the appealable nature of that decree”.

In relation to subparagraph (d) of the remedy requested by the Committee, the State party refers to several training sessions and capacity building exercises conducted between 2020 and 2021 involving judicial, security and medical actors. Among them, the State party mentions the Judicial School, with members of the judicial and prosecutorial careers; the Centre of Legal Studies, with members being those tasked with the administration of justice; the Body of Forensic Doctors; the judicial police; the national police; and the Civil Guard.

In relation to subparagraph (e) of the remedy requested by the Committee, the State party submits that article 12 (2) (h) of Organic Law 8/2021 includes comprehensive care, including “accompanying and advising in legal proceedings in which they have to intervene, if necessary”.

The State party submits that the Committee’s Views in relation to all cases have been made public.

In relation to communications No. 26/2017, No. 28/2017, No. 38/2017, No. 40/2018, No. 63/2018 and No. 76/2019, the State party alleges that the authors’ rights were respected. In relation to communication No. 26/2017, the State party reiterates that the author was set free on 1 August 2017 and that his whereabouts are currently unknown. In relation to communication No. 28/2017, the State party explains that, on 17 July 2017, after being declared an adult, the author requested asylum indicating that he had never alleged to be a child and recognizing his birthdate as 1 January 1996 (making him 21 years old when he entered Spain). The asylum request was denied on 21 July and again on 26 July, and his whereabouts are currently unknown. In relation to communication No. 38/2017, the State party explains that, on 8 January 2018, the author was transferred from the detention centre for migrants in Málaga to the centre for children in Murcia, from which the author escaped two days later, and that his whereabouts are currently unknown. In relation to communication No. 40/2018, the State party explains that the author was freed from the Centre for Migrants in Valencia on 23 February 2018, and at that point the non-governmental organization Accem Valencia began taking care of him; the State party indicates that his whereabouts are currently unknown. In relation to communication No. 63/2018, the State party explains that the author was declared an adult and that there are no records of him filing for a resident permit or for asylum. In relation to communication No. 76/2019, the State party submits that the author was granted asylum in 2018, which included permission to work in the State party’s territory.

The State party submits that it is therefore not appropriate to comply with the Committee’s recommendation, given that the requirements to provide reparations to the authors have not been met.

Authors’ comments:

In the comments to communications No. 26/2017 (14 March 2022), No. 28/2017 (6 August 2021), No. 38/2017 (28 July 2021), No. 40/2018 (27 October 2021), No. 63/2018 (14 March 2021) and No. 76/2017 (20 December 2021), the authors submit that the State party has not offered reparation to the authors, nor has it expressed its intention to do so. They explain that the State party alleges that the rights of all authors were not violated, contrary to what the Committee recognized in its Views. They allege that, although the Committee’s Views are not considered as directly enforceable by the State party’s domestic procedural laws, they must be complied with, and they therefore demand positive action by the domestic authorities.

In relation to communication No. 26/2017, counsel adds that, given the author’s lack of protection in the State party, the author left for Lyon, France, where he currently resides, and that the State party has not shown any will to either locate the author or contact him to verify whether it was possible to do so. In relation to communication No. 28/2017, the author explains that, given the lack of protection in the State party, the author left for Lille, France, where he was placed in a centre for the protection of children. He adds that the author still has a return order against him in the State party and requests that the order be vacated and that he be given a residence permit, given that he should have been duly recognized as a child. In relation to communication No. 38/2017, the author did not escape the Centre for Children, but was picked up by family members, and then left for France, and that he is still in contact with his counsel. He adds that the author’s irregular situation in the State party is the effect of him being treated as an adult and should therefore be rectified by the State party itself. In relation to communication No. 76/2019, the author submits that while it is true that she was given asylum status, she was forced to request it under the fictitious age that was assigned to her, even though her documentation attests that she was a child when she entered the State party, and she has requested that that be adequately reflected. Regardless of the specific request by the Committee in its Views, no compensation or any specialized psychological counselling was provided to her.

With regard to subparagraph (a) of the remedy requested by the Committee, the authors recognize that the decision of the Supreme Court in relation to the validity of documents presented by unaccompanied children is in line with the Committee’s Views. They add that the Court has continued ratifying its decision No. 307/2020 through at least four more decisions from 2021. However, they explain that, in everyday practice, the prosecution resists internalizing those criteria and continues to question the documentation provided by nationals of certain countries, in cases where there are no signs of the documents having been manipulated or forged, and only on the basis of the lack of reliability that those countries have, according to the prosecution’s judgment. They submit that, on 24 September 2020, the offices of the prosecutors for children and for foreigner issued an internal note with guidelines for all prosecutors, according to which, prosecutors should verify the validity of the documentation filed by the children with the relevant consular authorities, something that does not occur in practice, and compile a report from the police authorities relating to the alleged lack of reliability of registries and certification systems of the country of origin. In the note, it is also affirmed that documents should be disregarded if they contradict the result of medical tests practiced prior to their filing, which is usually the case, given the lack of reliability and margin of error of the used tests. The authors submit that, in practice, the prosecutors continue to disregard birth certificates and other similar documents, and even sometimes cast doubt on the validity of passports issued by the consular authorities in the State party on the basis of birth certificates which they consider to be unreliable. Counsels provide three examples of such cases, which were confirmed by the intervening judges.

With regard to subparagraphs (a) (ii) and (iii) and (b) of the remedy requested by the Committee, the authors explain that there are no new reforms that make those procedures more protective of children’s rights. They allege that, while some improvements were seen in practice, in most cases, the documentation is questioned, invasive medical tests are used, no information is requested from embassies or consulates and no free legal aid is provided to the children concerned. With regard to free legal aid, they explain that the law cited by the State party is applicable to those who will be deported or who request asylum, who are, or who should be, by definition, adults. However, no norms provide for free legal aid for a child who undergoes an age determination procedure. In addition, while the authors praise the passing of Organic Law No. 8/2021, which prohibits full nudity and genital examination, they explain that children are still subjected to medical tests that do not include a full psychological assessment of their maturity, nor a recognition of the margin of error of radiological tests. They explain that, in some isolated instances, prosecutors do correctly apply the presumption in favour of the children while the decree of age determination is appealed.

The authors submit that Fundación Raíces has met on several occasions with diverse governmental authorities to share proposals for the preliminary draft of the bill that would regulate the age assessment procedure. Although the text of the draft is still not available, the information available shows positive improvements in the procedure, such as: (a) judicialization of the procedure, with the possibility to appeal; (b) provision of free legal aid; (c) the best interest of the child and the presumption of his or her being a minor will be the guiding principles of the procedure. According to the same information, however, the authors express concern that the draft might institute an age assessment procedure that compromises the right to equality of arms. Among other aspects, they highlight that the draft: (a) still contemplates the use of radiological tests and an urgent procedure that might work against children’s being able to get the necessary documentation from their consular authorities; (b) allows the authorities to initiate an age assessment procedure when they consider that the registry and documentation system of the country of origin are not reliable, which allows for multiple abuses; (c) does not provide consequences for cases in which consular authorities are not consulted or where those authorities do not reply in time; and (d) establishes that the final decision will be passed on res judicata, which is even more worrisome, given the urgency of the proceedings.

With regard to subparagraph (c) of the remedy requested by the Committee, the authors explain that there is still no procedural norm that explicitly allows appealing age determination decrees and that the jurisprudence of the Supreme Court (decision No. 680/2020) has once again affirmed that they can only be appealed indirectly by appealing the administrative resolution dictated by virtue of that decree. They explain that is insufficient, because it causes delays that in most cases render any appeals ineffective to protect the children, as well as in other cases where there is no administrative resolution issued; the authors provide examples of such cases.

With regard to subparagraph (d) of the remedy requested by the Committee, the authors submit that it is impossible to know, from the information submitted by the State party, the contents, duration and addressees of each of the courses mentioned. They request that the State party specify those aspects so that they can verify whether it complied with the Committee’s Views, which referred specifically to training courses on three of the Committee’s general comments.

Decision of the Committee:

The Committee notes that, on 11 February 2021, it held a meeting with the State party to discuss the prompt implementation of the Committee’s Views as provided in its two previous follow-up progress reports on individual communications. In the light of those discussions and the information above, the Committee decides to maintain the follow-up dialogue open with the State party and to group together all communications relating to age assessment procedures referred to in the present and previous follow-up progress reports so as to carry out one consolidated follow-up procedure focused on structural changes required for the full implementation of the Committee’s Views.

A.B. v. Finland ( CRC/C/86/D/51/2018 )

Date of adoption of Views:

4 February 2021

Subject matter:

Best interests of the child; discrimination; non-refoulement

Articles violated:

Articles 3, 19 and 22 of the Convention

Remedy:

The State party is under an obligation to provide effective reparations to the author, including adequate compensation.

The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future, in particular by ensuring that the best interests of the child are effectively and systematically taken into account in the context of asylum proceedings and that children are systematically heard.

The State party is requested to publish the Committee’s Views and to have them widely disseminated in the official languages of the State party.

State party’s response:

In its submission dated 8 October 2021, the State party provided its comments.

With regard to the requirement that the State party provide reparations to the author in the form of adequate compensation, the State party notes that neither the Convention nor the Optional Protocol thereto include articles which give States an obligation to provide reparations. The State party also observes that the Committee did not specify the kind of compensation which it intended for the State to provide. The State party notes that representatives of the author have confirmed that the author and his family have once again left the Russian Federation and resettled in the Netherlands, where they have been granted asylum.

With regard to taking the necessary steps to prevent similar violations from occurring in the future, the State party notes that section 6 (2) of the Aliens Act provides that a child shall be heard in immigration cases unless such hearing is manifestly unnecessary. Their views are then incorporated into the decision depending upon the child’s age and maturity. The State party asserts that its domestic legislation does not include a “systematic” requirement that children be heard.

The State party notes that, on 2 July 2021, the Legal Section of the Finish Immigration Service issued a memorandum reflecting the Views of the Committee and how those Views would affect their activities. The State party notes that the Immigration Service has developed its decision-making procedures since 2016, when it made the decision in the author’s domestic immigration case. The State party notes that those developments have taken place in consideration of the best interests of the child. It also asserts that the Immigration Service has distributed an internal memo, in which it has established that it shall ensure that the best interests of the child are considered appropriately when examining a matter involving children. The State party notes that the Service has established that, in its decision-making process, it shall guarantee that: (a) asylum applications of children examining asylum seekers will be examined individually regardless of their age; (b) the Service shall consider the threshold for acts of persecution against children to be lower with respect to the standard as applied to adults; and (c) in any decision that the Service makes concerning children’s applications, it shall take into account how their rights could be affected in the future, from the child’s point of view.

The State party also notes that the Asylum Unit of the Immigration Service has assessed its practices for hearing of children accompanying asylum seekers. The State party notes that the practice of the Unit has been to hear accompanying children who are at least 12 years of age. The State party notes that the instructions also provide for hearing of children under 12 years of age, on a case-by-case basis, and that hearing of children under 12 years of age may be necessary where officials suspect that there is a conflict of interest between a child and a parent or where the grounds for asylum specifically relate to the child. The State party observes that the Unit is in the process of expanding their hearing process such that the cases of all children under 12 years of age are heard on a more systematic basis. The Unit has, according to the State party, proposed that all those age 11 and over be provided a hearing, and that children between the ages of 4 and 11 be heard, on a case-by-case basis, at the discretion of authorities on the basis of circumstances emerging from the parents’ hearing and the social worker’s statement or another such report. The Asylum Unit proposed those changes to provide for the systematic hearing of children younger than 12 years of age.

The State party submits that the Committee’s Views have been made public. The State party asserts that those Views have been disseminated to all relevant authorities in the State. The State party ensures that agencies and other subordinate authorities are informed about the Views. The State party has also noted that, on 9 February 2021, the Ministry of Foreign Affairs issued a press release with the Views annexed thereto, in Finnish, Swedish and English. The State party asserts that its Ministry of Foreign Affairs disseminated those Views on 16 February 2021 to various governmental agencies and ministries. The State party notes that those dissemination procedures are standard in its internal processes.

Author’s comments:

In a submission dated 11 November 2021, the author provided comments on the State party’s response to the Committee’s Views. The author welcomes the steps that the State party has taken to prevent violations akin to those which the Committee found in its Views.

The author submits that the State party must not pay closer attention to the specific circumstances in the author’s case, and that it should commit itself to recognizing the adverse effects on children of the lack of legal recognition of the families of lesbian, gay, bisexual and transgender parents. The author wishes that the State party would consider how hostile legal and social climates can affect those families. The author alleges that the State party must carry out more comprehensive screenings of sexual minorities and that it should provide comprehensive training to its agents to address that element in legal cases.

The author confirms that, due to threats to his safety and violations of his rights, his family have left the Russian Federation again and have resettled in the Netherlands with international protection. However, the author claims that the State party’s actions subjected the author to mental and physical suffering. That suffering took place in Finland, while the family feared being deported, and then back in the Russian Federation, where the family was once again subjected to physical and psychological violence.

Noting that suffering in the light of the Committee’s statements that the author must be adequately compensated, the author believes that he should be compensated for non-pecuniary damages in the amount of €10,000.

Decision of the Committee:

The Committee decides to maintain the follow-up dialogue open and to request a meeting with the State party in order to discuss the prompt implementation of the Committee’s Views.

E.A. and U.A. v. Switzerland ( CRC/C/85/D/56/2018 )

Date of adoption of Views:

28 September 2020

Subject matter:

Deportation of Azerbaijani children from Switzerland to Italy

Articles violated:

Articles 3 and 12 of the Convention

Remedy:

The State party is under an obligation to reconsider the author’s request to apply article 17 of the Dublin III Regulation in order to process the asylum applications of E.A. and U.A. as a matter of urgency, ensuring that the best interests of the children are a primary consideration and that E.A. and U.A. are heard. In considering the best interests of the children, the State party should take into account the social ties that have been forged by E.A. and U.A. in Ticino since their arrival and the possible trauma that they have experienced due to the multiple changes in their environment, in Azerbaijan and in Switzerland.

The State party is under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that regard, the Committee recommends that the State party ensure that children are systematically heard in the context of asylum procedures and that the national protocols applicable to the return of children are in line with the Convention.

The State party is requested to publish the Committee’s Views and to have them widely disseminated in the official languages of the State party.

State party’s response:

In its submission dated 15 March 2021, the State party observes that the authorities in charge of assessing asylum claims have re-examined the asylum applications of E.A. and U.A. On 26 February 2021, the State Secretariat for Migration granted them refugee status, by including them under the refugee status of their parents. They are therefore entitled, under article 60 of the Asylum Act, to a residence permit in the canton in which they are legally resident.

The State party adds that, following the adoption of the Views by the Committee, it adopted general measures aimed at systematically hearing children in the context of asylum procedures. Those measures include raising the awareness of legal staff working in the federal asylum centre. They also include a systematic and thorough investigation of parents on the concerns of their children, given that children have the right to be heard through a representative. The State party also explains that, if necessary to establish the facts, children under 14 years of age will be heard in a dedicated hearing.

Author’s comments:

In his comments dated 17 May 2021, the author notes that, although refugee status was granted to E.A and U.A., they were still not heard during the procedure.

The author submits that the Committee did not address the question of financial compensation. They submit that they would like to have the procedure fees and lawyer fees covered, as well as a financial compensation for the moral distress that they experienced throughout the procedure.

Decision of the Committee:

The Committee observes that the State party partially complied with the remedy requested in the Views. To fully comply with its recommendations, the State party would need to explain in detail how it will proceed to publish the Views and widely disseminate them. Therefore, the State party’s compliance with the Views will be assessed in the light of future information from the State party and the author’s comments in that regard.