“The ECHR interprets the laws with regard to the children”, Kommersant

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01 June 2020
Strasbourg extends the practice concerning the minors’ complaints of brutal treatment, photo: Sergey Kulikov / Kommersant

In the past ten years, the European Court of Human Rights significantly extended the practice concerning the brutal treatment of children. This is the conclusion that was made by human rights defenders with the Committee Against Torture, having studied the court rulings (Read the review). In particular, the ECHR defined that a slap in the face amounts to brutal treatment, and psychological pressure is a type of violence. New rulings of the ECHR will allow the large number of the victims-kids to protect their rights, the experts emphasize.

In the wake of the International Children’s Defense Day lawyers with the Committee Against Torture examined how the ECHR reviews applications from minors who suffered from brutal treatment. In such cases the issue is about the violation of Article 3 of the European Convention (prohibition of torture), but the document does not specify how this article shall be applied if the applicant is a child. That is why in every new case the court develops a special approach, as the review’s author, international legal expert with the Committee Against Torture Ekaterina Vanslova explained to “Kommersant”. But, as the ECHR rulings set precedent, subsequently, during the examination of similar cases, judges base on previous rulings, she pointed out.

For the past 10 years the ECHR had several high-profile cases related to minors’ applications.

In 2014, the judges examined the application from Ireland concerning a sexual violence by the private school director, and established that by delegating such schools with authority to educate children, the state is obliged to set up effective monitoring. In 2017, the judges examined an application from Russia: in a municipal kindergarten teachers locked a kid in a toilet with no lights on, made him stand naked in the corridor, beat him up and applied a scotch tape on his mouth. At that time, the Russian government claimed that kindergartens cannot be considered state institutions as they do not have regulatory authority. But the ECHR established that a kindergarten teacher is a state representative, consequently, the state authorities bear responsibility for their actions.

One of the most important issues is a definition what may be identified as a minimum threshold for brutal treatment. For example, in Belgium, a police officer gave a slap in the face to a 17-year old teenager for offering resistance. This happened at a police department, and that is why the slap may inflict the psychological trauma which violates Article 3 of the Convention, the judges pointed out. “By the way, at first, the judges dismissed the application, but, after an appeal in 2015, the Grand Chamber of the ECHR comprised of 17 judges passed such a ruling, — Ms. Vanslova comments. However, there is a special opinion of three judges who pointed out that the ECHR ignored the fact that the applicant provoked the police officer. Possibly, their concern was that the court opened a Pandora box and from now on all the cases when someone was pushed will be examined by the ECHR”.
 
In 2017, the ECHR added an important adjustment to defining a minimal threshold of brutality with regard to a child: even a psychological pressure must be considered as violence. The application was submitted from Ukraine and it was against the police officers who kept a 16-year old teenager at a police department handcuffed and without outdoor clothes. The court pointed out that for the first time the applicant had to deal with the system of justice and experienced a feeling of vulnerability. Placing him to the temporary detention facility together with adults forced him to experience “fear, Angst, helplessness and deficiency”, which amounts to violation of human dignity.

“The court started to refer to the young age of the applicant in order to upgrade the qualification of the violation. The grading is the following: degrading treatment, inhumane treatment and then torture. The sum of the compensation depends on qualification”,— Ms. Vanslova explained. The same happed to the application from Russia, with regard to which the ECHR issued a ruling in the March of this year. According to the applicant, when he was 17 years old, he was detained for the whole night by the police officers, beat him up with a wooden stick and threatened with rape, demanding that he confessed of committing a crime. The ECHR emphasized that due to the applicant’s age, such brutal treatment may be qualified as torture.

In addition, the court rallied to the defense of the children in the presence of which the law-enforcement officers apprehend their parents.

The judges pointed out that they cannot demand from the state that the law-enforcement officers catch criminals away from their families, but they asked to take into account the presence of minors when planning operations. In 2019, the ECHR confirmed its stance, rallied to the defense of a woman from Russia who witnessed the apprehension of her father when she was only 9 years.

“The ECHR practice with regard to vulnerable groups continue to develop. And the lawyers should not only know and use it, but also try to extend it further,— Ms Vanslova comments. — For example, we are dealing with a case of an applicant who was detained in the street in the presence of his friends. He was 18, but at that time he still studied at school. And we ask the ECHR to treat him not as an adult, because turning 18 is not a threshold after which the child becomes an adult strait away. She pointed out that in the view of this practice of the ECHR, the applications against failure to give assistance to children in danger by the police officers may be successful. That’s what happened on 2 September 2019, when journalist Ilya Azar was apprehended at the entrance of his house: the police officers did not let him wait for his wife, as a result, a two-year old girl was left alone in the unlocked apartment. And in the end of May of this year, in the Krasnodar Territory, the police officers apprehended a person in the street for violating the self-isolation, leaving his children alone — 10-year old disabled kid and his 8-year old brother.

Russian authorities should also follow the ECHR rulings, emphasized head of the International Practice with Angora human rights defense group Kirill Koroteyev: “I, as a tax payer, think that for my money the government should also learn the practice – in its country, and, at least, the ECHR practice with regard to other countries, including the current cases. This will us to avoid surprises when then case, already resolved with regard to other countries, would appear with regard to Russia”. As Mr Koroteyev points out, “a healthy government”, having a look at the practice of other counties, could change their own laws, so that people won’t have to apply to the ECHR. “That’s what is being done in Frace, Sweden. This would also enable the government to communicate its stance to the ECHR immediately and in a professional manner, instead of shouting hysterically that they were not listened to”, — he added. As we have previously pointed out, the ECHR will still have to examine the applications from Russian teenagers, who were beaten up by the police officers during the last year rallies in Moscow.

Author: Anastasia Kurilova  
Source: Kommersant