Upholding child’s right to be represented

 Children Rights Ombudsmen Institution adopted policy briefs No 117 and No 119 last week, where, based on communication from a ReLex client, it underlined inaction of Sate Border Guard Service resulting in depriving a minor of his or her rights to legal representation, state assistance and right to seek asylum, his or her illegal return to a third country and lack basic treatment standards.

The investigation established that a group of Syrian nationals including an unaccompanied minor were in fact held incommunicado for the full seven days at the premises of a border crossing point. The minor was denied access to a lawyer, was not allowed to meet UNHCR representative and other non-governmental organizations, and was handed over to Latvia with a group of foreigners.

According to the publicly available policy brief No 119on the protection of children’s rights and legitimate interests who cross from another EU country, the Children Rights Ombudsmen Institution insisted that state institutions must comply with United Nations Convention on the Rights of the Child to ensure that children are given special consideration in both the planning, implementation and decision-making processes of migration policy, in order to enable them to enjoy the rights guaranteed by international and national law. Article 37(b) affirms the child’s right not to be deprived of his or her liberty unlawfully or arbitrarily. Article 37(c) gives the child the explicit right to maintain contact with their family, except in exceptional circumstances. Article 37(d) affirms a child’s right to legal assistance and provides for other appropriate assistance. The child has a right to challenge the legality of the deprivation of liberty (as already provided for in Article 9.4 of the ICCPR) and the Convention requires a prompt decision on such habeas corpus or other petition.

The United Nations Committee on the Rights of the Child provides guidelines of the implementation of national policies and practices. It published a guidance on the implementation of the Committee’s recommendations in the General Comment on Treatment of Unaccompanied and Separated Children outside their country of origin CRC/GC/2005/6. The Convention’s obligations regarding unaccompanied and separated children apply to all branches of government (executive, legislative and judiciary) and include the obligation to enact legislation, establish administrative structures, carry out the necessary research, and undertake awareness-raising, data-gathering and comprehensive training activities to support such measures. States must not only refrain from taking measures that violate the rights of such children, but also take active measures to ensure that such rights are available to them. General Comment No 14 CRC/GC/14 further explores on the right of the child to have his or her best interests taken as a primary consideration (Art. 3, para 1 of the Convention).

According to the Lithuanian legislation, unaccompanied minor must be identified and be appointed a representative immediately. All state institutions must make sure that a specialist of the State Child Rights Protection and Adoption Service attends any interview of an unaccompanied minor.

Both ECHR and ICCPR underline the right to claim compensation if person’s rights to freedom and security have been limited illegally. Curiously in contrast to Article 9.5 of the ICCPR, Article 37(d) Convention on the Rights of the Child is silent on the issue of an enforceable right to compensation for unlawful deprivation of liberty. This does not mean a child is deprived of the right to seek redress.




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