Optional Protocol to provide a communications procedure for the Convention on the Rights of the Child
Geneva – Switzerland, 21- 22 June 2010
Speech by Ms. Leda Koursoumba, Children’s Commissioner, Cyprus, Chairperson of European Network of Ombudspeople for Children (ENOC) Working Group on International Justice
The role of national institutions in ensuring the right to a remedy/access to justice in the event of a violation of Convention rights
As I had the opportunity to mention yesterday, the European Network of Ombudspeople for Children (ENOC) comprises 37 institutions entrusted by their respective national law, among other powers, with the monitoring of the level of implementation of the CRC in 29 Council of Europe member states. We, members of ENOC, because of our experience in exercising our competences in our respective countries, strongly support the elaboration of an Optional Protocol to provide an effective communications procedure under the CRC for children and those acting on behalf of children. I absolutely agree with professor Pinheiro when he said that it is not an accident that no communications procedures exist for the CRC - adults do not like to hear the voice of children! We ombudspeople for children endorse this view.
In ENOC’s Submission to the Open Ended Working Group, we stress that, “we believe that such a procedure would contribute substantially to the strengthening of the implementation of the CRC”. We also asserted that, “Children, like adults, need effective remedies for breaches of the full range of their rights at national level. But also, when national systems fail them or do not exist, they and their representatives, including our institutions, need international mechanisms to pursue accountability.”
We all know that in most, if not all states, effective remedies do not exist for violations of the full range of children’s rights safeguarded by the CRC. It is one essential role of NHRIs’ for children, whatever form they take – and ENOC includes a variety of forms - to ensure the development of such remedies and to ensure children’s effective access to them. I have been asked, particularly, to talk this afternoon about the role of national institutions in ensuring the right to a remedy or access to justice in the event of a violation of Convention Rights.
Just before I do that, I would like, as I did yesterday, again, to echo my colleagues’ strong support for including in this Optional Protocol provision for the right to bring collective communications, in addition to those brought by identified individual or group victims of violations. In this respect we fully endorse the arguments in that behalf given by Peter Newel. I call upon you to take on board Catarina de Albuquerque’s strong suggestion to “let it be your contribution to innovation”. If States are acting in good faith in proceeding with the drafting of this OP, they must surely accept that, for children in particular, this addition is logical and will add effectiveness and also efficiency to the work of the Committee. I’m pleased to note that my own state – Cyprus – has ratified since 1996, the Additional Protocol to the European Social Charter providing for a system of collective complaints. And I will be encouraging it to support the inclusion of such a provision to the OP of the CRC.
Coming to my subject, as noted in our Submission, ENOC has established a Working Group on children’s access to national and international justice, precisely, because of our concern about the lack of real remedies for many varied breaches of children’s rights. In some States, children have no legal standing, independent of their parents, and there is poorly developed legal advocacy for children.
The aim of the Working Group, which I have the honor to chair, is:
· ensure that ENOC members are fully aware of the mechanisms that can be used to pursue breaches of children's rights (such as the European Court of Human Rights and other Council of Europe mechanisms and, also, the international treaty body mechanisms) that will, of course, include a complaints mechanism under the CRC, and to arrange appropriate information and training and to consider what other forms of support are needed, to ENOC members and others, to encourage greater use of such mechanisms.
- promote the realization of children’s rights through improved and increased use of domestic, European and international human rights mechanisms.
And for this we have the task to:
· review the capacity of ENOC members to empower and enable children to access information and appropriate recourse to justice, if they so wish, as well to support and represent them in pursuing legal remedies for breaches of their rights at national level, as well as using international mechanisms.
· coordinate ENOC’s input to the Council of Europe’s development of Guidelines on child-friendly justice (the final draft was completed last month) and their dissemination and use.
· coordinate ENOC’s input into the development of the Optional Protocol providing a communications/complaints procedure for the CRC.
In its General Comment No.2 (2002) on the role of independent NHRIs’ in the promotion and protection of the rights of the child, CRC/GC/2002/2, 15 November 2002 the Committee states that, “while adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children’s developmental state make them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited.” (para. 5)
The Committee emphasizes that these institutions have a duty to seek to ensure that children have effective remedies - independent advice, advocacy and complaints procedures - for any breaches of their rights. Where appropriate, NHRIs should undertake mediation and conciliation of complaints. And the Committee has frequently recommended this to states in its Concluding Observations, following examination of states’ reports – that NHRIs must have the power to consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by children. “In order to be able to effectively carry out such investigations, they must have the powers to compel and question witnesses, access relevant documentary evidence and access places of detention”. (para. 13)
The Committee further asserts that: “NHRIs should have the power to support children taking cases to court, including the power (a) to take cases concerning children’s issues in the name of the NHRI and (b) to intervene in court cases to inform the court about the human rights issues involved in the case”. (para. 14)
From ENOC’s own internal surveys of its member-institutions’ role and mandate, it is clear that, at the moment, many lack these powers. One valuable role of the development of the new OP to the CRC must be to encourage the development of effective national remedies. These should include, for example, easy access for children to confidential advice and advocacy; local independent complaints procedures for children in schools and in the full range of institutions and forms of detention; effective reporting, referral and investigation systems for all forms of violence and exploitation of children, including within the family. These are the softer forms of remedy. But children – and those acting on behalf of children who lack capacity - also have a right to use the courts to pursue violations of their rights. In some states, unacceptably, this right can only be exercised through parents.
Constitutionally, NHRIs’ cannot be vested with powers to overturn legislation or themselves to change the policies, decisions and actions of elected national governments. They have a persuasive role, the effectiveness of which depends on the sensitivities of the respective governments. So, in cases where their decisions or recommendations are ignored, they cannot be said to provide an effective remedy. That is why, they need powers to support rights-holders, including children, in going to court to challenge violations of rights. And, when necessary, they need to be able to support children in using external communications or complaints procedures – regional and international.
In elaborating the OP, consideration could be given to explicitly encouraging States, perhaps in the Preamble, to develop effective remedies at national level and to develop NHRIs’ as one element. It would also be valuable, although outside our remit here, if the Committee considered the development of a General Comment to expand on what it has already said in its General Comment No. 5 (on general measures of implementation), on the obligation to provide effective domestic remedies for violations of children’s rights.
As I have already mentioned, ENOC is paving the way for its members by empowering them to be able to respond to this challenge.
Notwithstanding the above, but not in derogation, I feel the need to stress that NHRIs’ for children, by their very nature and in view of the powers entrusted in them by their respective national law, have, in any case, a major role and the potential to assist children to have access to justice, at national and international level. And to the extent that their respective law doesn’t allow them to do so, or fully fulfill this task, they should strive to acquire such competence.
By their nature, ombudspersons for children can appropriately deal with issues that are related or are prerequisite to an effective remedy such as:
· empowering children, by giving them child – friendly information
· helping them to proceed with any existing national and international mechanisms.
· providing the necessary support to children to pursue communications, as children are likely to luck a necessary understanding or capacity to do so.
· taking the views of children; ensuring that these views are freely given – This we do in relation to our everyday activities.
· ensuring children’s free consent for the process/informed concern after explaining to them the issues involved.
· ensuring that the rights of the child are being respected throughout all stages of the process, at national or international level
· ensuring that the “best interest of the child” is respected
· ensuring that the child’s views are taken into consideration in all stages of the process
· assisting with matters such as, the legal capacity of a child under national law (given the power under their respective law), an issue which does not arise in relation to international mechanisms.
· ensuring that legal counseling and representation is made available, where necessary
· ensuring that legal aid is looked into
· ensuring expeditiousness of the process, including implementation of decisions
· particular vulnerability of children, such as, children with disabilities, victims of violence, including sexual violence and abuse, victims of trafficking, e.t.c.
· in relation to access to international mechanisms, exhaustion of domestic remedies: that includes giving assistance to the child to pursue them, assessing their effectiveness, which requires looking into the child’s vulnerability and special status.
Here I want to stress another role/competence of NHRIs which is relevant, not only to providing remedies for children, but also to promoting acceptance of the provisions of the OP:
· Power/means to lobby with Governments
· Power/means to create public awareness
· Access to the media.
· Opening a “public dialogue”.
These channels are already in place and can be used.
And that leads me to the other issue I have been asked to mention briefly – what could be included in the OP to encourage effective follow-up to implement the Committee’s views and recommendations following its consideration of communications.
The elements paper (page 5, including, the footnotes) derived from the 2009 paper prepared for the tenth Inter-Committee meeting of the human rights treaty bodies mentions a number of follow – up actions. The obvious provision is to require the state concerned to give “due consideration”, or perhaps in the case of children to give “with urgency due consideration” to the views and recommendations of the Committee and report on any action taken within a set period. The period should of course be as short as possible – in the existing procedures 90 days seems the shortest. Perhaps 60 days could be considered for the CRC OP. Other follow-up actions by the Committee can be proposed in the Rules of Procedure which the Committee will develop – such as, follow-up reports from the Committee in its own annual report or submitted to the State directly, follow-up missions by members and so on (as Council of Europe mechanisms do).
National institutions can, and should, also, have a role in ensuring the implementation of decisions on communications. One should not lose sight of the fact, that this is an inherent competence by reason of their status as NHRIs’, with a mission to monitor the implementation by the state of its obligations under the CRC. This undoubtedly, includes monitoring of the implementation of decisions on communications.
Children are recognised as holders of rights. The crucial question is: Do children enjoy in reality these rights? And do they have remedies at national and/or international level for violations of those rights. National institutions, as mandated by the “Paris Principles” and General Comment No.2, have a major role to play in making these accessible to children. I believe that, this is the time to enhance NHRI’s role in helping children to gain access to national and international justice. Respective networks, ENOC in the case of the European region, should investigate, as in fact we are doing, new potentials in turning our institutions into effective mediators for children to gain access to international justice. And where individual institutions lack legal capacity they should campaign (and with support from regional and international institutions – and the Committee should come strong on that) to have their powers strengthened to enable them to fulfill this task. We should see how we would be able, on the one hand, to help children themselves to apply individually to international justice mechanism and, on the other, to submit ourselves complaints, including collective complaints, on behalf of children to such mechanism.
I believe, this is the time for us to investigate this new or expanded role, if we truly want our institutions to make a difference in making, in our respective countries, respect of children’s rights a reality.
Speech in Geneva-.pdf
Πίσω στην προηγούμενη σελίδα