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REPORT on the PROTECTION of CHILDREN's RIGHTS: INTERNATIONAL STANDARDS and DOMESTIC CONSTITUTIONS Adopted by the Venice Commis

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REPORT on the PROTECTION of CHILDREN's RIGHTS: INTERNATIONAL STANDARDS and DOMESTIC CONSTITUTIONS Adopted by the Venice Commis Strasbourg, 3 April 2014 CDL-AD(2014)005 Or.Eng. Opinion n°713 / 2013 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) REPORT ON THE PROTECTION OF CHILDREN’S RIGHTS: INTERNATIONAL STANDARDS AND DOMESTIC CONSTITUTIONS adopted by the Venice Commission at its 98th Plenary Session (Venice, 21-22 March 2014) on the basis of comments by: Mr Christoph GRABENWARTER (Member, Austria) Mr Jan HELGESEN (Member, Norway) Ms Anne PETERS (Substitute Member, Germany) Ms Herdis THORGEIRSDOTTIR (Member, Iceland) Ms Anne LINDBOE (Expert, Norway) Ms Ursula KILKELLY (Expert DGII, Ireland) Mr Conor O’MAHONY (Expert DGII, Ireland) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int - 2 - CDL-AD(2014)005 TABLE OF CONTENT I. INTRODUCTION ............................................................................................................... 3 II. GENERAL REMARKS ...................................................................................................... 3 III. The guiding principles of the United Nations Convention on the Rights of the Child ......... 4 IV. The indirect constitutional protection of Children’s rights through international law ........... 7 A. The incorporation of the CRC into the domestic legal order ............................................. 7 1. The direct and/or indirect effects of the CRC in the domestic legal order ..................... 7 a. Direct effect ....................................................................................................................... 7 b. Indirect effect ..................................................................................................................... 9 2. Reservations ................................................................................................................ 9 3. International monitoring of the CRC ............................................................................. 9 B. The Fundamental Rights Charter and the protection of Children’s Rights ..................... 10 C. The European Convention on Human Rights ................................................................ 10 D. Binding nature of the CRC and of Art. 24 EU FRC on private actors ............................. 14 1. Binding nature of the CRC on private actors .............................................................. 15 2. Binding nature of Art. 24 EU FRC on private actors ................................................... 16 V. The Constitutional Protection of Children Rights in Europe ............................................. 16 A. Constitutions that omit children’s rights altogether ......................................................... 16 B. Constitutions that contain provisions on children or their rights in some form ................ 17 1. Scope of protection .................................................................................................... 17 2. Form of protection ...................................................................................................... 21 a. Children as the object of special protection ....................................................................... 21 b. Children as holders of rights .............................................................................................. 24 c. Delegation to the legislature .............................................................................................. 24 C. The Enforcement of Children’s Rights provisions ....................................................... 26 1. Non-justiciability ............................................................................................................. 26 2. Administrative remedies ................................................................................................ 26 3. Judicial remedies ........................................................................................................... 27 VI. Conclusions ..................................................................................................................... 28 - 3 - CDL-AD(2014)005 I. INTRODUCTION 1. At its 95th plenary session (8-9 March 2013) the Venice Commission decided to launch a study on “Children’s Rights in Constitutions” as a contribution to the Council of Europe Strategy for the Rights of the Child (2012-2015). The study is also meant to respond to a request made by the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly, dated 25 March 2013, on “How can children’s rights be included in national constitutions with a view to thus promoting their effective implementation”. 2. The present report was drawn up on the basis of comments from Co-Rapporteurs Mrs Peters and Mrs H. Thorgeirsdottir, Mr C. Grabenwarter and Mr J.Helgesen, and of the contribution by Dr Conor O’ Mahony, Professor Ursula Kilkelly and Dr.Anne Lindboe, Children Ombudsperson of Norway acting as experts . 3. Preliminary discussions took place in the Sub-Commission on Democratic Institutions on 10 October and on 5 December 2013 as well as on 20 March 2014. The present report was adopted by the Venice Commission at its 98thPlenary Session (Venice, 20-21 March 2014). II. GENERAL REMARKS 4. The adoption of the United Nations Convention on the Rights of the Child (CRC) in 1989 signalled international recognition of children as legal right-holders. In the intervening years, this recognition has permeated through other international instruments as well as through national legal systems at various levels, including at the constitutional level. 5. Children’s rights are protected by other international instruments, including general human rights treaties such as the European Convention of Human Rights (hereafter ECHR) and its case law, as well as specialised instruments that deal with precise aspects of children’s rights like adoption, child-friendly justice and juvenile detention, have been developed by the Council of Europe.1 6. As societies continue to evolve dynamically and as new threats to children’s well-being keep emerging, the question arises of whether the law and constitutions offer sufficient protection.as they stand today. Europeans are experiencing one of the deepest economic crise since the Second World War; the new political reality of austerity threatens over six decades of growing social solidarity and human rights protection across Council of Europe Member States, as recently pointed out by the Commissioner for Human Rights2. More specifically, poverty including child deprivation is growing and is likely to lead to negative long-term effects. In its 2012 annual report, the EU agency for Fundamental Rights underlined that "child poverty in the EU is an issue of growing concern"3, the percentage of children living in poverty or social exclusion is on the rise in a number of Member States as a result of the impact of the economic crisis“4. It is clear that against this background equal opportunities and rights of children are more than ever closely interelated and must be adressed properly. 1 See the Council of Europe Revised Convention on Adoption (Revised), CETS No 202; the Guidelines on Child- friendly Justice, adopted by the Committee of Ministers on 17 October 2010 and the European Rules for Juveniles Subject to Sanctions and Measures (Recommendation CM/Rec(2008)11). 2 Council of Europe Commissioner for Human Rights, “Safeguarding Human Rights in Times of Economic Crisis”, issue paper November 2013. 3 Children falling victim to EU economic crisis, 18 June 2013, http://www.eubusiness.com/news-eu/children- poverty.p8d 4 Employment, Social Policy, Health and Consumer Affairs Council Conclusions on ‘Preventing and tackling child poverty and social exclusion and promoting children's well-being’, Brussels, 5 October 2012 - 4 - CDL-AD(2014)005 7. This study aims to examine whether the current constitutional framework (CDL-REF***) is sufficient to afford effective protection to children’s rights. It therefore focuses on selected crucial elements of children’s rights identified by the rapporteurs and consequently does not claim to constitute a comprehensive analysis of the whole range of the protection of children’s rights in constitutions. 8. With regard to the effectiveness of the protection afforded at the constitutional level, here again the report draws on the guiding principles and legal enforcement tools that can be observed in Europe rather than providing an exhaustive analysis of the enforcement mechanisms and practices in all 47 Members States of the Council of Europe. Considering the means and time frame allocated to this study it has been oriented towards offering a constructive contribution to the Council of Europe Strategy for the Rights of the Child (2012- 2015). 9. The study starts by examining the main legacies of the United Nations Convention on the Rights of the Child (hereafter CRC) and by exploring what the Committee on the Rights of the Child has said about the obligations of state parties to protect children’s rights in their domestic legal system. The study continues with the description of the ins and outs of constitutional protection though international law, which is followed by details of the ECHR and its case law along with a brief analysis of the impact made by the relevant EU Fundamental Rights provisions. 10. Exploring the issue of equal opportunities and rights of children in times of crisis will shed light on crucial elements of the positive obligation of States to fulfil their international
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