The main rights in the area of justice are the right to an effective remedy and the right to a fair trial. Both are enshrined in binding international human rights instruments, as well as in the EU legal order. Article 19 (1) of the Treaty on European Union (TEU) stipulates that Member States have to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. The EU Charter of Fundamental Rights, in Article 47, expressly entrenches into the EU legal order the right to an effective remedy and the right to a fair trial. In the framework of the Council of Europe (CoE), the right to an effective remedy is founded on Article 13 of the European Convention on Human Rights (ECHR), while the right to a fair trial is mainly founded on Article 6 thereof.
The right to an effective remedy entails the legal possibility for all persons to address a court or other independent and impartial body if their rights have been violated, in view of seeking protection and reparation. The right to a fair trial requires an independent and impartial “tribunal” (court) established by law. The person involved in a trial has to be heard by a court under procedural arrangements safeguarding fairness, such as a public hearing, access to legal advice, defence and representation, and free legal aid for those lacking sufficient resources.
Children as rights holders
Children as rights holders profit from all legal provisions regarding the area of justice at both international and EU level. All relevant human rights standards do apply to children, since these are set out in an abstract way referring to “everyone”, while the principle of non-discrimination enshrined in both the Charter (Article 21) and the ECHR (Article 14) requires the equal treatment of all persons, regardless of their age.
Special legal arrangements, however, are set forth to establish a more child-sensitive approach when the authorities implement obligations related to justice in the case of children. Along with the binding general principle of taking into consideration the best interests of the child in all actions concerning children, including actions related to judicial matters, the Convention on the Rights of the Child (CRC) lays down specific rules for children. It provides for their right to express their views and be heard in any judicial and administrative proceedings affecting them (Article 12), and sets out special standards and safeguards for their treatment in criminal proceedings or when under arrest or in detention (Articles 37, 38 and 40). These specific rules reflect and reinforce relevant provisions set out at national and EU level. They are binding for all EU Member States, given that all of them are parties to the CRC.
Setting age requirements regarding children in the area of justice can serve both the protection of children against violations of their rights and their appropriate and active participation in judicial proceedings related to cases affecting their well-being. Laying down favourable procedural safeguards for child victims, witnesses or children accused of crime, for instance, as well as adopting special provisions regarding the treatment of child offenders and their detention, aim to protect their rights. Respecting the right of children to express their views and be heard in all judicial proceedings, on the other hand, goes beyond the mere protection of their rights to a participatory approach respectful of children’s views and opinions.
As regards the EU level, issues related to justice are part of the shared competences of the EU, as defined in Articles 81–86 of the Treaty on the Functioning of the European Union (TFEU) concerning judicial cooperation in civil and criminal matters. In this respect, the EU may adopt legislative measures to ensure effective access to justice in civil matters, as well as to establish minimum rules concerning the rights of individuals in criminal proceedings. The same applies regarding the rights of victims of crime or concerning the definition of criminal offences and sanctions in areas of particularly serious crime, such as trafficking in human beings and sexual exploitation of children.
Exercising these competences, the EU has adopted a number of legislative measures during the past years that are of utmost importance in defining the content and the level of respect and protection of the rights of children facing judicial proceedings, especially criminal proceedings. The most significant ones are the:
- Directive on special safeguards for children, adopted on 11 May 2016 and to be transposed by 11 June 2019;
- Victims’ Rights Directive, with Article 24 referring in particular to the rights of children; and
- Brussels II bis Council Regulation on matrimonial matters and parental responsibility.
Other examples include the Anti-Trafficking Directive and the Directive on combating the sexual abuse and sexual exploitation of children and child pornography. These acts set concrete standards and rules for the treatment of children in judicial proceedings, with which all the Member States have to comply.