Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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ppi 201502ZU4645
Vol.39 N° 68
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Junio
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
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Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 68 (Enero - Junio) 2021, 167-185
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Juvenile Justitia and the protection of
children’s rights in Europe: the practice of
the European Court of Human Rights
DOI: https://doi.org/10.46398/cuestpol.3968.09
Mykola Bondaruk *
Serhiy H. Melenko **
Liubov Omelchuk ***
Liliya Radchenko ****
Anzhela Levenets *****
Abstract
The objective of the research is to analyze the main violations
of children’s rights within the European Convention on Human
Rights to highlight the basic positions of the European Court of
Human Rights ECHR on their protection, as well as to determine
the advisability of applying the practice of this court by the European states.
The methodological basis of the work consists of different methods, such as
analysis and synthesis, dialectical, logical-legal and formal-legal. The result
of this work allowed identifying the role of the decisions of the European
Court of Human Rights as a source of European law and its importance
for the protection of the rights of the child, interpreting the legal positions
established in the pertinent decisions of the said court and comparing them,
to justify the need for your careful observation of the practice of the ECHR
in the application of the law. It is concluded that the practice of the ECHR
is recognized as a source of law in most states. And although the Ukrainian
legal tradition does not recognize the status of judicial precedent as a source
of law, such precedents are actively used in everyday legal activity.
* Doctor of Legal Sciences, Associate Professor, Honored Worker of Education of Ukraine, Professor of
the Department of Private Law, Yuriy Fedkovych Chernivtsi National University. ORCID ID: https://
orcid.org/0000-0001-7386-465X. Email: m.bodnaruk@chnu.edu.ua
** Doctor of Juridical Sciences, Full Professor, Department of European Law and Comparative Law
Studies, Yuriy Fedkovych National University of Chernivtsi, Ukraine. ORCID ID: https://orcid.
org/0000-0002-3912-548X. Email: s.melenko@chnu.edu.ua
*** Ph.D. in Law, Associate Professor, Associate Professor of Department of Criminalistics and Criminal
Process, University of the State Fiscal Service of Ukraine. ORCID ID: https://orcid.org/0000-0002-
2457-0118. Email: o.l.v.0328@gmail.com
**** Ph. D. in Law, Associate Professor; Associate Professor of Civil Law, Institute of Law, Taras Shevchenko
National University of Kyiv. ORCID ID: https://orcid.org/0000-0002-3783-9489. Email: gli@online.
ua
***** Ph. D. in Law, Associate Professor of the Department of Constitutional Law and Justice, Odessa
I. I. Mechnikov National University. ORCID ID: https://orcid.org/0000-0002-1941-513X. Email:
Angel1lev@onu.edu.ua
168
Mykola Bondaruk, Serhiy H. Melenko, Liubov Omelchuk, Liliya Radchenko y Anzhela Levenets
Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
Keywords: youth policy; European Court of Human Rights; European
Convention on Human Rights; Convention on the Rights of
the Child; legal reality of Ukraine.
Justicia juvenil y protección de los derechos del niño
en Europa: la práctica del tribunal europeo de derechos
humanos
Resumen
La investigación tiene como objetivo analizar las principales violaciones
de los derechos del niño dentro del Convenio Europeo de Derechos
Humanos para resaltar las posiciones básicas del Tribunal europeo de
Derechos Humanos TEDH sobre su protección, así como determinar la
conveniencia de la aplicación de la práctica de este tribunal por parte de
los estados europeos. La base metodológica del trabajo consta de diferentes
métodos, como análisis y síntesis, dialéctico, lógico-legal y formal-legal. El
resultado de este trabajo permitió identicar el papel de las decisiones del
Tribunal europeo de Derechos Humanos como fuente del derecho europeo
y su importancia para la protección de los derechos del niño, interpretar
las posiciones legales establecidas en las decisiones pertinentes del referido
tribunal y compararlas, para justicar la necesidad de su observación
cuidadosa de la práctica del TEDH en la aplicación de la ley. Se concluye
que la práctica del TEDH se reconoce como fuente de derecho en la mayoría
de los estados. Y aunque la tradición jurídica ucraniana no reconoce la
condición de precedente judicial como fuente de derecho, tales precedentes
se utilizan activamente en la actividad jurídica cotidiana.
Palabras clave: política juvenil; Tribunal Europeo de Derechos
Humanos; Convenio Europeo de Derechos Humanos;
Convención sobre los Derechos del Niño; realidad
jurídica de Ucrania.
Introduction
In today’s democratic society, the protection of human rights is one
of the most pressing issues. A set of relevant principles was formulated
by European thinkers of the Enlightenment in the eighteenth century:
humanism, education, equality of all members of society (Shyshka
and Tkalych, 2020). The pace of development of society, the growth of
quantitative and qualitative human needs has led to an increase in the
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types of human rights violations, as well as the backlog of legal regulation
of relations arising from such violations. This problem is even more acute in
the protection of violated rights of the child, as it can be attributed to more
vulnerable social groups, and in practice manifests itself in gaps in legal
regulation or unequal interpretation of the law on the rights of the child.
Accordingly, modern private law must be transformed and improved to be
able to meet the challenges of modernity (Tkalych et al., 2020).
A partial solution to this problem can be considered the European Court
of Human Rights (ECtHR), which at the international level guarantees the
observance of human rights, including the child, their protection from the
violation, or any other encroachment.
Paragraph 1 of the Law of Ukraine “On Ratication of the Convention
for the Protection of Human Rights and Fundamental Freedoms of 1950,
the First Protocol and Protocols No. 2, 4, 7 and 11 to the Convention” (1997)
(Law 475/97-VR /1997 of July 30), in particular, fully recognizes Article
46 of the Convention fundamental human freedoms of 1950 to recognize
the jurisdiction of the European Court of Human Rights in all matters
concerning the interpretation and application of the Convention as binding
and without the conclusion of a special agreement. Ukraine is moving
towards the harmonization of its legislation with the legal framework and
the recommended EU standards (Pavlova et al., 2020).
Thus, in recognizing the jurisdiction of the ECtHR, Ukraine has made an
unspoken obligation to follow the provisions set out in its decision, which in
turn serve as a source of law and are a reference point for legal decisions, in
proceedings concerning the rights and interests of minors (children). Other
European countries have made the same commitment.
The object of the study is the relationship concerning the protection of
children’s rights, which is considered through the prism of the decisions of
the ECtHR. The subject of research is juvenile justice and its signicance in
the context of ECtHR decisions.
1. Methodology of the study
The methodological basis of the work was both general and special
methods, including analysis and synthesis, dialectical, logical-legal, and
formal-legal.
Firstly, the synthesis method, as a rule, complements the method of
analysis and allows you to summarize the results obtained by studying the
separate elements of a particular phenomenon using the method of analysis
(Kharytonov et al., 2021). The analysis and synthesis made it possible to
comprehensively describe and characterize the essence of juvenile justice
through the prism of ECtHR decisions on the protection of children’s rights,
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Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
to identify and compare basic positions on the legal regulation of relations
related to violations of children’s rights. The synthesis also served as a basis
for combining original ideas, principles, developments for further effective
use of the legal positions of the ECtHR in the development and formation
of juvenile justice.
Moreover, the dialectical method revealed the general features,
connections, and patterns that arise in the protection of the rights of the
child of the ECtHR.
Furthermore, the formal-legal method helped to clarify the essence
and content of legal norms, their functions, features of the concepts they
dene, and the processes they regulate, within the research topic, and the
hermeneutic method allowed to study the content of certain legal norms
and theoretical provisions in the context of topical issues of juvenile justice
based on acquaintance with the texts of normative and doctrinal sources.
Also, the use of the formal-dogmatic method made it possible to reveal
the phenomenon of children’s rights by covering these rights in the norms
enshrined in international legal acts, as well as to determine that these
rights must be ensured in compliance with the principle of the best interests
of the child.
The axiological method served as a basis for substantiating the value of
children’s rights and the importance of their observance for the formation
of juvenile justice.
Thanks to the comparative law method, it has become possible to
compare the main legal positions of the ECtHR, considering the specics
of each case.
The special legal method was used in assessing the effectiveness of the
ECtHR’s activities to protect the rights of the child and the appropriateness
of using the legal precedents of the ECtHR to develop and establish a
national system of juvenile justice.
The logical-legal method helped formulate proposals for the use of
ECtHR practice in the formation and development of juvenile justice.
Finally, generalization, as a method, made it possible to identify the
main problems and vectors of development of the application of ECtHR
decisions in the formation of juvenile justice.
2. Analysis of recent research
Many works by domestic and foreign scientists are devoted to the study
of issues related to the research topic.
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Thus, Opatsky (2012) studied the juvenile policy of the state through the
prism of the direction of the activities of the respective subjects, which is the
basis for the formation of juvenile justice as one of the means of ensuring
the rights and freedoms of children. The author identied the reason for
the problematic development of juvenile policy and the slow pace of its
pace in the specics of the historical path of juvenile justice in Ukraine.
The scholar also dened the goal of the state’s juvenile policy, which can be
fully compared with the goals of the ECtHR’s activities to protect the rights
of the child.
The study by Mendzhul (2020) reveals the meaning and essence of the
principle of the best interests of children in the practice of the ECtHR and
emphasizes that this principle should be predominant in decision-making
by both international courts and national courts. Thus, the author found
that the ECtHR uses this principle in various situations, when considering
cases of paternity, family reunication, the relationship between the adopter
and the adopted child, contact with the child, and the right to communicate
with him of the parents who lives separately, or other relatives, deprivation
of parental rights, etc.
Krestovskaya (2008) made a signicant contribution to understanding
the essence of the concept of juvenile justice. The scholar’s works examine in
detail the paternalistic, protectionist, and autonomist doctrines of juvenile
law and their combination in the Ukrainian legal system. Much attention
has been paid to the existence of juvenile law as a separate branch, its
principles, functions, system, and connection with morality, religion, and
politics.
The works of Mamych (2012) analyzed the practice of the ECtHR to
protect the rights of children, from mental and physical violence, resulting
in the conclusion that children have the same rights as adults to demand
from society and the state respect for honor and dignity, protection from
violence, enslavement, and exploitation.
It is worth mention, that Dzhuzha’s (2013) research is aimed at
identifying the main legal mechanisms for detecting and preventing crimes
against the sexual integrity of a child, on the example of ECtHR decisions.
In turn, Volkova (2018) focused on the practice of the ECtHR in cases
concerning Ukraine and analyzed its impact on the adoption of decisions
on the child by national courts. Her work describes certain decisions of
the ECtHR in various categories of cases concerning the protection of the
rights and interests of the child and concludes that the child is a subject
of international law, so the ECtHR and national courts have the right to
apply international law rights and interests of the child, even if such acts of
children are not directly related.
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Mykola Bondaruk, Serhiy H. Melenko, Liubov Omelchuk, Liliya Radchenko y Anzhela Levenets
Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
Given the achievements of scholars and practitioners in addressing these
issues, further need to study the problem of forming a generally accepted
denition of “juvenile justice”, the balance of the best interests of the child
and privacy, the relationship between propaganda in ECtHR decisions to
maintain parental contact with children in custody and to maintain the
normal psychological state of the child, which may be disturbed by the
return of the child in custody to biological parents, and the expediency of
using ECtHR legal positions by national courts and other bodies directly or
indirectly involved in the formation of juvenile justice.
3. Results and discussion
One of the main tasks of every modern democratic and civil state is
the protection and defense of human rights. Given that children, due to
the extent of their legal capacity, may not always be able to independently
violate their freedoms and rights, ie use state protection mechanisms, and
their representatives may ignore the obligation to protect children’s rights,
ensuring the rights of the child deserves special attention from the state
both at the national and international levels.
To ensure the above objectives, the state pursues a juvenile policy, which
can be dened as part of domestic policy, a special type of social activity
governed by international and national law, aimed at effectively ensuring
the rights and legitimate interests of minors (Opatsky, 2012).
The juvenile policy should include provisions for the construction of
mechanisms and a system of juvenile justice, which is designed to protect
the rights and interests of minors in court.
There is currently no consensus among theorists and practitioners on
the interpretation of juvenile justice. The most successful, according to the
author, is the interpretation of Krestovskaya, according to which juvenile
justice is a system of state, municipal, and public, judicial, law enforcement
and human rights bodies, institutions, and organizations that based
on juvenile law and with the help of medical, social and psychological-
pedagogical methods administer justice, prevention and prevention
offenses against and against children, protection of rights, freedoms, and
interests, as well as re-socialization of children in difcult life situations
(Krestovskaya, 2008).
Ukraine, in particular equal to the developed countries of Europe, has
also taken certain steps towards the introduction of juvenile justice, as
evidenced by the Decree of the President of Ukraine “On the Concept of
Criminal Justice for Juveniles” (Decree 597/2011 of May 24,), the Order
of the Cabinet of Ministers of Ukraine “On approval of the action plan for
the implementation of the Concept of development of criminal justice for
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minors in Ukraine” (Order 1039-р /2011 of February 8), as well as the
separation in a separate chapter of the Criminal Procedure Code of Ukraine
(Law 4651-VI/2012 of April 13) provisions for the conduct of proceedings
against minors. At the same time, juvenile justice aims not only to prosecute
or re-educate child offenders but also to address other problems of children,
those related to the violation of their rights, including those arising from
civil, family, or other legal relations.
In view of the above, it can be concluded that juvenile justice institutions
in Ukraine are generally developing at a slow pace and rather one-sidedly,
ie only within the framework of criminal proceedings against minors, while
other offenses committed by third parties against minors are ignored,
which entails the inability to create an effective mechanism to protect the
rights of children, taking into account their special legal status.
Instead, the protection of children’s rights at the level of substantive
international law is ensured by the European Convention for the Protection
of Human Rights and Fundamental Freedoms (1950) (hereinafter – the
European Convention) and the Convention on the Rights of the Child (1989),
developed by the United Nations. At rst glance, the Convention on the
Rights of the Child is more personal and special, as it specically concerns
the rights of the child. In particular, the above convention stipulates:
- inalienable right to life (Article 6).
- mandatory registration of the child after birth (Article 7).
- ensuring the individuality of the child (Article 8).
- the right to free expression of views (Article 12) and opinions (Article
13).
- the child’s right to freedom of thought, conscience, and religion
(Article 14).
- protection of the child from all forms of physical and psychological
violence, insults or abuse, lack of care or careless and brutal treatment
and exploitation through the necessary legislative, administrative,
social, and educational measures (Article 14).
- the right of every child to a standard of living necessary for the
physical, mental, spiritual, moral, and social development of the
child (Article 19).
- the child’s right to education (Article 28).
- the child’s right to rest and leisure, the right to participate in games
and entertainment activities appropriate to his age, and to freely
participate in cultural life and engage in the arts (Article 31).
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Mykola Bondaruk, Serhiy H. Melenko, Liubov Omelchuk, Liliya Radchenko y Anzhela Levenets
Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
- the child’s right to protection from economic exploitation and the
performance of any work (Article 32), etc.
From a practical point of view, the European Convention has a greater
impact and signicance, as it is the material basis of the work of the ECtHR,
which in turn within the European Convention is to protect the rights of the
child.
At the same time, the ECtHR refers in its decisions not only to the
European Convention but also to the UN Convention on the Rights of
the Child, thus symbolizing the unity of the principles of establishing
guarantees for the protection of the rights of the child. Thus, in the decision
A. v. The United Kingdom (23 September 1998) ECtHR mentions Art. 37
and Art. 19 of the UN Convention on the Rights of the Child, which urges
States to protect children in the care of parents or others from “all forms of
physical and mental violence, including sexual acts”. In this judgment, the
Court unequivocally points to the State’s responsibility to protect children
from domestic violence and elsewhere. Thus, the state’s disregard for the
problems of violence against children in the family or in other private
institutions, failure to take appropriate measures to prevent it is seen as a
concession to such actions by the state and as a violation of international
legal obligations to protect children from torture and other cruel, inhuman,
or degrading treatment or punishment (Dzhuzha, 2013).
Thus, the ECtHR can also be considered the highest institution of juvenile
justice. In this regard, the states that have signed the European Convention
are obliged to strictly follow the positions set out in the decisions of this
institution.
According to the author, this commitment is the embodiment of unity,
the cohesion of European states around the standards of human rights,
including the child. At the inter-European level, the idea of creating
a European Civil Code or another act that would extend to European
countries has long been nurtured. This idea has not only positive sides but
also negative ones, which are primarily related to the problem of ensuring
the preservation of the identity of national legislation because the basis
of any legal system is legal awareness, which in turn is closely linked to
mentality, genesis and the philosophy of law that is inherent in each state.
In this case, the case-law of the ECtHR is a common source of law for
European countries, which complements the provisions of the European
Convention as a source of law in the form of an international treaty, thus
closing gaps in the legal regulation of human rights, including children,
each European state.
The practice of the ECtHR as a source of legal inuence has the following
characteristics:
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1) serves as a basis for the actual functioning of the European
Convention.
2) is personied in a set of legal positions through which there is a legal
inuence.
3) exerts informational, psychological, educational, law enforcement,
social and regulatory inuence on the consciousness and behavior of
legal entities.
4) ensures the formation of legal awareness within the framework of
human rights.
5) gives rise to legal consequences in case of violation of the articles of
the European Convention.
Since the powers and jurisdiction of the ECtHR are unparalleled in the
world, a large number of applications are received annually by this court,
but complaints concerning violations of children’s rights belong to the rst
category of complaints under the priority policy of the ECtHR (Mamych,
2012). That is, the protection of the rights of the child is a priority over the
protection of the rights of other adults. Everyone has equal rights, including
the same right to protection, but due to the signicant vulnerability of
minors, the lack of enhanced guarantees from states to respect their rights
at the national level, the ECtHR pursues a chosen policy of priority and
recognizes the interests of children.
It should be noted that, unlike the laws of many European countries, the
ECtHR does not link the possibility of directly seeking protection with the
capacity of a person, ie the applicant may be minors themselves. Nachova
v Bulgaria (2005) highlighted a different approach to marginalization and
discrimination (applicants belonged to the Roma or Roma ethnic group) and
acknowledged the lack of age as a criterion for admissibility of the complaint
(the applicant was 3 years old at the time of the complaint). However, in
cases in which the applicants are the child’s legal representatives, there are
many more cases in the ECtHR’s practice.
Thus, about the general situation of children’s access to justice in
2017, the Child Rights International Network (CRIN) examined how the
legal systems of 197 countries allow children to exercise their rights or,
conversely, provoke violations that they must ght. In the Global Report on
Children’s Access to Justice prepared by this organization, Ukraine received
55.4 points and together with Rwanda took 80th place (Pavlichenko and
Martynenko, 2017).
According to the author, analyzing the case-law of the European Court
of Human Rights on the protection of children’s rights, rst, it is worth
emphasizing the decision of the ECtHR in the case of Marckx v. Belgium
(13 de junio de 1979, 1979). Moreover, although the ECtHR considered
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Mykola Bondaruk, Serhiy H. Melenko, Liubov Omelchuk, Liliya Radchenko y Anzhela Levenets
Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
this case back in 1979, it should be considered a textbook and one of the
fundamental, because in the decision, in this case, the ECtHR equated
the rights of children born in wedlock and illegitimate children. Thus, the
applicant relied on the fact that the State had established a complicated
procedure for establishing legal relations between mother and child in the
event of the birth of a child out of wedlock.
As this procedure consisted of the recognition of the child and his / her
subsequent adoption, the child did not have any legally established ties at all
during this time, which violated his / her rights. In its decision, the ECtHR
stated that if the state, within the framework of its domestic legal system,
determines the regime of certain family relations, it must act thoughtfully
so that the persons concerned could have a normal family life. Besides, the
existence of legal guarantees in domestic law that would allow a child to be
integrated into the family from birth was made mandatory. The ECtHR also
noted that if the state aims to create conditions for the normal development
of family relations between an unmarried mother and her child, then the
state should not allow any discrimination on the grounds of birth.
And although in most European countries there are currently no
restrictions based on the birth of a child in a formal marriage or not, the
analyzed decision of the ECtHR is an example of the impact of the ECtHR’s
positions on the legislative and law enforcement activities of states.
The ECtHR is subject to various cases of violation of the rights of the
child within the provisions of the European Convention, and one common
feature of such consideration is the ECtHR’s adherence to the principle of
establishing the best interests of the child in each case. Thus, the scope of the
concept of “best interests of the child” covers administrative. For example:
- appeals against decisions of guardianship authorities on determining
how to participate in the upbringing of a child of one parent; decisions
to consent to the alienation of property.
- decisions to establish the child’s residence; the obligation of the
subject of authority to take certain actions, namely, to amend the
birth certicate of the child, etc.) and civil (in particular, cases of
determining the child’s place of residence.
- adoption.
- deprivation of parental affairs; establishment of guardianship and
custody, and;
- recovery alimony and so on) litigation, the implementation of family
law (Klim, 2014).
Indicative in the context of this is the decision M.S. v. Ukraine (11
October 2017), in which the ECtHR emphasized that, in establishing the
best interests of the child, it is important to remember:
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1) it is in the best interests of the child to maintain his or her ties to
the family unless it is proven that the family is unt or manifestly
dysfunctional.
2) in the best interests of the child to ensure its development in a safe,
reliable, and stable environment that is not dysfunctional.
However, the interests of the child often do not coincide with the interests
of the parents, and the interest of the child in such cases is predominant.
This is conrmed by the judgment in Hunt v. Ukraine (7 March, 2006), in
which the ECtHR emphasized that there must be a fair balance between the
interests of the child and the interests of the parents, and, in striking such
a balance, special attention must be paid to the most important interests
of the child, which by their nature and importance must prevail over the
interests of the parents.
Thus, in the decision in the case Haase v. Germany (08 July, 2004),
the ECtHR noted that in the case of a child separated from his parents for
a long time and under the care of a new family, maintaining the child’s
normal psychological state, which may be disturbed by new changes in his
family environment, is a more important factor than the interest of parents
in the return of the child.
At the same time, the ECtHR in some decisions insists on the need
to maintain contact between parents and children in foster care, as any
restriction on communication must be justied by grounds directly related
to the circumstances of the case and the protection of the rights of such
children. The ECtHR emphasizes that in such cases the balance between
the restrictions and the purposes for which the restrictions were imposed is
particularly important. Thus, in Andersson v. Sweden (14 October, 2004),
the applicants (mother and son) challenged the ban on their personal
meetings, communication by post or telephone. Although the reason for
such a restriction was reasonable reason to believe that the son would try
to ee the custody after contact with the mother, which was contrary to the
interests of the child, the ECtHR found the reason to be disproportionate
and found a violation of the European Convention.
In continuation of this position of the ECtHR, namely the communication
of the child with his parents, it is worth paying attention to the decision
in the case of Vyshnyakov v. Ukraine (24 October, 2018), which was
considered in connection with the mother’s improper execution of the
court’s decision to see the child. Thus, the ECtHR found that the improper
implementation of the relevant court decision was the result of insufciently
developed legislative and administrative mechanisms that could accelerate
the voluntary compliance with the agreements with the involvement of
specialists in the service of children and families. In addition, the existing
legislative and administrative mechanisms did not provide for appropriate
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Court of Human Rights
and specic measures to enforce the decision to set up appointments
following the principle of proportionality.
Besides, the main thesis of the decision Amanalachioai v. Romania
(26 May, 2009) is that the interests of children require that family ties be
broken only in particularly exceptional circumstances and that all measures
should be taken to preserve personal ties and, if necessary, to rebuild the
family. In this case, the ECtHR also noted: “the fact that the child could
have been placed in a more favorable environment for his upbringing does
not in itself justify his removal from the custody of his biological parents.”
However, in this case, it should be noted that the circumstances of this case
concerned the removal of the child from the parents and his placement in
the appropriate institution, ie no family ties between the child and another
family were established.
Many questions are raised by the above statement as to which
circumstances are “particularly exceptional”, as the list of such
circumstances, or at least the criteria by which such circumstances can be
determined and established, is not provided by any legal act. Instead, the
case-law of the ECtHR contains some developments in this regard, which
will allow to draw parallels between situations and compare the relevant
circumstances. Thus, the case of Saviny v. Ukraine (18 March, 2009)
concerned the deprivation of a child from parents and deprivation of their
parental rights because the parents were blind from birth, which in the
opinion of the competent state body meant their inability to provide children
with proper food, clothing, sanitation and to take care of children’s health
and to ensure their social adaptation. The ECtHR criticized this position
and recognized the state as violating Art. 8 of the European Convention on
deprivation of Sava’s parental rights.
Violations of this article, which states that the right to respect for
private and family life, are often established by the ECtHR. itself within the
framework of interference in family life. Such cases within the framework
of “family life” concern the protection of the rights of parents, but in any
case, also affect the rights of the child, as the decision is made in full and
comprehensive clarication of the circumstances considering the interests
of the child. Thus, violation of Art. 8 of the European Convention is found
in the decisions of the ECtHR on:
- establishment of paternity (Rasmussen v. Denmark, 28 November
1984, § 87, § 33 and Keegan v. Ireland, 26 May 1994, Series A § 290,
§ 45).
- deprivation of parental rights (decision in the case of the “Khanty of
Ukraine” of December 7, 2006, application No. 31111/04).
- removal of the child (Savin v. Ukraine judgment of 18 December
2008, application No. 39948/06), and;
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- determination of the child’s place of residence (ME v. Ukraine). [1,
85-86].
According to the authors, the practice of the ECtHR in cases where
the interests of children are concerned is somewhat ambiguous and at
rst glance contradictory. For example, the ECtHR seeks to establish and
maintain family ties between a child and his or her biological parents, while
in some precedents the ECtHR deviates from its position and favors others,
in the court’s view, more important factors.
For example, the case of Kautzor v. Germany (24 September, 2012)
concerns the establishment of paternity of the applicant in respect of the
daughter, who after the divorce remained living with the mother and her
new husband, who legally recognized his paternity with the applicant’s
daughter. By bringing an action before the domestic court, the applicant
was denied leave of claim because the child already had a legal father. The
ECtHR, considering Kautzor’s application, also did not recognize the state’s
violation of Art. 8 and Art. 14 of the European Convention, referring to the
fact that European law does not provide for the possibility of establishing
biological paternity without rst challenging the paternity of another man.
At the same time, this decision once again forms a position concerning
which European states are obliged to resolve the issue of compliance of the
establishment of biological paternity with the best interests of the child.
It should be noted that the practice of the ECtHR on the establishment
of paternity is of particular importance for European states not only as a
source of substantive law but also procedural law. Thus, according to the
author, in the decision of Kalacheva v. Russia (7 August, 2009), established
the priority and importance of DNA examination as one of the most
important evidence in this category of cases, as DNA analysis is recognized
as the only scientic method of accurate paternity; its probative value
signicantly exceeds any other evidence presented by the parties to conrm
or refute their close relationship.
The ECtHR also considers other cases of violation of the rights of the
child granted to it by the European Convention as a person.
Thus, practice shows that the ECtHR actively protects children’s
rights to education and freedom of conscience. Thus, the applicant in
Folgero and Others v. Norway (29 June, 2007) challenged in the ECtHR
the refusal to exempt his children from school subjects in Christianity,
religion, and philosophy. In the decision, in this case, the ECtHR insists
on the violation by the state of Art. 2 of Protocol No. 1 to the European
Convention proclaiming the right to education, as the respondent State
has not provided adequate conditions for the provision of information and
knowledge within the curriculum objectively, critically, and pluralistically.
The ECtHR came to this conclusion based on a signicant predominance
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Juvenile Justitia and the protection of children’s rights in Europe: the practice of the European
Court of Human Rights
of Christian themes and motives during study, which the applicant had
requested to attend in the interests of his children. The ECtHR also noted
that the state is prohibited from having an ideological inuence on children,
which be disrespect for the religious and philosophical beliefs of parents.
The decision in the case of Hasan Eylem Zengin v. Turkey (2008) is
similar in meaning and signicance.
Admittedly, even in today’s civilized and tolerant society, given that
minors are often inuenced by adults, sometimes due to their physical
weakness and inability to ght back, children still suffer from abuse by
adults, usually people close to them: parents, relatives, etc. Examples of
such situations abound in the practice of the European Court of Human
Rights, which always recognizes the violation of Art. 3 of the European
Convention.
Thus, the ECtHR found that the State had violated the above-mentioned
Article and Article 13 of the European Convention in E and Others v. The
United Kingdom (15 January, 2003) because the negligent attitude of social
services had prevented years of abuse of children who because of such abuse
received serious post-traumatic mental disorders.
The case of Kontrov v. Slovakia (24 September, 2007) differs from other
categories of ECtHR cases concerning the protection of children’s rights.
According to the case le, on 2 November 2002, the applicant requested
the relevant public authority to institute criminal proceedings against her
husband for the ill-treatment of her. The applicant later withdrew her
application under pressure from her husband and with the assistance of the
police. In December of that year, her husband shot their joint minor daughter
and son. Although the application to the ECtHR was led by Kontrova
regarding the non-payment of compensation due to her, considering the
case of the ECtHR, it was recognized not only as a violation of Art. 13 of the
European Convention (the right to an effective method of protection) due
to lack of cash benets to the mother, as well as the violation of Art. 2 of the
European Convention, i.e. the right to life, arguing that the State had not
taken appropriate measures to save the life of the applicant’s children.
There is a practice of the ECtHR concerning the protection of the
rights of the child and within the limits of recognizing the violation of the
prohibition of slavery and servitude, which is enshrined in Art. 4 of the
European Convention. According to the plot of the case Siliadin v. France
(26 October, 2005), a fteen-year-old Togolese citizen was brought by a
French citizen to Paris and handed over to a married couple as a worker,
which she was for several years. According to the author, this decision is
indicative because it expresses the position of the ECtHR on the state of
slavery in a broader sense.
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Thus, according to the ECtHR, the applicant had not been subjected to
physical or mental violence, her case could be equated with forced labor,
as she was a minor, was alone in a foreign country and could have been
arrested for violating immigration rules, fearing spouses who at the same
time promised to legalize her stay. Siliadi’s enslavement was expressed in
the fact that she was unable to choose a place of work and residence, had no
means of subsistence and individual housing, had no freedom of movement,
and was entirely dependent on B.’s spouses, who conscated her passport.
The ECtHR thus found a violation of Article 4 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, which guarantees
freedom from slavery and forced or compulsory labor.
Conclusions
1. The practice of the ECtHR is recognized as a source of law in most
states. And although the Ukrainian legal tradition does not recognize
the status of judicial precedent as a source of law, such precedents
are actively used in practice.
2. Decisions of the ECtHR are binding on States promoting the ideas
set out in the European Convention and can be considered a common
source of law for those countries, which certainly ensures a uniform
interpretation of the rules on the protection of children’s rights and
brings their legal systems closer together.
3. The ECtHR considers a large number of applications that directly
or indirectly concern children’s rights. Thus, the ECtHR makes
decisions within:
- the right to education (Article 2 of Protocol № 1 to the
European Convention);
- freedom of conscience, the right to freedom of expression
and freedom of association (Articles 9, 10, 11 of the European
Convention);
- child abuse and neglect (Articles 3 and 8 of the European
Convention);
- restriction of freedom of expression, receipt, and dissemination
of information for health and morality (paragraph 2 of Article
10 of the European Convention);
- protection against discrimination (Article 14 of the European
Convention), etc.
4. The above allegations should play a key role in national courts’
decisions, as it is extremely difcult to identify completely identical
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Court of Human Rights
circumstances and legal relationships in respect of which a particular
ECtHR decision has been made and to ascertain that it is appropriate
to apply it. Thus, cases related to the rights and interests of minors
are characterized by increased attention to detail, which determines
their situation. It is for this reason that national courts should
carefully rely on the ECtHR’s decision-making practice.
5. The decision of the European Court of Human Rights is the basis
for the formation, formation, and development of effective juvenile
justice, which stands for the protection of children’s rights.
6. Further research within the chosen topic should address the
prospects of using the ECtHR’s practice to protect the rights of the
child for the development and establishment of the juvenile justice
system in Ukraine, as well as the analysis of violations of children’s
rights by various European countries, to avoid similar violations by
Ukraine in the future.
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