This protection extends to any person aged under 18 years of age. The right to protection of children and young people could be interpreted to include a broader range of children’s rights recognised in the Convention on the Rights of the Child, including the right to participation. Public Authorities must adopt special measures to protect children and young people, and the best interests of the child must be taken into account in all actions affecting a child.
Some relevant considerations for victims when considering the concept of the right to protection of children during the investigation stage would include:
Case example (prevention from degrading treatment or punishment, right to respect for private and family life, rights of the child)
The applicant alleged that she was raped by two men when she was 14 yrs old. The police investigated the allegation and referred it to an investigator, but no action was taken until one year later when an investigator proposed that the case be closed. The main reason for this was the lack of resistance on the applicant in response to the alleged rape and that, based on the statements of the alleged perpetrators, the applicant had not shown any signs of distress after having sex.
The European Court of Human Rights found a violation of obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, as the authorities failed to fully investigate all the surrounding circumstances of the allegation, and did not sufficiently assess the credibility of conflicting statements made by different witnesses. It also found that little was done to test the credibility of the version of events of the accused.
The Court criticised authorities for attaching little weight to the particular vulnerability of young persons, and the special psychological factors involved in cases concerning the rape of minors.
Source: M.C. v Bulgaria (Application no. 39272/98) European Court of Human Rights (Date of decision: 4 December 2003).
Some relevant considerations for victims who are children would include:
Case example (right of children and young people)
Fitzroy Legal Service (FLS) has protected a young girl from having to testify against her alleged perpetrators in a criminal trial. The young girl and her family believed that testifying and being crossexamined would cause her serious harm. FLS advocated in favour of her choice not to testify and was successful in doing so. They achieved this by raising section 17 of the Charter, which enshrines the protection of families and children.
They argued that protection of her rights as a child and protection of the family should be given due regard when determining whether or not the young girl would be required to provide witness testimony. The Tribunal agreed that she should not testify, and consequently provided her with financial assistance in recognition of the trauma suffered by her.
Source: Fitzroy Legal Service, Submission to the Inquiry into the Charter of Human Rights and Responsibilities Act 2006, 15 June 2011.