Headnotes:
It is incompatible with right to human dignity pursuant to Article 1 of the Charter of Fundamental Rights and Freedoms and principle of fair trial to hold a court hearing in the presence of a person of foreign origin, who – due to the lack of interpretation to their native language – cannot understand and effectively participate in the court proceeding.
Moreover, the authorities have a duty to conduct age assessment of unaccompanied juvenile migrants, whose exact age is uncertain, in fair, safe and scientifically sound manner. The age assessment process must be compatible with the best interest of the child and the child’s right to be heard in all matters affecting them (see Articles 3 and 12 of the Convention on the Rights of the Child), including providing them with interpreter and legal guardian throughout the whole process, acquainting them in an age-appropriate manner with the results of the assessment, and giving them opportunity to comment on the results.
Since the results of the age assessment have fundamental impact on the status and rights of the juvenile migrant, it is imperative that the age assessment is carried out in a scientifically sound manner. In case of persistent doubts regarding the exact age of the juvenile migrant, the benefit of the doubt shall apply and the migrant shall be treated as a minor.
Summary:
I. In June 2020, the complainant of Iraqi origin had been apprehended by police with the view of being handed over to Romania, where he previously lodged an application for international protection, in compliance with the so-called "Dublin Regulation". During the proceedings, he consistently claimed that he was born in 2004 and that he is a minor. In Romania, however, as follows from their communication, he had given a different name and a different day and month of birth than in the Czech Republic; nonetheless, even there he was treated as a minor. Following a request of the Czech police, the claimant had been subjected to medical examination, employing methods TW3 (Tanner, Whitehouse) and GP (Greulich, Pyle), and his skeletal age had been determined based on his x-rays. According to the results of the GP method, the claimant should have been 18,63 years old and according to the TW3 method the applicant should have been 16,36 years old. The doctor concluded that the claimant is 18-19 years old, and based on the medical examination, the complainant had been further treated as an adult. For this reason, the claimant had not been represented by a guardian and had been detained in conditions that would be unacceptable for a detention of a minor.
The complainant contested the police decision to prolong his apprehension before the Municipal Court in Prague, which dismissed his action. They relied mainly on the medical conclusions regarding the age of the complainant and on the fact that the complaint allegedly repeatedly lied about his identity and his statements are, thus, unreliable. The Supreme Administrative Court subsequently dismissed complainant’s appeal.
II. On 30 July 2021, the Constitutional Court ruled in favour of the complainant and annulled the contested decisions of the Municipal Court in Prague and of the Supreme Administrative Court, stating that his right to the freedom of liberty, guaranteed by Article 8 para 1 and 2 of the Charter of Fundamental Rights and Freedoms ("Charter") and Article 5 para 4 of the European Convention on Human rights ("Convention"), his right to a fair trial, guaranteed by Articles 36 para 1 and 38 para 2 of the Charter, and his right to the assistance of an interpreter, guaranteed in Article 37 para 4 of the Charter, were violated.
Firstly, the Constitutional Court emphasised that in a democratic rule-of-law country it is unacceptable to hold a court hearing in a presence of a plaintiff (complainant) who cannot understand what is being said, does not have ability to give his statement and cannot participate at the hearing in any way. It reminded that even though the complainant was physically present at the hearing at the Municipal Court, he was unable to understand what was happening, raise objections, comment on evidence and dispel doubts regarding his identity and age, since the Municipal Court did not provide him with an interpreter to his native language. In effect, the complainant could not provide his statement on any of the relevant issues and comment on evidence pertaining to his identity and age, although the Municipal Court considered those pieces of evidence to his detriment. This was especially concerning due to the fact that if the complainant had understood the course of the proceedings and been able to present his statement on those issues, it would have most likely changed the outcome of the proceedings. Thus, in this Kafkaesque court proceedings the complainant was dealt with as an object rather than a person endowed with fundamental rights. This flaw could not be offset by a mere fact that the complainant’s attorney was present at the court hearing, since he was, too, unable to effectively communicate with the complainant due to lack of interpretation and was by definition unable to effectively comment on pieces of evidence pertaining to complainant’s age and identity. The Constitutional Court thus concluded that the complainant’s right to a fair trial (specifically his right to participate and be heard in proceedings and his right to the assistance of an interpreter) and right to liberty were violated.
Secondly, the Constitutional Court examined the method of assessment of the complainant's age used by the courts. It emphasized that erroneous identification of juvenile migrants as adults may result in violation of their fundamental rights, as well as unlawful deprivation of liberty and violation of duty to provide juvenile migrants with specific support and care, education, safe environment and proceedings adapted to the needs and age of a child (see General Comment of the Committee on the Rights of a Child no. 6). Any methods of the age assessment, and in particular those that are of medical character, must respect human dignity and must consider the best interest of a child. It is necessary to comply with set procedures and duly confront the results of different methods of the age assessment to avoid misidentification a juvenile migrant as an adult.
The Constitutional Court acknowledged problematic nature of age assessment of juvenile migrants, since no single method or set of methods is capable of establishing exact chronological age of a person. As follows from the recommendations of the Committee on the Rights of a Child, the authorities should not limit themselves to the assessment of the physical appearance but should also take into account the migrant's psychological maturity. The age assessment must be conducted in a scientific, safe and fair manner, be age and gender-sensitive and guarantee no risk of interference with one's physical integrity, bearing in mind human dignity. In case of any doubts, the principle of the benefit of the doubt shall apply. According to the law of the European Union, any medical assessment may only be carried out if the competent authority doubts the accuracy of the migrant's statement, taking into account all relevant information; the least invasive methods must be chosen.
In the case of the complainant, the Constitutional Court found that the authorities did not comply with the basic principles of fair, safe and scientifically sound age assessment of juvenile migrants. Neither complainant’s attorney nor an interpreter were present during the medical examination, contrary to the recommendation of the Committee on the Rights of a Child, the complainant was not informed about the results of the examination and did not have a chance to comment on them. Moreover, the authorities relied solely on bone age assessment (GP method), even though this method proved unsuitable for establishing age of a person past the age of 16. As follows from the jurisprudence of the administrative courts, the GP method tends to be highly inaccurate in juveniles. Thus, TW3 method is preferable. However, both methods have limited informative value when used in respect of those of other than European or American origin. As follows from the established case law of the Supreme Administrative Court, results of such methods should not have decisive value unless the difference between the alleged age and the medically established age is higher the 3 years. Moreover, the Constitutional Court noted that the GP method was not developed to assess the chronological age of juveniles, but to assess whether children developed properly compared to their peers.
In the present case, the Municipal Court was aware that the medical assessment is not sufficient in itself. Therefore, it elaborated on alleged untrustworthiness of the complainant and concluded that his statements regarding his age cannot be deemed credible. However, the Constitutional Court held that the court’s conclusions regarding the alleged lack of credibility of the complainant were not based on sufficient evidence, since the complainant did not have a chance to put forward his statement at the hearing due to the lack of interpretation. Nonetheless, even if the claimant’s statements were untrustworthy, it did not release the court from the obligation to use other methods of the age assessment to establish with a sufficient level of certainty that the complainant is not a minor. The courts however did not comply with this obligation. The Constitutional Court thus concluded that due to the aforementioned flaws and errors, the courts’ conclusions that the complainant is adult and thus can be detained along with other adult migrants are unconstitutional. Any subsequent prolongation of the complainant's detention in adult detention centre amounted to a violation of his right to freedom of liberty.
The Constitutional Court, further, reproached the Supreme Administrative Court that it refused to consider evidence (namely copies of his personal documents) submitted by the complainant without any persuasive reasoning, hence violating the complainant's right to a fair trial.
III. Kateřina Šimáčková served as the Justice Rapporteur in the instant case. None of the Justices submitted a dissenting opinion.