In the judgement on the case Darboe and Camara v. Italy (Application no. 5797/17) delivered on 21st July 2022, the European Court of Human Rights (ECtHR) ruled for the first time on the impact of age assessment methods and procedures on fundamental rights of young migrants who claim to be underage. The case concerns facts occurred in 2016, under Italian legislation now superseded by Law No 47 of 7 April 2017 on unaccompanied minors. Nonetheless the decision is relevant for the important principles it states.
The case is about a Gambian national who claimed asylum in Italy in 2016 as an alleged unaccompanied minor, indicating he was born in 1999 (and thus to be 17 years old). After a few months in a centre for unaccompanied foreign minors, the applicant was transferred to an adult reception centre and was subject to a medical examination to determine his age, based on the so-called ‘Greulich and Pyle method’ (via x-ray). The medical examination identified him as an eighteen-year-old, without reporting any margin of error. The assessment was not followed by any administrative or judicial decision regarding his age. Once eventually assisted by a lawyer, the applicant claimed to the competent national court for the appointment of a legal guardian. The outcome of the application remained unknown. Seized by the applicant pursuant to Rule 39 of the Rules of Court (interim measures), in February 2017 the ECtHR required Italy to transfer the applicant to a facility for unaccompanied minors. A few days later the applicant was transferred to such a facility, after having spent more than four months in an overcrowded adult reception centre, with extremely poor medical and reception conditions. Meanwhile, a new medical statement stressed out that the ‘Greulich and Pyle method’ has a significant margin of error and concluded, based on the so-called ‘TW3 method’, that the applicant’s date of birth was compatible with the one he had declared to the Italian authorities.
The Court found that the procedural shortcomings carried out by the Italian authorities had hindered the access of a juvenile migrant to international protection and ultimately led to his prolonged detention in an adult reception centre in highly poor conditions, resulting in breach of Article 8 and 3 of the Convention. Italy has also been held to have violated Article 13 of the Convention, due to the lack of remedies by which the applicant could have complained about conditions in the adult reception centre and to the ineffectiveness of the remedies concerning the age-assessment procedures.
It is worth noting that despite the existence of international recommendations and common standards (which the judgement extensively recalls) age assessment methods and approaches vary among European States contracting to the ECHR as well as among EU Member States. The Italian legal framework itself was considerably different at the material time, mostly due to Law no. 47 of 2017 on unaccompanied minors, which at the time has not yet entered into force. Currently, age determination in Italy includes multidisciplinary evaluation and procedural safeguards, involving different authorities and professionals. However (and perhaps questionably) the method carried out by the Italian authorities was not itself questioned by the Court.
In a key passage of the judgement, the Court points out the pivotal role of age assessment in the light of positive obligations of States under the right to respect for private life (Article 8 of ECHR). The Court observes that, in the specific context of migration, the ‘applicability of domestic, European and international legislation protecting children’s rights starts from the moment the person concerned is identified as a child. Determining if an individual is a minor is thus the first step to recognising his or her rights and putting into place all necessary care arrangements. Indeed, if a minor is wrongly identified as an adult, serious measures in breach of his or her rights may be taken’ (para. 125).
The Court observes that at the relevant time migrant children still owed specific safeguards both under domestic and EU Law which Italy failed to provide to the applicant, including the appointment of a legal guardian and minimum procedural guarantees, namely rights of information and participation in the age evaluation process. The ECtHR further states that these safeguards flow directly from the presumption of minor age ‘which the Court deems to be an inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor’ (para. 153) who must accordingly be treated as a minor until he or she is found to be in fact an adult. Failure to comply with this presumption thus amounts to a breach of positive obligations States hold under Article 8 of the Convention.
Age assessment method of migrant children remains a highly sensitive issue from a human rights perspective as well as in terms of proper enforcement and effectiveness of International and EU law granting these rights. The ‘procedural approach’ adopted by the Court may perhaps seem weak considering the controversial matters left unsolved, such as the unreliability and invasiveness of age determination method. However, the procedural obligation the Court derived from the presumption of minors age (in the sense clarified by the Court) should at least reduce the possibility for States to rely on proven inaccurate methods and increase quality of decision through the participation of the person concerned.
The ruling on the Darboe and Camara case certainly marked a cardinal point for the effective protection of juvenile migrants and asylum seekers by affirming the existence of a positive obligation under Article 8 ECHR to apply the presumption of minor age to age determination procedures and thus avoid doubtful cases to result in serious detriments for (where not a deprivation of) children’s fundamental guarantees.
Alessia Voinich (postdoctoral researcher in EU Law at the University of Padua).
The opinions expressed in this blog represent the position of the author and not the ones of the FAMIMOVE team.
Photo credits FreePik
No Comments