The case of K.O.K. v. Spain. Views of the Committee on the Rights of the Child dated January 28, 2021. Communication No. 56/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
As seen from the text of the Views, the author claimed that the State party violated the presumption of a minor in case of doubt or uncertainty, contrary to his best interests and in violation of article 3 of the Convention (paragraph 3.1 of the Views).
The Committee's legal position: The determination of the age of a young man who claimed to be a minor is of fundamental importance, since the result of determining the applicant's age determines whether he will be entitled to national protection as a child or will be excluded from such protection. This is also of vital importance for the Committee, since the implementation of the rights enshrined in the Convention on the Rights of the Child follows from this establishment. The existence of a proper age determination procedure is mandatory, as well as the opportunity to challenge the result of this process by way of appeal. Until these processes are completed, doubts should be interpreted in favor of the person who needs to be treated like a child. Thus, the Committee recalls that the interests of the child should be given priority throughout the age determination procedure (paragraph 8.8 of the Views).
Doubts should be interpreted in favor of the person being evaluated and, in order to reasonably assess the age, States should conduct a comprehensive analysis of the child's physical and psychological development by pediatricians or other specialists with skills in complex analysis of various aspects of development. Such an analysis should be carried out promptly, taking into account an individual approach, gender aspects and cultural characteristics, including interviews with children and in a language understandable to the child (paragraph 8.9 of the Considerations).
States Parties should appoint a qualified legal representative and an interpreter, if necessary, for all young people who claim to be minors as soon as possible upon arrival and free of charge (Case "A.D. v. Spain" (CRC/C/83/D/21/2017), paragraph 10.14.). The Committee considers that ensuring the representation of these persons in the process of determining their age is an important guarantee of respect for their interests and ensuring their right to be heard (Ibid., the case "A.L. v. Spain" (CRC/C/81/D/16/2017), para. 12.8; and the case "H.A.B. v. Spain" (CRC/C/81/D/22/2017), paragraph 13.7.). Failure to comply with this requirement entails a violation of articles 3 and 12 of the Convention, since the age determination procedure serves as the starting point for the application of the Convention. The lack of timely representation can lead to significant unfairness (paragraph 8.12 of the Considerations).
The Committee considers that the date of birth of a child is an element of his personality and States parties are obliged to respect the child's right to preserve it without depriving it of any elements (paragraph 8.14 of the Views).
Upon ratification of the Optional Protocol, States parties are under an international obligation to comply with the interim measures taken in accordance with article 6 of the said Protocol, measures to prevent irreparable damage while the communication is under consideration, thus ensuring the effectiveness of the individual communications procedure (paragraph 8.16 of the Views) (Case "N.B.F. 12.11.). The
Committee's assessment of the factual circumstances of the case: The Committee noted that:
- a) in order to establish the age of the author, who arrived in Spain without documents, medical osteometric studies of wrist X-ray were carried out, but although dental orthopantomography was performed, no report was compiled on the basis of this evidence due to the lack of specialized medical personnel, and no additional studies were conducted as part of this procedure in particular, psychological tests or interviews with the author;
- b) according to the results of wrist X-ray, it was established - according to the Greilich-Pyle atlas, the bone age of the author was 18 years old; however, it was not taken into account that this technique, which did not provide for a standard error for this age range, cannot simply be extrapolated to persons with personality characteristics of the author;
(c) On the basis of this medical result, the Prosecutor's Office issued a decree establishing the author's majority;
(d) On the basis of the said order, the competent judge ordered the author to be placed in an adult detention facility;
- e) The author was released "due to the inability to document" him and was handed over to the Red Cross in Tenerife;
(f) The author was not accompanied by a representative in the process of determining the age to which he was subjected (paragraph 8.10 of the Views).
The Committee also indicated the information contained in the materials indicating the lack of accuracy of osteometric studies, which have a significant error and, therefore, are not suitable as the only method of determining the chronological age of a young man who claimed to be a minor and provided documents confirming this fact (paragraph 8.11 of the Considerations).
The Committee also drew attention to the author's allegations that he was not assigned a guardian or representative to protect his interests as a possible unaccompanied migrant child before and during the age determination process to which he was subjected. And this led to the adoption of a decree recognizing his majority (paragraph 8.12 of the Considerations).
The Committee considered that the procedure for determining the age of the author, who claimed to be a minor, did not have the necessary guarantees to protect his rights recognized in the Convention. In the circumstances of the present case, this was the result of the inability to conduct adequate studies to determine the age, the refusal to provide the author with medical reports that allegedly served as the basis for the decision to recognize the age of majority, and the non-appointment of a guardian to accompany him during this procedure. For this reason, the Committee decided that the best interests of the child were not taken into account in the first place when determining the age of the author, in violation of articles 3 and 12 of the Convention (paragraph 8.13 of the Views).
The Committee also took note of the author's allegations that the State party violated his rights under article 8 of the Convention by changing elements of his personality, assigning him an age that did not correspond to the information contained in the official document issued by his country of origin. The Committee noted the following - the State party did not respect the author's identity by assigning him a date of birth that did not correspond to him, without contacting the authorities of the author's country of origin, especially since the author did not apply for asylum and there was no reason to believe that contact with these authorities could entail any risk to him. Thus, the Committee concluded: The State party has violated article 8 of the Convention (paragraph 8.14 of the Views).
The Committee also took into account the author's allegations, which have not been refuted by the State party, about the lack of protection by the State party in his extremely vulnerable plight. The Committee noted that this lack of protection took place even before he was placed in the CSI (Detention Center for Foreign Citizens.), when for several days he was not in the place provided for in the court's decision on placement in the detention center for foreign citizens, but in another place of detention, as well as after his release the author is from the CSI due to the inability to document him for expulsion. Thus, the Committee considered the above to be a violation of the provisions of article 20, paragraph 1 (paragraph 8.15 of the Views).
The Committee noted the State party's failure to comply with the interim measures of transferring the author to a juvenile protection centre. The Committee has taken note of the State party's argument that placing the author in a juvenile protection centre could pose a serious danger to the children held in these centres. However, the Committee stressed that this argument was based on the assumption that the author was of legal age. Thus, the Committee considered that failure to comply with the requested interim measures in itself constituted a violation of article 6 of the Optional Protocol (paragraph 8.16 of the Views).
The Committee's conclusions: The facts presented indicated a violation of articles 3, 8, 12 and paragraph 1 of article 20 of the Convention, as well as article 6 of the Optional Protocol.