The case of A.L. v. Spain. Views of the Committee on the Rights of the Child dated 31 May 2019. Communication No. 16/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
In view of the circumstances of the present case, and in particular, the examination conducted to establish the age of the author of the communication, his absence of a representative during this procedure and the almost automatic rejection of the birth certificate submitted by the author as evidence, without the State party even conducting a formal verification of his data and, in case of doubt, confirming them in the consular in the institutions of Algeria, the Committee concluded, that the best interests of the child were not taken as the main factor in determining his age, in violation of article 3 of the Convention on the Rights of the Child. The Committee noted that even when the author submitted to the Spanish authorities a copy of his birth certificate containing elements of the child's personality, the State party failed to ensure respect for the author's individuality by not giving any evidentiary value to a copy of his birth certificate without prior official examination by the competent authority of the data contained in the certificate, and without specifying Alternatively, these data are with the authorities of the author's country of origin. The Committee concluded: the State party has violated article 8 of the Convention on the Rights of the Child.
As could be seen from the text of the Views, the Committee had to decide whether the application of the age determination procedure in respect of the author, who stated that he was a minor and provided a copy of his birth certificate in confirmation, violated his rights enshrined in the Convention on the Rights of the Child. In particular, the author claimed that the principle of the best interests of the child was not respected throughout the procedure, which was reflected both in the form of an examination on the basis of which his age was determined, and in the fact that he was not assigned a guardian or representative throughout the process.
The legal position of the Committee: the establishment of the age of a young person claiming to be a minor is of fundamental importance, since it depends on whether this person will be entitled to national protection as a child or whether such protection will not be provided to him. Similarly, and this is of paramount importance to the Committee, the ability to enjoy the rights enshrined in the Convention on the Rights of the Child depends directly on the results of the above-mentioned age determination procedure. For this reason, it is extremely important to ensure that due process of law is followed when setting the age and to provide for the possibility of appealing the results on appeal. Throughout the process, doubts should be interpreted in favor of the person in question and he should be treated like a child. The Committee recalls that the best interests of the child should be given priority at every stage of the age determination procedure (paragraph 12.3 of the Considerations).
The Committee also recalls that in the absence of identity documents or other means of reliably estimating 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 prompt, take into account the needs of the child, cultural characteristics and gender aspects, and conversations with children should be conducted in a language that the child understands. The available documents should be considered authentic until proven otherwise. The statements of the children themselves must also be taken into account. In addition, it is extremely important to interpret doubts in favor of the person in question. States should refrain from using medical methods of age determination, such as bone and dental examinations, which, with their inherent large margin of error, may be inaccurate, cause injury and lead to unnecessary legal procedures (paragraph 12.4 of the Considerations).
The Committee recalls its general comment No. 6 that not only the physical appearance of a person should be taken into account, but also the degree of his or her psychological maturity, and the assessment should be carried out on a scientific, safe, child-friendly and gender-sensitive basis, as well as on a fair basis, while in case of doubt the question should to be decided in favor of the person in question, that is, if there is a possibility that this person is a child, then she or he should be treated as such (paragraph 12.7 of the Considerations).
States parties should, as soon as possible upon arrival in the country, appoint legal representatives who speak the appropriate language, free of charge, for all young people claiming to be minors. The Committee considered that ensuring the representation of the above-mentioned persons in the process of determining their age is tantamount to interpreting doubts in their favor and is an important guarantee of the best interests of their interests and respect for their right to be heard. Failure to take such measures constitutes a violation of articles 3 and 12 of the Convention on the Rights of the Child, since the age determination procedure is the starting point for the application of the provisions of the Convention. The lack of timely representation can lead to significant unfairness (paragraph 12.8 of the Considerations).
The age and date of birth of a child are part of his personality and that States parties are obliged to respect the child's right to preserve it without depriving him of any of its elements (paragraph 12.10 of the Considerations).
By ratifying the Optional Protocol, States parties undertake an international obligation to comply with the interim measures provided for in article 6 of that Protocol, which can prevent irreparable harm while a communication is under consideration, thereby ensuring the effectiveness of the individual communications procedure (paragraph 12.12 of the Views).
The Committee's assessment of the factual circumstances of the case: it was established that: (a) in order to establish the age of the author of the communication, who did not have documents with him upon arrival in Spanish territory, he was subjected to a medical examination consisting of an X-ray of his left hand, while no additional checks were carried out, in particular a psychological assessment, and There was no evidence that the author had been interviewed during this process; (b) As a result of the only examination conducted, hospital staff determined that, according to the Greilich-Pyle atlas, the bone age of the author exceeded 19 years, without indicating a possible error; (c) on the basis of this medical opinion, the Prosecutor's Office of the province of Almeria issued a decree recognizing the author as an adult; and (d) the prosecutor's office did not consider a copy of the birth certificate submitted by the author On May 22, 2017, for a possible revision of the decision on his recognition as an adult (paragraph 12.5 of the Considerations).
The State party referred to the case of M.E.B. v. Spain as an example demonstrating the reliability of an X-ray examination based on the Greilich-Pyle atlas. However, the Committee noted the detailed information contained in the case indicating the insufficient accuracy of such an examination, which allows for significant error and therefore cannot serve as the only method of determining the chronological age of a young man who claimed to be a minor and submitted documents confirming this (paragraph 12.6 of the Views).
The Committee considered that the age of the author of the communication, who stated that he was a child and subsequently provided relevant evidence, was established without observing the guarantees necessary to protect his rights enshrined in the Convention. Taking into account the circumstances of the present case, and in particular the examination conducted to establish the author's age, the absence of a representative during this procedure and the almost automatic rejection of the birth certificate submitted by the author as evidence, without the State party even conducting a formal verification of his data and, in case of doubt, confirming them in the consular offices of Algeria, The Committee concluded, that the best interests of the child were not taken as the main factor in determining his age, in violation of article 3 of the Convention (paragraph 12.9 of the Considerations).
The Committee has taken note of the author's allegations that the State party violated his rights by altering elements of his personality, indicating his age and date of birth, which did not correspond to the information contained in his birth certificate, even after submitting a copy of this certificate to the Spanish authorities. In the present case, the Committee noted that even when the author submitted to the Spanish authorities a copy of his birth certificate containing elements of the child's personality, the State party failed to ensure respect for the author's personality by not giving any evidentiary value to a copy of his birth certificate without prior official examination by the competent authority of the data contained in the certificate, and without specifying in Alternatively, the authorities of the author's country of origin have this data. Consequently, the Committee concluded: the State party has violated article 8 of the Convention (paragraph 12.10 of the Views).
The Committee has taken note of the author's allegations that the State party has failed to comply with the interim measure to transfer him to a juvenile protection centre while his case is being considered. The Committee has taken into account the State party's argument that the author's transfer to a juvenile protection centre could pose a serious danger to the children held there. However, the Committee pointed out that this argument was based on the assumption that the author was of legal age. The Committee considered that the detention of the alleged child in a center intended only for adults, who were recognized as such, could pose a great threat. In this regard, the Committee noted that failure to comply with the requested interim measure in itself constitutes a violation of article 6 of the Optional Protocol (paragraph 12.12 of the Views).
The Committee's conclusion: The facts presented indicated a violation by the State party of articles 3, 8 and 12 of the Convention on the Rights of the Child and article 6 of the Optional Protocol (paragraph 12.13 of the Views).