Views of the Committee on the Rights of the Child dated May 31, 2019 on A.L. v. Spain (communication No. 16/2017).
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
Subject of the message: the procedure for determining the age of an allegedly unaccompanied child.
The Committee had to decide whether the application of the age determination procedure to the author, who claimed to be 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 claims that the principle of the best interests of the child was not respected during the entire 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 a guardian or representative was not appointed to him throughout the process.
The Committee's legal position: establishing 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 directly depends 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 determining 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. In this regard, 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 Views) (See the Committee's Views in the case of N.B.F. v. Spain CRC/C/79/D/11/2017), paragraph 12.3.).
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 physical and psychological development of a child 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, if they are characterized by a 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, provided that in case of doubt The issue should be resolved in favor of the person in question, i.e. 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).
The Committee takes note of the State party's conclusion that the author appears to be clearly an adult and that, as a result, he can be considered directly as such without the need to provide any evidence, despite the fact that an X-ray examination was carried out to determine the age.
The Committee recalls that States parties should, as soon as possible upon arrival in the country, appoint legal representatives who speak the appropriate language, free of charge, to all young people claiming to be minors. The Committee considers 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 (N.B.F. v. Spain, paragraph 12.8.). 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 Committee considers that the age and date of birth of a child are part of his personality and that States parties have an obligation to respect the child's right to preserve it without depriving him of any of its elements (paragraph 12.10 of the Views).
The Committee recalls that, 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: (a) In order to establish the age of the author, who, upon arrival in Spanish territory, had no documents with him, 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 is no evidence that that the author was interviewed during this process; (b) As a result of the only examination conducted, hospital staff determined that, according to the Greilich-Pyle atlas, the author's bone age exceeded 19 years, without indicating a possible error; and (c) on the basis of this medical report, the Almeria Provincial Prosecutor's Office issued a decree recognizing the author as an adult; and (d) the prosecutor's office did not review 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 notes 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) (N.B.F. v. Spain, paragraph 12.6.).
The Committee considers that the age of the author, who claimed to be 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 considers, 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... Takes 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 notes 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 Alternatively, these data are with the authorities of the author's country of origin. Accordingly, the Committee concludes that the State party has violated article 8 of the Convention (paragraph 12.10 of the Views).
The Committee takes 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 takes note of the State party's argument that the author's transfer to a juvenile protection centre may pose a serious risk to the children held there. However, the Committee notes that this argument is based on the assumption that the author is of legal age. The Committee considers that the detention of the alleged child in a center intended only for adults who have been recognized as such may pose a greater threat. In this regard, the Committee considers 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 before it reveal violations by the State party of articles 3, 8 and 12 of the Convention and article 6 of the Optional Protocol (paragraph 12.13 of the Views).