An overview of the relevant law and guidance

[docxpresso file=”” comments=”true”]


Detailed European & international laws concerning child victims & witnesses of violence & child rights

The following sets out the main EU and international (a) law and (b) guidance and resources instruments relevant to the situation of child victims or witnesses of violence as follows: (1) European Union; (2) Council of Europe; and (3) UN as well as (4) the Hague Conventions which may prove relevant to the family situation of child victims or witnesses of crime.

  1. Law

A.1 European Union Law

EU primary law contains relevant fundamental provisions relevant to the adoption and application of EU legislation in the field (See A.1.1. below). Key EU secondary law relating to the situation of child victims of crime and criminal investigations/proceedings are set out in A.1.2.1 below (Directive on Victims’ Rights, Directive on Child Sexual Abuse, Directive on Trafficking, Directive on the European Protection Order in criminal matters, Directive relating to compensation to crime victims, the Data Protection Directive and the Directive regarding the Criminal Investigation Order).

Other EU Justice measures of potential relevance to child protection measures for children in cross-border cases largely in family law settings but also public law proceedings are set out in A.1.2.2.

There are a number of other EU Justice directives which may have relevance to the rights of the defence in criminal proceedings and these are set out in A.1.2.3. They will be of interest in criminal procedures involving child suspects or accused, and for the manner in which they seek to ensure child friendly justice more generally (including the need for a multi-disciplinary and inter-agency approach) and to reflect child protection concerns.

A.1.1 EU Primary Law: Key Provisions

The Treaty on the Functioning of the European Union (Article 82(2)) provides for the establishment of minimum rules applicable in the Member States to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross border dimension, in particular with regard to the rights of victims of crime.

The Charter of Fundamental Rights of the European Union recognises a range of personal, civil, political, economic and social rights of EU citizens and residents. In December 2009, the Lisbon Treaty gave the Charter binding legal effect. The general provision of the Charter are applicable to children and of specific relevance to the rights of children is Article 24:

Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”

A.1.2 EU Secondary Law

A.1.2.1 Victims Rights

Victims’ Rights Directive (Directive 2012/29/EU)

The Directive aims to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings. It includes several provisions which are of particular relevance to children, including Article 1.2 (best interests of the child and child-sensitive approach), Article 10 (right to be heard), Article 21 (right to protection of privacy), Article 22.4 (individual assessment of victims to identify specific protection needs), Article 23 (right to protection of victims with specific protection needs during criminal proceedings), Article 24 (right to protection of child victims during criminal proceedings).

Child Sexual Abuse Directive (Directive 2011/93/EU)

This Directive establishes provisions to protect children in general against sexual abuse, sexual exploitation and child pornography. It addresses, inter alia, the definition of offences, sets minimum levels for criminal penalties, and facilitates reporting, investigation and prosecution. It provides easier access to legal remedies for child victims, as well as measures to prevent additional trauma from participating in criminal proceedings. The Directive also provides for education, awareness raising and training of officials.

Resources: A Survey on the transposition of the Directive against child sexual exploitation and abuse ECPAT and Missing Children Europe

Trafficking in Human Beings Directive (Directive 2011/36/EU)

Alongside provisions concerning the definition of criminal offences, levels of penalties and provisions on investigation and prosecution, the Directive contains obligations concerning the provision of assistance for victims of trafficking. This includes specific safeguards for children in criminal proceedings. It also requires Member States to take necessary measures to provide durable solutions for unaccompanied children.

European Protection Order Directive (Directive 2011/99/EU)

This Directive concerns the manner in which protection for victims of crime stemming from certain protection measures adopted under the law of one Member State can be extended to another Member State in which the protected person decides to stay. Recital 15 and Article 7 address child subjects of a European protection order (needs of particularly vulnerable victims such as children).

Compensation to Crime Victims Directive (Directive 2004/80/EC)

This Directive sets up a system of cooperation to facilitate access to compensation to victims of crimes in cross-border situations, which should operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime, committed in their respective territories. It provides for a compensation mechanism to be in place in all Member States for victims of violent intentional crime.

Data Protection Directive (Directive (EU) 2016/680)

The Directive for the police and criminal justice sector aims to ensure the protection of personal data of individuals involved in criminal proceedings, be it as witnesses, victims, or suspects. It will also facilitate a smoother exchange of information between Member States’ police and judicial authorities, improving cooperation in the fight against terrorism and other serious crime in Europe. The new rules will apply to both domestic processing and cross-border transfers of personal data. The Directive also provides clear rules for the transfer of personal data by criminal law enforcement authorities outside the EU, to ensure that these transfers take place with an adequate level of data protection. The directive provides robust rules on personal data exchanges at national, European and international level.

European Investigation Directive (Directive 2014/41/EU)

This Directive establishes provisions for the obtaining evidence in criminal cases with a cross-border dimension, based on the principle of mutual recognition.

A.1.2.2  Other EU Justice measures of potential relevance to child protection measures for children in cross-border cases

Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

This Regulation concerns issues of parental responsibility for children, which may be relevant in certain circumstances of child victims or witnesses of violence. Its provisions are relevant to identifying the national jurisdiction to hear a case on parental responsibility or take provisional protective measures where necessary. The Regulation also addresses how judgements are to be recognised and enforced throughout the EU.

A.1.2.3  Other EU Justice Directives of Interest to Criminal Justice Proceedings

Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings (Directive (EU) 2016/800)

This Directive lays down rules to ensure that children have mandatory access to a lawyer at all stages (Article 6), are promptly informed about their rights (Article 4), are assisted by their parents (or another appropriate person) (Articles 5 and 15), are not questioned in public hearings (Article 14), have the right to a medical examination (Article 8) and an individual needs assessment (Article 7). It also includes provisions on deprivation of liberty, legal aid, training and data collection.

Directive on the right to interpretation and translation in criminal proceedings (Directive 2010/64/EU)

This Directive focuses on requiring Member States to ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. It does not contain any specific separate provisions for children but applies to child suspects.

Directive on the right to information in criminal proceedings (Directive 2012/13/EU)

This Directive requires Member States to ensure that certain specified information shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons. When providing suspects or accused persons with information in accordance with this directive, competent authorities should pay particular attention to persons who cannot understand the content or meaning of the information, for example because of their youth or their mental or physical condition.

Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (Directive 2013/48/EU)

This Directive requires Member States promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the European Court of Human Rights, which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer. That case-law provides, inter alia, that the fairness of proceedings requires that a suspect or accused person be able to obtain the whole range of services specifically associated with legal assistance. In that regard, the lawyers of suspects or accused persons should be able to secure without restriction, the fundamental aspects of the defence. It also addresses the right to have a third party informed upon deprivation of liberty and to communicate with third persons and consular authorities in that instance

Directive on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (Directive (EU) 2016/1919)

This Directive lays down common minimum rules concerning the right to legal aid for (a) suspects and accused persons in criminal proceedings; and (b) persons who are the subject of European arrest warrant proceedings.

A.2 Council of Europe Legal Instruments

There are a number of Council of Europe Conventions that concern human rights and the rights of children who are victims of certain forms of violence (including sexual abuse, domestic violence, trafficking and torture) as set out in A.2.1. This section also sets out other Council of Europe legal instruments relevant to criminal proceedings, including those involving child victims of violence. Council of Europe Conventions potentially relevant to the situation of children in justice proceedings more generally are set out in A.2.2.

A.2.1 Conventions concerning human rights, including rights of children who have been victims of certain forms of violence, and criminal proceedings

The European Convention on Human Rights established the European Court of Human Rights and allows victims of human rights violations to lodge applications with the Court against the 47 states bound by the Convention. The Convention applies equally to all individuals, children included. Article 8 of the Convention, which guarantees the right to respect for private and family life, is a particularly important article for the protection of children’s rights and is often applied in cases where children are concerned.

The European Social Charter guarantees social and economic human rights and allows certain organisations to lodge collective complaints of violations of the Charter with the European Committee of Social Rights. The Charter guarantees the rights of children in many circumstances. Children’s rights are specifically addressed in several articles of the Social Charter, in particular: Article 7 (the right of children and young persons to protection) and Article 17 (the right of children and young persons to social, legal and economic protection).

The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse also known as the Lanzarote Convention, requires criminalisation of all kinds of sexual offences against children. It sets out that states in Europe and beyond shall adopt specific legislation and take measures to prevent sexual violence, protect child victims and prosecute perpetrators.

Resources: Council of Europe Convention and explanatory report & First Lanzarote Implementation Report 2016

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) requires states parties to prevent violence against women and children, protect victims and prosecute the perpetrators. The convention introduces a number of criminal offences for physical, sexual and psychological violence for which harsher sentences are required when the offence is committed against or in the presence of a child.

The Council of Europe Convention on Action against Trafficking in Human Beings aims to prevent trafficking in human beings, protect victims of trafficking, prosecute traffickers and promote co-ordination of national actions and international co-operation. The convention provides for special measures and procedures for children in the context of victim identification and requires that assistance provided to child victims be adapted to their special needs.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive mechanisms to protect detainees from torture and inhuman or degrading treatment or punishment.

European Convention on the Compensation of Victims of Violent Crime puts under an obligation to compensate the victims of intentional and violent offences resulting in bodily injury or death.

The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data: The Data Protection Convention ensures respect for fundamental human rights with regard to processing of personal data. Children are holders of data protection rights under this convention and special attention must be paid to empowering children to exercise these rights.

The Cybercrime Convention (Budapest Convention) establishes a common approach to the criminalisation of offences related to computer systems and aims to make criminal investigations concerning such offences more effective. According to this convention, all conduct relating to child pornography must be established as a criminal offence in the state parties.

Other Council Conventions relevant to criminal proceedings are of general interest to criminal proceedings, including the European Convention on Extradition (ETS No. 24), the European Convention on Mutual Assistance in Criminal Matters (ETS No. 30), their additional protocols (ETS Nos. 86, 98, 99, 182) and the Convention on the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141).

A.2.2 Council of Europe Conventions of relevance to the situation of children in justice proceedings

Other Council Conventions relating to children in justice proceedings are of general interest, including European Convention on the Exercise of Children’s Rights provides for measures which aim to promote the rights of the children, in particular in family proceedings before judicial authorities, in particular those involving the exercise of parental responsibilities such as residence and access to children. The Convention on Contact Concerning Children provides measures addressing children’s contacts with parents in family proceedings.

A.3 United Nations Law

There are a number of UN Conventions which concern the rights of children generally and more specifically the rights of children who are victims of certain forms of violence (including sexual abuse and trafficking). The Convention on the Rights of Persons with Disabilities addresses a wide range of rights, including rights of access to justice for persons with disabilities.

UN Convention on the Rights of the Child comprehensively sets out universally-recognized norms and standards for the protection and promotion of children’s rights. It covers a full range of civil, political, economic, social and cultural rights. It sets out general principles, including the principle of non-discrimination, the best interests of the child, the child’s right of participation and the child’s right to life, survival and development. It also contains a range of specific rights addressing issues such as basic health and welfare, family environment and alternative care, education and leisure as well as special protection rights. All EU Member States have ratified the UN CRC.

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography criminalizes specific acts relating to the sale of children, child prostitution and child pornography, including attempt and complicity. It lays down minimum standards for protecting child victims in criminal justice processes and recognizes the right of victims to seek compensation. It encourages strengthening of international cooperation and assistance and the adoption of extra-territorial legislation, but it does not provide for exemption from the dual criminality principle. There are concerns that the OPSC does not protect children from victimization in criminal processes once they have been recognized as having had their rights violated. Description from UNICEF Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, as described by the UNODC, is the first global legally binding instrument with an agreed definition on trafficking in persons, facilitating convergence in national approaches with regard to the establishment of domestic criminal offences and supporting efficient international cooperation in investigating and prosecuting trafficking in persons cases. An additional objective of the Protocol is to protect and assist the victims of trafficking in persons with full respect for their human rights.

The UN Convention on the Rights of Persons with Disabilities and its Optional Protocol Article 13 of the Convention, to which the EU is a signatory addresses access to justice as follows: “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.”

A.4 Hague Convention

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children covers civil measures of protection concerning children, ranging from orders concerning parental responsibility and contact to public measures of protection or care, and from matters of representation to the protection of children’s property.

A.5 Regional Jurisprudence

Jurisprudence of the Court of Justice of the European Union provides rulings on the interpretation and application of EU law. The European Court of Human Rights provide rulings on the interpretation and application of Council of Europe Conventions. This jurisprudence includes important judgements concerning proceedings involving child victims or witnesses of violence. The Handbook on European law relating to the rights of the child sets out both the case law of the European Court of Human Rights and the Court of Justice of the European Union (CJEU) in this regard (Section 11.3 on the protection of child victims and witnesses). More generally, the Handbook also contains references to relevant EU Regulations and Directives, the European Social Charter and the decisions of the European Committee of Social Rights, as well as other Council of Europe instruments, concerning the rights of the child.

B International & European Guidance

B.1 EU

There are important EU resources, including roadmaps, guidance and studies, which concern child victims and witnesses of violence. These concern victims of crime (B.1.1), victims of trafficking (B.1.2), child protection (B.1.3) and children in judicial proceedings (B.1.4). EU agencies, such as the Fundamental Rights Agency, Europol and Eurojust, also provide important practical resources relevant to addressing the needs and rights of child victims of violence.

This section focuses on materials which are of specific practical relevance to the PROMISE Project. It is worth noting that there are many other general materials of related interest from the EU institutions and agencies. They extend across a wide range of policy areas that may be of interest to proceedings concerning child victims of violence, such as cybersecurity, women’s rights, children in migration, ROMA rights, poverty and social inclusion.

B.1.1 Victims

Council Resolution on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings sets out principles and measures to be taken at EU level in order to strengthen the rights and protection of victims.

DG Justice Guidance Document on the transposition and implementation of the Victim’s Directive has as its purpose “to lead Member States through the Directive and suggest possible ways to tackle both – the transposition and implementation process of the Victim’s Directive.” It is an important resource for policy makers and practitioners alike.

B.1.2    Trafficking

The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 contains a variety of general provisions which are relevant to children as well as provisions which are specific to children, including “To better protect children, the Commission will in 2014 fund the development of guidelines on child protection systems.”

B.1.3 Protection of Children

Commission Reflection Paper on Coordination and cooperation in integrated child protection systems has as its purpose to promote a shared understanding of the value and remit of integrated child protection systems; enhance understanding of where and how the EU can act to reinforce national child protection systems and forge the necessary links between them to address cross-border protection needs; focsus discussions around ten overarching principles of integrated child protection systems and identify where Member States and other actors can draw on and contribute to EU activities.

B.1.4 Children in Justice Proceedings

European Commission Study to collect data on children’s involvement in criminal, civil and administrative judicial proceedings collects existing data on children’s involvement in criminal, civil and administrative judicial proceedings for the years 2008-2010 (and 2011 where available) for all 28 EU Member States in order to provide a statistical overview of children’s involvement in judicial proceedings in the EU. Children’s involvement in criminal, civil and administrative judicial proceedings in the 28 Member States of the EU Policy Brief produced by the European Commission on the basis of the studies.

B.1.5 Work of the EU Agencies

Key EU agencies include the Fundamental Rights Agency (“FRA”), Eurojust and Europol. The work of other agencies, such as the European Asylum Support Office (“EASO”) and Frontex, may also have an impact on child victims and witnesses of violence, in particular children in migration who may have been the victims of crime, including trafficking and sexual abuse and exploitation. These are described in some more detail below.

(a) EU Fundamental Rights Agency. Its central task is to provide EU institutions and Member States with independent, evidence-based advice on fundamental rights. Its essential aim is to contribute towards ensuring full respect for fundamental rights across the EU by collecting and analysing information and data; providing assistance and expertise and communicating and raising rights awareness.

Key FRA resources relevant to child victims or witnesses of crime from the work of the agencies include:

FRA Research on Children and Justice (2014-2017) examines the treatment of children in justice systems, with a view to identifying forms of child participation in criminal and civil judicial proceedings, as well as collect promising practices, in 10 EU Member States.

Handbook of European Law on the Rights of the Child: as noted above in A.1.5.

FRA research on “Victim Support Services in the EU: An overview and assessment of victims’ rights in practice”.

FRA Study on “Child Trafficking in the EU – Challenges, perspectives and good practices” (2009)

FRA and European Commission handbook on “Guardianship for children deprived of parental care. A handbook to reinforce guardianship systems to cater for the specific needs of child victims of traffickingaims to strengthen the protection of children by assisting national authorities and other stakeholders to further develop guardianship systems.

FRA Mapping Child Protection Systems concerns research on child protection systems through information and data on key components of child protection systems across the EU.

FRA Report on Violence against Children with Disabilities: outlines the findings from FRA research on violence against children with disabilities and includes recommendations on access to child protection services and judicial proceedings.

Upcoming FRA Guidance on EU Children at Risk FRA is looking into national practices across the EU concerning decisions to return or transfer unaccompanied children who are EU nationals to the country of their nationality. The aim is to safeguard the best interests of the child and help prevent re-victimisation and/or the further exploitation of children.

FRA research on “Victims of severe form of labour exploitation” (SELEX). The study, although not in particular targeting children, addresses issues related to child victims.

(b) Eurojust works to stimulate and improve the coordination of investigations and prosecutions between the competent authorities in the Member States and improve the cooperation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests. Since its establishment, Eurojust has played an active role in fighting criminality related to children, even when those crimes appear not to be perpetrated in an organised way. As a result, a Contact Point for Child Protection Issues was appointed at Eurojust.

(c) Europol is the European Union law enforcement agency that handles the exchange and analysis of criminal intelligence. Its mission is to improve the effectiveness and cooperation between EU law enforcement authorities in preventing and combating serious international crime and terrorism, with the aim of achieving a safer Europe for all EU citizens. Europol is active in operational projects concerning child sexual exploitation and trafficking in human beings. It also engages in information exchange, strategic assessments and intelligence notifications in the field and training.

Key Europol resources in relation to child victims of sexual exploitation and trafficking include the Europol Strategic Assessment of the Commercial Sexual Exploitation of Children Online which examines trends in online child sex abuse and presents recommendations for law enforcement and their partners and Europol’s Intelligence Notification on Child trafficking for exploitation in forced criminal activities and forced begging.

(d) The European Asylum Support Office organises and coordinates operational cooperation and to provide support in the area of asylum. EASO contributes to the development of a common European asylum system by facilitating, coordinating and strengthening practical cooperation among Member States as an independent centre of expertise.

Key relevant EASO resources include the EASO Tool for Identification of Persons with Special Needs (an online interactive tool which provides practical information necessary for timely identification of applicants with potential special needs within the asylum procedure and/or the reception context. It takes into account the potential additional special needs of the child, related for example to gender or being a victim of trafficking or having been subjected to violence); guidance materials on the implementation of the best interests of the child at all the stages of the asylum procedure; the EASO Interviewing Training Curriculum module (which covers interviewing children and provides asylum officials with knowledge and skills in children’s development stages; specific techniques for interviewing children; and knowledge and skills on how to assess the information given by a child) and EASO Training on trafficking in human beings (for asylum officials): under development.

(e) FRONTEX, or The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, was established in 2004 to reinforce and streamline cooperation between national border authorities. Frontex has several areas of activity including conducting joint operations at the external borders (sea, land and air); developing common training standards and specialist tools for border guards; engaging in research and risk analysis on the ongoing situation at the external borders, including in relation to trafficking.

B.2 Council of Europe

There are important Council of Europe resources, including recommendations, guidance and reports which concern child victims and witnesses of violence. These concern victims of crime (B.2.1), victims of trafficking (B.2.2), child protection (B.2.3) and children in judicial proceedings (B.2.4). This section focuses on materials which are of specific practical relevance to the PROMISE Project. There are many other general materials of related interest from the Council of Europe bodies, extending across a wide range of policy areas that may be of interest to proceedings concerning child victims of violence.

B.2.1 Victims of Crime

Recommendation Rec (2006)8 of the Committee of Ministers of the Council of Europe on assistance to crime victims includes provisions on support to victims and the role of social services, inter alia.

B.2.2 Trafficking

The 6th General report on GRETA’s activities contains a thematic section on the issue of child trafficking. It also published a Compendium of good practices on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings which references national practices concerning trafficking of children, including in criminal proceedings.

B.2.3 Protection of children from violence

There are several key Council of Europe guidance and other resources which are relevant to protection of children from violence. These include Council of Europe Policy guidelines on integrated national strategies for the protection of children from violence (2009); Eradicating violence against children – Council of Europe actions (2008); Council of Europe Recommendation on children’s rights and social services friendly to children and families; Protecting Children from Sexual Violence – A Comprehensive Approach; and the Council of Europe One in Five Campaign: (a campaign to stop sexual violence against children which had as it main objectives to promote the signature, ratification and implementation of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and to equip children, their families/carers and societies with knowledge and tools to prevent sexual violence against children and in so doing raise awareness of the full extent of sexual violence against children).

The work of the “Lanzarote Committee” (i.e. the Committee of the Parties to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse) is also an important source of guidance. The Committee is the body established to monitor whether Parties effectively implement the Lanzarote Convention. The Committee evaluates the information which has been provided by the national authorities and other sources in their replies to questionnaires developed by the Committee itself. This monitoring procedure is divided by rounds, each round concerning a theme; starting with sexual abuse in the circle of trust.

B.2.4 Children in Justice Proceedings

The most comprehensive regional guidelines in the field of child friendly justice comprise Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice (2011). International justice for children (2009) is another useful resource which discusses the principles of child-friendly justice at international level and examines monitoring mechanisms and current systems of admissibility, determining how easy or difficult it is for children to gain access to them. The Council of Europe also published with the Fundamental Rights Agency the Handbook on European law relating to the rights of the child (see A.1.5 above).

B.3 UN

There are important resources available from UN bodies, including guidance and reports which concern child victims and witnesses of violence. This section focuses on materials which are of specific practical relevance to the PROMISE Project, including in particular guidelines from UN bodies (B.3.1) and general comments from the UN Committee on the Rights of the Child (B.3.2).

B.3.1 UN Guidelines

UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (view the child-friendly version). Broadly, these Guidelines aim to assist States in designing and implementing legislation, policy, progammes and practices to ensure full respect for child victims and witnesses. They recognise that children are particularly vulnerable and require special protection in their interactions with the justice system, and reaffirm the general principles of the Convention on the Rights of the Child. Under the Guidelines, child victims and witnesses have the right to be treated with dignity and compassion, to be informed, to be heard, to receive effective assistance and benefit from special protective measures, to have their privacy and safety assured, and to seek reparation. A holistic approach is also strongly encouraged.

UNODC and UNICEF Handbook for Professionals and Policymakers on Justice in matters involving child victims and witnesses of crime is based on international best practices in the treatment of child victims and witnesses of crime by the criminal justice system. It is intended to serve as guidance for policymakers and professionals dealing with child victims and witnesses of crime, such as judges, medical and support staff, law enforcement officials, prosecutors, social workers, staff of non-governmental organizations and teachers.

Guidelines for Action on Children in the Criminal Justice System. The Guidelines for Action are aimed not only at States, but also UN entities, NGOs, professional groups, the media and children. They address children who become involved in the criminal justice system in any capacity, whether as offenders, victims or witnesses, and encourage the full implementation of children’s rights in the administration of justice. On a national level, governments are urged to develop separate, child-oriented juvenile justice systems that take account of the specific needs of individual children. Most importantly, these systems should both guarantee respect for and prevent the violation of children’s rights.

UNODC-UNICEF Model Law on Justice in Matters involving Child Victims and Witnesses of Crime. The Model Law sets out provisions for the protection of child victims and witnesses in accordance with existing international human rights instruments, calling on national governments and justice professionals to create systems that improve the treatment of child victims and witnesses. The Law underscores children’s right to be informed and to receive appropriate assistance, including the appointment of a support person to guide them through the criminal justice process. Courts are also expected to make every effort to facilitate children’s right to be heard, to adopt extensive measures that protect children’s privacy before, during and after proceedings, and to guarantee children’s right to receive restitution or compensation from convicted offenders.

Guidance Note of the Secretary-General: UN Approach to Justice for Children. The Secretary General’s Guidance Note seeks to ensure the full application of international norms and standards for all children who come into contact with national justice systems. The Note argues that States should embrace a stronger rule of law for children by empowering justice institutions and adopting strategies that specifically guarantee respect for children’s rights. Guiding principles to be followed include the best interests of the child, the right to fair and equal treatment, the right to be heard, and the right to be protected from violence. States are urged to integrate these and other child-friendly justice notions into relevant constitutional and legislative reform efforts, and to promote overall integrity and accountability in justice and law enforcement.

UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (Principles 4, 11; Guideline 7)

UNICEF Guidelines on the Protection of Child Victims of Trafficking set out standards for good practice with respect to protection of and assistance to trafficked children.

B.3.2    General Comments of the UN Committee on the Rights of the Child

General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44 para. 6):

“The Committee on the Rights of the Child has drafted this general comment to outline States parties’ obligations to develop what it has termed “general measures of implementation. … The general measures of implementation identified by the Committee and described in the present general comment are intended to promote the full enjoyment of all rights in the Convention by all children, through legislation, the establishment of coordinating and monitoring bodies – governmental and independent – comprehensive data collection, awareness-raising and training and the development and implementation of appropriate policies, services and programmes“

General Comment No. 12 (2009) on the right of the child to be heard

“The overall objective of the general comment is to support States parties in the effective implementation of article 12.” It addresses the fact that “Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child’s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child.”

General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence

“The present general comment seeks [inter alia] (a) To guide States parties in understanding their obligations under article 19 of the Convention to prohibit, prevent and respond to all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation of children, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child, including State actors;

General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)

“The main objective of this general comment is to strengthen the understanding and application of the right of children to have their best interests assessed and taken as a primary consideration or, in some cases, the paramount consideration (see paragraph 38 below). Its overall objective is to promote a real change in attitudes leading to the full respect of children as rights holders.”

B.4 Hague Convention

Practical Handbook on the operation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

The Handbook aims to be an accessible and easily digestible practical guide to the Convention. Through the use of plain language, relevant and comprehensive case examples and simple flowcharts, it is hoped that the Handbook will promote a clear understanding of how the Convention is intended to operate in practice, thereby ensuring that good practice under the Convention is established and fostered from the outset in Contracting States.