European Committee of Social Rights finds failure to provide legal assistance to minors in violation of Article 17
The International Commission of Jurists lodged a complaint before the European Committee of Social Rights against the Czech Republic, alleging a violation of Article 17, which can be read alone or together with the non-discrimination clause in the Preamble of the 1961 European Social Charter. They allege that the breach of Article 17 is due to the failure of the State to provide equal legal protection for children below the age of criminal responsibility in the pre-trial stage of juvenile justice procedure and also for failure to provide protection for the participation of those children in pre-trial stages.
The age of criminal responsibility in the Czech Republic is 15 years. While children under 15 years cannot be held criminally liable, they can be subjected to pre-trial criminal proceedings. The legislation allows for legal assistance to juveniles between the ages of 15 and 18 years. This group of juveniles also have access to diversions, which are alternatives to criminal proceedings and are focused on restorative justice principles. As those under 15 years cannot access diversions programmes they are subjected to judicial proceedings.
Article 17 provides for the rights of children to social, legal and economic protection.
The Committee found that the State must provide legal assistance to children below the age of 15 years in the pre-trial stages of criminal proceedings. The commission stated that due to immaturity of children under 15 years, it cannot be assumed that they could defend themselves. The importance of providing legal assistance ensured that children understood their rights and procedures involved in criminal proceedings. Furthermore the right to legal assistance also prevented children from self-incrimination and ensured the best interest of the child was met.
The Committee further held that diversion should be the preferred manner of dealing with children in criminal proceedings. The option of Diversion should be available as soon as possible after the child first comes into contact with the criminal legal system.