Imagine that two children, Anna (13) and David (16), were suspected of committing a serious crime. They were taken to the police station for questioning. The police did not start questioning David until a mandatory legal defence was ensured for him. The defence lawyer informed David of his rights and intervened several times during the questioning. Based on his advice, David decided to remain silent in reaction to most of the questions.

The police unsuccessfully tried to contact Anna's parents. She was informed of her right to receive legal assistance from a lawyer of her choice but she was unable to call the lawyer herself or pay for their services. The questioning was therefore conducted only in the presence of a social worker from the Authority for Social and Legal Protection of Children, who had no legal education. Since Anna was scared and wanted to leave the police station as soon as possible, she signed a confession statement.

Later, during a court trial, David's testimony could not be used, as the law requires him to be cross examined in court. Also, David and his defence lawyer had the chance to challenge and question all of the prosecution's witnesses. In contrast, Anna’s testimony and confession were read before the court during her trial and she did not have the chance to confront all the witnesses, as this was not her procedural right. The testimonies of witnesses not present at the trial were only read in the courtroom.

Wondering why the police and the court treated Anna and David differently? The answer might be both simple and surprising. While David was 16 years old, i.e. a juvenile (between the age of 15 and 18), and thus already criminally liable, Anna was under the age of criminal responsibility (15). Thus, no conviction, punishment or criminal proceedings were permissible in her case.

Children under 15 may be deprived of their liberty, but they do not enjoy the same protections as juveniles and adults

Even though children under the age of criminal responsibility cannot be held criminally liable, they are subject to proceedings before a court and subsequently might be subject to measures. Proceedings involving children under 15 accused of criminal acts (čin jinak trestný) are regulated primarily by the Juvenile Justice Act. The objective of the proceedings is not to punish the child but to protect society against delinquent behaviour of children while respecting the needs of the child and emphasising their rehabilitation, protection and education. Children are represented by a guardian who is an attorney, and their rights and best interests are also guarded by the Authority for Social and Legal Protection of Children and legal guardians, usually the parents.

Despite the nature of the court proceedings for children under 15, the investigation (prověřování) is regulated by the Criminal Procedure Code. This means that the first steps that law enforcement take are the same as with juveniles or adults charged with crimes. However, a child under 15 does not have a right to legal assistance from the very beginning of the proceedings (mandatory legal defence), unlike a juvenile. Later during the trial, the court applying civil procedure is allowed to rely on written statements from the child and witnesses, since the child does not have a right to confront and cross-examine witnesses.

Even though children cannot be punished for delinquent behaviour courts can impose one of seven measures. The two most severe of these, namely protective institutional education and protective institutional treatment, constitute a deprivation of liberty.

ECtHR has stressed the vulnerability of children as a reason why they should be guaranteed these safeguards

The procedural safeguards regarding children under the age of criminal responsibility were addressed by the European Court of Human Rights (“the Court”) in the case Blokhin v. Russia. The applicant, a 12-year-old Russian boy, was temporarily placed in a detention centre for the otherwise criminal act of extortion. He complained before the Court that his right to a fair trial enshrined in Article 6 of the European Convention on Human Rights (“the Convention”), namely his right to legal assistance and the right to obtain the attendance and examination of witnesses, had been violated.

After examining the criteria formulated in the case Engel and Others v. Netherlands the court concluded that the prosecution of the applicant must be determined as a criminal charge in the sense of the Convention. Therefore, the criminal aspect of Article 6 of the Convention was applicable to the case and the legal safeguards of a criminal trial should have been applied. The Court stressed that a child cannot be deprived of important procedural safeguards solely because such proceedings (that may result in deprivation of his liberty) are deemed to be protective of his interests as a child and juvenile delinquent, rather than penal.

The Court referred to a range of international sources, stressing the particular vulnerability of children, and asserting that a child under the age of criminal responsibility should be guaranteed at least the same legal rights and safeguards as adults. The Court held that Article 6 of the Convention had been violated, as the applicant’s right to legal assistance and the right to obtain the attendance and examination of witnesses were not fulfilled.

Hopefully children under 15 will become entitled to procedural protections

In light of the Blokhin case and the above-mentioned international instruments, the Czech regulation of proceedings in the case of children under 15 on otherwise criminal acts does not seem to comply with international human rights standards. Children under 15 might be confronted with serious consequences, such as deprivation of liberty, despite a lack of legal assistance from the very beginning of the proceedings and not being able to have witnesses cross examined before the court. These rights are essential procedural safeguards of a fair trial.

Moreover, if we go back to Anna and David and compare the legal regulation of proceedings in the case of children under 15 and that of juveniles, we start to wonder whether the regulation of children under 15 is discriminatory. Although the measures of protective education and protective treatment can be imposed on both juveniles and children, meaning these groups are comparable, only juveniles are provided with procedural safeguards.

We have not discussed procedural safeguards in the case of adult defendants in this article. But adult trial proceedings are unimaginable without the right to cross examine witnesses in court. Furthermore, mandatory legal defence of an adult is required for all crimes (not offences) in the pre-investigation inquiry and in other cases stipulated by law.

The problematic aspects of the regulation have been discussed in detail by various expert groups. Unfortunately, their criticism and recommendations have gone unheard. Some shortcomings of the proceedings were addressed in the collective complaint International Commission of Jurists v. the Czech Republic submitted to the European Committee of Social Rights in 2017.

Hopefully, the decision of the Committee will lead to an amendment to the regulation and children under 15 will finally be provided with an appropriate standard of procedural protection.

Eliška Hronová works at the Office of the Czech Government Agent before the European Court of Human Rights