The ruling concerns the right to legal representation and to a lawyer of two detained unaccompanied migrant children (12 and 14 years old) who, as minors, did not have the legal capacity to sign a power of attorney of a lawyer (this must be done by their legal representative and they had none assigned). The first instance court had not admitted for review the appeal against their detention order on the ground that the lawyer was not properly authorized by the children. The Supreme court, however, invoked the best interests of the child principle, appointed ex officio the lawyer chosen by the children as their lawyer in the case and admitted their appeal against the detention order for review.
Key Words Archives: Legal assistance and representation
The court found a violation of the child’s right to legal aid envisaged in the Child Protection Act. The asylum authorities presented no evidence that the child received any information about his right to receive free legal aid, nor was he informed about the respective procedure on how to apply for such legal aid.
The recast “Asylum Procedures Directive” is a recast of a previous Directive (Council Directive 2005/85/EC of 1 December 2005), with implementation deadline of 20 July 2015. The Directive sets up common procedures for granting and withdrawing international protection (refugee status and the protection given to people who are not refugees but who would risk serious harm if returned to their country of origin). The Directive enshrines the presumption of minority and further provides requirements on how age assessment should be carried out (art. 25).
This Practical Guidance was adopted by the Steering Committee for Human Rights of the Council of Europe at its 91st meeting (18-21 June 2019). Its main focus is on the practical aspects of applying alternatives to detention, considering also the fact that in this field a ‘one size fits all’ approach is not possible. The Guidance covers the legal framework of the alternatives to detention system, the types of alternatives and the ways to make them effective.
The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.
The EASO Practical Guide on Age Assessment acknowledges, inter alia, that the benefit of the doubt in age determination procedures is a key principle and safeguard since none of the currently available methods of age assessment can determine a specific age with certainty. So, if after the age assessment remains the doubt that the individual could be a child, they should be treated as such.