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“Shut up or we will take you back to Serbia”
legal analysis
Children, especially unaccompanied and separrated migrant children, are especially vulnerable and at risk of being abused or exploited (ECtHR, S.F. and Others v. Bulgaria, App no. 8138/16, 2017, § 79). The rights of minors are thus additionally safeguarded by the Convention on the Rights of the Child (CRC) as well as by specific articles of the treaties (e.g. Art. 24 EUCFR). The actions taken by the Bosnian authorities, including threats of deportation, coercive tactics and failure to communicate effectively with the minors, violate several of those articles.
Violation of the best interests of the child (Art. 3 CRC)
Wihle the “best interest of the child” is not defined in the CRC, the UN Committee on the Rights of the child has established a framework in its general comment no. 14: a decision that affects a child has to, in the decision-making process, assess the possible positive or negative impact of that decision on the child. The state has to pay primary consideration to the best interest of the child in all matters concerning children – administrative, legal, social etc. (see also Art. 24 EUCFR and e.g. ECtHR, Rahimi v. Greece, App no. 8687/08, 2011, § 108).
The forced removal from the family camp without proper communication and with threats of deportation to Serbia did not take into consideration the best interest of the child and is thus contrary to Art. 3 CRC.
Violation of the right to be heard (Art. 12(2) CRC)
A child who is capable of forming his or her own views (depending on age and maturity) has the right to express those views freely in all matters affecting the child, extending to the right to be heard. This obliges the state to provide children with the information relevant for the individual matter and to convey this information accurately and child-friendly in a language the child understands (see also Art. 7 EUCFR). This is an integral part of the best interests assessment.
The respondent and the other children were not given a chance to express their views or to participate in the decision-making process regarding their relocation. Their attempts to do so were met with threats and intimidation, violating their right to be heard in matters affecting them.
Violation of the right to protection from all forms of violation, especially from torture or other cruel, inhuman or degrading treatment or punishment, and from unlawful and arbitrary deprivation of liberty (Art. 19, 37 CRC)
Migrant children often face threats of their physical integrity, especially due to a lack of protection, lack of identity document and the disruption of traditional family and community structures. The state has a duty to protect this vulnerable group from any violations, including from possible threats in national child protection systems, and has to facilitate the access for child migrants to comprehensive protection, support services and effective redress mechanisms.
Article 37 CRC further establishes the right to protection from torture or other cruel, inhuman or degrading treatment or punishment, and from unlawful and arbitrary deprivation of liberty.
The use of intimidation (a group of men entering the sleeping quarters wearing a balaclava (Sturmmaske), flashing a light at the sleeping children and yelling at them to get up, taking away their phones) and threats, including the threat of deportation (“Shut up or we will take you back to Serbia”), is a form of psychological violence amounting to ill-treatment by the camp administrator and the police officers. Moreover, confining the group of children in a van constitutes unlawful and arbitrary deprivation of liberty. These actions constitute a clear violation of the children’s right to protection from such treatment – protection the camp administrator and police officers are, as state officials, actually obliged to grant the children.
The intimidating environment and ill-treatment also constitutes a violation of the right to life, survival and development (Art. 6 CRC) as it is contrary to ensuring a healthy development of the child.
The state in fact has a duty to provide special care to unaccompanied migrant children (Art. 20 CRC), a duty Bulgaria failed to adhere to.