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Judgment II. ÚS 482/21 of 30 July 2021 - Medical Age Assessment of Juvenile Migrants; Right to Interpretation, Translation and Information

I. On 30 July 2021, the Constitutional Court (judge rapporteur Kateřina Šimáčková) ruled in favour of the complainant and annulled the contested decisions of the Municipal Court in Prague and of the Supreme Administrative Court, stating that his right to the freedom of liberty, guaranteed by Article 8 para 1 and 2 of the Charter of Fundamental Rights and Freedoms ("Charter") and Article 5 para 4 of the European Convention on Human rights ("Convention"), his right to a fair trial, guaranteed in Articles 36 para 1 and 38 para 2 of the Charter, and his right to services of an interpreter, guaranteed in Article 37 para 4 of the Charter, were violated.

II. In June 2020, the complainant of Iraqi origin had been apprehended by police with the view of being handed over to Romania, where he previously lodged an application for international protection, in compliance with the so-called "Dublin Regulation". During the proceedings, he consistently claimed that he was born in 2004 and that he is a minor. In Romania, however, as follows from their communication, he had given a different name and a different day and month of birth than in the Czech Republic; nonetheless, even there he was treated as a minor. Following a request of the Czech police, the claimant had been subjected to medical examination, employing methods TW3 (Tanner, Whitehouse) and GP (Greulich, Pyle), and his skeletal age had been determined based on his x-rays. According to the results of the GP method, the claimant should have been 18,63 years old and according to the TW3 method the applicant should have been 16,36 years old. The doctor concluded that the claimant is 18-19 years old, and based on the medical examination, the complainant had been further treated as an adult. For this reason, the claimant had not been represented by a guardian and had been detained in conditions that would be unacceptable for a detention of a minor.

The complainant contested the police decision to prolong his apprehension before the Municipal court which dismissed his action. They relied mainly on the medical conclusions regarding the age of the complainant and on the fact that the complaint allegedly repeatedly lied about his identity and his statements are, thus, unreliable.

III. The Constitutional Court, first, emphasised that in a democratic rule of law, it is unacceptable to hold a court hearing in the presence of the person who is claiming their constitutional right before, however, without that person understanding what is being said and without having the possibility to give their statement and to effectively participate in the hearing. The situation of the complainant reminds of the unacceptable Kafka's proceedings when a person is dealt with as an object rather than a right-holder. The complainant did physically participate in the hearing at the Municipal court, yet, due to the absence of interpretation, he was unable to understand what was happening in the court and he could not give his personal statement on any of the issues, even though his statements could have possibly changed the outcome of the proceedings. The complainant had not had a chance to give his statement on the contradictions regarding his identity and explain it, although the Municipal court took those into account to his detriment. This flaw of the procedure may not have been compensated by the fact that the applicant's legal representant had been present. Having no chance, due to the absence of the interpretation, to effectively participate in the hearing, to raise objections, to comment on evidence and, also, to react to the allegations regarding his person, his right to a fair trial, more specifically his right to participate and to be heard in proceedings and his right to services of an interpreter, as well as his right to freedom of liberty, including guarantees of a fair trial, have been violated.

The Constitutional Court further examined the assessment of the complainant's age. They recalled that an insufficient identification of migrant minors may lead to unlawful deprivation of liberty, a lack of specific support that the State must provide to all children given their situation of extraordinary vulnerability, an absence of access to education, an absence of proceedings adapted to the age of a child as well as a failure to provide a safe environment for children in accommodation in compliance with needs of a child (see General Comment of the Committee on the Rights of a Child no. 6). Any methods of the age assessment, and in particular those that are of medical character, must respect human dignity and must consider the best interest of a child. It is necessary to comply with set procedures and to duly confront the results of different methods of the age assessment.

The Constitutional Court acknowledged that it is problematic that there is no single method or a set of methods that would be suitable to scientifically prove the exact age of a person. As follows from the recommendations of the Committee on the Rights of a Child, the authorities should not limit themselves to the assessment of the physical appearance but should also take into account the migrant's psychological maturity. The age assessment must be conducted in a scientific, safe and fair manner, be age and gender-sensitive and guarantee no risk of interference with one's physical integrity, bearing in mind human dignity. In case of any doubts, the principle of the benefit of the doubt shall be applied. According to the law of the European Union, any medical assessment may only be carried out if the competent authority doubts the accuracy of the migrant's statement, taking into account all relevant information; the least invasive methods must be chosen.

In the case of the complainant, the Constitutional Court found that the basic requirements of the age assessment of persons close to the age of majority were not respected. During the medical examination, neither his representant nor an interpreter had been present, contrary to the recommendation of the Committee on the Rights of a Child, and the claimant had not been informed about the conclusions of the examination and had not had a chance to comment on them. Moreover, only purely medical methods of bone age assessment were employed which had not been sufficient in the present case. As follows from the jurisprudence of the administrative courts, the GP method is highly inaccurate, especially after the examined person reaches 16 years of age. The TW3 method is preferable, however, both methods have limited informative value when used in respect of those of other than European or American geographic origin. As follows from the established case-law of the Supreme Administrative Court, results of such methods should not have decisive value, unless the difference between the alleged age and the medically established age is higher the 3 years. Moreover, the GP method had not been developed to assess the chronological age of young people but to assess whether children developed properly compared to their peers.

The Municipal Court, in the present case, has been aware that the medical assessment is not sufficient in itself. They, therefore, further held that the claimant is not credible. First, the Constitutional Court held that the conclusion regarding the credibility of the claimant had not been supported by sufficient evidence, in particular, because the claimant had no chance to put forward his statement. Nonetheless, even if the claimant were not credible, it does not release the court from the obligation to order further examination using other methods of the age assessment. As a result of all the aforementioned flaws, the conclusions regarding the claimant's age are unacceptable and the prolongation of the claimant's detention as an adult migrant amounted to a violation of his right to freedom of liberty.

The Constitutional Court, further, reproached the Supreme Administrative Court that they refused to take evidence proposed and submitted by the claimant (copies of his personal documents) without any persuasive reasoning, hence violating the complainant's right to a fair trial.