leidenchildren'srightsobservatory

Case Note 2020/4

Communication 60/2018 D.C. v. Germany

Exclusion from voting on the basis of age

Details

Outline of the Substantive Issues

The communication was submitted by D.C. (hereinafter: 'The Child'), a national of Spain who resided with his family in Germany, for alleged violations of his rights under §2(1), §3, §4 and §12(1) of the CRC by denying him the right to vote in the local elections, based on the grounds of age.

The child, who was 16 at the time of the events in questions, wished to vote in the local mayoral election at the municipality of Perl, in Saarland Germany (Hereinafter: 'The State Party'), which was scheduled for June 2015. On April 2015, the child applied to the Perl Municipality Electoral Office in order to exercise his right to vote, yet his application was ultimately rejected by the municipality, on the grounds that he did not meet the minimum age requirements (18 years old), as stipulated in the local election law. Thus, at the end, the election took place without the child being able to vote.

On July 2015, the child filed an action with the Administrative Court of Saarland that was dismissed in November 2016 by the Court, which found that excluding children under the age of 18 from the right to vote was justified, citing children's lack of 'political maturity and discernment' required to exercise that right (Decision, para. 2.5). The child's appealed the Administrative Court decision to the Higher Administrative Court of Saarland, but his claims were subsequently rejected on November 2017. It should be noted that the child informed the CRC Committee that the reasoning of the Higher Administrative Court's decision was not communicated to him at the time of the communication.

In his communication, the child alleged that the outcome of local elections impacts his life as a resident, and that the exclusion of children, particularly 16-year-olds who are older and more experienced, violates their right to express their views and be heard on matters affecting their lives (§12(1) CRC); that excluding children from the right to vote, which is 'a fundamental political right and a basis of democracy' (Decision, para 3.3) violates the principle of non-discrimination, especially in light of recent decisions by several Member States of the European Union to lower the voting age (§2(1) CRC); and that a legislative restriction on children's right to vote is against their best interest (§3(1) CRC). Therefore, and in order to fulfill the CRC, the communication holds that 'immediate legislative action' is required to lower the voting age to 16 years of age (Decision, para 3.5).

Procedural Issues

The State Party, in the observations submitted on January 2019, claimed that the fact that the child did not submit his complaints to the Constitutional Court of Saarland (nor to other domestic courts) deprived the Constitutional Court the opportunity to comment on the application of the CRC with regards to the local election law, thus making the communication inadmissible according to §7(e) CRC OP3. In addition, the State Party raised an inadmissibility claim under §7(d) of the CRC OP3, holding that the child did not provide any information as to whether the matter was also referred to other international bodies for examination.

The child, in his comments submitted on April 2019 regarding the State Party's admissibility claims, held that with the rejection of his claims by the Higher Administrative Court of Saarland, all available and effective domestic remedies were essentially exhausted. Indeed, the child noted that he could have submitted a complaint to the Constitutional Court of Saarland, but that seeking remedy through that avenue would have, in his view, 'no prospect of success', as the Constitutional Court previously upheld the categorical exclusion of children from the right to vote (a position with its basis on the German Basic Law and the permanent case law of the Federal Constitutional Court - neither of which upholds children's right to vote). Under these circumstances, the child claimed that an appeal to the Constitutional Court should not be considered able to 'bring effective relief' (§7(e) CRC OP3), and that the CRC Committee should accordingly consider all (relevant) available domestic remedies to have been exhausted (Decision, para 5.2; 3.6). In relation to the admissibility claim relating to §7(d) of the CRC OP3, the child contended that the communication was not submitted to other international bodies for review.

Findings

In May 2019, the CRC Committee decided to consider the admissibility of the communication, under the CRC OP3 requirements, separately from the merits of the case.

The CRC Committee, first, found the communication admissible with regard to §7(d) of the CRC OP3, given the child's clarification that the matter has not been examined under another procedure of international investigation or settlement. Yet, second, it declared it inadmissible, for failure to exhaust domestic remedies, according to §7(e) of the CRC OP3.

In that regard, the CRC Committee held that while §7(e) of the CRC OP3 requires authors to exhaust all available domestic remedies, this should be interpret to relate only to those judicial and/or administrative avenues that can offer a reasonable and objective 'prospect of redress' (Decision, para 6.5). Thus, in cases in which claims would inevitably be dismissed by domestic law or where established jurisprudence of the highest domestic tribunals would preclude a positive result - domestic remedies need not be exhausted. However, the CRC Committee held that 'mere doubts or assumptions about the success or effectiveness of remedies' are not sufficient, and do not absolve authors from the requirement to exhaust domestic remedies (Decision, para 6.5). Concerning the communication at hand, the CRC Committee found that the child should have submitted an appeal to the Constitutional Court of Saarland at the time of the events in order to meet the requirement of §7(e) CRC OP3. It held that his claims that an appeal would have no prospect of success were not substantiated (for example, by presenting relevant jurisprudence) and that the Constitutional Court of Saarland should have been given the opportunity to interpret the Constitution in light of the child's claims and the relevant CRC provisions.

Commentary

This communication constitutes the first time that the CRC Committee engaged with the issue of a child's 'right to vote', under the CRC OP3 mechanism. While the communication was ruled inadmissible on procedural grounds and was not examined on merit - the decision does raise points of interest that warrant special attention concerning the exhaustion of domestic remedies and children's access to justice, the discussion on children's political rights from a CRC perspective, and the potential of the CRC OP3 to tackle and address this (as well as other) controversial issue.

First, it can be argued that the decision of the CRC Committee to declare the communication inadmissible, on the grounds of non-exhaustion of domestic remedies, is not sufficiently based and that it fails to consider the barriers children face in relation to their access to justice. The CRC Committee held that the child should have submitted evidence (previous jurisprudence) to substantiate his claim that an appeal to the Constitutional Court of Saarland would have had 'no prospect of success' (Decision, para 6.5, 6.6).. The requirement places the burden of proof on the child alone despite the fact that 1) the State Party did not respond (and, therefore, did not object) to this claim and 2) that the State Party too has access (arguably easier and more complete access) to the relevant jurisprudence and previous legal proceedings on the issue at hand (Constitutional voting rights and children) and that, accordingly, the State Party itself should have presented this in its observations on admissibility (see and compare: CRC Committee Decision (Dissent): Fermin et al. v. Spain). In addition, the CRC Committee's decision, stating that the child should have appealed to the Constitutional Court of Saarland, does not address children's challenges in relation to their access to justice (Liefaard (2019)). This is of particular importance in the context of constitutional-administrative proceedings, which are legally intricate and - as they (typically) don't involve children as parties - may not employ the same standards, protections, or mechanisms designed to enable children's participation and access to justice as in other legal proceedings in which children are included more regularly (e.g., care, family law, juvenile justice, etc.). Thus, referring children to challenge norms which allegedly violate their rights under the CRC also before Constitutional Courts may be complex and ultimately have a negative impact on their access to the CRC Committee via the CRC OP3.

Second, a closer attention to the CRC Committee's reasoning seems to imply that the CRC can, and should, impact domestic Courts when addressing claims concerning a children's right to vote. As described, the CRC Committee held that the Constitutional Court of Saarland 'should have been given the opportunity to interpret the Constitution of Saarland in light of the claims of the author and the provisions of the Convention invoked by him', and that such a motion 'should not be considered to be bound to fail simply because of the current constitutional texts and a few general precedents' (Decision, para 6.6). Thus, the CRC Committee seems to suggest that a) CRC provisions should be addressed and interpreted by domestic Courts when deciding on children's right to vote and b) that Constitutional texts and legal precedents excluding children from voting do not necessary 'block' an appeal for change, when it is based on the CRC.

Indeed, the CRC is the first legally binding instrument anchoring civil and political rights for children, including basic freedoms (e.g., freedom of expression, thought and conscience, association and peaceful assembly) and it introduced the concept of the child's evolving capacities, recognizing that with age, maturity and enhanced competences, youth require less guidance and should enjoy greater agency in decision-making and in exercising their rights under the CRC - including in the political context (§5, 13-15 CRC; CRC GC 20 (2016) , para 2). In particular, the right to be heard (§12(1) CRC), which has been broadly conceptualized as 'participation', is of significance in the discussion on children's political rights and the issue of voting. The provision enables a child (or a group of children) to express views in all matters affecting him or her, including in the political sphere, and requires that these views shall not only be heard, but that they receive due weight and be seriously considered (CRC GC 12 (2009)).

Yet, children's political rights, and the issue of a youth's right to vote, remain under-developed from a CRC perspective. While the CRC does not provide children with a right to vote, and the CRC Committee noted, in 2009, that the right to be heard does not imply a 'general political mandate' (OHCHR, 2007; CRC GC 12 (2009), para 27), the CRC Committee has also commented on the question of youth's right to vote in recent years, tying the discussion to CRC provisions. For example, the CRC Committee recognized youth's 'potential' in the political context and interpreted §12(1) CRC 'as a means of political and civil engagement' (CRC GC 20 (2016), para 24), and it welcomed initiatives to lower the voting age and encouraged States Parties to consult with youth on the issue (see CRC CO UK an Northern Ireland (2016); CRC CO Ireland (2016); CRC CO Austria (2012)). The issue of children's political rights, and their meaning and scope under the CRC, (still) requires further academic attention and conceptualization. That being so, the reasoning of the decision, when taken together with the recent voices of the CRC Committee, does suggests a stronger role for the CRC regarding a youth's right to vote.

Third, the communication is one of the few examples (possibly, the only one so far) in which the remedy sought from the CRC Committee would impact not only the individual child or a group of children in a particular context (e.g., migration, children separated from parents, etc.) but the entire youth population in the State Party. To date, most of the communications filed to the CRC Committee requested individual actions on behalf of the child authors to remedy the violation of their rights (either through reparations, or re-examination of the decision by the State Party, etc. See, for example, case commentaries by Vandenhole & Turkelli (2018); Sloth-Nielsen (2018); Cerandas (2020)). Indeed, the CRC Committee, when finding a violation in its decisions, has required that State Parties would take measures to prevent similar violations in the future, and has even called for amending legislation and changing State practices (see Morlachetti 2019). Still, it seems that the impact of its decisions is largely confined to either the individual child or a group of children in the particular context or situation raised.

In the present communication, the child requested 'immediate legislative action' to lower the voting age (Decision, para 3.5). This is quite an extreme measure, affecting all children in the State Party (at least, those above the age of 16) and carrying significant constitutional, political, legal, social, and budgetary implications. Indeed, the CRC Committee could have decided that the State Party allows the child to file the case before the Constitutional Court of Saarland for examination, yet even such a decision holds considerable political weight and could potentially have had a large-scale impact on the State Party. This is further complicated by the topic of the communication. As described, the CRC does not anchor a youth right to vote, and there is no consensus on the issue. Globally, youth today are still generally excluded from the right to vote and are not (fully) accepted as bearers of political rights (see Nolan, 2014). While in recent years, several States Parties, including EU Member States, have decided to lower the voting age for national and/or local elections (e.g., Austria, Scotland, Estonia), it seems that we are not (yet?) at a 'tipping point' that can easily base a youth right to vote at the international level.

This raises important questions concerning the authority and legitimacy of the CRC Committee when providing its views under the CRC OP3. Will the CRC Committee demand States Parties to take action, even when they have far-reaching implications? Even when they impact all or large groups of children? Will it argue progressively on children's rights, even on controversial issues with limited global consensus? This is particularly interesting given that the decisions of the CRC Committee under the CRC OP3 are not binding but require only 'due consideration' by the State Parties concerned (§11(1) CRC OP3). This requires caution and a strong legal basis to ensure the CRC Committee's decisions are respected and implemented in practice. (Yet, can one not argue that the non-binding nature of the decisions may also provide, at times, more freedom for the CRC Committee to introduce novel ideas?). In any case, while the present communication was ruled inadmissible – it is likely that other similar communications on the topic of youth's right to vote will follow (See Zlotnik Raz, (2020)). This requires further examination in order to understand the challenges of the CRC Committee in its decision-making processes and ensure that the CRC OP3 can provide effective and meaningful access to justice for children at the international level - in all matters affecting their lives.