CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ AGE ASSESSMENT OF UNACCOMPANIED MINORS IN ASYLUM LAW country of origin several times to confirm the documents submitted by the person; however, the foreigner’s country did not reply. In rare cases in Lithuania, especially when there is a risk of a gross violation of a child’s rights due to incorrect age determination and classification of the child as an adult (for example, a child has to live with 15 adults in one room) when the applicant submits to the court a copy of their birth certificate on their mobile phone, 66 a birth certificate, 67 or a copy of an extract from their birth certificate, 68 which, following Lithuanian authorities, are not considered documents proving a person’s identity and age, the courts require the responsible authority to reassess the situation considering submitted documents. In the court’s opinion, when it is not indisputably established that the foreigner is not a minor, the authorities must take measures to prevent violations of the foreigner’s rights as a potentially vulnerable person. 69 In several cases, the court emphasised that the fact that the submitted document is not original does not mean its content and reliability cannot be assessed. In such situations, the expert’s opinion on determining a person’s age under X-rays cannot be the only evidence determining the age of a foreigner. The courts in the Czech Republic are stricter, considering the results of age assessment based on medical examination when there is doubt about the age of the foreigner in detention. In cases when the foreigner could not prove their age, and there were reasonable doubts about the age, the courts required the foreigner to be considered a minor in terms of detention. 70 The Czech Constitutional Court in 2021, 71 in its decision on the complaint about violating the complainant’s right to personal liberty, stressed that a proper assessment of the actual age plays a crucial role in ensuring the protection of migrants’ rights. In this case, the complainant argued that he should not have been deprived of his liberty at all because he was not an adult. He challenged the process of determining his age, which, in his view, was contrary to the case law of the Supreme Administrative Court and the international obligations of the Czech Republic, as it relied solely on medical methods of determining age, with insufficient consideration of alternative methods, and did not consider his psychological maturity and, subsequently, copies of his documents. Age determination procedures, some of which are medical in nature, must respect human dignity and the child’s best interests during their implementation and in evaluating the results. The Constitutional Court noted that in case of doubt as to a person’s age, the migrant is presumed to be under 18 years of age. However, the determination of age needs to be made in a truly thorough manner so that doubts are dispelled as far as possible. The Constitutional Court concluded its decision by stating that purely medical methods had, in fact, been used to determine the age and that the results had not even been assessed in accordance with the existing case law of the Supreme Administrative Court (see above). In view of the complaint at issue and the fundamental 66 Supreme Administrative Court of Lithuania, Administrative Case No. A-1334-822/2022, 21 February 2022. 67 Supreme Administrative Court of Lithuania, Administrative Case No. eA-1976-502/2022, 13 April 2022. 68 Supreme Administrative Court of Lithuania, Administrative Cases No. eA-3258-822/2022, 20 July 2022, and No. eA-3544-463/2022, 10 August 2022. 69 The Supreme Administrative Court of Lithuania, Administrative Case No. A-1334-822/2022, 21 February 2022. 70 ROZTOČIL, A., Určování věku cizinců v judikatuře správních soudů. [Determining the age of unaccompanied foreign minors – legal framework, current and future challenges.] in: JÍLEK, D., POŘÍZEK, P.(Eds.), Ročenka uprchlického a cizineckého práva . ISBN 978-80-7631-101-5. Praha, 2022. Judgment of 26. September 2019, Case No. 7 Azs 87/2019-22; Judgment Supreme Administrative Court of 10. June 2021, Case No. 1 Azs 1/2021-38. 71 Judgment of the Constitutional Court, II. ÚS 428/21, N 126/107 SbNU 8.

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