CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … The proposition that a child is incapable of exercising choice is radical and absolute in its final outcome, i.e. that the child is denied the capacity to have a right to liberty or to be free in the ontological sense. This proposition places the child in a passive position, i.e. in the position of an object of maintenance, care and protection, whether parental, fostering, community or social. Hence the child cannot be subject to his own self-determination. 18 This proposition underestimates the dynamism of children’s rational 19 and cognitive development. 20 Nor does it take account of the development of children’s autonomy. 21 The thesis excludes from view sociological and psychological findings on the rational conduct of children. 22 Under this theory childhood appears to be an existential state in which choice and preferences are in the power of the parents or their representatives and not their children. 23 Choices basically come under the authority of one or both parents or the adults to whom authority has been entrusted. 3. A particular norm expressing the right of every individual (including child) to liberty and security The protection of the right to liberty and security, provided by any international treaty, partially derives from the natural right to be free. However, this right of the individual is not a normative casting of the natural right to be free, but rather a remote and very limited normative reflection. Hence the treaty right to liberty is reflective and non-identical in relation to the natural right. Although both individual rights have an identical basis, there are some essential formal and substantive differences between them. These two rights are not identical in form or in normative content or scope. Of course, one basic difference involves (legal) personality. A child does not possess the natural right to be free under Hart’s thesis, whereas under international treaties a child possesses the right to be free. The child possesses this right in the same way as anybody else, hence the child is like any other individual. The right to personal liberty and security is expressed in Article 5 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. 24 The Convention is incorporated within the system of international law, where it is valid. 25 At the same time it is incorporated within the internal legal 18 KORCZAK, J., Pisma wybrane . Warzszawa: Nasza Ksiegarnia, 1978, Vol. I, pp. 82-83. 19 ARISTOTELÉS, Politika. Praha: Nakladatelství Petr Rezek, 2009, p. 254. 20 VÁGNEROVÁ, M., Vývojová psychologie I. Dětství a dospívání . Praha: Nakladatelství Karolinum, 2008, p. 11; PIAGET, J. , INHELDEROVÁ, B., Psychologie dítěte . Praha: Portál, 2010, pp. 7-8. 21 LANSDOWN, G., The Evolving Capacities of the Child . Florence: UNICEF, 2005, p. 3. 22 ROCHE, J., Children, Citizenship and Human Rights. Kamla-raj , Journal of Social Science , 2005, Special Issue No. 9, p. 44. 23 MATTHEWS, G., “The Philosophy of Childhood”, The Stanford Encyclopedia of Philosophy (Winter 2010 Edition) , ZALTA, E. N. (ed.), URL . 24 Srov. http://conventions.coe.int. 25 ALEXY, R., Pojem a platnosť práva . Bratislava: Kalligram, 2009, p. 119.

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