CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ systems of the states which are contracting parties, whereas the natural right of the individual to be free has, above all, moral effect. Hart defends the natural right to be free in contexts involving legal and philosophical language. The provision including the right to personal liberty and security is expressed by the authors of the Convention with the aid of normative legal phrases. A normative phrase is compiled in legal language which adopts an independent standpoint towards the philosophical expression of the right to be free. For both individual human rights to be really compared, the confusing terminological differences between language levels need to be removed. The right expressed in Article 5 of the Convention narrows down the legal protection of liberty to its physical aspect and security. 26 The object of treaty protection involves two inseparable individual values. 27 The norm provides the individual with a legal guarantee against arbitrary interference in his or her freedom. 28 The provisions focus on protection against the removal of personal liberty by organized public power (the state). 29 The authors of the Convention intended to reduce to the lowest level the real danger of the arbitrary exercise of power and illegal conduct with regard to both values of the individual. The right of the child to liberty and security is under international (and European) 30 legal protection and moreover legal protection provided by individual states, even though a minor does not enjoy independent status and may find that a practical appeal for procedural justice is extremely complex. 3.1 The child as the holder of the right to liberty and security Under the Convention everybody possesses the right to liberty and security. 31 In personal terms, treaty protection from arbitrary interference in liberty and security is effective erga omnes . Protection is enjoyed by all those located within the territorial and extraterritorial jurisdiction of the party to the Convention. 32 Children are not excluded from protection. Every child finds itself under the particular protection of the Convention. This protection is dual in nature: it has both a general and a specific aspect. 33 In its general conception the Convention does not distinguish between adults and children. In this sense the Convention is indeed a liberal 26 Guzzardi v. Italy , judgment of 6 November 1980, paragraph 92. 27 See MACOVEI, M., The Right to Liberty and Security of the Person. A Guide to the Implementation of Article 5 of the European Convention on Human Rights. Human Rights Handbooks, No. 5, Strasbourg, 2002, p. 6. 28 Kurt v. Turkey , judgment of 25 May 1998, paragraph 123. 29 Nielsen v. Denmark , judgment of 28 November 1988, paragraph 60. 30 See the case-law of the European court. 31 Nielsen v. Denmark , judgment of 28 November 1988, paragraph 58: “The protection afforded by this provision clearly covers minors…” 32 Decision as to admissibility of Application no. 52207/99 by Vlastimir and Borka Banković, Živana Stojanović, Mirjana Stoimenovski, Dragana Joksimović and Dragan Suković against Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom, paragraphs 19-21. 33 Nielsen v. Denmark , judgment of 28 November 1988, paragraph 58.

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