CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … document. Children possess the same right to liberty and security as adults. 34 However, this enjoyment of the same right does not have the same legal consequences. Moreover, children remain under the special conventional protection set out in Article 5 (1) d). Article 5 (1) d) of the Convention refers explicitly to minors and the provision does not refer to children. However, in judicial theory and practice semantic equivalence is established between the terms minor and child . The meaning of the legal term minor does not depend on the internal law of the contracting state. 35 T he states which are contracting parties indeed prescribe how the term child should be used within internal law, and they could even determine the standard or standards for its usage, but this has no influence on decision-making at the European Court of Human Rights. 36 The Court itself independently prescribes a normative standard to determine the use of the term minor within the context of the Convention. If an autonomous meaning for the term child had not been prescribed by the Court, this could have given rise to normative (semantic) heteronomy. A legislative act or decision made by the domestic courts of various parties to the Convention could normatively determine the meaning of the term minor differently. However, the European court lays down normative (semantic) unity, which seeps down into the domestic law of all the parties to the Convention. The Court makes decisions on the basis of the autonomous meaning of minor . 37 The Court determines the standard under which this term should be used in a uniform manner. In the context of the arrangements under the Convention the term minor refers to every child under 18 years of age. 3.2 Deprivation or restriction of personal liberty The second element in the relational triad for liberty comprises coercion and restraint . Under the Convention the right to liberty and security is not absolute . Article 5 sets out six substantive exceptions (“ save in the following cases” ), when an individual may be deprived of personal liberty, including a special reference to minors. The list of exceptions is complete and closed. The absoluteness of the exceptions increases the value importance of the individual right to liberty and security in each society. The legal language used in the Convention does not contain the terms coercion or restraint . Instead the normative legal phrases are uniformly based on the terms lawful arrest or lawful detention ; detention . These legal terms refer to cases , when individuals 34 Guidelines of the Committee of Ministers of the Council of Europe on the child-friendly justice (Adopted by the Committee of Ministers on 17 November 2010 at the 1098 th meeting of the Ministers’ Deputies), edited version 31 May 2011, p. 18. 35 MURDOCH, J. L., Article 5 of the European Convention on Human Rights. The Protection of Liberty and Security of Person . Strasbourg: Council of Europe Press, 1994, p. 27. 36 Guidelines of the Committee of Ministers of the Council of Europe on the child-friendly justice (Adopted by the Committee of Ministers on 17 November 2010 at the 1098 th meeting of the Ministers’ Deputies), edited version 31 May 2011, p. 18. 37 LETSAS, G., The Truth in Autonomous Concepts: How to Interpret the ECHR. T he European Journal of International Law , 2004, Vol. 15, No. 2, p. 282.

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