CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ – adults or children – may be deprived of or restricted in their liberty. It is only in these cases that the liberty and security of the individual may be encroached upon. Deprivation of personal liberty or its restriction is thus exceptional . 38 Deprivation of personal liberty must be a truly exceptional intervention by the authorities. Deprivation of liberty is the immediate cause of restraint on the exercise of associated freedoms and rights. Intervention into personal liberty encroaches on the freedom to assemble and associate, impinges on freedom of movement and basically restricts the right to private and family life. The Committee of Ministers of the Council of Europe promotes the ideal principle that children’s other rights should not be restricted apart from the right to freedom as a consequence of its deprivation. 39 In practice this is difficult, but it is possible to approach this ideal. Article 5 of the European Convention explicitly protects the liberty of minors. Item d) justifies two exceptional grounds for their detention . The treaty norm allows for the detention of a child on the grounds of educational 40 supervision . 41 Educational supervision might be explained literally, 42 although it is not easy to meet the requirements of this literal interpretation. Education means the purposeful and systematic co formation of the personality involved. 43 In the given case the focus of education is the child. The meaning and aim of education is to achieve quite permanent changes in the behaviour and free conduct of the child. 44 Of course, education does not just focus on the child. Education purposefully and intentionally acts on the external conditions, which have a combined effect on the optimum development of the child’s personality. 45 Systematic interpretation 46 establishes an explanatory relationship between Article 5 (1) d) of the European Convention and Article 29 of the Convention on the Rights of the Child. 47 Under Article 29 of the Convention the education of children should aim to develop their personality, talents, intellectual powers and physical abilities to their fullest potential , 48 as well as their creativity. Education is conceived in terms of individuality by the Convention. 38 MACOVEI, M., op. cit. 27, p. 6. 39 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. 27. 40 KANT, I., O výchově . Praha: Knihovna pedagogických klasiků, 1931, p. 31. 41 REID, K., A Practitioner’s Guide to the European Convention on Human Rights . London: Sweet and Maxwell Ltd., 2004, p. 247. 42 MACOVEI, M., op. cit. 27, p. 42. 43 PELIKÁN, J., Výchova jako teoretický problém . Ostrava: Amonium servis, 1995, p. 33. 44 Ibid. 45 Ibid, p. 36. 46 WRÓBLEWSKI, J., Operative Interpretation and Decisions of Interpretation. In: BAŃKOWSKI, Z., MACCORMICK, N. (eds.), The Judicial Application of Law . Dordrecht-Boston-London: Kluwer Academic Publishers, pp. 100-102. 47 JAYAWICKRAMA, N., Application of Human Rights Law. National, Regional and International Jurisprudence . Cambridge: Cambridge University Press, 2002, p. 159. 48 Committee on the Rights of the Child, General Comment No. 1 (2001), Article 29 (1): The Aims of

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