CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ Personal liberty and security are important individual values and interests which determine the unique nature of the right. 55 This uniqueness is substantively expressed in a detailed list of cases where the deprivation of personal liberty is justified. T he exceptional nature of any interference in personal liberty derives from a restrictive interpretation of the Convention provision which guarantees liberty and security. 56 A restrictive judicial interpretation cannot conclude that only the two circumstances directly included in Article 5 (1) d) justify depriving a child of liberty. In that case the personal extent ( ratione personae ) of the norm would be divided in two. The item analysed above would be applied exclusively to minors, while other circumstances referred to in the remaining parts of Article 5 (1) would be used exclusively for adults. The Court is of the opposite opinion. 57 Article 5 (1) d) is not the only normative part of the provisions permitting a child to be deprived of liberty. 58 A child may be deprived of liberty not only on the grounds of educational supervision and of being brought before the competent authority. In the case of Mubilanzila Mayeka and Kaniki Mitunga, the second appellant, an unaccompanied five-year-old girl, 59 was detained because of two circumstances: she entered the country without authorization and in addition she did not have the required documents. 60 The legal consequences of breaching these internal obligations were severe. The little girl was detained during asylum proceedings 61 and subsequently during administrative proceedings on deportation. The decision to detain her at a closed facility did not take into account the very young age of the minor. 62 The young girl was placed in a closed facility under the same conditions as for an adult. The Court found that these conditions were not adapted for the position of extreme vulnerability 63 of the unaccompanied young girl. 64 The Belgian legal system had not sufficiently protected the child’s right to liberty. 65 Other legal arguments which the Court might soundly use are the principles of necessity 66 and proportionality, as well as arguments of exceptionality and normality. 55 MACOVEI, M., op. cit. 27, p. 6. 56 D. G. v. Ireland , judgment of 16 May 2002, paragraph 74. 57 See Storck v. Germany , judgment of 16 June 2005, paragraph 102. 58 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 100. 59 See Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev. 1, 20 September 2006, p. 2. 60 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 101. 61 See EXCOM Conclusions, 13 October 1986, Detention of Refugees and Asylum Seekers No. 44 (XXXVII). 62 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 103. 63 Committee on the Rights of the Child, General Comment No. 7 (2005), Implementing child rights in early childhood, CRC/C/GC/7/Rev. 1, 20 September 2006, pp. 16-17. 64 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 103. 65 Ibid, paragraph 104: “In these circumstances, the Court considers that the Belgian legal system at the time and as it functioned in this instance did not sufficiently protect the second applicant’s right to liberty.” 66 GOODWIN-GILL, G. S., Article 31 of the 1951 Convention relating to the Status of Refugees: Non-

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