CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … Under normal circumstances domestic authorities are to avoid the detention of adults and particularly children. The principle of necessity generally entails a closed list of reasons for detaining a minor or an adult asylum seeker: verification of the identity of the applicant, destruction of travel documents or identity documents, use of false documents and the ascertainment of supporting material on which a claim for international protection is based. 67 For her case the Court used Article 5 (1) f), relating to the control of immigration. This provision refers to two circumstances for the deprivation of personal liberty: preventing a person from unauthorised entry onto the territory of the contracting state and holding proceedings on deportation or extradition. 68 The case of Mubilanzila Mayeka and Kaniki Mitunga is not unique. Eivas Rahimi, a fifteen-year-old Afghan boy, was detained at the Pagani Centre in Greece for purposes of his deportation on the basis of Act No. 3386/2005. 69 The circumstances for the deprivation of freedom are not ruled out for use vis-á vis children. It is sufficient to refer to the circumstances that justify the detention of those who are mentally ill, alcoholics, drug addicts or vagrants. 70 By no means do all interventions in a child’s liberty need necessarily be qualified as deprivation of liberty in the sense of Article 5 (1) of the Convention. This depends on the nature and the level of intensity of the encroachment on physical liberty. 3.3 Choice The capability of choice is a complex internal aspect of a child’s right to liberty and security. 71 The fact that the capability of choice is a complex issue is proved by the Nielsen case. 72 A mother exercising her parental right agreed to have her twelve year-old son Jon placed in the child psychiatry ward of a state hospital. 73 The plaintiff remained in a closed ward against his own will and that of his father. The boy was unable to decide whether or not to be treated in the psychiatric ward, as he was only suffering from a neurotic disorder. The ward could only release Jon independently with the agreement of the staff, e.g. in order to visit the library. His treatment stay lasted five and a half months. His mother decided to hospitalize the plaintiff on the basis of the recommendations of two doctors, though the boy had not been diagnosed as mentally ill. His hospitalization was justified by his nervous state. The aim of placing him in a psychiatric ward was penalization, Detention and Protection . Geneva: UNHCR, October 2001, p. 39. 67 EXCOM Conclusions, 13 October 1986, Detention of Refugees and Asylum Seekers No. 44 (XXXVII). 68 Rahimi v. Greece – 8687/08 (Press Release) [2011] ECHR 751, p. 1; Rahimi c. Gréce , arret 5 avril 2011. 69 Ibid., p. 5. See LAVRYSEN, L., Rahimi v. Greece and the Proceduralization of Children’s Rights . April 15, 2011, http://strasbourgobservers.com/2011/04/15/rahimi-v-greece. 70 See Article 5 (1). 71 Committee on the Rights of the Child, General Comment No. 12 (2009), The right of the child to be heard, CRC/C/GC/12, 20 July 2009, p. 13. 72 Nielsen v. Denmark , judgment of 28. November 1988. 73 Ibid., paragraph 28.

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