CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ to treat his neurosis, without medication being involved. The treatment included regular interviews and environmental therapy. 74 The European Commission of Human Rights and the Court focused on issues of interpretation and application. The nub of the issue both for the Commission and the Court was whether or not the plaintiff’s case involved deprivation of liberty . T he Commission qualified hospitalization as deprivation of personal liberty, arriving at this conclusion after considering several key factors. 75 The plaintiff was not mentally unwell and yet he had been hospitalized in a child psychiatry ward. When the plaintiff left the hospital without consent the police returned him to the ward against his will. The Court made the opposite decision. Placing the plaintiff in a psychiatric ward does not equal depriving him of his liberty in the sense of Article 5 (1) of the European Convention. Hence the case cannot be subsumed under the provisions of the Convention. 76 The court also took other key circumstances into account and attached importance to them. Inter alia the court used the argument of normality. The nature and degree of the restraint on the liberty of the plaintiff do not match those cases permitted under Article 5 (1). The Court found that the plaintiff was not placed in the hospital as a mentally ill patient. The restriction which the plaintiff had to endure corresponded to the normal requirements for treatment of a twelve-year-old child. The conditions on the ward were comparable with those at other children’s hospitals. 77 The Commission and the Court attribute different weight to the behavioural choice of the plaintiff, i.e. his departure from the children’s psychiatric ward and his disapproving view of hospitalization. The Court underscores a paternalistic argument. 78 This same argument could also be taken as the argument of representation, whereby the parents represent the minor and decide for him. The European Court refers first to the boy’s age 79 and not to his capability of choice or his understanding of his personal situation. With reference to the age of the child the Court presents the justification that it is normal for a parent to make decisions as a representative. The Court correctly presumes that the plaintiff is able to form his own opinion. 80 It proceeds in the opposite way to Hart, who a priori presents the justification that the child is unable to make its own free choice. However, the Court comes to the same conclusion as regards its argumentation. The Court refers to parental authority and the rights of the parent, who can and does make decisions as a representative and

74 Ibid., paragraphs 28-29, 70. 75 Ibid., paragraph 71. 76 Ibid., paragraph 73. 77 Ibid., paragraph 72.

78 DWORKIN, G., “Paternalism”, The Stanford Encyclopedia of Philosophy (Summer 2010 Edition) , ZALTA, E. N. (ed.), URL = . 79 Nielsen v. Denmark , judgment of 28 November 1988, paragraph 72: “Regarding the weight which should be given to the applicant’s views as to his hospitalisation, the Court considers that he was still of an age at which it would be normal for a decision to be made by the parent…” 80 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. 9.

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