CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ The collocation separated children is made up of terms related to those previously used. The Committee is of the opinion that one distinguishing and qualifying characteristic should apply between unaccompanied children and separated children. Separated children, who have been separated from their parents or from other legal representatives under custom or law, may be accompanied by an adult family member. 118 4.2 Deprivation or restriction of personal liberty Article 37 b) of the Convention distinguishes between different forms of interference in a child’s liberty. The normative phrase comprises three terms. The European Convention contains two of them: arrest and detention . The Convention on the Rights of the Child explicitly adds imprisonment . The meanings of the three terms generically refer to criminal law sanctions or the deprivation of a child’s liberty on correctly legal grounds. Any interference in a child’s liberty must be in accordance both with the Convention norm itself and with internal laws. The Convention together with the constitutional and legal norms has an interactive relationship in view of the evaluation of the legality and arbitrary nature of the deprivation of freedom. In compliance with the principle of conformity , the deprivation of a child’s liberty must be in accordance with the substantive and procedural norms of the internal legal system. 119 Norms used by the competent authorities in order to justify interference in personal liberty should be expressed in precise language as well. Moreover, linguistic precision implies the predictability of their application. 120 Appeal involving the substantive and procedural rules must be available to the child and its legal representatives. 121 With regard to this availability the child finds itself in a disadvantageous legal position. As a rule the child does not have the competence to present its own case before the court. Its choice is either ruled out or limited. Neither the child’s parents nor its legal representatives have an interest in proceeding the way the child would decide to proceed. Sometimes the legal representatives act in their own interest and not in the interest of the child. For the child itself it is difficult or impossible to launch court proceedings at a state and an international level, and so to exercise its right to a fair trial. In such cases children do not have the option of defending their rights. 122 According to the Human Rights Committee, the prohibition on arbitrariness should be interpreted in an extensive manner. 123 An extensive interpretation anticipates an inclusive result. In the opinion of the Committee arbitrariness entails the qualifying 118 Ibid. 119 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 97. 120 Ibid. 121 Parliamentary Assembly, The Detention of asylum seekers and irregular migrants in Europe, report, 11 January 2010, Doc. 12105, p. 21. 122 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. 17. 123 A. v. Australia , No. 560/1993, CCPR/C/59/d/560/1993, paragraph 9.2.

32