CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … criteria of illegality, inappropriateness, injustice, proportionality or necessity. Necessity has to apply under all the circumstances of the case. 124 Article 37 b), which protects the child’s right to liberty, does not exhaust all the decisive elements. In substantive comparison with Article 5 (1) of the European Convention, the provision lacks an exhaustive listing of the grounds for deprivation of personal liberty. The absence of grounds for depriving someone of liberty weakens the categorical requirements for legality and the prohibition on arbitrariness, which are defining characteristics. Exceptional grounds are specified in other human rights conventions whose norms are relevant 125 and applicable in this case. Horizontal complementarity emerges between the norms concerned. Constitutional and other legal norms also lay down the grounds for depriving someone of personal liberty, thus enabling the establishment of vertical complementarity. The Convention provision is formulated conditionally. Article 37 b) of the Convention presents two substantive conditions for arrest, detention and imprisonment of the child, which are not explicitly included in Article 5 (1) of the European Convention. Both conditions bolster the principle of the exceptionality of interference in the child’s liberty. 126 The Beijing Rules also include the argument of minimalism. 127 Interference in the liberty of the child must be restricted to the least possible extent. The argument of minimalism and the principle of exceptionality for the deprivation of a child’s liberty are absolutely related quantities that follow one aim. The Committee of Ministers of the Council of Europe also highlight the argument of minimalism. In its view the competent state authorities should avoid depriving children of their freedom as much as possible . 128 4.2.1 Last resort condition The Convention provision requires the competent judicial or administrative authorities to administer arrest, detention and imprisonment of children as a last resort . 129 This last resort condition has both a substantive and a procedural component. In the substantive sense the last resort condition is to cover the prohibition on arbitrariness, relating to the qualification criteria, or to mean almost the same semantically. The last resort condition particularly applies to factuality, i.e. to the careful consideration of the factual circumstances of the specific case and its gravity. 130 126 19 th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 20 years of combating torture, 1 August 2008-31 July 2009, Council of Europe Publishing, 2009, p. 43. 127 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA resolution 40/33 of 29 November 1985, paragraph 17.1 b). 128 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. 129 Nart v. Turkey , judgment of 6 May 2008, paragraphs 22 a 34. 130 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA resolution 40/33 of 29 November 1985, paragraph 17.1 (Commentary). 124 Ibid. 125 See Article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties.

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