CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … With regard to the time condition it is essential to distinguish between criminal and administrative cases. The T. and Güvec cases adjudged by the European Court of Human Rights support the previous statements in a criminal law context. In the first case two ten-year-old boys committed a very serious crime and the European Court decided at a moment when T. had not yet been at liberty for six years. The Court applied Article 5 (3) and not Article 3 of the European Convention. 137 The Court did not find the breach of obligation to be of an absolute nature arising out of Article 3. The second case relates to the length of custody of the plaintiff, a fifteen-year-old boy, which was not appropriate in view of Article 5 (3) of the European Convention, as it exceeded four and a half years. 138 Cases of the administrative detention of children or families with children in an immigration situation should not involve months and years, but days and most often weeks. 139 The legislation of European states on aliens and asylum seekers substantially differs in its arrangements over the administrative detention of children and families with children in an immigration situation, despite harmonization efforts and Directive 2008/115/EC 140 of 16 December 2008. 141 Harmonizing effects of this secondary act of law of the European Union are very weak in this regard. For illustration, Ireland, Italy and Hungary explicitly ban the detention of children before their return. 142 Belgium, Cyprus and Malta adopted political measures so as not to detain children, but their laws do not include an objective normative mode, i.e. an explicit prohibition. 143 Hence cases of administrative detention of children have occurred in Malta and Cyprus. The Swedish Aliens Act only permits the detention of children for up to 72 hours, 144 whereas the Czech Aliens Act permits the detention of children who are fifteen years or older for up to 90 days, even though younger children cannot be detained if they are not accompanied by adults. 145 Administrative detention of children may be extended in Germany up to 180 days. 146 137 T v. the United Kingdom , judgment of 16 December 1999, paragraph 98. 138 Güvec v. Turkey , judgment of 20 January 2009, paragraph 109. 139 Parliamentary Assembly, Undocumented migrant children in an irregular situation: a real cause for concern, Report, 16 September 2011, Doc. 12718, pp. 13-14. 140 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, L 348/98, 24. 12. 2008. 141 Ibid., Article 17. 142 European Commission Directorate- General Home, ECRE in strategic partnership with Save the Children (EU Office), Comparative Study on Practices in the Field of Return of Minors, final report, December 2011, Home/2009/RFXX/PR/1002, s. 74. 143 FRA, Detention of third-country nationals in return procedures, Thematic Report, September 2010, pp. 83-84. 144 Ibid., p. 85. 145 See Section 125 (1) of the Czech Aliens Act No. 326/1999. 146 European Commission Directorate-General Home, ECRE in strategic partnership with Save the Children (EU Office), Comparative Study on Practices in the Field of Return of Minors, final report, December 2011, Home/2009/RFXX/PR/1002, p. 74.

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