The contribution deals with a specific type of deprivation of liberty of children, namely, their detention in institutions for the purpose of educational supervision, as explicitly permitted by Article 5(1)(d) European Convention on Human Rights (ECHR). This contribution addresses the issue of whether this special exception to the right to personal liberty of children and the respective jurisprudence of the European Court of Human Rights (ECtHR) is still appropriate today. After a short introduction to the interrelation between the human rights to personal liberty and personal integrity, the jurisprudence of the ECtHR is analysed and critically reviewed. While the European Court accepts the detention of children in such institutions even for a period of a few years as long as children receive proper education, Article 37(b) of the United Nations (UN) Convention on the Rights of the Child (CRC) allows the detention of children only as a measure of last resort and for the shortest appropriate period of time. This fairly strict standard led to a general trend towards deinstitutionalisation worldwide, and in Central and Eastern Europe in particular. This trend is reaffirmed by the UN Global Study on Children Deprived of Liberty, which calls for urgent measures by states to stop or at least drastically reduce the detention of children in institutions, including institutions for the purpose of educational supervision. In conclusion, this contribution recommends that the ECtHR revisit its jurisprudence on Article 5(1)(d) ECHR by reaffirming the ECHR as a ‘living instrument’ and thereby properly taking the higher standards of the CRC into account, which has been ratified by all Member States of the Council of Europe (CoE). The recent publication of the Global Study might provide a welcome occasion for stimulating such a change of jurisprudence.
THE INTERRELATION BETWEEN THE RIGHTS TO PERSONAL LIBERTY AND PERSONAL INTEGRITY
The right to personal liberty and the right to personal integrity are two different human rights laid down in different provisions of international and regional human rights law.