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The European Yearbook on Human Rights brings together renowned scholars, emerging voices and practitioners, comprising contributions which engage with some of the most important human rights issues and developments in Europe. The Yearbook helps to better understand the rich landscape of the European regional human rights system and is intended to stimulate discussions, critical thinking and further research in this field.
On 20 November 2019, we celebrated the 30th anniversary of the UN Convention on the Rights of the Child (CRC), which is the reason why this issue of the European Yearbook on Human Rights is dedicated to children's rights. With 196 States parties, and only the US still missing, the CRC is the most widely ratified of all human rights treaties. By introducing a human rights-based approach to children, and including both civil and political rights as well as economic, social and cultural rights, the CRC brought about a paradigm shift in the way children are perceived today. The perception of the child has evolved from objects of rights in need of protection to the subject of rights whose opinions and active engagement is asked and strived for. They are no longer considered only as a vulnerable group in need of care and protection but also as a distinct group of young individuals in need of self-determination, autonomy and the right to participate in all decisions that directly affect their lives. Adults are expected to better understand that children are experts in their own right and whose views shall be taken into account in major decision-making processes. The recent Fridays for Future strikes, initiated and organised by high school children across the world, made clear that children are, with good reason, worried about their future in times of a dramatic climate crisis and demand to be involved in decisions aimed at drastically reducing global warming to save our planet. Children also increasingly make use of their more recent right to submit individual complaints to the Committee on the Rights of the Child in accordance with the respective Optional Protocol to the CRC on a Communication Procedure of 2011.
The CRC incorporates a broad variety of civil, political, economic, social and cultural rights, which may be grouped into protection, provisions and participation rights. It is based on the following four general principles identified by the Committee on the Rights of the Child:
– the inherent right to life, which also contains the positive obligation of States to ensure to the maximum extent possible the survival and development of the child (Art. 6);
– the obligation to respect and ensure all children's rights without discrimination of any kind (Art. 2);
– the right to participation of children in all matters affecting them (Art. 12);
In light of the 30th anniversary of the UN Convention on the Rights of the Child in 2019, the twelfth edition of the European Yearbook on Human Rights is dedicated to the rights of the child. In their contributions, renowned scholars, emerging voices and practitioners provide a cross-section of the progress and gaps with regard to the protection of children. Topics include children deprived of their liberty, compulsory adoption and children's rights to participate in public debates on climate change, to name but a few. Besides the thematic focus on the rights of the child, this edition includes valuable insights from the European Court of Human Rights and the OSCE on the current challenges for the protection of human rights in Europe. Contributions focusing on the human rights implications of artificial intelligence, state sovereignty and gender identities raise awareness of the complexities of human rights protection and stimulate debate and further research in the field. At a time of an unprecedented global health crisis which has had widespread economic, social, humanitarian and human rights dimensions, the European Yearbook on Human Rights continues to provide a platform to address existing gaps in the systems designed to protect human rights and to bring forward suggestions to remedy identified weaknesses. Philip Czech is a researcher at the Austrian Institute for Human Rights, University of Salzburg and editor of the Newsletter Menschenrechte. Lisa Heschl is a post-doctoral research and teaching fellow at the European Training and Research Centre for Human Rights and Democracy, University of Graz. Karin Lukas is a senior researcher and Head of Department at the Ludwig Boltzmann Institute of Human Rights. Manfred Nowak is Secretary General of the Global Campus of Human Rights, Venice and Professor of International Human Rights, University of Vienna. Gerd Oberleitner is UNESCO Chair in Human Rights and Human Security and Director of the European Training and Research Centre for Human Rights and Democracy.
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.