THE RIGHTS OF CHILDREN IN RELATION TO PRE-TRIAL DETENTION

Hedwig Bicskei

Abstract


The following paper concentrates on the detention of minors, especially what concerns the international legal provisions regarding pre-trial detention. It is very important to ensure that no one should be deprived of his liberty in an arbitrary fashion, this also refers to children as well. Deprivation of liberty may take numerous other forms besides arrest of conviction, these forms differ in degree or intensity, and this is why courts and domestic authorities have to have a clear view to be able to undertake an autonomous assessment of the situation. While detention occurs in various circumstance, I would like to focus on children in contact with the criminal justice system. Article 5 para. 1 (d) provides that “No one shall be deprived of his liberty save the following cases and in accordance with a procedure prescribed by law: (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.” This notion of a minor encompasses persons under the age of 18 in the light of European Standards and Resolutions of the Committee of Ministers of the Council of Europe (Commission decision of 14 December 1979). This law text excerpt is not only a provision which permits the detention of a minor, but also contains a specific, but not exhaustive, example of circumstances in which minors might be detained, namely for the purpose of their educational supervision or bringing them before a competent legal authority. In this present paper I would also like to include a case presentation: Nart v. Turkey, where the ECHR found a violation of Article 5.


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