NIELSEN v. DENMARKDISSENTING OPINION OF MR. G. JÖRUNDSSON
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Document date: March 12, 1987
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DISSENTING OPINION OF MR. G. JÖRUNDSSON
My basic approach to the interpretation of Article 5 is very
much the same as that of Mr. Frowein in his individual opinion,
although I have come to a different conclusion.
I accept that the detention of the applicant in the
psychiatric ward amounted to a deprivation of liberty and it goes
without saying that minors enjoy in principle the rights guaranteed by
the Convention, including Article 5. I find, however, the status of
the applicant as a minor to be of a decisive importance for the
question whether he was subjected to deprivation of liberty covered
by Article 5.
It is a common feature of family law in the Contracting
States, that the holders of parental rights have the power and the
duty to decide where the child is to live or stay, often in connection
with measures necessary for the protection of its health and for its
education. Such traditional and inevitable restrictions on the
liberty of a minor must be taken into consideration in the
interpretation of Article 5. It is also obvious from the construction
and the wording of Article 5 para. 1 second sentence, that it does
not deal with restrictions, which are the result of the decisions of
parents or those who exercise parental rights.
I think it is clear, having regard to Danish law in this
field, that the consent of the applicant's mother must be seen as the
basic and conclusive decision in the light of the principles which
must be applied in the interpretation of Article 5. The control of
the need for treatment and the advice given by the relevant
authorities are in this respect only of secondary importance and
cannot as such be considered a deprivation of liberty, engaging State
responsibility under Article 5.
In my opinion, therefore, Article 5 para. 1 second sentence
does not apply in the present case. This does not mean, however, that
the State has no responsibility regarding the exercise of parental
power in respect of minors. Such responsibility follows from Article
5 para. 1 first sentence which provides that everyone has the right to
liberty and security of person. The requirements of this provision
are, however, in my opinion satisfied by the supervision provided for
by the Danish Social Aid Act and by the fact that the applicant's need
for treatment and his admission to the psychiatric ward had been
recommended by the family doctor and approved by the chief physician
of the ward in the exercise of his professional responsibilities. The
applicant's need for treatment could also be, and was in fact referred
to the National Board of Health.
For these reasons I have come to the conclusion that there has
been no violation of Article 5 para. 1 in the applicant's case and it
follows from that finding that there has been no breach of Article 5
para. 4.
&_APPENDIX I&S
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
15 February 1984 Introduction of the application
3 May 1984 Registration of the application
Examination of admissibility
2 October 1984 Commission's deliberations and decision
to adjourn the examination of the case
in the light of the Danish Supreme
Court judgment of 21 August 1984.
7 May 1985 Commission's deliberations and decision
to invite the Government to submit
observations on the admissibility
and merits of the application
19 July 1985 Submission of Government's observations
7 October 1985 Submission of appliant's observations
5 December 1985 Commission's deliberations and decision
to hold a hearing on the admissibility
and merits of the application
10 March 1986 Hearing on the admissibility and merits
of the application, the Commission's
deliberations and decision to declare
the application admissible.
The applicant
MM. Jacobsen
Boelskifte
Nielsen
The Government
MM. Lehmann
Blæhr
Melchior
Vesterdorf
Date Item
______________________________________________________________________
Examination on the merits
13 June 1986 Submission of Government's additional
observations on the merits
12 July 1986 Consideration of the state of
proceedings
10 December 1986 Consideration of the state of
proceedings
5 March 1987 Commission's deliberations on the
merits and final votes
12 March 1987 Adoption of the Report