Zajištění nezletilých cizinců a zvláštní standardy Evropské úmluvy o lidských právech: jejich výklad a použití v českém právu
Detention of Children on the Move and Standards of the European Convention on Human Rights: Interpretation and Application in Czech Law

Summary/Abstract: In 2022, almost 300 children on the move were detained in Czech migration detention facilities. Previous research has shown that migration detention rises issues under multiple human rights instruments. This paper firstly aimed to analyze recent human right standard under ECtHR case law. Second question sought to find out how this standard is reflected in the Foreign Nationals Act. Lastly, the paper assessed the interpretation of these conditions by national courts through the prism of the principle of effective protection of human rights contained in the ECHR. Detention of children is a last resort in terms of the right to liberty, made possible by a combination of very exceptional factors. From the prohibition of torture, it is then possible to derive specific conditions in relation to the detention facility: organizational and regime measures, material and technical conditions and the age of the child will directly influence the possible length of detention, with the passage of time being a key factor. The author considers the biggest issue with the current legislation to be the fact that the Foreign Nationals Act does not deal with the concept of persons in a vulnerable situation at all. Normative analysis of two selected cases of the Constitutional Court and Supreme Administrative Court outlined inconsistencies with the ECtHR case law. In particular, the Constitutional Court underestimated the importance of organizational and regime measures and the presence of prison-type elements whereas the Supreme Administrative Court incorrectly reflected the need for alternatives to detention and the perception of detention as a last resort.

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