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Nielsen v. Denmark , 11 Eur. H.R. Rep 175 (1989),   28-11-1988

Facts: The mother and sole holder of parental rights of a 12-year-old child requested the hospitalization of his child in psychiatric ward of a State hospital for 5 months. However, the child expressed his wish not to be incarcerated and acknowledged maturity.

Complaint: the applicant is the child who was hospitalized by her mother. He claimed the authorities breached his right to liberty guaranteed by article 5 of the Convention.

Holding: the ECHR held that the protection afforded by article 5 (right to liberty) also covers minors. However, article 5 did not apply in this particular situation and the Court did not find any violation of the child's right to liberty by the domestic authorities.

Reasoning: the minor was hospitalized at the request of mother, sole holder of the parental rights. The Court examine the applicants' actual situation to determine if there had been deprivation or restriction of liberty to which article 5 applied and looked at the type, duration, effects and manner of implementation of the measures in question. It concluded that the hospitalization of the applicant did not amount to deprivation of liberty but was a responsible exercise by the mother of her custodial rights in the interest of the child.

 

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