According to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), no one shall be deprived of his liberty save in specifically enumerated situations. One such situation is the detention of a minor by lawful order for the purpose of educational supervision.
According to the Care of Young Persons (Special Provisions) Act (1990:52), young persons who have not attained 18 years of age may be provided care if they expose their health or development to a tangible risk of harm through socially degrading behaviour. A condition for obtaining a decision regarding care is that it may be assumed that necessary care cannot be provided with consent. Even a person who has attained 18 years of age but not yet 20 years of age may be provided care of this type if it is more appropriate than other care. Such care may not be provided after the person has attained 21 years of age. It may be determined that the care will be provided at a so-called special youth home, which entails deprivation of liberty.
In this case, the Court has ruled on whether such care for persons who have reached the age of 18 falls under the Convention's exemption for the purpose of educational supervision. This has required the Court to interpret the meaning of the provision of the Convention. In making this assessment, a starting point has been that the exceptions in Article 5 are to be interpreted narrowly since the Article is intended to protect individuals against arbitrary detention.
The Supreme Administrative Court has initially assessed that care of a young person who engages in socially degrading behaviour which entails a deprivation of liberty must be regarded as such a measure as is covered by the exceptions for the deprivation of liberty enumerated in the Convention for educational supervision. The Court has subsequently held that in Swedish law, there is no uniform age limit regarding when a young person obtains all of the rights and obligations normally possessed by an adult, even if 18 years of age is the age at which most rights and obligations arise. Nor is there a uniform view as to when a young person is deemed to have full capacity in all respects to take decisions of his or her own and his or her life in the Convention States and the European Court of Human Rights has not expressed itself as to whether the exception in Article 5.1 d may be applicable regarding persons who are indeed young but older than 18 years of age. The age limits appearing in the Care of Young Persons (Special Provisions) Act have been established in light of the fact that the Act is protective legislation for children and young persons. The Swedish regulation of age limits for compulsory care in accordance with the Care of Young Persons (Special Provisions) Act is the result of an express position regarding the manner in which young persons may be best provided care and possibilities for rehabilitation when they find themselves in a difficult social situation. A decision regarding care also presupposes that such care is deemed to be more appropriate than other care. Therefore, there is no cause to fear that a regime formulated in such a manner leads to arbitrary deprivation of liberty in violation of the purpose of the Convention.
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