Introduction

Content:

3) Legitimate aim

IV) Relation of article 8 ECHR with other rights

1) Relation between the interests protected by article 8 ECHR

2) Relation of article 8 ECHR with other convention rights

Text of article 8 ECHR

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

A) Article 8 ECHR – Introduction

I) Overview

Art. 8 ECHR guarantees the right to respect for private life, family life, home and correspondence. Its scope is very broad; it extends to many areas of life and has an impact on different legal fields reaching from family law to criminal law.

The protection afforded by Art. 8 ECHR is not without limits. The rights enshrined in paragraph 1 may be interfered with subject to the conditions laid down in paragraph 2.

In accordance with this structure of Art.8, the following approach to scrutinizing cases, in which this article may have a bearing, may be taken:

in a first step, it should be established whether there is an interference with the right to private life, familiy life, home or correspondence. To this end, it has to be established whether a certain measure, action or omission (see below) falls within the scope of one the interests, which Art.8 para 1 protects, and whether it has some impact on the way in which the rights can be exercised, whether it limits the extend to which the right can be enjoyed. The scope of private life, familiy life, home and corresponce are dealt with on the parts of this website dealing with the respective rights.

then it should be scrutinized whether this interference is justified pursuant to Art.8 para 2 ECHR

When assessing whether a certain conduct on the part of the state falls within the scope of Art.8 ECHR, it should be borne in mind that Art. 8 – as the other articles of the Convention – entails positive obligations. Contracting states do not meet their obligation to secure the rights enshrined in the Convention (see Art. 1 ECHR) by simply refraining from interferences. They can also be obliged to actively employ certain measures with a view to ensuring that the Convention rights become effective. Measures states have to take to meet their positive obligations may include, (but are not limited to)

passing legislation in order to ensure the enjoyment of rights guaranteed in the Convention,
conducting effective investigations in cases of alleged violations ofhuman rights or
ensuring that factual conditions for exercising rights are met.

For example, in the case Marckx./.Belgium, the Court stated:

'the object of the Article [8] is "essentially" that of protecting the individual against arbitrary interference by the public authorities. Nevertheless it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life. This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child's integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).'

In this case, the applicants were a mother and her daughter, who had been born out of wedlock. At the material time, there was no legal bond between a mother and an 'illegitimate child'. In order to create such a legal bond, the mother had to recognise the child formally, which entailed certain enquiries and involved some expenses. In addition to that, the law foresaw other disadvantages for children born out of wedlock, for example regarding the possibility to inherit properties.

The Court found that this legal framework violated the applicants' right to family life and that Belgium was under a positive obligation to pass different legislation in that respect.

Thus, potential infringements of Art. 8 ECHR may be scrutinized examining the following questions:

does a certain measure fall within the scope of Art.8, i.e. Is the case somehow related to interest protected by Art.8, does Art.8 potentially play a role of this case?
does it interfere with one of the interests protected by Art.8?
is there a positive obligation to respect that interest
is the interference in accordance with a law
does it pursue a legitimate aim as laid down in Art.8 para 2 ECHR
is the interference necessary in a democratic society

II) Scope of article 8 paragraph 1 ECHR

Since the scope of the interests which article 8 paragraph 1 ECHR protects are dealt with below on the pages dedicated to the respective rights, a very short overview of the ambit of these rights shall suffice here.

The right to private life embraces personal autonomy, the right to make choices regarding one’s own life without interference by the state, to develop one’s own personality and to establish relationships with others and to communicate. Aspects of the right to private life include the physical and psychological integrity of a person, sex life and gender, personal data, reputation, names and photos.

The notion family life extends to the legally acknowledged ties between persons related by blood or marriage. Central relationships of family life are those of husband and wife and parent and child. Beyond this, ties between siblings, grandparents and grandchildren or uncle/aunt and nephews/niece may also fall within the scope of article 8 ECHR. Ties which are legally not recognized may also attract the protection afforded by the right to family life. In these cases, the European Court of Human Rights applies a number of criteria (such as duration of the relationship, cohabitation) in order to ascertain whether a given relationship is embraced by the right to family life under article 8 ECHR.

Home is the physically defined place where private life and family life develops. It does not matter whether this space is the property of the affected person or even legally inhabited. The notion also may also encompass business premises, temporarily inhabited spaces or caravans.

The right to respect for correspondence under article 8 ECHR enshrines the right to uncensored and uninterrupted communication. Although the notion ‘correspondence’ might be understood as referring to letters only, it is acknowledged that article 8 also affords protection to communication via the phone, fax, parcels, telexes or private radio.

III) Limitations pursuant to article 8 paragraph 2 ECHR

1) Overview

The rights to respect for private life, family life, home and correspondence are not granted without limits. They may be restricted subject to the conditions laid down in article 8 paragraph 2 ECHR. Pursuant to this provision, interferences with one of the rights enshrined in article 8 paragraph 1 ECHR have to

· Be in accordance with the law

· Serve one of the legitimate goals set out in article 8 paragraph 2 ECHR

· Be necessary in a democratic society

2) In accordance with the law

a) Introduction

Article 8 paragraph 2 ECHR provides that interferences with the interests protected by article 8 paragraph 1 ECHR have to be ‘in accordance with the law’. The language employed in article 8 paragraph 2 ECHR differs from the one used in articles 9, 10 and 11 ECHR, which allow for the restriction on the rights they guarantee subject to the condition that the limitation is ‘prescribed by law’. This difference in wording does not indicate a difference in substance, though (Malone v UK, para 66; Silver and Others v UK, p. 85). The European Court of Human Rights applies the same principles when assessing the legal bases for interferences with article 8 ECHR as when restrictions of one of the other articles mentioned above are in question. Terms such as ‘based on a law’, ‘prescribed by law’ or ‘in accordance with the law’ are used interchangeably in resolutions of the Court

'Law' refers to written laws as well as unwritten law (Sunday Times v UK, para 47)

To justify an interference with one of the rights protected by article 8 paragraph 1 it is not sufficient that there is just some basis for the interference in domestic law. The Court has developed a number of requirements a law has to meet in order to qualify as a basis for interferences with one of the rights under article 8 ECHR. While some of them apply to all legal provisions designed to justify interferences with article 8 of the Convention, the ECtHR has held that particularly strict standards have to be met when the interferences which are concerned take place in secret (as it is for example the case with phone interceptions). The fact that the affected persons do not have the possibility to challenge the measure calls for very well-developed safeguards against abuse. Special requirements for secret measures such as phone interceptions are dealt with separately.

A law or legal provision which prescribes an interference with one of the rights protected by article 8 ECHR has to be accessible, sufficiently clear as to be circumstances under which an interference may be justified and consistent with the rule of law.

b) Accessibiliy

The law which prescribes an interference with a right under article 8 has to be publicly accessible. Citizens have to be able to obtain information subject to which conditions their rights may be interfered with.

In Kuznetsov v. Ukraine, the applicant was a prison inmate. He was serving a long term prison sentence after having been transferred from death row. Regulation on the prison regime passed by the Prosecutor General’s Office, the Ministry of Justice and the Supreme Court foresaw that long-term prisoners could send only one letter per month. They also restricted the number of visits by family members to one per month. The visits had to take place under surveillance by two prison guards. The European Court of Human Rights noted that these regulations were not publicly available and therefore did not qualify for interferences with the right to correspondence and family life such as the restriction of visits or the number of letters. Consequently, the Court found a violation of article 8 ECHR.

Liberty v. UK concerned the interception of phone calls between Northern Ireland and Great Britain by British authorities. The interceptions were carried out on the basis of the ‘Investigatory Powers Act’ (Out of security concerns, the British government refused to confirm that phone calls were intercepted, but agreed to conduct the proceedings before the European Court of Human Rights based on the assumption that it did). The Secretary of State issued guidelines regarding the storage, screening, handling and deletion of the information obtained. These guidelines were not public. For this reason, the European Court of Human Rights concluded that the basis for the interference was not publicly accessible and did not provide sufficient safeguards against arbitrary interference. It found a violation of article 8 ECHR.

c) Foreseeability

In addition to this, the language of the law has to be sufficiently clear to make interferences foreseeable. The circumstances under which the right to private life, family life, home or correspondence may be limited have to be precisely indicated in the legal basis for the interference (Kruslin v France, para 30 – 3). This does not imply that an individual has to be able to foresee when he or she is likely to be subjected to phone interceptions or similar measures (Malone v UK, para , Iordachi v Moldova, para 39). But there have to be clear, detailed rules specifying the conditions subject to which interferences are legitimate (Weber and Saravia v Germany, para 93). These rules do not have to be set out in the main law; it is sufficient if they are laid down in by-laws or regulations interpreting the law (Kennedy v UK para 156, see also Silver v UK, para 88 – 89)

Measures such as the interception of communication are usually employed in secret and affected persons have no possibility t avail themselves of legal remedies. This increases the risk of arbitrary use of such measures. The Euroepan Court of Human Rights has therefore held that special safeguards are required in the area of special investigative measures (Weber and Saravia v Germany para 93), in particular since the technology in this field is becoming more and more sophisticated (Kopp v Switzerland, para 72). These requirements are dealt with separately.

4) Necessary in a democratic society

Interferences with one of the rights protected by article 8 paragraph 1 ECHR can only be justified if they are ‚necessary in a democratic society‘. This means that the interference has to respond to ‚a pressing social need‘. The Court grants signatory states to the Convention a certain margin of appreciation when balancing the interests of the affected individual with the interest of society in the interference (Colon v The Netherlands, para 86 – 87; summary of the decision here), for the national authorities are better positioned than an international court to assess the social developments and possible implications. However, the Court exercises control whether the contracting states have overstepped the boundaries of their margin of appreciation.

Again, the Court has established special requirements for the justification of interferences which take place in secret. These are dealt with separately.

IV) Relation of article 8 ECHR with other rights

1) Relationship between the interests protected by article 8 ECHR

Art.8 protects four interests:

private life
family life
home
correspondence

These interests may sometimes overlap. For example, a person's home will in many cases be a sphere used for private interaction or personal development. Therefore, an intrusion oftentimes will also amount to an interference with the right to private life.

Since the protection of the right to respect for private life also covers communication and interaction with others, interferences with the freedom of correspondence will frequently also affect the right to private life.

The European Court of Human Rights does not always distinguish clearly between the interests protected by Art.8; rather the Court has in some cases scrutinized the facts in the light of two limbs of Art.8 at the same time. For example, in the case 'Klass ./.Germany' which regarded the tapping of the phone of a prosecutor and several lawyers, the Court stated:

'Clearly, any of the permitted surveillance measures, once applied to a given individual, would result in an interference by a public authority with the exercise of that individual's right to respect for his private and family life and his correspondence. Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an "interference by a public authority" with the exercise of the applicants' right to respect for private and family life and for correspondence. The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person's right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point'.

2) Relationship of article 8 with other convention rights

– Right to private life and Art. 3 ECHR (prohibition of torture)

The right to respect for private life covers the physical and moral integrity of a person (X./.The Netherlands, para 22). Treatment, which adversely affects a person's well-being may therefore be an interference with the right to private life, provided it reaches a certain degree of severity. This is relevant in cases, in which a certain measure afflicted on a person does not reach the threshold of inhuman or degrading treatment.

In the case Costello-Roberts./.UK, the Court stated (para 36):

‘The Court does not exclude the possibility that there might be circumstances in which Article 8 (art. 8 ) could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3 (art. 3).’

In this case, the applicant had been a seven year old school boy who had been punished for breaches of the school discipline by being hit three times on the bottom with a rubber soled gym shoe. The Court held that this did not amount to inhuman or degrading treatment (however, four judges considered the punishment as degrading in their dissenting opinions).

The Court reiterated its view on the relationship between Art. 8 ECHR and Art. 3 ECHR in the case Bensaid./.UK (para 46):

‘Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity’

If, on the other hand, the Court regards a certain treatment as degrading or inhuman it usually does not consider it separately in light of Art. 8. For example, in the case Jalloh./.Germany, the applicant had been forced to swallow emetics, since he was believed to have swallowed drugs, which he had tried to sell, in order to dispose of evidence. Before the Court, he claimed that this had amounted to a violation of Art.3 and 8.

The Grand Chamber of the Court found Germany in violation of Art.3 ECHR. With respect to the alleged violation of Art.8 ECHR, the Court stated:

‘The Court has already examined the applicant's complaint concerning the forcible administration of emetics to him under Article 3 of the Convention. In view of its conclusion that there has been a violation of that provision, it finds that no separate issue arises under Article 8.’

It is noteworthy that several judges expressed dissenting opinions in which came to the conclusion that Art.3 ECHR was not infringed. Consequently, they scrutinized the facts in light of Art. 8 ECHR. While four judges did not regard Art.8 ECHR as infringed, two judges found a violation or Art.8 ECHR.

- Right to private life and Art. 5 ECHR (liberty of person)

Every deprivation of liberty also amounts to an interference with the deprived person's right to private life. However, as the Court stated in the case Storck./.Germany, Art. 5 is lex specialis vis-vis Art.8 as far as the freedom of person is concerned. The Court held

‘In so far as the applicant claimed that her liberty had been restricted contrary to Article 8 of the Convention during her involuntary placement in the clinic, the Court reiterates that the right to liberty is governed by Article 5, which is to be regarded as a lex specialis vis-à-vis Article 8 in this respect’

– access to information

Art.10 ECHR enshrines the right 'to receive and impart information'. Some applicants have therefore construed it as providing for a right to access of information. So far, the Court has rejected these attempts. A right to access information may under certain conditions be inferred from Art.8 ECHR, provided the data in question regard the private life of the holder of the right (see for example Gaskin./.UK).

– right to respect for family life and Art.12 ECHR (right to marry)

The right to family life may overlap with the right to marry and found a family (art. 12) and the equality of spouses in private law (art. 7 of the 5th protocol). Applicants basing their complaint on Art. 8 often rely on Art. 12, too.

Art. 8 is much wider in scope. It applies to relations between unmarried couples as well as to issues arising after a marriage, while Art. 12 only guarantees the right to enter a marriage. Matters such as having a family outside marriage, child care, family support have therefore to be dealt with under the protection of family life pursuant to Art.8 rather than under Art.12

– Right to respect for home and Art. 1 of Protocol 1(Right to property)

Art.1 of Protocol 1 to the ECHR protects the right to peaceful enjoyment of one's possession. By that, it guarantees in substance the right to property ( see Marckx./.Belgium, para 63). Thus, Art. 1 of Protocol 1 presupposes some kind of legal link or entitlement between the entitled person and the asset in question.

The protection of home under Art.8, on the other hand, may apply even if the applicant does not claim property rights to a residence – or even if he has no legal entitlement to stay there at all. While Art. 1 of Protocol 1 covers rather the legal entitlement to an asset, Art. 8 protects the possibility to access one's home and to keep third parties out.

Despite these differences, the protection afforded by Art. 8 and by Art. 1 of Protocol 1 may overlap in some cases. For example, in the case Akdivar./.Turkey, which concerned the burning of houses in a Kurdish village by security forces, the Court stated:

‘The Court is of the opinion that there can be no doubt that the deliberate burning of the applicants' homes and their contents constitutes at the same time a serious interference with the right to respect for their family lives and homes and with the peaceful enjoyment of their possessions.’

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