7. Respect for private life, home and correspondence under Article 8

Question 1

Which rights holds the art.?

Answer 1

Respect for private life, home and correspondence

Question 2

Definitions

Private life

Answer 2

Private life
• Commission defined private life as the right to privacy, the right to live as far as one wishes, protected from publicity. It also mention the right to establish and develop relationships with other human beings.
• The court mentioned the definition in a case (page 401) and reconsidered it in another case (page 401).
o Here they concluded that mental health must also be regarded as a part of private life associated with the aspect of moral identity. The court states that private life is a broad term “not susceptible (modtagelig) to exhaustive (udtømmende) definition” but will protect important elements of the personal space as gender identification, name and sexual orientation and sexual life.
o It also says that private life includes right to identity and personal development and to establish personal relationships.
• Individual appearance will also fall within the ambit of article 8.
• A criminal conviction in itself will not constitute interference with private life.
• Although there is a broad concept of private life with many cases, the right to respect for home and correspondence remain specified features in the text of article 8. These terms has not been considered in case law yet.

Question 3

Definitions Home

Answer 3

• Many issues has involved a combination of private life and home. And many issues, which could have been considered here, has been considered under article 1 of protocol 1 instead.
• Article 8 requires states to guarantee respect for home - it does not include a right to a home, or a particular home, but it does cover the states protect of the physical security of a person’s actual home and belonging there. Deliberate destruction of homes by security forces is particularly grave and unjustified interference with the rights in article 8.
• A broad view is taken of what is a person’s home. It can include the business premises of a professional person, or a caravan site used as a home in breach of planning permission.

Question 4

Definitions Correspondence

Answer 4

• Correspondence covers written materials including materials sent through the post, as well as telephone calls and email. It is the direct communication to another.
• Applications about this has mainly been brought by those in prison and in relation to various surveillance (overvågning) techniques, most telephone tapping (aflytning). This is almost always taken together with private life. Also been relevant in bankruptcy proceedings (page 404).

Question 5

Positive obligations and private life

Answer 5

• The court has referred to positive obligations in the context of private life in article 8. However, where positive obligations are in issue, there is a margin of appreciation for a state as to how it regulates a particular area.
• The dividing line between negative and positive obligations under article 8 is a fine one. The similarity of the approach to positive and negative obligations has arisen because the court has indicated that, in determining the balance to be struck between the interests of the community and in the interests of the individual, the aims referred to in article 8 (2) may be of a certain relevance.
• Cases involving positive obligations are not treated separately.

Question 6

Freedom from interference with physical and psychological integrity

Interference with the person

Answer 6

• Inappropriate strip searching of persons visiting someone in prison will constitute a violation of article 8, even though falls within the scope of article 3.
• Where conduct, such as child sexual abuse, is in issue, there is a positive obligation on the state to provide protection from such grave interferences with private life. This will not, however, require unlimited civil actions where the conduct is adequately covered by criminal law sanctions.
• The extensive positive obligations imposed upon states to protect physical integrity have also been evident in more recent cases.
• The protection of psychological integrity also imposes positive obligations upon states.
• The use of corporal punishment in schools has been examined by the court in a number of complaints of violations of article 3. Here it might attract protection under article 8 additional to that afforded by article 3. The court has concluded: the possibility that there might be circumstances in which article 8 could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by article 3.

Question 7

Freedom from interference with physical and psychological integrity

Searches of property

Answer 7

• A number of article 8 cases concern respect for private life and the home in the context of the legitimacy of searches of either the home or business premises. Cases on page 408.
• A search which is authorised under national law where there are special procedural safeguards will violate article 8 if it can be shown that the underlying purpose is to find out a journalist’s sources through his lawyer, since this will have repercussions on rights under article 10 of the convention. The court will expect that search warrants are not drafted in terms which are too wide and do not give any indication of the reasons of the search. This is particular so where the search is of premises of those who have not been accused for any offence. Equally the court will expect the national authorities to have shown reasonable care in ensuring that the target of a forcible entry to property remains at that property.
• Entries and searches, including recording and retaining personal details and photographing individuals which are properly applied under anti-terrorist legislation are unlikely to give rise to a successful complaints under article 8, since they will normally be easily justified as measures for the prevention of crime.
o Therefore the police must be permitted some flexibility to assess which items might be linked to terrorist activities and to seize them for further examination.

Question 8

Freedom from interference with physical and psychological integrity

Surveillance and interception of the communications

Answer 8

• A group of cases has concerned the extent to which article 8 protects the citizen from various forms of surveillance (overvågning), which might include the opening of correspondence or listening to telephone communications. This is a area where advances in technology present increasing threats to the private life of the individual. The court has decided that not only the party whose telephone line is tapped who has standing to complain, but also third parties whose conversations are intercepted.
• The court has tended to consider the adequacy of safeguards as a matter going to the lawfulness of the measure in question rather than its proportionality. It would defeat the purpose of secret surveillance if individuals ere able to pinpoint exactly when the police where likely to be listening on their conversations and adapt their behaviour accordingly, and the court has not interpreted article 8 to require that this information should be provided to individuals, either before, during of after they have been the subject of surveillance measures. On the other hand, secret powers of surveillance are open to abuse the state authorities. Therefore the state should provide fairly detailed guidelines as to the circumstances where surveillance is allowed and it must comply with national law.
• Obviously a telephone tap without obtaining legal authority where such a procedure is provided for will amount to a violation of article 8.
• The Interception of Communication Act also allowed the executive to intercept communications passing between the UK and any individual or transmitter located outside the UK - page 413.
o Other cases highlighted other issues with the UK.
o The Russian system - page 414.
• Collection and storage of data by means of a GPS device may also amount to an interference with private life.

Question 9

Freedom from interference with physical and psychological integrity

Recording and disseminating (udbrede) images

Answer 9

• Private life also includes a person’s picture (page 415).
• Disseminating the photograph of a person the police wished to interview as a witness but describing him as a “wanted person” will violate article 8.
• The court has concluded, that article 8 does not require a legally binding pre-notification requirement.
• The court has addressed the issue of the impact of closed-circuit television (CCTV) in public places. It is clear that the use of CCTV cameras in public places, or places to which the public have ready access such as shopping centres and police stations, and the recordings of the images they see, do not engage article 8. However, the use to which the recordings are put may, in the particular circumstances of each case constitute an interference with the rights protected by article 8. Such actions will need to have a proper legal base, a legitimate aim, and be necessary in a democratic society.

Question 10

The collection, storage and use of personal data

Answer 10

• The collection of information by officials of the state about individuals without their consent will interfere with their private life, as will its use, for example, in court proceedings. Examples include covert measures, such as keeping of secret files. There is a interference even though the information is kept because of public activities such as membership of organisations or participation in politics - because it is not always easy to draw a clear line between private and public activities. The court has also said, that public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. Interference with private life can also arise from overt measures, such as official censuses and the collection and retention of fingerprints, photographs or genetic material by the police.
• Cases page 418 and forward.
• In serious cases, the states will have positive obligation to compel disclosure of a person’s identity which might otherwise be regarded as a confidential matter.
• The duty of confidentiality in relation to records lawfully held has also been the subject of proceedings before the court. Though the disclosure of which the applicant complained (of her health records in connection with a social security claim) was found to be a violation of article 8.

Question 11

Freedom to develop one’s identity

Parental links and childhood

Answer 11

• Article 8 may assist children to know and understand their childhood. Though there is not right to of access to care records and a refusal of complete access does not amount to an interference with family life, nevertheless a system which allows disclosure of care records to children will go beyond the margin of appreciation permitted by the article. The court sometimes classifies these issues as family life and sometimes to private life.
• A procedural barrier to establishment of paternity was found to be a violation of article 8.
• Issues of recognition of parenthood have also afflicted transsexuals.

Question 12

Freedom to develop one’s identity

Cultural identity

Answer 12

• Personal autonomy is an important principle underlying the interpretation of article 8 and the provision therefore is capable of encompassing many different aspects of a person’s physical and social identity, including an individual’s ethnic identity. A series of cases has concerned the rights of gypsies (sigøjner)
• There is no general right to citizenship under article 8.

Question 13

Freedom to develop one’s identity

Names

Answer 13

• Some international conventions make explicit reference to names. Both the commission and the court have held that the regulation of names fall within the ambit of private life. This includes the choice of a child’s forenames by their parents.
• The court has ruled that a person’s name as a means of personal identification and linking to a family concerns family and private life under article 8. Nevertheless the state has an interest in regulating the use of names. The different treatment to men and women in the use of names violates article 8.

Question 14

Freedom to develop one’s identity

Transsexuals

Answer 14

• Transsexuals have long been assertive in using article 8 to secure recognition of their gender identity in some of the states.
• The line of cases shows how the convention is a living instrument and the development of positive obligations for contracting parties.
• Despite the significant development in the court’s position as reflected in these cases, new issues relating to the rights of transsexuals under article 8 continue to emerge.
o Cases on page 431.
• Beyond issues of legal recognition, the court has also been asked to decide questions about access to treatment.

Question 15

Freedom to develop one’s identity

Sexuality

Answer 15

Two other cases (homo):
o The court found that the exclusion of homosexuals from the armed forces was in accordance with law, and could be said to be in the interests of national security and for the prevention of disorder, but concluded that the exclusion in the case was not necessary in a democratic society.

Incest
• The court does not regard the criminalisation of incest between consenting adults to amount to a violation of article 8 - for example adult siblings - no violation of article 8.

Question 16

Immigration issues and private life

Answer 16

• A development has been the extension of the court’s case-law on private life within article 8 to offer a degree of protection to certain migrants.
• Thym argues convincingly that these cases signal the court’s new readiness to extend the protective reach of article 8 in the field of immigration and are not limited to the particular facts of Russian minorities in the Baltic States.
• Article 8 may also be engaged when steps are taken to prevent someone from leaving a country

Question 17

Health and medical procedures

Answer 17

• The right to respect for private life also encompasses a right to informed about health risks to which person have been exposed, and issues relating to access to particular medical procedures. It will also cover the use of medical procedures to which the person has not consented, but this generally falls under the heading of freedom from interference with the person discussed earlier. Issues can also arise in relation to consent by a parent to the medical treatment of a child.
• Even more disturbing are cases involving the sterilisation of women of Roma origin, where doubts exist in the circumstances of the case whether the consent to sterilisation was properly given.
• Abuse of mental health procedures will also engage article 8.
• It will be hard to establish a violation of article 8 in respect of a denial of specific medical treatment.
• Access to records and to personal information may well prove to be an area where the requirements of article 8 increasingly impose positive obligations on a state.
• Recently the court has also been asked to consider issues relating to the retention of human issues.

Question 18

Health and medical procedures

Reproductive rights

Answer 18

• The question whether a foetus enjoys the protection of the right to life under article 2 remains undecided. Therefore there have been an increasing number of challenges to the State’s regulation of abortion under article 8’s right to respect for private life.

o It is clear that article 8 not only requires a state to refrain from interference with a woman’s right to make her own choices about pregnancy which cannot be justified under article 8 (2), but also to ensure that an effective and accessible procedure is in place so that pregnant woman can realistically exercise all of the options lawfully open to her. The issue of the appropriate balance between protection of the foetus and respect for a pregnant woman’s self-determination and health, remains one on which a wide margin of appreciation is given to states.

Question 19

Health and medical procedures

Assisted dying

Answer 19

• Issues relating to euthanasia and assisted suicide have also been argued under article 8.
• The court confirmed that an individual’s right to decide by what means and at what point his or her life will end is one of the aspects of the right to respect for private life within the meaning of article 8.
• The states will enjoy a considerable margin of appreciation in this area. However, the court’s judgement seems to set out a clear limitation on the facilitations of assisted dying, namely that safeguards must be put in place to ensure that the individual is making a free and informed choice about how to die.
• The series of cases on the state’s obligations in respect of assisted dying remain somewhat ambiguous. The court is more comfortable imposing procedural standards than seeking to impose substantive ones (the same with abortion). There is no doubt that choices about how to die, including seeking a dignified death by means of suicide, fall within the protection of article 8 but states have a wide margin of appreciation.

Question 20

Protection of one’s living environment

Answer 20

• It seems that the use of article 8 as a means of generating environmental rights is heavily circumscribed.
• A number of complaints arising from nuisance (plage) caused by adjacent (tilstødende) commercial activity have been made under article 1 of protocol 1, but a better basis for complaint may be article 8.
• Where an activity presents risks to the environment which might impact upon the personal lives of those living nearby, there must be a genuine and procedurally fair environmental impact assessment, otherwise there will be a failure to respect the private life of those persons. Though the court states that article 8 contains no explicit procedural requirements, it has read in a requirement for proper procedures in environmental cases.
• However, a failure by the authorities to police effectively noise nuisance caused by night clubs and bars in breach of the conditions under which they were permitted to operate which prevents a person from sleeping and causes insomnia, will constitute a breach of article 8.

Question 21

Protection of the home

Answer 21

• Many cases involving housing and the home will fall to be considered under article 1 of protocol 1. But it is clear, that aspects of security of tenure under landlord and tenant laws can involve issues touching on respect for the home.
• Two cases on page 450 and forward.

Question 22

Protection of prisoner’s correspondence

Answer 22

• Article 8 has been used as a vehicle for addressing a number of prisoner’s rights, particularly the rights of correspondence of those detained in prison. Correspondence refers primarily, but not exclusively, to communication in writing. Article 8 prohibits, subject to the exceptions in paragraph (2), any form of interference with correspondence, whether by censorship or otherwise. Prisoner’s letters may be stopped or intercepted. There may be a censorship of incoming and of outgoing letters. Or there may be a restriction on the number of letters that may be written. Often interference with prisoner’s letters can be justified on one of the grounds states in paragraph (2), as being necessary, for example for the prevention of crime or for the protection of the rights of others.
• The position which appears to have emerged from the case-law is that freedom of correspondence for prisoners will be protected to a high degree. The court requires the national law authorising the interference to be drafted with precision in order to meet the requirement that the interference is in accordance with law. The court will also require the clearest evidence that the action taken is proportionate to the aim of the limitation of freedom of correspondence.
o Stopping or censoring letters containing what are regarded as derogatory remarks about the prison authorities will not be justified.
• It is vital to distinguish the different elements involved in “control” of correspondence, and to differentiate quite clearly the grounds of exception permitted under article 8 (2).
o Page 453.
• A clear legal justification for the interference will be essential.
• The correspondence of detained persons with their defence counsel is specially privileged - article 6 (3) (b).

Question 23

Glass v UK (no consent by parents and no legal authority)

Forced medical treatment

Answer 23

The mother did not want a morphine treatment to her son. Such medication was aministered despite her opposition. The Court concluded that the decision to impose treatment in the face of the mother’s objection constituted an interference with respect for the child’s private life., and in particular her right to physical integrity.
Held: there is a prima facie violation of Art 8. If the state measure overrides personal integrity, it must be able to point to some form of legal authority (i.e. authorised and prescribed by law). It was not necessary in a democratic society and the hospital failed to make an early application to the courts for their determination of whether the administration of such powerful medication was in the best interest of the child.

Question 24

Christine Goodwin v UK (transsexual recognition)

Gender identity – transsexuals

Answer 24

The Court has dealt with a series of cases concerning the official recognition of transsexuals’ post gender reassignment surgery in the United Kingdom.
Christine Goodwin v UK (transsexual recognition) Male to female applicant. When C was a man, she had 4 children with a woman. Then C was prescribed hormone therapy and started to live fully as a woman. C underwent gender re- assignment surgery. The UK failed to recognise the change of gender in various official recordings such as C’s birth certificate, and C suffered disadvantages with respect to government benefits and employment. Did the UK respect C’s private life through the lack of legal recognition given to C’s gender re- assignment?

ECtHR Held: a dynamic and evolutive approach must be used for reform and improvement. Where a CS has authorised, the surgery alleviating the condition of a transsexual, it appears illogical to refuse to recognise the legal implications of the results led by the treatment. No concrete detriment to the public interest has been demonstrated. Moreover, the European and International consensus favoured the legal recognition of a transsexual’s acquired gender. Hence, the matter falls outside of the UK’s MOA, and there was a breach of C’s Art 8 right!

Question 25

Protection of one’s living environment

Guerra and Others v. Italy

Answer 25

In several cases, the failure to provide information about environmental risks or hazards was found to constitute a violation of Article 8. For example, in Guerra and Others v. Italy, where the local population was not provided with essential information that would have enabled them to assess the risks they and their families might run if they continued to live near a chemical factory, right up until the production of fertilisers ceased in 1994).

Question 26

Odièvre v. France, 13 February 2003

Right to discover one’s origin

Answer 26

Odiévre v France (adopted child wants to know her biological family) – An adopted child, who had attained the age of majority, was seeking information about her biological family. She was abandoned by her mother who requested her identity to be kept secret. In France, this resulted in a permanent inability of the child to learn the identity of her biological mother.
ECtHR: The Court has held that there is no violation of Article 8 where the State strikes a fair balance between the public interest, a child’s personal development and right to know his or her origins, a mother’s right to protect her health by giving birth in appropriate medical circumstances, and the protection of other members of the various families involved – especially where the applicant could have requested disclosure of her mother’s identity with her consent, could inherit from her adoptive parents and was not in the same position as her mother’s other natural children. No violation.

Question 27

When is it possible to invoke art. 8?

Answer 27

In order to invoke Article 8, an applicant must show that his or her complaint falls within at least one of the four interests identified in the Article, namely: private life, family life, home and correspondence.

Question 28

The courts approach of a case

Answer 28

First, the Court determines whether the applicant’s claim falls within the scope of Article 8. Next, the Court examines whether there has been an interference with that right or whether the State’s positive obligations to protect the right have been engaged.

Question 29

When is it possible for the state to interfere with the right in art. 8?

Answer 29

Conditions upon which a State may interfere with the enjoyment of a protected right are set out in paragraph 2 of Article 8, namely 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.

Limitations are allowed if they are “in accordance with the law” or “prescribed by law” and are “necessary in a democratic society”

Question 30

Positive obligation and margin of appreciation

Answer 30

The Contracting Parties are given a considerable margin of appreciation regarding their positive obligations under art. 8 as to how to regulate a particular area. The Court has stated that the dividing line between negative and positive obligations under Art. 8 is a fine/short one.

Question 31

Negative obligation

Answer 31

To abstain from arbitrary interferences.

Question 32

positive obligation

Answer 32

To adopt measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves (horizontal).

Question 33

Right to discover one´s origin

Answer 33

The Court has recognised the right to obtain information in order to discover one’s origins and the identity of one’s parents as an integral part of identity protected under the right to private and family life

FX
- Odiévre v France (adopted child wants to know her biological family)
- Jäggi v Switzerland – A 67 y/o man wanted to know who his father was. He was refused to check the remains of the man who claimed to be his father.
ECtHR held: An individual’s interest in discovering his parentage does not disappear with age. The man had a right to obtain information in order to discover his origin and identity. Therefore, violation of Art. 8.