Art. 8 - 11 Flashcards
What does Art. 8 concern?
Right to respect for private life, home, family and correspondence
How should Art. 8 cases be conducted?
1) Does the applicants claim fall within the scope of Art. 8?
2) Has there been an interference with Art. 8 - rights or has the state neglected it’s positive obligation under Art. 8?
4) Was the interference justified?
- in accordance with law
- necessary in a democratic society (proportionality assessment)
- pursuing a legitimate aim (exhaustive list in §2)
Is Art. 8 - 11 absolute?
No, but can only be subject to the limitations listed in §2 of the articles
What dies Niemitz v Germany concern?
It concerned whether or not office facilities fell within the notion of “private life” under Art. 8
The applicant was a lawyer who had his office searched by the police.
The Court stated that it cannot be denied that a big part of ones private life is the right to establish and main relations to other people and this is often done through work.
It would therefore be too restrictive if ones professional life were excluded from the “private sphere” protected by Art. 8. It’s not always possible to make a clear distinction between work life and personal life and this is especially true for liberal professions.
Therefore, the Court found no reason that one professional life should not fall within the private sphere protected by Art. 8, due to the important role ones work plays in most peoples life.
Furthermore, the applicants job as a lawyer mattered, as communication between attorney and client are confidential and it could therefore harm his professional reputation if it got out that the police was looking through his work documents.
What three categories does private life fall within?
1) Protection of physical integrity
- forced medical examinations
- stop and search powers
- collecting and storing of personal data
2) Personal integrity
- gender identity
- national and religious identity
3) Personal autonomy
- pregnancy and abortion
Does Art. 8 protect the right to free abortion?
No.
Due to the controversial nature of the topic and the lack of european consensus in contracting states, the Court has left the matter to be regulated by domestic law
But if a country decides to allow for free abortion, any restrictions on the right must be justified under Art. 8
However, Art. 8 does protect the right to abortion for health reasons
Physical integrity - private life - Art. 8
Lacking of consent to medical treatment - right to physical integrity.
Glass v UK.
The applicant had a disabled son, for whom she was a proxy, who was admitted to hospital. The doctors thought that it was in the sons best interest to not be resuscitated if needed. The mother disagreed and did not wish to sign an DNR. The doctors defied the mothers wishes and put down on his papers that he should not be resuscitated. The mother claimed that the doctors had violated her sons right to personal integrity, by overriding his proxys wishes. The Court held that if the doctors had made the decision in the best interest of the patient, they should have gotten a court order, which they did have sufficient time to do.
Violation of Art. 8
What were the “closed shop” criteria laid down in Young, James and Webster v UK?
1) Does the requirement to join a union apply to all employees, i.e., also existing employees?
2) Does the requirement infringe on any Convention right, i.e., freedom of religion?
3) Is the requirement accompanied by an underlying threat of termination of employment?
What are The Von Hannover criteria?
The criteria was laid down by the Court in the second Von Hannover v Germany case.
The case concerned the princess of Monaco, who wished to get an injunction on pictures taken of her and her father during a ski vacation.
The Court found that the pictures of the applicant herself were in violation of her right to private life under Art. 8, but found that an injunction on publication of the picture of her father would violate Art. 10
The Court came to the conclusion using following criteria dubbed the “Von Hannover - criteria” which has since been applied when making the proportionality assessment between Art. 10 and Art. 8
1) Does the information contribute to a debate of general interest?
2) The notoriety of the person concerned
- public figures must accept a lesser degree of privacy than private individuals
3) Prior conduct of the person
- has the person actively pursued the spotlight previously?
- mere previous cooperation with the press does not count
4) Nature of the information?
5) Circumstances in which the picture was taken?
- e.g. are they taken with a long lense into someones garden or including elements of harassment?
Does Art. 8 right to private life protect the right to legal recognition of transexuals gender?
Yes, it’s protected under “personal integrity”.
Goodwin v UK
Overturned Rees v UK (no violation of states denial to recognize gender transitioning legally due to lack of european consensus)
Applicant was a transsexual female who claimed that the states refusal to recognize her gender as a woman legally, interfered with her right to privacy, as all her legal documents stated that she was a man and also prevented her from marrying her male parter as this was only allowed between different sex couples.
The Court held that effective
protection of human rights presupposes that the Court takes the changing conditions of member states into consideration when adjudicating and that it maintains a dynamic and evolutive approach in order not to render the protection afforded by the Convention illusionary (present day conditions - living instrument approach)
The Court found an emerging European Consensus in Contracting States towards offering legal recognition for people having underwent gender - reassignment surgery.
There were no weighty interests opposing the interest of the applicant.
Violation of Art. 8
What is the Courts view on overturning its previous decisions?
It’s in the interest of legal certainty that the Court does not deviate substantially from its previous case law, but the effective protection of human rights may require it, due to changing conditions in Contracting States.
Does Art. 8 protect the right to know ones origin?
Yes, it’s part of ones right to personal integrity.
Odievre v France
Applicant had been abandoned by her mother at birth and taken into the care of the French state and was later adopted.
The applicant later requested information on her biological mother, but was denied access to any identifying information regarding her natural parents. This was due to french legislation that allowed for mothers giving up their children to the State could remain anonymous.
The applicant claimed that this infringed her right to know her origin/personal integrity under the right to respect for private life in Art. 8.
The Government claimed that the legislation pursued a legitimate aim, i.e., a public health objective and was necessary as it sought to prevent dangerous illegal abortions and children being abandoned outside the system.
The Court found that the interference was justified under Art. 8 §2 and therefore was not in violation of Art. 8
Does Art. 8 offer any protection against environmental pollution?
No, it does not secure a right to a clean environment as such
Protection from environmental pollution will however fall within the scope of Art. 8 if it essentially prohibits people from living their life
What does Guerra v Italy concern?
Right to protection from environmental pollution under Art. 8
The applicants lived in a town close to chemical factory. The factory was classified as “high” risk and not too long before the complaint was lodged an explosion had happened at the factory, leaving a large number og residents hospitalize due to acute poisoning.
Court held that the complaint fell within the scope of Art. 8 due to the severe and direct impact it had on the residents.
The Italian Government had failed it’s positive obligation under Art. 8 to inform the residents of dangers caused by living close to the factory and the residents had not able to asses the danger themselves.
Violation of Art. 8
What constitutes family ties under Art. 8?
The de facto ties, not biological factor
