ART8 basic facts Flashcards
Proportionality
Finding the balance between the individual right and the community.
Margin of appreciation
Amount of discretion that the ECHR gives to the state.
Why is their margin of appreciation?
Appreciate there are different rules in different states.
Living instrument
Not bound by precedent so can develop over time.
Living instrument case
Rees
Goodwin
What is Article 8?
The right to respect for family and private life.
What margin does ART8 have?
A wide margin
Wide margin
More discretion.
What does ECHR create?
Negative rights
Negative rights
Obligation on state not to interfere with the right.
Negative rights case
France
What does the ECHR interpret the negative rights as?
Positive obligations
Positive obligations
Tells state to take action to prevent violations of rights happening.
Positive obligations case
Romania
What type of right is Art 8?
A qualified right
A qualified right
Can be limited by state.
What are the reasons ART 8 can be limited?
In accordance with law
To meet a legitimate aim
Necessary in democratic society
In accordance with law case
Germany
Examples of being in accordance with law
Data protection
Police powers
Legitimate aim
Nobody shall interfere with right unless authorised by law to do so when necesary
Examples of legitimate aim
National security
Public safety
What justifies a state interference?
Proportionality
Margin of appreciation
What article does article8 overlap with?
Article 10
What normally happens with Article 10?
It normally counters the argument.
