Article 8- Right To Respect Fro Private And Family Life Flashcards
What where the facts of Niemietz v. Germany case
The applicant is a lawyer whose office is searched by police in connection with an alleged instance of insulting behaviour (a letter sent to a Judge concerning an ongoing criminal trial). The police examined documents with information relating to the applicant’s clients.
What was the key concept of the niemietz v. Germany case
Applicability of art. 8 to professional life
What was teh issue in the niemietz v. Germany case
The issue, in this case, is whether the search performed by the German authorities constitutes a violation of Art 8 ECHR, which protects the right to respect for private life. The contentious aspect of this case is whether the protection of private life can be extended to the professional activities of a lawyer.
How does the court define the term ‘home’ in the niemietz v. Germany case
The court finds that in Germany the definition of home for the purposes of art 8 is extended to business premises, and that is consistent with french text of the convention which reads ‘domicile’. Again, it can be difficult to distinguish between residential and business prestige’s, for example, if professional activities are conducted from a residence
What was the rule that was established by the niemietz v. Germany case, in deciding whether the interference was justified
- Prescribed by law ( basically if there is a law for it that allows the police to do a search)
-basis in domestic law
-accessible
-Foreseeable - Persues a legitimate aim ( legitimate aim can be with regards to the prevention of crime and protection of rights of others, in this case, the threatened judge-> so it did pursue a legitimate aim)
- Necessary in a democratic society
-pressing a social need
-proportional to the legitimate aims perused( wasnt proportional in this case, because the police went overboard and violated the principle of professional secrecy, thus there should be limitations regarding the kind of documents that could be seized)
What was the conclusion of teh niemetz v. Germany case
-The court found that there was a violation of art. 8 of the convention
-the court established that the term ‘home’ also includes work and business in some cases
What were the facts of the Khan v. Uk case
The applicant, in this case, has been convicted of a drug charge. The sole piece of evidence used to secure his conviction is a recording of him wherein he admits to committing the offence. However, that recording was obtained via a recording device that was installed in violation of Art 8 ECHR.
What was the issue in the khan v. Uk case
Was the recording device installed in violation of Art 8 ECHR? Does this violation mean that the evidence collected by the recording device is inadmissible, and therefore the applicant’s conviction violates Art 6(1) ECHR, right to a fair trial?
What rule did the khan v. Uk case establish
Criteria- is the interference justified?
- Prescribed by law
- basis in domestic law ( whether the installation of the device has a law, legalising this conduct by the state)
- foreseeable ( if it has a basis in domestic law) then its foseeable
- accessible ( if there is basis in domestic law, it is accessible)
- Pursues a legitimate aim (there was serious public interest in this case)
- Necessary in a democratic society
-pressing a social need
-proportionality
What was the conclusion of the khan v. Uk case
Teh court stated taht there has been a violation of art. 8 but not art. 6 ( right to fair trial) -> Violation of Art 8 does not necessarily amount to a violation of Art 6 ECHR->
for this, you look at proceedings as a whole e.g. whether the applicant was
allowed to challenge the authenticity of the recordings, was there other
evidence
