Course 11

Question 1

What does the right of life entail?

Answer 1

• Right to life: entails the negative obligations and also positive obligations. Positive obligations consist of 2 categories:

1. Preventive measures: duties for states in order to prevent that serious risks and life threatening events happen, this is always within a certain limit.
2. Procedural aspects, so not substantive = whenever there are suspicious circumstances, there will be an obligation for states to carry on an investigation that is effective. It cannot be just a purely formal investigation, not just an administrative obligation.

Question 2

What is the effectiveness of the investigation?

Answer 2

• Effectiveness of the investigation: also means that it is adequate and capable of revealing in what happens, indicating the behavior:
  • Who was responsible for what happened?
• This is not necessarily the scope of the investigation but it is one of the elements that needs to be taken into consideration whenever we discuss the effectiveness of the investigation.
• There is an obligation that the investigation is able to indicate exactly what happened, who behaved in which way and also to bring someone before a court/disciplinary board.

Question 3

What is a requirement for the investigation?

Answer 3

• There has to be an independent investigation: if there are state agents involved, it cannot be their own colleagues that are going to investigate  officials that are independent from those involved in the cases.
  • It will depend on the precise circumstances of the case to decide whether or not the investigative body was sufficiently independent.
• The examination/investigation must be reasonably prompt: the investigation has to happen within a reasonably short time.
  • Same as with article 6: right to justice. It has to be swift, a prompt investigation.
• Fundamental when there are people dying in suspect circumstances or badly hurt due to events under the responsibility of the state  you need independent and effective investigation.

Question 4

What about the information and transparancy of the investigation?

Answer 4

• Also element of public scrutiny, the outcome should be communicated with the family and at least be made public  so not only a matter of informing those that are directly involved but also other victims.
• This is also important for the trust in the institutions, trust in state agents,…
• A good functioning police service that is seen as legitimate, that can inspire trust is really important because they are given the monopoly of violence = essential in a democratic state.
  
  • Transparency is essential for that trust, certainly to avoid the idea of collusion.
• This is not necessarily a negative thing for the police because it may as well be that the use of violence led to a death of a person but it was a legitimate use of violence.

Question 5

What is the case Cilic v. Slovenia?

Answer 5

• Case where the court will find that even if the state is not directly involved and thus not directly the responsibility, there may still be an obligation to investigate.
  
  • Eg. When people die in hospitals because of interventions.
• An investigation must not automatically lead to criminal prosecution: it could be that civil lawsuits are more appropriate or disciplinary sanctions.

Question 6

What is article 8?

Answer 6

• Respect for private family life, home and correspondence = usually summarized as right to protection of privacy.
• Article 8-11: already foresee limitations/restrictions on the right, even in ordinary times  classic 3-step tests.

Question 7

What is the right to privacy?

Answer 7

• Right to privacy = right to be left alone:
• Protecting a private sphere where no one else would be entitled to bother you. Privacy as a kind of. Chinese wall with outsiders remaining outside and insiders inside.
  
  • Traditional privacy.
• But the problem is that this is exactly what privacy is not about: If we can see the privacy as a matter of a watershed, a strong wall between a single person and the others we failed to understand what is really at stake.

Question 8

What is the professors understanding of privacy?

Answer 8

• It is too simplistic because privacy is about the relation between me and the others: rules on the relationship between you and others: to what extant can we allow interferences from others with our private lives and vice versa?
• Dynamic of privacy: difficult line to draw but it is not a watershed:
  
  • Eg. “what happens in the bedroom is completely private and no one’s business”  even though this is true to a large extent, but not in the case of sexual abuse.
• So what happens within the private sphere is not always a matter of privacy  striking that balance once again, certainly when it comes to privacy and the evolution.

Question 9

What is the evolution of privacy?

Answer 9

• Warren and Brandys: privacy as protection against unwanted attention from others, the right to be left alone.
• Over the years, whole sociological privacy: typically it is the right to stay away, an argument you showed to the public authorities but equally at your fellow citizens to stay away.
• But now growingly: also a right that a lot people use to make claims in very active way  an argument to formulate very strong claims as an expression of autonomy.

Question 10

What is privacy as the underlying value of autonomy,

Answer 10

• Privacy has become a right to say: “I want to have the possibilities to do what I want to do in my life, things I consider to be the very essence of who I am, in a very intimate way and it is not up to the state to forbid me to do that”.
• This links that changes in the legislation on all kinds of topics related to sexual identity, sexual orientation,…
• So it becomes protection against unwanted attention = rite of autonomy.

Question 11

What is the scope of art. 8?

Answer 11

• Article 8 = catch all clause
• Privacy and the autonomy entails so many subjects = catchall provision. If you do not know and you want to complain about the violation of your fundamental human right in Strasbourg –> you can always try under art. 8 = very wide scope.
  
  • Environmental issues, over sexual privacy, data protection, access to the beach for people with a disability and so on and so forth.
• Reason why it is so broad = because privacy is so difficult to define.

Question 12

Does the Strasbourg court have a definition of privacy?

Answer 12

• No, in the Nimitz case:
• Court clearly states: we cannot define privacy but maybe we do not need an all-encompassing definition but instead we can address it on a case by case basis and decide whether or not it is related to privacy.
• Strasbourg Court when it comes to privacy is reframe and get inspired by the US Supreme Court:
  
  • Justice Potter Stevens: he had to define if something was pornographic or not: “well, I don’t know what it is, but I know it when I see it”.
  • Same approach is followed by the Strasbourg court when it comes to the definition of privacy.
• It does not hamper, or it does not rule out the fact that I can work with it for I have a kind of common understanding, at least of, maybe not the problem’s cutting edge, but of the core problems and the core aspects of the question.

Question 13

What are the different aspects of privacy?

Answer 13

• Important: privacy is as much about getting out the others as it is about protecting personal autonomy, self-determination and the relations to other. And this is exactly what is mirrored in the caselaw of the court.
• Big elements protected by the court: art. 8 = original meaning of privacy: personal sphere, living, being protected from unwanted attention.
• Personal sphere:
• Intimacy, sexual life, sexual orientation. Also personal health.
• Again you see, privacy is not not necessarily the abstract concept and the conceptions that once and for all will be valid: evolutive notion and something that we see as privacy before will not in the future and vice versa.
• Example: everything related to being ill: before there were big rooms with 40 bods and now max. 2 persons because we have the feeling that being ill is really private and intimate. Huge change in mentality and conception.
  
  • This is not to express a value judgement on what is happening but merely observing the changes.
• We need to take the evolution in consideration, the changes in mentality.

Question 14

What is physical and moral integrity?

Answer 14

• Edge of article 2/3 cases but sometimes the behavior that is complained about it not enough to count under art. 2 or 3 but it could be an issue under art. 8: eg. False medical interventions or treatments, some forms of corporal punishment.
• Physical health, identity of persons, the right to a name, gender-identification, rights of transgenders = can be a matter of privacy. Of course, everything that is related to DNA-samples = identity, fingerprint-issues = identity, the camera’s in the street = matter of privacy. Even cases on the image of persons, the press = privacy.
• Case Chapman v. UK:
  • Belonging to ethnic minority: services provided or not provided to them = matter of ethnic identity.

Question 15

What is the right to data procession?

Answer 15

• Right to data procession = also a matter of privacy:
• Under the European Convention on human rights = matter under art. 8 and privacy.
• There are people who would argue that it is a separate fundamental right, different from privacy protection but under the ECHR there is no specific provision so it falls under art. 8. This also includes everything that has to do with gathering personal information and processing it (GDPR) = matter of self-determination.

Question 16

What is the right to personal development?

Answer 16

• Right to personal development: related sometimes to more trivial lifestyle issues:
• Haircut, the way people dress,…
• But also much more fundamental: the right to become a parent. Also issues such as abortion, end of life = idea of self-fulfillment and self-development.
• Personal development can include both the ordinary and very essential issues.
  
  • Ordinary: contesting the rules on secondary schools when it comes to general behavior or clothes = personal development.
  • Essential: medical procreation, the right to become or not become a parent.

Question 17

Is privacy a matter of the individual?

Answer 17

• Privacy is often a matter of the individual, but what is even more important is the zone of interaction with others because there is also place for privacy: the law is not there to protect a very/overly individualistic idea of the citizen.
• Right to interact and establish relationships with others is protected under art. 8, also the right to pursue professional activities by nature, or balance of employment.
• Eg. Video surveillance in the streets: you cannot just rule out privacy just because it is on the street. Conflict of freedom of expression and privacy with paparazzi taking pictures in the street = violation of private life?
  
  • Some scholars: contradiction in the terms that you claim protection of private life in public. Their view was that as soon as you close the door of your house: you enter into the public sphere and therefore you cannot claim privacy protection = this is wrong.

Question 18

What is the expectation of privacy?

Answer 18

• Expectation of privacy:
• You cannot expect the same amount of privacy but you still have some privacy, even in public places  this is the reason why you are warned when there are cameras = formal way of reason.
• It may depend on the people could argue, and in the case of surveillance “maybe it is not the fact that camera’s register it where there is a problem” but the problem seems to be that afterwards what is registered is processed. That and the use of the data may constitute a serious problem to the protection of privacy.

Question 19

What is the risk with the extension?

Answer 19

• There should be a de minimis rule: because we keep extending the scope of private life and now it has become a matter of protection of autonomy and self determination. So then in order to avoid that there is a too important growth of cases, it is perhaps important to see that there is a stricter de-minimis rule.

Question 20

What was the casse Mirkovic?

Answer 20

• Case Mirkovic v. Montenegro:
  • This was about cameras in university halls: this is a matter of privacy because they decided to monitor what the professors were doing.
• It might be easier to rule out what cannot fall under privacy than the other way around.
• Then you find cases such as the public behavior, the public/official behavior of politicians in public. Inter-personal relations that are so remote form the privacy issue can also be ruled out.

Question 21

Does art. 8 also apply in a strictly professional context?

Answer 21

• Article 8 also implies in a strictly professional context:
• Interaction with other can also mean that public interactions with others have a certain confidentially.
• Typical example: relationship between a client and a lawyer. This lawyer-client privilege is corrected by confidentially that can be covered by article 8.

Question 22

What was the Dudgeon case?

Answer 22

• Dudgeon v. UK: 1981: case on the regulation of homosexual conduct, punishing even if it took place in private and between consenting adults.
  
  • Very impportant case because before this case, a lot of unsatisfying outcomes for the LGBTQ+ community.
• Court found: there were no sufficient reasons to punish and so there was a disproportion interference and so Dudgeon was an important case, step for the depenalization of homosexual conduct in Europe.

Question 23

What is the case Laskey, Jaggard and Brown v. UK?

Answer 23

• Case on sadomasochistic activities within a club but involving consenting adults: they argue in the same lines as in the Dudgen case art. 8: the state should not interfere and should not prohibit and sanction.
  • In that case: the measures and the sanctions were found to be proportional. So no violation of art. 8.
• Court has been accused of being paternalistic and there are concurring opinions.
• This case shows us that moral progress in the case law is not always a straight evolution and some case law goes backwards but that is inevitable if you consider the convention a living document. But the general trend nevertheless is going forward.

Question 24

What was the case KA & AD v. Belgium?

Answer 24

• Judge was fired because he and his wife were participating in SM parties in club and they go to Strasbourg and claim that there was an interference with art. 8:
• Court avoided the moral reasoning that was present in Laskey Jaggard Brown.
• Here more the procedural position: the court argues that people have to be in control of themselves all the time. So you cannot be drunk but the people engaging in these activities were not always sober –> national authorities could sanction and could interfere. Outcome was rather harsh because no violation of art. 8 and the Court has been criticized.
  
  • Prof does find that the court deserves credit because it avoids the pitfall of going into the morality of the activities rather than follow a more strict and very sober legal reason.

Question 25

What was the case A, B and C vs. Ireland?

Answer 25

• Case about abortion: a lot of discussions (US = Roe v. Wade; Belgium; Poland; Ireland): contested topic and various positions are held by judges.
• The court’s positions on whether or not there is a right to abortion is not clear: on the one hand they seem to say that there is no right and on the other hand that forbidding it without any exception would be a violation.
  
  • One of the leading cases: Grand Chamber case.
• 3 Irish women travelled to the UK where abortion was allowed because in Ireland there was a very explicit constitutional protection of the right of the unborn life, but it did state with due regard to equal right to life of the mother:
  
  • If there was a risk to the life of the mother, abortion was allowed.
• A = poor woman who had complications with her abortion, same for B. C was a case where the life of the woman was at stake.
• Question: is the prohibition under the Irish law prohibited by article 8 and isn’t it an interference with private life:
• A&B: self determination to opt for an abortion: court heavily relies on the very broad margin of appreciation. But normally, if there is a European consensus, then the margin of appreciation would be very limited.
  
  • Here, there was not as such a European wide consensus but if you compare the various legislation in European countries, there was a large consensus to allow in cases such as A & B.
• But the Court said: the mere fact that there is a European consensus does not avoid, does not hamper, does not rule out the possibility for a state to have reasons to opt for a different position.
  
  • Criticism at the court for imposing their views on various states. Time where the court was accused of not sufficiently respecting diversity, subsidiarity, local differences.
    
    • So because abortion is a very complicated issue, very sensitive  broad margin of appreciation and it is not the European consensus that is going to narrow that margin.
• So this case shows that you can play with the margin of appreciation, that this still leaves room for subsidiarity, diversity but it comes at a price:
  
  • If you want to respect more local the difference of views within Europe, then of course this means that sometimes you’ll be forced to accept views that perhaps are not widely shared. So that’s the flip side of the coin.

Question 26

What about the regulation of in vitro?

Answer 26

• Case: S&H vs. Austria:
• Two couples who need gamines from a third party but at that point Austria law only permitted medically assisted procreation within marriage or similar stable relationships so you could only use the sperm or the eggs of your partner. But this was impossible in their case.
• Grand Chamber case: Discussion: whether one should attack or address this question as a matter of positive obligations: is there an obligation to have legislation that permits or is this rather a matter of negative obligations?
  
  • If the state prohibits some of the techniques = interference with art. 8?
  • Telling illustration that there the difference between positive and negative obligations should not be overstated.
• Court finds the negative approach is the better approach:
  • Legal basis, legitimate aim (=protection of morals, protection of health).
  • Was it proportional  margin of appreciation and finds that there is an emerging consensus on in vitro but still very weak and not longstanding and well established considering it is sensitive morally and ethically. So it is decided that the Austrian lawmaker did not exceed that wide marginal appreciation.
• Court also added: the Austrians should keep an eye on the evolutions in the other states because the convention is a living instrument .

Question 27

What was the case Barillo against Italy?

Answer 27

• 2015: a women has embryos from in vitro fertilization: stored in a bank and the woman wants to donate for scientific reasons but this is not allowed under Italian law.
• Question: could the woman make a conscious and considerate choice regarding the fate of the embryos = a very intimate aspect of private life?
• So again: art. 8: three step test and it boils down to the necessity test:
  
  • Grand Chamber relies on the marginal appreciation and states: we are not at the core of art. 8: there is no moral, evolving moral and ethical questions so no consensus.
• So court found: the legislator did not overstep the margin of apprecation.