Course 12 Flashcards
1
Q
What is the Barillo v. Italy case?
A
- Barillo vs. Italy:
- Framework of medically assisted procreation, in vitro and they were now embryos. She wanted to donate for scientific reasons but this was not allowed under the legislation. The applicant found this to be an interference with her right to privacy and considered it intimately linked to private life, self-determination.
- Classic 3-step test:
- Legal basis: yes, there is a law.
- Legitimate aim: public morals but also protection of others.
- Necessary in a democratic society: the court comes up with the idea that it is about self-determination but it is not the core rights of article 8 that are involved. The court says: this is to a large extent influenced or linked to issues of morality, to ethical questions wide margin of appreciation. No outspoken European consensus and so the court needs to see whether there has been a kind of balance, taking into account all interests at stake court finds no violation.
2
Q
What is the result of the wide margin of appreciation?
A
- Leaving a wide margin of appreciation in an area means you have to accept that some countries will go in one direction and other countries in another progressive direction. But you have to accept that other countries are entitled to go in a more conservative position.
- Privacy = open ended concept in permanent evolution → also reflected in the case law, which has this growing ethical dimension to it.
3
Q
What is the problem when data processing?
A
- Whenever a state is confronted with serious forms of criminality: Politicians state: we should come up with kind of databases with DNA samples, where the idea is that this would help to stop criminals but of course very problematic under GDPR.
- Important issues: if your information is processed, you always have a right to ask to be withdrawn.
- Other example: you rent an apartment and you have some financial difficulties and the landlords have their own personal blacklist that they share with other landlords. But that would make it quite difficult to rent an apartment because you are blacklisted and you could not remove yourself from that list.
- All these problems all boil down to the same problem: it is easy to be put on the list but way more difficult to be withdrawn from it, to be cancelled from it.
4
Q
What is the case S & Marper vs. UK?
A
- Two different persons:
- S is a minor who was arrested for an attempted robbery so fingerprints taken but he is later acquitted.
- Marpa: adult and he was arrested for harassment of the partner and the criminal charges are discontinued.
- Both applicants ask the police to remove their fingerprints and this was refused.
Grand Chamber: three step test because the storage of DNA and fingerprints = interference with private lives:
1. In accordance with the law: the court leaves this without an answer 2. Legitimate? Yes, the prevention of a crime is a legitimate aim. 3. Necessary: of course if it necessary if you take the relevant data, you need to make sure that there is some kind of limit to that. You cannot hold this in an unlimited way, there has to be a mechanism to delete the data after acquittal of discharge or even after a certain time frame. * Court found that the English rules were disproportionate and it points at the risk of stigmatization of unconvicted persons because they are treated the say as if they were found guilty --\> link with the right to be forgotten under GDPR and EU data law. * So the Court of Justice confirms that data retention is not something that can be done without any limits --\> Court comes to the conclusion that although storing processing data as fingerprints and DNA is not per se a violation of the convention but there are limits.
5
Q
What was the case Gardelle v. France?
A
- Case about the national database of sex offenders: the applicant was convicted for rape of a minor.
Court follows the usual approach because this information pertains to private life:
1. Law: yes 2. Legitimate aims: yes 3. Proportionality test: here it confirms that there is a conflict between the right of the individual and the general interest of the state to prevent and punish crimes. But also the idea of reintegration of convicted persons in society = two edged. * Court observes that although the information is stored for 30 years but there are possibilities to ask for deletion, so it is not an absolute right, there is a possibility to ask to be removed.
- Secondly, the information is also about serious things, it is not about petty crimes. Thirdly: the information could only be consulted by public authorities and so specific persons with a duty of confidentiality and in well determined circumstances. Not everyone has access.
- Court finds no violation of article 8.
6
Q
Are personal lifestyle issues covered under art. 8?
A
Personal lifestyle issues are covered under article 8: Eg. Chapman case: case about belonging to a minority which may bring about specific lifestyle: protection of a personal lifestyle and deep choices on your personal life.
7
Q
What is the Pretty case?
A
- Pretty vs. UK: article 2
- The right to life does not include a right to die = self-determination.
- Could this fall under art. 8: personal autonomy is the personal underline and self-determination? The court establishes that the personal autonomy and self-determination is an important value and rules prohibiting choices to avoid an undignified end of life are interfering with art. 8.
- 3 step test:
- Is there national legislation
- Is that legitimate? The protecting of life is to protect the right of others but here it is protecting the life of the person in question.
- Necessary? The court does not find a violation because of the wide margin of appreciation.
- It would be hard to imagine how after having said that the right to life does not include the right to die and if the court could then come up under art 8 with a different finding, that would be hard to explain.
8
Q
What is the case Fernandez Martinez vs. Spain?
A
- Case Fernandez Martinez vs. Spain: fascinating case on how the right to privacy protect personal choices and how these can have a link with your professional life:
- Catholic priest and he asks to not fall under the obligation of celibacy anymore. He does not get an answer and he marries and gets 5 children. Later, he is appointed in a public school where the teaches catholic religion.
- Article in the newspaper: Vatican reacts and this person can no longer be a priest and the bishop decides he cannot be proposed for continuation for teaching so the ministry of education does not renew his teaching contract.
- Grand Chamber: he loses his job because of his personal life. Complicated situation because art. 8 might be violated and the other positions was that the Spanish state would be criticized for not respecting the religious freedoms of the Spanish catholic church.
- Split vote: 9 did not find a violation and 8 did.
- Point is: there is a kind of duty of loyalty. Someone who is teaching a religion should be loyal to the instances of that religion.
9
Q
What is the case on the French burqa?
A
- In the first place, for the way it tries to integrate the legitimate aim of “le vivre ensemble” which is not an easy exercise. But if you have a look at the merits of the case, the balancing exercise, it is more analysed under art.9 rather than under art.8 and I think rightly so. It illustrates to what extent it, these rights art.8, within an area world views comes in, are not separated from art.9 and to the extent it may be a matter of expressing viewpoints, art.8 freedom of expression may come in.
10
Q
What was the Evans case?
A
- Evans v. the United Kingdom: case related to the right to become a parent
- Story about a couple having difficulties to become pregnant and they do a fertility treatment, but the woman has cancer. They broke up and the man withdrew his consent for in vitro. So Ms. Evans wants to continue the treatment because it has already been started but the man wants to stop.
- Question: can the woman claim the right of implantation of the embryo notwithstanding the refusal of the man. Then we decided from the perspective of the positive obligation. The court deals with that through the margin of appreciation. These are sensitive issues, and therefore there is a wide margin. If the UK the legislation imposes consent of both parties and there are no exceptions.
- Court decided: no violation because the UK legislator did not overstep the margin of appreciation.
- What if that case was tried today?
- The case law of the Strasbourg has developed in recent years and now it does not like general blanc prohibitions, abstract general rules without any exception. So it is not excluded that if the case would come up today, it would still be a wide margin of appreciation so states should be allowed to adopt various positions.
- Disproportionality here maybe because the burden here is on the woman who wants to become a parent. So it could be possible that the court decides that the woman would be allowed to have the child but then the man would not have any obligations towards the child. Not entirely certain.
11
Q
What if there is a clash between journalists or paparazzi and the privacy of a person?
A
- Is also related to the art. 10: right to freedom of expression: issue of protection against the press.
- Clash of fundamental rights.
- Strasbourg court: only 2 scenarios imagined:
- Domestic court protected the freedom of expression, saying the press was entitled to do this. Then the victim will bring the case under art. 8 because her right to privacy was violated.
- Or the domestic court decided that the court could not do that and then there is a possible violation of art. 10.
- It is a balancing act because it will always be one of the parties where their rights are violated: art. 8 vs. art. 10 are the same as art. 10 vs. art. 8.
12
Q
What is the case Hannover v. Germany in 2004?
A
- Violation of art. 8.
- Court came with a solution: we have to make sure that there is a fair balance struck: the domestic authorities should take into account the interest at state = balancing exercise is a positive obligation.
- Question is: what is the nature of the debate? Is it just gossip or is it something important for the democratic society? Also what is the nature of the person concerned? Because people who are famous should accept more interfering with privacy than normal persons.
- Also take into account the way that the information was published? In an aggressive way? Was the journal bona fide or not? How did the person behave in the post?
- Important issue: were there sanctions in the domestic order: were the sanctions proportional?
- Court gives some criteria to help judges do the balancing exercise: so the point is: has this balance exercise been done in a proper way then the court should not find a violation even if the Strasbourg judges themselves would have come to another outcome.
- The balancing exercises is more important than the actual outcome.
13
Q
What was the case K.U. vs. Finland?
A
- Famous older case: an unknown person, a 12 year old: applicant advertisement on a dating site. The father of the applicant asked the police to have a look at who this person was that put the advertisement on the web. The police asked to get the identity but the court refused it because it was confidential information.
- Issue: is there a positive obligation to have a legal framework to protect the moral and physical aspect of an applicant and his identity? And they think that art. 8 does supply, even if not happening yet.
- You are protecting the person for being the target of paedophilia.
- The court highlights that having a legal framework may not be the issue, you need a sufficient legal provision. In cases of identity theft, law can be very theoretical: clash between freedom of expression and secret of telecommunication:
- Legislator must do a balancing exercise and come up with a framework that is up to date the court found a violation.
14
Q
What are the cases for protection against sexual offenders
A
- X and Y vs. Netherlands
- Case of the 80s: important issue in the case law. You protect through legal framework, the integrity = also sexual, physical, psychology integrity of people
- Söderman v. Sweden
- Newer case
15
Q
What is the case Söderman v. Sweden?
A
- Grand Chamber case: 14 year old girl who was filmed by her stepfather and the stepfather is prosecuted but for technical reasons, he cannot be found guilty of the accusation of sexual molestation there is a gap in the legislation.
- Court comes up with the point: it is not up to us how states should establish their internal legal frameworks and criminal frameworks but states to have certain positive obligations when it comes to serious violations of the integrity of a person = interferences with their very private life:
- In serious cases: it will be a matter for criminal legislation: this implies effective investigation, redress also art. 3.
- For less serious cases civil remedies might be sufficient = violation of privacy (Hannover case).
- In the Swedish case: there was no criminal remedy available but there was no such serious and effective civil remedy available as well.
- Effective protection: violation of the personal integrity of the girl:
- The court is really relying on the investigation issue: typical under art. 2-3.
- The obligation to redress, because this would be an act of voyeurism, the obligation to redress is also extended beyond what is traditionally limited to cases under art. 2-3.
