MPI, Art 8 and Strasbourg Flashcards
Von Hannover v Germany (No.1)
“zone of interaction…even in a public place”
Very broad
Over-inclusive?
Criticism of Von Hannover
Phillipson (2007): The HoL in Campbell had just developed the common law in line with Art 8, only to have Strasbourg ‘move the goalposts’.
Kay (2005): There are very few grievances that cannot fit this description.
Von Hannover v Germany (No.2)
Again, Princess Caroline and her family were photographed on holiday.
They again went to German courts to get an injunction where they failed again.
C argues the scenes in the photographs were wholly in the private sphere, taken only to satisfy public curiosity.
ECtHR this time ruled against her, and that her Art 8 rights were not violated. On balancing Arts 8 and 10, they gave several considerations including:
- general interest
- prior conduct
- where photos taken
- consequence of publication
- proportionality
SIMILAR to Murray v Express holistic test.
The role of ECtHR after national courts have already ruled against them…
Von Hannover v Germany (No.2)
Margin of Appreciation:
When domestic courts have reached a conclusion following the previous criteria, the ECtHR will not deviate from it without strong reasons for doing so.
X and Y v Netherlands (1985)
16 y/o in mental facility sexually abused.
Prosecutors did not go ahead with criminal charges so went to ECtHR for Arts 3 and 8.
Orders Dutch authorities to pay compensation and to press with the criminal charges
Netherlands had a positive obligation to provide criminal sanction.
Positive obligation - Reklos v Greece (2009)
Picture taken by hospital without consent of parents.
Courts say that Article 8 has no age limit.
Positive obligation - Soderman v Sweden (2013)
14 y/o video taped using shower by stepfather.
ECtHR held that where the national courts do not have a remedy to guard against infringement of the claimant’s “personal integrity”, there will be held a violation of Article 8.
CONTRAST with Wainwright
Will this extend to a positive obligation to guard against intrusive acts generally? Or just to those that infringe “personal integrity”?
