Strasbourg case-law Article 8 Private Life Flashcards
Jeunesse v Netherlands (2014)
The applicant, Ms. Jeunesse, was a Surinamese national who had lived in the Netherlands since 1997. She entered the country on a tourist visa and overstayed, eventually forming a family with her Dutch husband and their three children, all of whom were Dutch citizens. Despite her strong family ties and her long residence in the Netherlands, the authorities refused her applications for a residence permit due to her initial illegal entry and stay.
The Court recognized the Netherlands’ legitimate interest in controlling immigration and ensuring compliance with its immigration laws.
However, it concluded that in this case, the applicant’s long residence, her family ties, and the children’s best interests outweighed the state’s interest in her removal.
Rodrigues da Silva and Hoogkamer (2006)
Ms. Rodrigues da Silva, a Brazilian national, entered the Netherlands on a tourist visa and later overstayed. She had a child, X, with Mr. Hoogkamer, a Dutch national, but the couple separated when X was young. X, a Dutch citizen, lived with her father but maintained regular contact with her mother. Despite Ms. Rodrigues da Silva’s integral role in X’s life, Dutch authorities refused her application for a residence permit and sought her deportation.
Rodrigues da Silva argued that her deportation would violate her and her daughter’s rights under Article 8, as it would disrupt their family life. She contended that her role as a mother was crucial to her daughter’s well-being and that deportation would severely impact this relationship.
The Court found that the deportation would violate Article 8 of the ECHR.
While states have the right to control immigration, the interference with family life was disproportionate in this case.
Pormes v Netherlands (2019)
The applicant, Mr. Pormes, was born in Indonesia in 1980 and arrived in the Netherlands as a child at the age of four. He was raised by foster parents and integrated into Dutch society. However, he never acquired Dutch nationality. In 2002, it was discovered that Pormes had committed fraud by providing false information about his background and identity to the Dutch authorities. Consequently, his residence permit was revoked.
Afterward, Pormes was convicted of several criminal offenses, including theft and fraud. Following these convictions, the Netherlands sought to deport him to Indonesia. Pormes challenged the deportation, arguing that it would violate his rights under Article 8, as he had spent nearly his entire life in the Netherlands, had no ties to Indonesia, and was fully integrated into Dutch society.
The Court concluded that Pormes’s deportation would not violate Article 8.
Although the deportation interfered with his private life due to his long residence in the Netherlands, the interference was justified and proportionate under Article 8(2), given his criminal history and the fraud he had committed in obtaining his residence status.
Osman v United Kingdom (1998)
The applicants were the widow and son of Ali Osman, a schoolteacher who was murdered by a former teacher, Mr. Paget-Lewis, who had developed an obsession with Osman’s son, Ahmet Osman. Before the murder, Paget-Lewis had exhibited alarming behavior, including harassment and threats. Despite reports to the police and clear signs of escalating danger, no effective action was taken to prevent the fatal attack.
Article 2 (Right to Life):
Positive Obligation to Protect Life:
The Court confirmed that Article 2 imposes a positive obligation on states to take preventive measures to protect individuals from real and immediate risks to life if the authorities know or ought to know about the risk.
However, the ECtHR found no violation of Article 2 in this case, as it held that the authorities could not reasonably have foreseen the specific attack that led to Mr. Osman’s death.
The “Osman test”, used to assess whether authorities have failed in their duty to prevent harm, has become a key tool in human rights jurisprudence.
Bensaid v United Kingdom (2001)
The applicant, a citizen of Algeria, had been living in the United Kingdom and suffered from paranoid schizophrenia, requiring ongoing treatment and medication. The UK government sought to deport him to Algeria after his asylum claim was refused.
Bensaid argued that his deportation would breach Articles 3 and 8 of the ECHR because:
1. There was no adequate treatment available for his condition in Algeria.
2. Deportation would likely lead to a severe deterioration in his mental health.
Article 8:
The Court recognized that private life includes mental health and that disruptions to medical care could interfere with this right.
However, the Court found that Bensaid’s deportation would not violate Article 8. It stated that while a significant deterioration in health might affect private life, the interference was not disproportionate to the UK’s legitimate aim of enforcing immigration control.
Niemietz v Germany (1992)
Kurt Niemietz was a lawyer in Germany. In connection with a criminal investigation against one of his clients, the German authorities searched Niemietz’s law office to find evidence about his client’s identity. Niemietz argued that the search of his law office violated his rights under Article 8 of the ECHR, which protects the right to respect for private and family life, home, and correspondence.
The ECtHR held that:
The search of Niemietz’s office interfered with his rights under Article 8.
The concept of “private life” and “home” includes professional or business premises where there is a reasonable expectation of privacy.
The search was not justified under Article 8(2) because the interference was not “necessary in a democratic society.”
Pretty v United Kingdom (2002)
Held that private life includes the right to autonomy and personal dignity, though assisted suicide was not permitted under the ECHR.
K.A. and A.D. v Belgium (2022)
Clarified the scope of personal identity and the right to establish relationships as part of private life.
Botta v Italy (1998)
Extended private life protections to include personal development and access to facilities for individuals with disabilities.
Berrehab v Netherlands (1988)
Deportation of a father who had a child in the host state was found to violate Article 8 due to the significant impact on family life.
Üner v Netherlands (2006)
Established criteria for balancing family life against public order in cases involving criminal convictions.
Boultif v Switzerland (2001)
Developed a test for assessing the proportionality of deportation in cases involving family life, particularly for criminal offenders.
Maslov v Austria (2008)
Highlighted the need to consider the integration of second-generation migrants when assessing deportation.
Slivenko v Latvia (2003)
Found that the deportation of long-term residents constituted an interference with private life.
Al-Nashif v Bulgaria (2002)
Held that expelling a family for national security reasons without adequate procedural safeguards violated Article 8.
