Topic 4: Articles 8 & 10

Question 1

What is Article 8 and how does it operate broadly?

Answer 1

A 8 - Right to respect for private and family life.

A.8 is seen as containing qualified rights. 3 elements must be shown under A.8(2) to justify any interference.

Question 2

What are the authorities on the meaning of ‘private life’?

Answer 2

Niemietz v Germany (1992)

X. & Y. v Netherlands (1985)

S. and Marper v UK (2008)

B. and C. v Ireland (2010)

Question 3

Explain the authorities on the meaning of private life

Answer 3

• Niemietz - SC said no comprehensive definition of PL. But it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude there from entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”
  N was a lawyer in Germany. Documents of his relating to interactions were searched in connection with an abusiv fax sent to a judge. Germany argued that this was business life and not private life but SC invoked a broad notion of PL. Act also found to be not necessary in a democratic society for A 8(2).
• X. & Y. v Netherlands (1985) Y had severe learning difficulties and needed a special home at the age of 16. A serious sexual assault was perpetrated against Y and X (the father) realised that something was wrong so the police investigated. Under law, Y had to formally complain to the police and the prosecutors did not allow X to, so no criminal case was brought. X argued that this was a failure to protect Y’s private life and the SC agreed. Private life includes sex life (as part of the concept which covers the physical and moral integrity of the person). Robust criminal measures are needed to protect this, so there was a breach:
• S. and Marper v UK (2008) challenge to police taking fingerprint and DNA samples and storing them on national databases forever. Applicants had previously been arrested but never convicted. Issue was whether the English system was necessary in a democratic society, it was not, and the measure was disproportionate. First line of defence by British government was that fingerprints etc. should not be seen as an element of private life, SC disagreed. They are closely tied to private life. Demonstrates evolutionary approach of SC.
• B. and C. v Ireland (2010). 3 Irish women travelled to UK to have abortions for various reasons. A1 and A2 for their mental wellbeing and social circumstances and A3 beause she had undergone chemotherapy and could not get good advice on the effets of this for her or the baby.
  SC found that the very restrictive approach of the Irish constitution made A 8(1) applicable: While Article 8 cannot, accordingly, be interpreted as conferring a right to abortion, the Court finds that the prohibition in Ireland of abortion where sought for reasons of health and/or well-being about which the first and second applicants complained, and the third applicant’s alleged inability to establish her qualification for a lawful abortion in Ireland, come within the scope of their right to respect for their private lives and accordingly Article 8.”
  With regard to A 8(2), the majority of the GC ignored the European consensus (35/47 MSs would have allowed abortion in these circumstances) and refused to reduce the margin of appreciation given to Ireland. The court did find a breach in the case of C3 for the procedural failure.
  Dissentients were highly critical of the approach of the majority, pointing out that normally where there is a European consensus states are not given a wide margin of appreciation. It appears that the approach the majority took here will apply to difficult decisions on morality.

Question 4

In relation to A 8, what are the authorities on homosexuality?

Answer 4

Dudgeoon v UK (1981)

Laskey, Jaggard & Brown v UK (1997)

ADT v UK

Smith & Grady v UK (1999)

Question 5

Explain the authorities on the homosexuality

Answer 5

• Dudgeoon v UK (1981). Northern Irish still criinalised sex between adult men in private. D was a gay rights activist whose home was searched during a drugs search pursuant to a warrant. Documents found indicating that D had broken the law still in force in NI. The police did not pursue the matter, but D challenged the NI law. The challenge was unusual because of the need to establish a victim – laws are normally not allowed to be challenged generally or abstractly. The SC said it would allow D to claim as a victim because the criminal law has such a serious effect on his private life. Government then moved on to A.8(2) and argued that the rule was justified on the basis of protection of morals – NI people had endorsed maintaining this rule, so it was irrelevant that other parts of the UK had decriminalised. By contrast, it was not criminalised in most other ECHR states. SC rejected the argument that this measure was necessary in a democratic society, morality should not be backed up by criminal sanction.
• Laskey, Jaggard & Brown v UK (1997). Network of gay, male , sadomasochists convicted by HL for ABH as it was held that they could not consent to it, despite no hospitalisations or serios infections. C’s argued that convictions breached A.8. British government relied on A.8(2) risk to health legitimate aim. SC accepted that as a legitimate aim and C’s lost. Interesting aspect of judgment: SC raised by its own motion the scale of the network of sadomasochists (40 people), the issue was that this might be so large as to fall outside of the notion of private life, SC did not decide the case or rule on this matter, simply said it was possible as a potential limitation.
• ADT v UK Also consensual group male sex, but no violence and less participants. Group was prosecuted, this time for the offence of gross indecency, for which they were convicted and fined. ADT argued that this was a violation of PL and the SC agreed. No legitimate aim justified the authorities here.
• Smith & Grady v UK (1999). Serving members of armed forces had been dismissed pursuant to government policy that gays could not serve. Applicants sought to invoke Wednesbury unreasonableness but still found that because the ban was approved by Parliament it was not irrational. NGOs backed the two applicants. In separate interviews the military police asked personal and intrusive questions and dismissed both upon finding that allegations were true. Both had exemplary service records. Challenge to SC under 8(1). British government tried to justify on basis of national security. Normally where this is invoked the SC gives states a wide margin of appreciation. BG also argued that a survey completed showed that most service people did not want gays in armed forces, which could implicate on morale and national security. SC rejected unanimously the argument of BG. Survey only confirmed established prejudices and there was no convincing evidence that armed forces would be any less effective looking at other ECHR states that did not have such a rule. As a result, the UK removed its ban.

Question 6

What are the ECtHR authorities on transexuals?

Answer 6

Rees v UK (1986)

B. v France (1992)

Christine Goodwin v UK (2002)

Question 7

Explain the authorities on the transexuals

Answer 7

• Rees v UK (1986). R born female but had hormone therapy and surgery by her twenties to become male. Authorities treated R as a male and gave documents accordingly, but would not give R a new birth certificate. Authorities argued that it recorded gender at time of birth and such a historical record should not be changed. SC found large diversity of approaches by ECHR states and so it found that the UK should have a large margin of appreciation in providing a new gender in such cases. As such, given what had been done by the authorities there was no breach, the UK acted within MOA. R had applied for purpose of marriage.
• B. v France (1992). Even though states had a wide margin of appreciation in recognising transsexuals, states could still violate it. B sought approval of authorities to approve name change, both authorities and courts refused to change name and ID card gender. B complained to SC, alleging that this was seriously harming her private life and ability to find a job etc. SC said that even though France had a wide margin of appreciation, the refusal had such adverse effects on PL that there was a breach.
• Christine Goodwin v UK (2002) CG born male and had family before undergoing change to become female. All documents provided except birth certificate (again). CG’s lawyers argued that now, most European states, and others, provided comprehensive recognition of transsexuals, so the consensus had changed and there should no longer be a wide margin of appreciation. SC held:
  “90. . . .In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”
  States now must fully recognise transsexuals.

Question 8

What are the authorities on secret surveillance?

Answer 8

Leander v Sweden (1987)

Hewitt & Harman v UK (1989)

Khan v UK (2000)

Question 9

Explain the authorities on secret surveillance.

Answer 9

• Leander v Sweden. L was denied clearance after applying for a job in a museum conneted to a military naval base when his records were checked. L challenged through legal system and Scandinavian ombudsman and failed. SC held that in terms of A.8(1), keeping files on a person’s life is in principle a violation of their private life which had to be justified. Swedish Government argued that national security was the legitimate reason – closeness to Soviet Union. SC said that states should have a wide MOA to assess its own national security threat. Presence of domestic avenues to challenge decisions provided sufficient procedural safeguards, so Sweden had satisfied all 3 elements of A.8.
• Hewitt & Harman v UK (1989). Commission opinion. HH were senior officials working for what is now ‘Liberty’. Told that somebody from MI5 was keeping files on them since they were ‘subversive’ for having contacts with eastern European groups. As above, SC said prima facie breach of A.8 and needed justification, British government denied existence of any national security services so there was no legislation regulating it, nor any procedural safeguards. As a result, SC found incompatibility with A.8(2) and lack of procedural safeguards. Soon after intelligence agencies were recognised in statute.
• Khan v UK (2000). Police surveillance and the interpretation of ‘in accordance with the law’. K suspected of being member of international drugs trafficking network. He was being monitored upon entering the country and undercover police had followed him around cities. Sheffield police placed a bugging device on the outside of a house K was staying in, which was capable of recording conversations inside the house. This was authorised by CC of SYP. After a few days K was arrested, charged and convicted, with a large part of evidence coming from the bug. K argued that this evidence was obtained in breach of A.8 right. In SC, K’s lawyers said that this bugging system was not regulated by law. UK argued legitimate aim of preventing crime but SC focused on whether the operation was in accordance with the law:
  “26. . . .In the context of covert surveillance by public authorities, in this instance the police, domestic law must provide protection against arbitrary interference with an individual’s right under A.8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which it and the conditions on which public authorities are entitled to resort to such covert measures.”
  The lack of clear English statute regulating the use of covert devices meant there was insufficient procedural protection and a breach of A.8. States may have legitimate aims but must have clear national laws regulating the use and limits of use of covert devices.

Question 10

What are the authorities on family life?

Answer 10

Marckx v Belgium (1979)

Abdulaziz, Cabables & Balkandali v UK (1985)

X., Y. & Z. v UK (1997)

Schalk and Kopf v Austria (2010)

Question 11

Explain the authorities on family life

Answer 11

• Marckx v Belgium (1979). M was a single parent. Under Belgian law, where there was an unmarried mother with a child, C would not be automatically recognised as a child of that mother. A special legal process had to be undergone and M argued that this law was discriminatory and failed to recognise her family relationship. SC recognised that this could be a family relationship and so there had been a breach of A.8 and 14 for family life and discrimination.
• Abdulaziz, Cabables & Balkandali v UK (1985). Married couples are a family for the purposes of the convention. 3 married women who were foreign nationals but had permission to live in the UK. Married to foreign men and wanted permission for those men to enter the UK and live there. Applications refused. SC said there is no right under A.8 to come into another country to live with their partner just because they are married. However, ACB did win argument linking A.8 with A.14, which was that foreign men could bring in foreign women at the time, but ACB could not as women, which was gender discrimination.
• X., Y. & Z. v UK (1997). X had been born female and subsequently became a male. X had cohabited with Y (female) for over 10 years, and saw themselves as man and woman. They wanted a child and after litigation they were able to allow Y to have artificial insemination to have Z, X was not the biological father but wanted to be recorded as the father. They argued that the rejection of this was a breach of their right to family life. In Strasbourg, UK government sought to argue that X and Y were biologically the same sex and under A.8 same-sex couples were not a family unit. XY said this was not the reality of their situation:
  “36. The Court recalls that the notion of “family life” in A.8 is not confined solely to families based on marriage and may encompass other de facto relationships. . . When deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.” (A broad view of relationships that will amount to family life taking account of various factors).
  Applying this criteria SC found that XY did have a family life, therefore they were a family unit, but they still lost under A.8(2). This was pre Christine Goodwin so states had a wide MOA, and there was no European consensus on babies born via artificial insemination either.
• Schalk and Kopf v Austria (2010). First time that same sex relationships were recognised as able to fall within family life. Criteria in XYZ applied. However, SK were arguing that they should be able to marry in Austria, which disputed this, referring to A.12, which refers to marriage being between a man and a woman. SC accepted this and said that A.8 could not be interpreted as providing a right to gay marriage. Another area lacking a European consensus.

Question 12

What are common violations of family life?

Answer 12

Taking children into care

(Failure in) Reuniting children with their natural parents

Deportation

Question 13

Outline the authorities on taking children into care

Answer 13

• W. v UK (1987). Married couple with several children who decided to voluntarily place one of them in the care of the LA as they could not cope. Series of decisions by LA over the years took more and more control of the child. W never consulted over these further steps, by the time they became involved in the process the child had been adopted. Challenged in SC arguing that respect for family life required consultation with natural parents. SC acknowledged that there was no mention of such procedural requirements under A.8 but the need for states to take reasonable steps in consultation could be read into A.8, even where the child was voluntarily placed in care.

K. & T. v Finland. KT were a couple. K had long history of serious mental illness and became pregnant to T. Her mental health worsened and a member of her family notified social services. Upon going into hospital the director of social services exercised emergency statutory powers to get health authority to take the baby immediately. K challenged process and went to GC. GC said that there could be extreme circumstances justifying this without consulting the parents, but only in exceptional circumstances. GC recognised mental health issues but did not think the case was exceptional enough to take the baby.

Question 14

Outline the authorities on reuniting children with their natural parents

Answer 14

• Ignacollo-Zennide v Romania (2000) parents argued that state should have intervened to help bring family together. French woman married Romanian man and lived in France. Had two children and lived together for years. Relationship broke down and went through divorce proceedings, in which it was agreed that H would have custody over daughters, but agreement stipulated that W would have visiting rights. H then took the daughters to America in breach of the divorce agreement. W applied for order to have children brought back to France, French courts granted this but it had no effect. W repeatedly tracked H and tried to get courts to enforce the order. H left and went to Romania, W then applied to courts there to have daughters returned, the Romanian courts granted this but no action was taken to enforce the order for nearly two years. Case brought arguing that A.8 imposed a positive obligation which required steps to be taken to bring reunification. SC agreed and noted the importance of speed in these family reunification cases. Many other cases have applied this ruling.

Question 15

Outline the authorities on deportation

Answer 15

The argument is that deportation undermines the right to family life.

• Berrehab v Netherlands (1988) B was a Moroccan national who got with a Dutch woman and married her. She was a Dutch national and that gave B permission to live in the Netherlands. They had a child but their relationship broke down and they decided to divorce amicably. B provided financial support for daughter and regularly saw her. However, B had lost his right of residence having divorced his wife. B argued that deportation order violated right to family life. SC found that there was a continuing family relationship between B and daughter. Then A.8(2) addressed and Netherlands relied on economic wellbeing – immigration policy needed. SC accepted this argument, but then considered whether it was necessary in a democratic society for B to be deported, and found that in his case it was not.
• Uner v Netherlands (2006). U went to Netherlands with his mother to join father, he got a residency permit several times but never took up Dutch nationality. In his 20s U was convicted of numerous serious crimes. U then had a child and was then convicted of manslaughter. Towards the end of his sentence the Dutch Government issued a deportation order. Dutch government defended this on the basis of crime prevention, protection of others, U argued breach of A.8. SC provided factors to be weighed up in the context of deportation of someone with a serious criminal background.

Question 16

What are the factors for consideration provided in Uner and what was the outcome?

Answer 16

57. … - the nature and seriousness of the offence committed by the applicant;
    - the length of the applicant’s stay in the country from which he or she is to be expelled;
    - the time elapsed since the offence was committed and the applicant’s conduct during that period;
    - the nationalities of the various persons concerned;
    - the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
    - whether the spouse knew about the offence at the time when he or she entered into a family relationship;
    - whether there are children of the marriage, and if so, their age; and
    - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
58. The Court would wish to make explicit two criteria which may already be implicit in those identified…
    - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
    - the solidity of social, cultural and family ties with the host country and with the country of destination.

GC thought the two most important were the seriousness of criminal behaviour and whether it would be unduly difficult for the members of his family to go and live in Turkey. Consequently, applied to U’s case there was no breach of the right to family life.

Question 17

What are the authorities on the meaning of home?

Answer 17

Gillow v UK (1986)

Buckley v UK (1996)

Niemietz v Germany

Societe Colas Est v France (16/4/2002)

Question 18

Explain the main authority on the meaning of home

Answer 18

Gillow v UK (1986). Another dependant territory case – Guernsey. Licence had to be obtained from government to live there, not enough to rent or own property on the island. G got a job there so moved his family over and got a licence. Some years later he got another job and he and his wife left the island. They never sold their house and claimed that it had always been their intention to return to the house upon retirement and live there. They newly applied for authorisation to live in their house and this was rejected. They went and lived there anyway claiming they had nowhere else and the government brought enforcement proceedings. G’s argued that this forced them to sell the house and relocate to the UK. SC had to ask whether the house was their home. British government argued not because they hadn’t been there for over 20 years. G’s disagreed, claiming that they had nowhere else to live. SC did not provide a comprehensive definition of home but said that ‘home’ under A.8 was an autonomous concept, meaning that it was for the SC to decide whether the situation involved a home and it would not be bound by the states’ view. SC found that it was their home on the facts. On A.8(2) Guernsey cited economic wellbeing, given the demand for residence on the Island, so it was legitimate to have a licensing system, yet the measures involving enforcement proceedings were not proportionate in a democratic society, therefore G won their case.

Question 19

Explain the remaining authorities on the development of an autonomous concept of home

Answer 19

• Buckley v UK (1996). B was a gypsy who had bought some agricultural land. Council regarded this area as one for agricultural use only under planning laws. B brought 3 caravans onto field and lived there with family. LA brought proceedings after trying to persuade B to move, court orders eventually compelled this. Case brought. British government argued that caravans could not amount to a home – it should only apply to a premises that you are occupying lawfully under national law as your home. SC rejected this, applying Gillow notion of autonomous concept. You can claim that somewhere is your home even if you occupy it unlawfully. Moving on to A.8(2) BG raised a number of arguments like protecting health, protecting rights of others, such are the purposes of panning laws. SC accepted this need for planning systems and moved on to necessity. On the facts the enforcement was necessary in a democratic society.
• Niemietz v Germany. When German courts searched documents in office N also claimed that this amounted to a violation of his home. Ironically, SC said that a lawyer’s offices could be classified as their home for the purposes of A.8(1) – a broad autonomous notion.
• Societe Colas Est v France (2002). Extension of this. SCE was a major constructor in France that the French CMA believed to be involved in illegal activities. Corporate offices of SCE and others searched. SCE went to SC arguing that this should also be classed as their home. SC accepted this and extended the notion again. Court went on to find that searches could not be justified under A.8(2), powers were too broad.

Question 20

What types of interferences into A 8 does the case law address?

What is the most common interference?

What is the most extreme interference addressed in case law?

Answer 20

Interferences via:

• Environmental pollution.
• Interferences with correspondence.

Interferences most commonly stem from searches - Niemietz.

• Akdivar v Turkey (1996). A more extreme example of a violation. PKK attacked police station and killed a number of officers there. Colleagues who survived thought that a local village had supported the attack so they went there, emptied all homes and burnt them down. A was one resident. SC found serious breach.

Question 21

What are the cases on environmental pollution generally?

What is unusual about the protection against environmental pollution?

Answer 21

Powell & Rayner v UK (1990)

Lopez Ostra v Spain (1994)

Guerra v Italy (1998)

Hatton v UK (2001)

Fadeyeva v Russia (2005)

Nothing in A.8 or elsewhere guarantees environmental rights, drafters were not aware of them. Cases have sought to bring EP within the parameters of A.8.

Question 22

Explain the cases on noise pollution.

Answer 22

• Powell & Rayner v UK (1990). Challenge to noise coming from Heathrow airport. At the time it was owned and ran by the state. PR lived below flight paths and argued that noise disturbed their home life. BRG argued legitimate aim of economic wellbeing and supported this with financial data to show importance of Heathrow in terms of income generated and jobs provided. BG had tried to reduce noise pollution – homes close to HR could have their homes bought at market value, those further away could get grants for noise insulation. SC decided that competing interests had to be balanced and this should primarily come under the MoA of individual states. Governments were best positioned to make such a balanced decision. As such, SC found no breach of PR’s right to respect for home life.
• Hatton v UK (2001). Also about Heathrow noise. Avoided bar on litigating same issue twice by framing issue as night time noise pollution.
  By this time the airport was privatised but the state still regulated flights in and out. Government argued that it regulated night flights using extensive public consultation which made the regulations fall within their MoA. Majority of Chamber (5:2) adopted a stricter test for night flights: Chamber said that environmental pollution was a particularly sensitive field and that reference to economic well being is not enough without minimising interferences with the rights of others.

Applying this tougher standard, the majority of the Chamber found a breach. The British government thought that the majority had not applied the law correctly – i.e. the margin of appreciation test. As such, British government invoked A.43 for a GC rehearing.
In 2003 GC gave judgment: “122 The Court must consider whether the Government can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights.”
This was a reversion back to the Powell &; Raynor test, the chamber had improperly developed the test. Applying the MoA the GC found that the UK acted within it by consulting people like H before drawing up the regulations.

Question 23

Explain the cases on environmental pollution that is not in the form of noise.

Answer 23

• Lopez Ostra v Spain (1994). Smell from leather recycling plant forced L out of her home. SC found breach, even though Spain had a broad margin of appreciation it had taken insufficient action to protect against environmental pollution. Nothing had been done for nearly 2 years so Spain fell outside of MoA.
• Guerra v Italy (1998). Combined application of 40 village women. They believed that there had been serious chemical leaks from a local factory and they sought advice from the local mayor as to what they should do in the event of pollution. For a number of years the mayor refused to provide this information. SC held that by failing to give information that the council had, this positive obligation could be breached.
• Fadeyeva v Russia (2005). Involved largest iron and steel works in Russia. A zone was defined around it where nobody should live under law because of air pollution from it. In reality, many thousands like F lived around it. For years she complained that she should not be living there but the authorities did nothing to rehouse her. SC applied MoA test but even given this margin Russia had still acted outside of it.

Question 24

What are the written correspondence cases?

Answer 24

Golder v UK (1975)

Silver v UK (1983)

Campbell v UK (1992)

Petra v Romania 1998

Foxley v UK (2000)

Question 25

Explain the prisoner written correspondence cases

Answer 25

• Golder v UK (1975). Prison authority refused to allow G to correspond with his lawyers. Case went on to court which held that prisoners were entitled to all convention rights except for explicit convention exceptions e.g. A.5(1)(a). This signalled the start of the prisoners’ rights jurisprudence. This meant that any restrictions had to be justified under A.8(2) and found that the British government could not rely on this in G’s case so he won. It was not necessary in a democratic society.
• Silver v UK (1983). Challenge brought by S due to restrictions on him sending correspondence to outsiders generally. S argued that the censorship system of regulating correspondence in the UK was not in accordance with the law. The censorship system was not generally made public and not regulated by law. SC gave a broad ruling on what is ‘in accordance with the law’ under A.8(2). There are 3 requirements for national law to meet this standard. (1) There must be a provision of national law, (2) that provision must be reasonably accessible to the public, (3) the provision must be reasonably precise in its terms. Applied to this case, most of the rules were not laid down in law, not publicly available and insufficiently precise therefore there was a breach.
• Campbell v UK (1992). Deals with correspondence between Strasbourg and a prisoner. C was in Scottish prison and correspondence from Strasbourg was opened. Authorities claimed that they did not read it but simply checked contents of envelope. SC upheld claim that this was an interference with A.8, it was not necessary in a democratic society (in relation to Strasbourg correspondence).
• Petra v Romania 1998. Romanian prisoners had to send correspondence to Strasbourg via the prison warden, who had vague powers to control or restrict this correspondence. SC upheld breach given vagueness of law.

Question 26

What is the authority on written correspondence outside of the prisoner context?

Answer 26

• Foxley v UK (2000). A non-prisoner case. F had been a senior official in military defence who was personally corrupt and made millions through taking bribes. He was eventually arrested and convicted and the authorities sought court orders to make F pay back his unlawful gains. F refused to comply with domestic proceedings, so once he was released a bankruptcy order was obtained against him, allowing a TIB to access his assets. TIB secretly applied to courts to have F’s mail tracked to see where his assets were held. His mail was redirected to her for several months, including correspondence from F’s lawyers. SC upheld F’s complaint. It was not necessary in a democratic society for TIB to intercept and read correspondence with lawyer.

Question 27

Explain the landline correspondence cases.

Explain the mobile phone correspondence case.

Answer 27

• Klass v Germany (1978). German powers authorised the interception of landline phone conversations in some circumstances. Ministers that had these statutory powers were overseen by a judicial body and parliamentary oversight. K complained and German Government sought to justify under prevention of crime. System was also in accordance with the law as defined above. SC also accepted that it was necessary in a democratic society given the safeguards in place, so K’s case was rejected.
• Malone v UK (1984). At the time there was no legal regulation on intercepting telephone calls. M was tried for handling stolen goods and at trial prosecutors revealed that M’s phone calls had been tapped and he was convicted. M complained that this law was not regulated. There was no statute so the system was not in accordance with the law according to the SC. Parliament then put the interception powers on a statutory basis.
• Roman Zakharov v Russia (2015). Mobile phone communications. RZ complained of Russian law allowing FSB to intercept all real-time phone calls in Russia. RZ claimed that this breached A.8. GC found the system to not be necessary in a democratic society – too broad and too few safeguards.

Question 28

What is the most recent case on interference with correspondence?

Answer 28

• Big Brother Watch and Others v UK (2018) (summary for this and Zakharov on moodle).

BBW was complaining about consequences of Edward Snowden’s revelations (NSA intercepting all internet communications in and out of USA). Snowden also claimed that GCHQ worked alongside NSA and was doing the same for the UK. Many people and organisations came together to challenge this surveillance, including Liberty, American Civil Liberties Union, The Law Society. They all claimed to be potential victims under A.34 as all of their communications were liable to be intercepted. Main complaint was bulk interception of anything sent via an underground fiber optic cable. Legal basis was s.8 of the RIPA Act which authorised interception. British government sought to justify under protection of national security given nature of national terror threat. Key part of judgment:
“38. …the Court considers that the decision to operate a bulk interception regime was one which fell within the wide margin of appreciation afforded to the Contracting State. Furthermore, in view of the independent oversight provided by the Interception of Communications Commissioner and the IPT [Investigatory Powers Tribunal], and the extensive independent investigations which followed the Edward Snowden revelations, it is satisfied that the intelligence services of the United Kingdom take their Convention obligations seriously and are not abusing their powers under section 8(4) of RIPA. Nevertheless, an examination of those powers has identified two principal areas of concern; first, the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data [defined in a Code of Practice issued by the Secretary of State under the Act as “the “who”, “when”, “where”, and “how” of a communication but not the content, not what was said or written”] for examination.”
Two breaches: too much discretion given to GCHQ in deciding which communications to intercept. And secondly the so called meta-data enabling GCHQ to have too much discretion in which bits of information they would follow up. These were essentially minor breaches, on the whole the chamber was upholding bulk interception. The claimants have successfully requested an A.43 rehearing which is scheduled for July.

Question 29

Which is the best case(s) to cite on each of the following 8(2) elements?:

Interference “in accordance with the law”

“Necessary in a democratic society”

Answer 29

Interference “in accordance with the law” - Silver

“Necessary in a democratic society” - Dudgeon, Niemietz

Question 30

Which is the best case to cite(s) on each of the following 8(2) legitimate aims?:

National security

Public safety

Economic well-being of the country

For the prevention of disorder/crime

For the protection of health

For the protection of morals

For the protection of the rights/freedoms of others

Answer 30

National security - Leander, Klass

Public safety - Buckley

Economic well-being of the country - Gillow

For the prevention of disorder/crime - Malone

For the protection of health - Laskey

For the protection of morals - Dudgeon

For the protection of the rights/freedoms of others - Buckley

Question 31

What is A 10 and what is its essential structure?

Answer 31

A 10 is the right to freedom of expression.

Same (3 part) legal structure as A.8. A qualified right, ‘prescribed by law’ (10(2)) and ‘in accordance with the law’ (8(2)) are exactly the same.

Question 32

What are the cases on the court’s general approach to A 10?

Answer 32

Handyside v UK (1976)

Sunday Times v UK (1979)

Steel and others v UK (1999)

Ozgur Gundem v Turkey (2000)

Question 33

Explain the cases which set out the general approach in A 10 cases and the relation between 10(1) and 10(2).

Answer 33

• Handyside v UK (1976). H was a UK publisher that had gained the right to publish English version of book. It contained information on sexual health matters, which some UK parents complained about unlike Scandinavian countries. H was convicted of publishing an obscene article, was fined and all books were seized and destroyed. H argued breach of A 10). British Government advanced LA of protection of moral standards (which it argued were different to those in Scandinavian countries). SC decided that states have MoA to decide their own morals:
  “48. . . .The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.”
  Accordingly, British government could decide its own morals, but, firm protection provided to a wide range of forms of FoE:
  “49. . . .Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”
  In the end, H lost his case.
• Sunday Times v UK (1979). Further clarification on the relationship between 10(1) and 10(2). Times had published a number of articles on drug thalidomide. British manufacturer of German drug was sued and proceedings went on for a decade. ST started to publish a series of articles criticising the drug and its marketing etc. Company sought injunction against these claiming that it prejudiced ongoing litigation. HL confirmed injunction to prevent articles. ST went to SC for breach of FoE. British government said necessary to protect judicial system. SC said A 10(1) right was given priority, and 10(2) exceptions are to be interpreted more narrowly, they are not of equal weight. A small majority found that 10(2) was not applicable in this case. A.10 was breached.

Question 34

Does A 10 go beyond merely protecting expression in the form of speech?

Answer 34

• Steel and others v UK (1999). Forms of expression that come within 10(1) widended to include physical protest. Three applicants involved. S was animal rights activist who went to bird-shooting venue and stood in front of shooters until she was arrested. A2 was environmental activist who chained herself to construction equipment to prevent motorway being built until arrested. A3 was opposed to arms race who protested outside conference centre where a meeting was taking place. SC held that 10(1) could be extended to all of these forms of physical behaviour. They were all physical manifestations of views. For A1 and A2 the interference was justified to prevent crime and retain order. A3 won as 10(2) was not applicable – no criminality or public disorder.

Question 35

Can A 10 impose a positive obligation?

Answer 35

Yes.
- Ozgur Gundem v Turkey (2000). Turkish newspaper with pro-Kurdish views. Allegedly caused people to behave violently, over years, several members of staff and journalists were murdered, and there were 2 bomb attacks on headquarters. Paper asked for police protection but nothing was provided, off to SC to argue that state should have positive obligations under A10 to protect FoE. SC agreed to recognise positive obligations. Given history of serious violence the state should have taken reasonable actions to protect.

Question 36

What does the rest of the case law do in relation to expression and which type of expression receives the greatest protection?

Answer 36

Rest of the case law distinguishes different classes of expression, which is not done within the Convention. PE receives the greatest amount of protection by SC.

Question 37

What are the cases on political expression? (9)

Answer 37

Lingens v Austria (1986)

Castells v Spain (1992)

Incal v Turkey (2000)

Janowski v Poland (2000)

Thorgeirson v Iceland (1992)

Jersild v Denmark (1994)

Lehideux & Isorni v France (1998)

Rekvenyi v Hungary (1999)

Bayev and Others v Russia (2017)

Question 38

How does the scope for expression change depending on who it is directed at?

Must expressions be proved?

Answer 38

• Lingens v Austria (1986). L was editor of political magazine. Chancellor had discussions with leader of smaller party to form coalition unsuccessfully. L discovered that the leader of the smaller party had a Nazi background, and had been a member of the party in Austria in the 1940s. L criticised actions of the chancellor, claiming that the chancellor was engaged in ‘bassist opportunism’ and was ‘immoral and undignified’. Chancellor brought private criminal prosecution. Prosecution required L to prove allegations as truth, but he said they were opinions, and so was convicted and fined. L argued this was a breach of FoE. SC emphasised importance of PE in ECHR states. Freedom to comment on politics is at the heart of democratic society, and so people in public office must accept more assessment. Also, where people make value judgments/opinions known, journalists cannot be required to prove their comments, they were not factual allegations. Accordingly, there had been a breach of L’s FoE.
• Castells v Spain (1992) C was an elected politician for a Basque national party. Terrorist campaigns ongoing at the time in relation to this state. C wrote some articles claiming that the State had been murdering Basque activists. Authorities prosecuted and convicted C. he argued that the allegations were true but the court did not accept this. SC applied Lingens, but said that the matter of expression was even wider, C was not criticising individual politicians but the state as a whole. A 10(1) should be even wider to allow criticism of the state as a whole. State is well positioned do dispense any allegations made against it given the resources at its disposal. Since C was making factual allegations, not opinions, they must be allowed to produce evidence to establish the truthfulness of those allegations, which had not been done. For those 2 reasons there was a breach.

Question 39

What is the scope of expression when not directed at public officials/the state?

Answer 39

• Janowski v Poland (2000) J was walking to work through town, 2 municipal guards moving street vendors to another location were confronted by J, who thought they didn’t have the power to do this, and called them oafs and dumb. J was reported and convicted for offence under Polish law. J argued PE. Majority of Chamber sided with the government. Distinguished from Lingens as this involved public servants, not politicians. PSs should not be subject to same level of abject comment.
• Thorgeirson v Iceland (1992) again widens scope of expression. F wrote articles criticising Reykjavik police. Police union brought prosecution and J convicted of criminal defamation. Off to SC. Icelandic Government said PE that J sought to rely on should be limited to politicians, SC rejected this. Writing on matters of public interest should fall within the scope of PE. Breach.

Question 40

What types of expression are not protected?

Answer 40

Incal v Turkey (2000) A 10 aspect of the case was that I had published leaflets criticising the local council and had been outspoken in language in a pro-Kurdish manner. Authorities saw this as incitement to violence. I convicted of national security crimes. At SC I argued breach of FoE, Turkish government relied on preventing crime, maintaining order, and SC accepted this general proposition where people are seeking to encourage violence. Violent expression is not protected under A10. SC looked at the wording of the leaflets to see if they did so. Although they were outspoken, the leaflets did not incite violence.

• Jersild v Denmark (1994) limiting types of expression protected. J was TV journalist on current affairs programme. Small gangs of racists operating in Denmark discovered by J, who thought they should be brought to attention of the public. He interviewed some members and it was broadcast. Some interviews expressed clear racist views. Members of gangs prosecuted and convicted, but J was also prosecuted as accessory for distribution. J said views not endorsed, just brought to attention, but he was convicted anyway. SC ruled that racist expression fell outside the protection of A10, but SC found that J was not promoting these views, merely alerting public that others held them, so conviction was an unjustified breach of A(10)(1).
• Lehideux & Isorni v France (1998). Parts of French Government collaborated with Nazis during German occupation. After liberation, leaders who had collaborated were put on trial and one person was executed for treason. 40 years later, the two applicants paid to advertise nationally to reform the public view of the executed man. Surviving French resistance fighters and others were offended and complained, LI were convicted and fined a nominal sum for supporting collaboration. Complain to SC for conviction. SC held that pro-Nazi, anti-Semitic and holocaust denial views were all exempted from A 10 protection. GC found that the posters did not contain any of these views, they merely advanced a different view, so breach of A 10 found.

Question 41

When might/might not a particular member state have a diifferent scope for political expression?

Answer 41

• Rekvenyi v Hungary (1999) test case for newly emerging democratic states from Soviet Union. Hungary had changed constitution to provide that members of armed forces and security were not allowed to engage in active politics while serving. R was a police officer who wanted to do so and argued before SC that this violated political expression. HG argued that political expression was not in dispute, but that in deciding the limits of political expression, the SC should have regard for the particular constitutional history of each MS, Hungary had been under totalitarian government for decades and now it wanted to de-politicise those bodies of government. SC accepted this argument, limits of political expression must be tailored. No breach.
• Bayev and Others v Russia (2017). Commentary on Moodle. Test case for Russia’s approach to sexuality of citizens. Applicants were gay and lesbians, criminal laws were passed making it an offence to promote non-traditional family values to young people. Public protest held outside school expressing sexual orientation, they were fined and convicted and went to SC. RG accepted 10(1) breach and then sought to invoke nearly every 10(2) justification, such as protection of morals (rejected – consensus allowed people to express sexual orientation), protection of health (rejected – no evidence that sexual orientation can be converted), family values of others (rejected). Russian judge was sole dissent.
  “83. …by adopting such laws the authorities reinforced stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society.”

Question 42

What is the second kind of expression recognised by the SC and what are the cases on it?

Answer 42

Artistic expression
Muller v Switzerland (1988)

Otto-Preminger Institut v Austria (1994)

Question 43

Explain the cases on artistic expression

Answer 43

• Muller v Switzerland (1988). M was a recognised artist whose work had been exhibited in global galleries. A Swiss town commissioned him to commemorate town with art. The work produced contained explicit sexual imagery and were exhibited around the town to view for free and complaints were received. M convicted of publishing obscene items, fined, and paintings confiscated. At time of trial in SC paintings had been returned. SC ruled that AE should be protected under 10(1). SG sought to rely on protection of morals, SC applied the same approach as in Handyside. No consensus on the issue of morals so each state had MoA, and so Switzerland could justify the sanctions imposed.
• Otto-Preminger Institut v Austria (1994). Case involved an arthouse cinema. It sought to show less mainstream films, one of which was based on a 19th century play which was banned in Austria for being blasphemous. The institute proposed to show the film to over 17s who were willing to pay (so not general public). OPI advertised the showing and the local Roman Catholic Church got involved and complained. Showing film fell within 10(1), but AG sought to bring the protection of religious values and rights within the protection of rights of others justification. Over 80% of population in area were Roman Catholic so their rights would be interfered with. By a majority, the SC held that showing the film would breach this so there was no breach of ECHR. Therefore, where we have controversial artwork states can still seek to justify not showing it.

Question 44

What is commercial expression and what are the cases on it?

Answer 44

Not defined, but it is forms of expression that impacts individual business or groups of businesses.

Mark intern Verlag v Germany (1989)

Hertel v Switzerland (1998)

Question 45

Explain the cases on commercial expression

Answer 45

• Mark intern Verlag v Germany (1989). Applicant was a company that published a newsletter promoting the interests of small businesses. One published an article that was critical of a British company operating in Germany. German competition law proceedings brought and an injunction was obtained to stop any further publication by MIV. SC ruled that this type of expression fell within 10(1) but court was deeply divided on application of 10(2), which is very rare. Court was equal numbers and was split down middle. On one hand, competition is so complex that Governments are best placed to assess breaches, on the other hand, court should step in. Casting vote of president sided with MoA of states approach, and then no breach found.
• Hertel v Switzerland (1998). Possible reduction of this MoA. H became an expert on using microwaves to cook food for humans and argued that it had a negative effect on health (contrary to popular consensus of scientists). Media picked up the story and Swiss trade association brought proceedings to stop publication due to harm to trade. Courts agreed and injunction granted to prevent publication by H. Off to SC. SG sought to rely on MIV. SC modified the MoA from that case and said that this case does not just concern commercial expression, but also matters of public interest, which fall within the notion of political expression. Consequently, where this is the case, the MoA is narrowed, and so there was a breach of A 10.

Question 46

What excpetion is expressly provided for in A 10(1) and which cases have interpreted it?

Answer 46

This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Groppera Radio AG v Switzerland (1990)

Informationsverein Lentia v Austria (1993)

Question 47

Explain the cases on licensing of broadcasting

Answer 47

• Switzerland had a public sector monopoly on radio stations. GR wanted to start a commercial station, so it built a powerful transmitter and placed it in Italy, but broadcast it mainly to Switzerland. SG tried to stop GR doing this, so it banned Swiss cable companies from re-transmitting broadcasts by GR. Challenge in SC. SG sought to rely on their regulatory power in 10(1). SC recognised that states had this regulatory power but said that it must be exercised in accordance with 10(2) – i.e. with a justification etc. SC found that the 3 elements in 10(2) were satisfied in the case.
• Informationsverein Lentia v Austria (1993). IL was private company that wanted licence to publish private commercial TV, which was banned at the time in Austria. SC found that 10(2) was not satisfied. Many frequencies available so there were no technological limitations, and SC emphasised importance of pluralism of views, total ban not necessary in a democratic society. Private sector TV and radio broadcasting must be allowed.