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The right to respect

for private
and family life
A guide
to the implementation
of Article 8
of the European Convention
on Human Rights

Ursula Kilkelly

COUNCIL
OF EUROPE
CONSEIL
DE L’EUROPE Human rights handbooks, No. 1
The right to respect
for private
and family life
A guide
to the implementation
of Article 8
of the European Convention
on Human Rights

Ursula Kilkelly

Human rights handbooks, No. 1


Human rights handbooks series
o
Handbook No. 1: The right to respect for Précis n 1: Le droit au respect de la vie
private and family life. A guide to the privée et familiale. Un guide sur la mise en
implementation of Article 8 of the European œuvre de l’article 8 de la Convention
Convention on Human Rights (2001) européenne des Droits de l’Homme (2003)
o
Handbook No. 2: Freedom of expression. Précis n 2: La liberté d’expression. Un guide
A guide to the implementation of Article 10 sur la mise en œuvre de l’article 10 de la
of the European Convention on Human Convention européenne des Droits de
Rights (2001) l’Homme (2003)
o
Handbook No. 3: The right to a fair trial. Précis n 3: Le droit à un procès équitable.
A guide to the implementation of Article 6 Un guide sur la mise en œuvre de l’article 6
of the European Convention on Human de la Convention européenne des Droits de
Rights (2001) l’Homme (2002)
o
Handbook No. 4: The right to property. Précis n 4: Le droit à la propriété. Un guide
A guide to the implementation of Article 1 sur la mise en œuvre de l’article 1 du
o
of Protocol No. 1 to the European Protocole n 1 à la Convention européenne
Convention on Human Rights (2001) des Droits de l’Homme (2003)
o
Handbook No. 5: The right to liberty and Précis n 5: Le droit à la liberté et la sûreté de
security of the person. A guide to the la personne. Un guide sur la mise en œuvre
implementation of Article 5 of the European de l’article 5 de la Convention européenne
Convention on Human Rights (2002) des Droits de l’Homme (2003)
Cover photo: www.gdis.org/Fondacci
o
Handbook No. 6: The prohibition of torture. Précis n 6: L’interdiction de la torture.
A guide to the implementation of Article 3 Un guide sur la mise en œuvre de l’article 3 Directorate General of Human Rights
of the European Convention on Human de la Convention européenne des Droits de Council of Europe
Rights (2003) l’Homme (2003)
F-67075 Strasbourg Cedex
© Council of Europe, 2001
The opinions expressed in this publication are those of the author and do not engage the responsibility of the Council of
Europe. They should not be regarded as placing upon the legal instruments mentioned in it any official interpretation First impression, November 2001
capable of binding the governments of member states, the Council of Europe’s statutory organs or any organ set up by Reprinted with corrections, August 2003
virtue of the European Convention on Human Rights. Printed in Germany
Contents

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Stage 2 of the Article 8 test . . . . . . . . . . 23

2.1 Has there been an interference with the


Part I: an introduction to Article 8 and the
Article 8 right? . . . . . . . . . . . . . . . . . . . . 23
test used in its application . . . . . . . . . . . . 6
2.2 If there has been an interference with an
Article 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article 8 right: . . . . . . . . . . . . . . . . . . . . 25
Introduction . . . . . . . . . . . . . . . . . . . . . . . 6 2.2.1 Is the interference in accordance with law? 25
The margin of appreciation . . . . . . . . . . . 6 2.2.2 Does the interference pursue
Article 8 – the tests applied . . . . . . . . . . . 8 a legitimate aim? . . . . . . . . . . . . . . . . . . . . . . . . 30
2.2.3 Is the interference necessary
in a democratic society? . . . . . . . . . . . . . . . . . . . 30
Stage I of the Article 8 test . . . . . . . . . . 10
Part II: The substantive law . . . . . . . . . . 34
1.1 Does the complaint fall within the scope
of one of the rights protected by Article 8 Private life . . . . . . . . . . . . . . . . . . . . . . . 34
What information can be collected and stored
para. 1? . . . . . . . . . . . . . . . . . . . . . . . . . 10
by the police? . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Whose task is it to identify the relevant interest Records relating to past criminal cases . . . . . . . . 35
under Article 8 para. 1? . . . . . . . . . . . . . . . . . . . 10 Information relating to terrorist activity . . . . . . . 35
The Court’s approach to the applicability of Article 8 Collecting personal information in order to protect
para. 1? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 national security . . . . . . . . . . . . . . . . . . . . . . . . . 36
1.1.1 Private life . . . . . . . . . . . . . . . . . . . . . . . . . 11 What procedural safeguards are required? . . . . . 36
1.1.2 Family life . . . . . . . . . . . . . . . . . . . . . . . . . 15 Accessing personal data held by the State . . . . . 38
1.1.3 Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Disclosure in the course of the investigation and
1.1.4 Correspondence . . . . . . . . . . . . . . . . . . . . 19 prosecution of crime . . . . . . . . . . . . . . . . . . . . . 39
Disclosure by police to the press . . . . . . . . . . . . 39
1.2 Is there a positive obligation on the State Disclosure of medical data and confidentiality . . 39
to respect the Article 8 right and has it been Names . . . . . . . . . . . . . . . . . . . . . . . . . . 41
fulfilled? . . . . . . . . . . . . . . . . . . . . . . . . . 20 Changing surnames . . . . . . . . . . . . . . . . . . . . . . 41

3
Registration of first names . . . . . . . . . . . . . . . . . 41
Physical and moral integrity . . . . . . . . . . 42
Private life and correspondence . . . . . . . 44
What safeguards are required? . . . . . . . . . . . . . . 47
Family life . . . . . . . . . . . . . . . . . . . . . . . 48
Is the length of family proceedings relevant
to Article 8? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Will the adoption of a child without parental
consent violate Article 8? . . . . . . . . . . . . . . . . . . 55
Will the adoption of a child without a parent’s
knowledge violate Article 8? . . . . . . . . . . . . . . . 56
Protection from wilful damage . . . . . . . . . . . . . . 59
Protection from nuisance . . . . . . . . . . . . . . . . . . 59
Protection from environmental nuisance . . . . . . 60
Regulation of ownership . . . . . . . . . . . . . . . . . . 61
Does Article 8 include a right to live
in one’s home? . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Searches and seizures of property . . . . . . . . . . . . 62
Is prior judicial authorisation essential to satisfy
Article 8? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Is a judicial warrant sufficient to comply
with Article 8? . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Searches and seizures in the investigation of
terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

4
Preface The second question: how do I apply the articles
of the Convention invoked before me (and the rights
guaranteed by those articles) given the very brief and
Judges of Council of Europe member states will summary nature of those provisions? The answer is
know that the incorporation of the Convention into that judges must assess the Convention complaint
domestic law means that they, as judges, will be before them by applying the principles which are
faced regularly with individuals who invoke before found in the jurisprudence of the European Court of
them rights guaranteed by the articles of the Con- Human Rights and, in the absence of any relevant
vention. Now, there are two obvious questions principles there, of the former European Commission
judges will put to themselves in that situation. and Court of Human Rights. (These two were dis-
The first question: which law must I apply as solved with the coming into force in November 1998
the superior law when the right in question is gov- of Protocol No. 11 to the Convention).
erned by conflicting domestic and Convention pro- How is that jurisprudence useful? It has estab-
visions? The answer to that is clear and it is that, in lished precise tests to be applied by a judge in deter-
general, the rights guaranteed by the Convention mining whether a complaint before him or her under
are superior to domestic law. Accordingly, if the do- an article of the Convention is a valid one. Those tests
mestic and Convention provisions conflict, the vary, depending on the article of the Convention in
Convention provisions must be applied. In certain question. For present purposes, this paper outlines
states the position in the domestic law of Conven- the tests which are applied by the European Court of
tion rights is below that of the Constitution. Any Human Rights to an individual’s complaint under Arti-
conflict between the Constitution and the European cle 8, tests which must therefore be applied by a
Convention must therefore be resolved in favour of judge when faced with a complaint under Article 8 of
the Constitution. the Convention.

5
Part I: an introduction to Introduction
Article 8 and the test used It is immediately obvious that Article 8 is di-
in its application vided into two parts. The first part, Article 8 para. 1,
sets out the precise rights which are to be guaran-
teed to an individual by the State – the right to re-
spect for private life, family life, home and
Article 8 correspondence. The second part, Article 8 para. 2,
makes it clear that those rights are not absolute in
that it may be acceptable for public authorities to
1. Everyone has the right to respect for his private and
interfere with the Article 8 rights in certain circum-
family life, his home and his correspondence.
stances. Article 8 para. 2 also indicates the circum-
2. There shall be no interference by a public authority stances in which public authorities can validly
with the exercise of this right except such as is in accor- interfere with the rights set out in Article 8 para. 1;
dance with the law and is necessary in a democratic so- only interferences which are in accordance with law
ciety in the interests of national security, public safety and necessary in a democratic society in pursuit of
or the economic well-being of the country, for the pre- one or more of the legitimate aims listed in Article 8
vention of disorder or crime, for the protection of health para. 2 will be considered to be an acceptable limi-
or morals, or for the protection of the rights and tation by the State of an individual’s Article 8 rights.
freedoms of others.

The margin of appreciation


In determining whether measures taken by the
State are compatible with Article 8 the State is af-
forded a certain degree of discretion, known as a 1 Handyside v. the United
Kingdom, judgment of
margin of appreciation. This principle was first es- 7 Dec. 1976, paras. 48-
1
tablished in the Handyside case which concerned an 49.

6
Article 10 dispute, but its ruling applies equally to public interest grounds permitted by para-
Article 8 cases. It held that: graph 2.
[b]y reason of their direct and continuous contact with 2. when assessing whether a state has done
the vital forces of their countries, state authorities are enough to comply with any positive obliga-
in principle in a better position than the international tions that it has under this provision.
judge to give an opinion on the … “necessity” of a “re- The margin of appreciation afforded to compe-
striction” or “penalty” … it is for the national au- tent national authorities will vary according to the
thorities to make the initial assessment of the reality of circumstances, the subject matter and its back-
the pressing social need implied by the notion of “ne- ground. Factors to be taken into account in deter-
cessity” in this context. mining the scope of the margin of appreciation
Consequently, Article 10 (2) leaves to the contracting under Article 8 include the following:
states a margin of appreciation. This margin is given ➤ Whether there exists common ground be-
2
both to the domestic legislator … and to the bodies, ju- tween the laws of the Convention States:
dicial amongst others, that are called upon to interpret Where common practice is apparent, then the
and apply the laws in force. margin of appreciation will be narrow and de-
However, the Court went on to state that the viation from it will be difficult to justify. On the
doctrine does not give the contracting states other hand, where a common approach is not
an unlimited power of appreciation and to re- widespread, then the discretion which the
iterate that it, the Court, is responsible for ensuring Court offers respondent States will be gener-
3
the state’s observance of Convention obligations. ous.
For the purposes of Article 8, therefore, it is the role ➤ The scope of the margin of appreciation will dif-
of the Court to give the final ruling on whether an fer according to the context and it has been
interference with a Convention right can be justified held, for example, to be particularly wide in
under Article 8 para. 2 and the domestic margin of areas such as child protection. Here, the
appreciation thus goes “hand in hand” with a Court has recognised that there is diversity in
European supervision. The margin of appreciation approaches to child care and state intervention
2 Rasmussen v. Denmark, has thus been relied upon by the Court in two main into the family among contracting states, and it
judgment of 28 Nov. sets of circumstances: takes this into account when examining such
1984, para. 40.
3 See section 1.2 on Posi- 1. when determining whether an interference cases under the Convention by allowing States
tive obligations. with an Article 8 right is justifiable on the a measure of discretion when acting in this

7
5 6
area. Moreover, the Court has also recognised However, in the Dudgeon and the Norris cases
that due to their proximity to the sensitive the Court rejected that the margin of appreciation
and complex issues being determined at was wide enough to allow the United Kingdom and
national level, the domestic authorities are Ireland, respectively, to retain the criminalisation of
better placed to make an assessment of homosexuality. As regards the area of the protection
the circumstances of each case and to de- of morals, therefore, the Court has not accepted that
termine the most appropriate course of ac- the margin is wide as a general proposition.
tion. In care cases, for example, the national
authorities benefit from direct contact with the
persons concerned, at the very stage when care
measures are being envisaged or immediately
Article 8 – the tests applied
4
after their implementation. As a result, the
State enjoys a degree of discretion with regard The determination of a complaint by an indi-
to the manner in which private and family life is vidual under Article 8 of the Convention necessarily
respected under Article 8 and this is reflected in involves a two-stage test. The first stage concerns
the way in which the balance between the inter- the applicability of Article 8; in other words, is the
ference and its aim is assessed. right which an individual complains has been inter-
➤ The fact that customs, policies and practices fered with, a right actually guaranteed by Article 8
vary considerably between contracting states para. 1 of the Convention. This will often involve
will sometimes be used to support the exist- discussion of, for example, what constitutes private
ence of a margin of appreciation. life or home within the meaning of Article 8 para. 1.
➤ The Court held in the Handyside case that it was If the judge considers, based on the jurisprudence
not possible to find a uniform European con- of the European Court, that the right invoked by an
ception of morals among the domestic laws individual (for example, the right to be provided
of the various Contracting States. It continued with free housing) is not in fact a right covered by 4 Olsson (No. 2) v. Swe-
den, judgment of 30 Oct.
to say that: the guarantees in Article 8 para. 1, then Article 8 is 1992.
[t]he view taken by their respective laws of the requirements inapplicable and the complaint will end there. 5 Dudgeon v. the United
of morals varies from time to time and from place to place, If, however, Article 8 is found to be applicable, the Kingdom, judgment of
22 October 1981.
especially in our era which is characterised by a rapid and Court will go on to the second stage of the assess- 6 Norris v. Ireland, judg-
far-reaching evolution of opinions on the subject. ment. The most common situation is where the appli- ment of 26 Oct 1988.

8
cant has claimed that the State took action which he 1.2 If so, is there a positive obligation on the
or she considers was in violation of his or her Article 8 State to respect an individual’s right and has it
rights; in that situation, the Court will consider whether been fulfilled?
the interference with the Article 8 right can be justified
with reference to the requirements of Article 8 para. 2. Stage 2: Article 8 para. 2
It is also true that applicants also complain, although
much less often, that the State or public authorities 2.1 Has there been an interference with the Arti-
should have but failed to take action which action the ap- cle 8 right?
plicant argues would have been necessary in order to 2.2 If so,
provide the necessary “respect” for his or her Article 8 2.2.1 is it in accordance with law?
rights. In that case, the Court should consider whether 2.2.2 does it pursue a legitimate aim?
the State had, in the circumstances, a positive obliga- 2.2.3 is it necessary in a democratic soci-
tion to so act in order to in compliance with the “re- ety?
spect” element of Article 8. Both of these approaches This test is followed by the Court each time it
to the second stage of the Article 8 analysis are set out applies Article 8. In many cases, of course, it will not
in detail below. be necessary for it to discuss each point in detail but
it will nevertheless apply each stage of the test be-
Stage 1: Article 8 para. 1 fore reaching its conclusion. The next two sections
of the handbook will cover the issues relevant to the
1.1 Does the complaint fall within the scope of two stages of this test. The final section will deal with
one of the rights protected by Article 8 para. 1? substantive issues of compliance with Article 8.

9
Stage I of the Article 8 test right in his/her application and both are feasible, the
Court may avoid spelling out precisely which indi-
vidual right is implicated. For example, in Klass v. Ger-
1.1 Does the complaint fall within 8
many it held that a complaint regarding the
the scope of one of the rights interception of communications (mail and tele-
protected by Article 8 para. 1? phone) constituted an interference with private life,
family life and correspondence.
In order to attract the protection of Article 8
The Court’s approach to the applicability of
the complaint raised must fall within the scope of
Article 8 para. 1?
the provision, meaning that it must be found to con-
cern one or more of the personal interests pro-
The meaning of the four concepts protected by
tected by that provision, namely private life, family
Article 8 para. 1 is not self-explanatory and the
life, home or correspondence.
Court has avoided laying down specific rules as to
their interpretation. In particular, its approach is to
Whose task is it to identify the relevant determine the applicability of Article 8 – and thus
interest under Article 8 para. 1? whether an individual complaint falls within the
scope of one of the rights it protects – on a case-by-
It is up to the applicant to characterise the case basis while giving the concepts an autonomous
interest which s/he seeks to protect and to ad- Convention meaning. While the flexibility of the
vance it before the Court in the terms of its un- Court’s approach allows it to take into account
derstanding of Article 8 para. 1. For example in social, legal and technological developments across
Gaskin v. the United Kingdom, the applicant success- the Council of Europe, this approach makes it diffi-
fully convinced a majority in the Court that his inter- cult to define categorically what constitutes private
est in obtaining access to information in the hands life, family life, home or correspondence. General 7 Gaskin v. the United
Kingdom, judgment of
of a local authority about his upbringing in public guidance as to the content of these four interests is 7 July 1989, Series A
foster-care concerned his private and family life, and set out below. It is important to bear in mind, how- no. 160.
not some general interest in access to information, ever, that the concepts are dynamic insofar as their 8 Klass v. Germany, judg-
7 ment of 22 September
which is outside the scope of Article 8. Moreover, meaning is capable of evolving and also, that they 1993, Series A no. 269,
when an individual invokes more than one Article 8 have the potential to embrace a wide variety of mat- para. 41.

10
ters, some of which are connected with one another What relationships constitute private
and some of which overlap.
life?
1.1.1 Private life Relationships which fall outside the scope of
family life
The meaning of private life
According to the Court, private life is a broad Relationships which fall outside the scope of
concept which is incapable of exhaustive defini- family life under Article 8 may nonetheless deserve
9
tion. The concept is clearly wider than the right to the provision’s protection where they constitute pri-
privacy, however, and it concerns a sphere within vate life. This category includes:
which everyone can freely pursue the development ➤ Relationships between foster parents and
11
and fulfilment of his personality. In 1992, the Court children they have looked after;
said that ➤ Relationships between parties who are not yet
12
married;
9 Costello-Roberts v. the …. it would be too restrictive to limit the notion [of pri- ➤ Relationships between homosexuals and
13
United Kingdom, judg- vate life] to an “inner circle” in which the individual their partners with or without children;
ment of 25 March 1993,
para. 36. may live his own personal life as he chooses and to ex- Private life does not extend to the relationship
14
10 Niemietz v. Germany, clude therefrom entirely the outside world not encom- between an owner and his pet.
judgment of 16 Decem- passed within that circle. Respect for private life must
ber 1992.
11 Appl. No. 8257/78, also comprise to a certain degree the right to establish To what extent do sexual activities fall within the
10
10 July 1978, 13 DR 248. and develop relationships with other human beings. scope of private life?
12 Appl. No. 15817/89,
1 October 1990, 66 DR
251. Thus, private life necessarily includes the right A person’s sexual life is part of his private life, of
13 Appl. No. 15666/89 to develop relationships with other persons which it constitutes an important aspect. Private life
Kerkhoven v. the Nether- and the outside world. thus guarantees a sphere within which a person
lands, 19 May 1992,
unpublished. can establish relations of different kinds, includ-
14 Appl. No. 6825/75, ing sexual ones and thus the choice of affirming and
4 March 1976, 5 DR 86. assuming one’s sexual identity comes within the pro-
15 Dudgeon v. the United 15
Kingdom, judgment of tection of Article 8. In Dudgeon v. the United Kingdom,
22 October 1981. the Court held that given the personal circumstances

11
of the applicant, the very existence of legislation respect for private life thus required a degree
which outlawed homosexual conduct continuously of association for persons imprisoned.
and directly affected his private life. It has confirmed Freedom to associate with others is thus a fur-
several times since that sexual orientation and activ- ther, social feature of private life.
ity concern an intimate aspect of private life. How- ➤ Some judges of the Court have expressed a
ever, not every sexual activity carried out behind view of private life which encompasses the
closed doors necessarily falls within the scope of possibility of the effective enjoyment of a
Article 8. In Laskey, Jaggard & Brown v. the United King- social life being an aspect of private life. This
16
dom, the applicants were involved in consensual involves the capacity by reason of cultural and
sado-masochistic activities for the purposes of sexual linguistic familiarity to enter into social rela-
gratification. While the Court did not formally have to tionships with others and is particularly rel-
18
determine the issue of whether the applicants’ behav- evant in immigration cases.
iour fell within the scope of private life, it expressed
some reservations about allowing the protection of Do business relationships concern private life?
19
Article 8 to extend to activities which involved a con- In Niemietz v. Germany the Court was prepared
siderable number of people; the provision of specially to consider that some personal relationships in
equipped chambers; the recruitment of new members business contexts might fall within the scope of
and the shooting of videotapes which were distrib- private life.
uted among the members.
What activities or measures concern
To what extent do social activities fall within the 16 Laskey, Jaggard & Brown
private life? v. the United Kingdom,
scope of private life?
judgment of 19 February
There is some evidence in the case-law that Does telephone tapping always concern private 1997.
there is a sphere of personal relationships beyond life? 17 Appl. No. 8317/78,
McFeeley & Ors v. the
the “inner circle” that is protected by the concept of United Kingdom, 15 May
private life. The use of covert technological devices to 1980, 20 DR 44.
intercept private communications has been 18 See further the section
17
➤ In McFeeley v. the United Kingdom, the Commis- found to fall within the scope of private life. below on immigration.
19 Niemietz v. Germany,
sion suggested that the importance of relation- Moreover, the provision applies regardless of the judgment of 16 Decem-
ships with others also applied to prisoners and content of the telephone conversation. ber 1992.

12
20
➤ In A v. France the Government argued that con- phy and other personal information by the po-
24 25
versations taped relating to the commission of lice even if the police register is secret;
murder did not relate to private life. The Com- ➤ The collection of medical data and the main-
26
mission held that the mere fact that a conver- tenance of medical records;
sation concerned the public interest did ➤ The compulsion by tax authorities to reveal de-
not deprive it of its private character. The tails of personal expenditure (and thus inti-
27
Court also accepted this argument. mate details of private life);
21
➤ In Halford v. the United Kingdom, conversations ➤ A system of personal identification, such as
by telephone were covered whether business those covering administrative and civil matters
or private, as was the use of an office tele- including health, social services and tax.
phone.
➤ In contrast, where an applicant used a radio Accessing personal data
20 A v. France, judgment of channel for civil aircraft, the interception did
23 Nov. 1993.
21 Halford v. the United not constitute interference with private life The inability to access the State’s records
Kingdom, judgment of since the conversation was on a wavelength ac- may concern private life depending on the type of
28
25 June 1997. cessible to other users and could not be clas- information held. In Gaskin v. the United Kingdom, the
22 Appl. No. 21353/93, 22
27 Feb. 1985. sified as private communication. Court held that because the files held on the appli-
23 Appl. No. 9072/82, X v. cant concerned highly personal aspects of his child-
the United Kingdom, 6 Will the collection of personal data by the State hood, development and history and thus
Oct. 1982, 30 DR 229.
24 Murray v. the United concern private life? constituted his “principal source of information
Kingdom, judgment of The collection of information by officials of about his past and formative years”, lack of access
28 Oct. 1994, Series A thereto raised issues under Article 8.
no. 300-A. the State about an individual without his con-
25 Leander v. Sweden, judg- sent will always concern his/her private life and
ment of 26 March 1987, will thus fall within the scope of Article 8 para. 1. Does the regulation of names concern private
Series A no. 116. life?
26 Appl. No. 14661/81, Examples include:
9 July 1991, 71 DR 141. 23
27 Appl. No. 9804/82, ➤ An official census, which includes compul- Even though Article 8 does not contain any
7 Dec. 1982, 31 DR 231. sory questions relating to the sex, marital sta- explicit reference to names, an individual’s name
28 Gaskin v. the United
Kingdom, judgment of tus, place of birth and other personal details; does concern his/her private and family life be-
7 July 1989, para. 89. ➤ The recording of fingerprinting, photogra- cause it constitutes a means of personal identifi-

13
cation. The fact that there may exist a public inter- The determination of legal ties
est in regulating the use of names is not sufficient
to remove the question of a person’s name from Paternity proceedings
29
the scope of private and family life. The same The determination of a father’s legal ties with
principles applies to forenames, which also con- his daughter was found to concern his private life,
cern private and family life since they constitute a notwithstanding that the paternity proceedings
means of identifying persons within their families which he wished to institute were aimed at the dis-
30
33
and the community. solution in law of existing family ties. In most
cases, however, such legal ties will constitute family
Does invasion of the press life.
concern private life?
Transsexuals
The absence of protection against press intru- Matters relating to the refusal to allow a trans-
sions or the disclosure in the media of highly inti- sexual to obtain a change of name and official pa-
mate, non-defamatory details of private life has not pers to reflect gender re-assignment have been 29 Stjerna v. Finland, judg-
yet been subject to significant challenge in Stras- ment of 25 Nov. 1994,
found to concern the right to respect for private life Series A no. 299-B.
34
bourg. Some complaints, such as the Irish case under Article 8 para. 1. 30 Guillot v. France, judg-
where the applicant complained that an insurance ment of 24 Oct. 1996,
RJD 1996-V., No. 19.
company taking photographs of her outside her
31
Physical and moral integrity 31 Appl. No. 18760/91 v.
house infringed her private life and the case intro- Ireland, 1 Dec. 1993.
35
duced by Earl and Countess Spencer concerning In X & Y v. the Netherlands the Court held that 32 Appl. Nos. 28851/95 and
32
press coverage of their private lives, have been de- private life is a concept which covers the physical 28852/95, Spencer v. the
United Kingdom, 16 Jan.
clared inadmissible for failing to exhaust domestic and moral integrity of the person, including his or 1998.
remedies. Determination of whether issues might her sexual life. In that case, the inability of a 16- 33 Rasmussen v. Denmark,
arise under private life in relation to press intrusion year-old girl with a mental disability to institute judgment of 25 Nov.
1984, Series A no. 87.
might be influenced by the extent to which the per- criminal proceedings against the perpetrator of a 34 B v. France, judgment of
son concerned courted attention, the nature and sexual assault against her was found to raise an 25 March 1992, Series A
degree of the intrusion into the private sphere and issue under Article 8 para. 1. An unwelcome attack no. 232-C.
35 X & Y v. the Netherlands,
the ability of diverse domestic remedies to provide by one individual on another is thus capable of in- judgment of 26 March
effective and adequate redress. fringing the private life of the latter. 1985, para. 22.

14
Will all interferences with physical integrity Does compulsory medical treatment concern
concern private life? private life?
While some interferences with the physical in- Compulsory medical treatment, regardless how
tegrity of an individual may impinge on the private minor, will fall within the scope of private life under
life of that person, not all such actions will do so. Article 8 para. 1. Examples include:
36
Costello-Roberts v. the United Kingdom concerned the
compatibility with Article 8 of the corporal punish- ➤ Blood and urine tests imposed on prisoners to
ment of a little boy. Here, the Court noted that check for drugs, drivers to check for alcohol in
the system or those involved in paternity pro-
39
measures taken in the field of education may, in certain ceedings;
circumstances, affect the right to respect for private life ➤ Compulsory vaccination, dental treatment, TB
40
but not every act or measure which may be said to af- tests or X-rays for children;
41
fect adversely the physical or moral integrity of a per- ➤ Compulsory administering of food.
36 Costello-Roberts v. the 37
United Kingdom, judg- son necessarily gives rise to such an interference.
ment of 25 March 1993. Do safety measures imposed by the State concern
37 Costello-Roberts v. the However, in this case, it went on to conclude private life?
United Kingdom, judg-
ment of 25 March 1993, that The numerous measures which the State takes
at para. 36. having regard … to the purpose and aim of the Con- to protect the public against various dangers, such
38 Costello-Roberts v. the vention taken as a whole, and bearing in mind that the
United Kingdom, judg- as making the wearing of seatbelts or use of
ment of 25 March 1993, sending of a child to school necessarily involves some safety appliances in industry compulsory, will
at para. 36. degree of interference with his or her private life, the also fall to be examined under Article 8 para. 1 al-
39 Appl. No. 8278/78, Court considers that the treatment complained of by
13 Dec. 1979 18 DR 154 though they will almost certainly be justifiable under
(bloodtest); Appl. No. the applicant did not entail adverse effects for his the second paragraph.
21132/93, Peters v. the physical or moral integrity sufficient to bring it within
38
Netherlands, 6 April the scope of the prohibition contained in Article 8.
1994, 77-A DR 75 (urine
test). 1.1.2 Family life
40 Appl. No. 10435/83, Both the slight nature of the punishment and
12 July 1978, 14 DR 31. the fact that it had been imposed in the formal The concept of family life has evolved steadily
41 Herczegfalvy v. Austria,
judgment of 24 Sept school environment were central to the Court’s de- in the lifetime of the Convention and it continues to
1992. cision in this case. develop so as to take account of social and legal

15
change. Similar to the concept of private life, there- tered into for the purposes of avoiding immi-
fore, the Court maintains a flexible approach to the gration rules or acquiring nationality, may thus
interpretation of family life, bearing in mind the di- fall outside the scope of Article 8.
versity of modern family arrangements, the implica- ➤ A child born to parents who are lawfully
tions of divorce and medical advance. According to and genuinely married will be ipso iure part
the wording of the provision, family life is located of that relationship from the moment and
43
squarely within the private sphere, where it is enti- by the fact of the child’s birth. Thus, the
tled to function free from arbitrary state interfer- relationship between married parents and their
ence. However, Article 8 does not contain a right to children will always fall within the scope of Ar-
establish family life, for example by marrying or hav- ticle 8 para. 1.
42
ing the opportunity to have children.
Is marriage necessary to enjoy family life?
What constitutes family life?
➤ Article 8 applies automatically to the relation-
As a rule, the Court decides on the existence of ship between a mother and her child,
44
family life on the facts of each case and the general regardless of her marital status. Such rela-
principle to be applied is whether there are close tionships will always require the protection of
personal ties between the parties. Although the Article 8 therefore. 42 Article 12 ECHR guaran-
Court’s case-by-case approach means that it is not ➤ Unmarried couples who live together with tees the right to marry and
found a family.
always possible to enumerate those relationships their children will normally be said to enjoy fam- 43 Berrehab v. the Nether-
45
which constitute family life and those which do not, ily. This was established in the Johnston case, lands, judgment of 21
an increasing number of relationships now enjoy the where in reaching its conclusion the Court was June 1988.
44 Marckx v. Belgium, judg-
automatic protection of Article 8. persuaded by the stable nature of their relation- ment of 13 June 1979.
ship and the fact that it was otherwise indistin- 45 Johnston v. Ireland, judg-
The family based on marriage guishable from the family based on marriage. ment of 18 Dec 1986.
46 For example, see
Berrehab v. the Nether-
➤ The protection of Article 8 always extends to Is cohabitation necessary to enjoy family life? lands, judgment of 21
marriages, which can be shown to be lawful June 1988 (divorced
father) and Kroon and
and genuine. Those lacking substance or ex- Cohabitation is not a sine qua non of family life, Ors, judgment of 27 Oct.
46
isting in form only, such as a sham marriage en- irrespective of the parents’ marital status. Thus, 1994 (unmarried).

16
family members who do not live together, due to di- Does Article 8 apply if the establishment of
vorce or separation or by arrangement, may none- family life is frustrated?
theless enjoy the protection of Article 8.
In circumstances where one parent has pre-
Can family life exist without cohabitation or vented the development of family ties with a child
marriage? the potential for family life may be sufficient to
47
In Boughanemi v. France the Court held that attract the protection of Article 8. This arose in
51
Keegan v. Ireland, where the applicant’s daughter had
[t]he concept of family life on which Article 8 is based been placed for adoption by the child’s mother
embraces, even when there is no cohabitation, the tie without his consent or knowledge, thereby depriving
between a parent and his or her child, regardless of him of the opportunity to establish close personal
whether or not the latter is legitimate. Although that ties with her. However, due to the nature of the rela-
tie may be broken by subsequent events, this can only tionship between the child’s parents – they cohab-
48
happen in exceptional circumstances. ited, planned the pregnancy and intended to marry –
Applying this principle, the applicant’s relation- the Court found that the potential family life be-
ship with his son born outside marriage, and with tween father and child meant that their relationship
47 Boughanemi v. France,
judgment of 24 April whom he had had little contact, was found to amount fell within the scope of Article 8, notwithstanding
1996. to family life within the meaning of that provision. that they had met on only one occasion.
48 Boughanemi v. France, Neither a father’s delay in recognising his child,
judgment of 24 April
1996, para. 35. his failure to support the child financially, nor his Can family life exist without a blood tie?
49 See C v. Belgium, judg- decision to leave the child in the care of relatives
ment of 7 Aug. 1996 and when emigrating to a Convention State have been While the Court places clear emphasis on the
Ahmut v. the Nether-
lands, judgment of 28 found to constitute exceptional circumstances in social rather than the biological reality of a situa-
49
Nov. 1996. this regard. The presumption that Article 8 applies tion in determining whether family life exists, it has
50 See Söderbäck v. Swe- automatically to the relationship between parent only once found that family life existed between
den, judgment of 28 Oct.
1998. and child, regardless of its nature, has also been ap- those without a blood link. In X, Y & Z v. the United
50 52
51 Keegan v. Ireland, judg- plied in the Söderbäck case concerning adoption. Kingdom it held that the relationship between a
ment of 26 May 1994. Here, an unmarried father and his daughter were female-to-male transsexual and his child born by
52 X, Y & Z v. the United
Kingdom, judgment of found to enjoy family life despite the fact that they artificial insemination by donor (AID) amounted to
22 April 1997. had never cohabited nor enjoyed regular contact. family life. In reaching this conclusion, the Court

17
found it significant, firstly, that their relationship What other relationships constitute family life?
was otherwise indistinguishable from that enjoyed Where other relationships are concerned, the
by the traditional family and secondly, that the Court determines the existence of family life on the
transsexual participated in the AID process as the facts of each case. In relation to extended family
child’s father. and other arrangements, the case-law is as follows:
The Court has not yet considered whether
same sex relationships constitute family life. In ➤ Family life may exist between children and
Kerkhoven v. the Netherlands, the Commission failed to their grandparents since they play a “signifi- 53 Appl. No. 15666/89,
55
find that a stable relationship between two women cant part in family life”. Kerkhoven, Hinke &
56 57
and the child born to one of them by AID ➤ Siblings, both as children and as adults, Hinke v. the Netherlands,
53 19 May 1992, unre-
amounted to family life Notwithstanding that they also fall within the meaning of family life. ported.
lived together as a family and shared parental tasks ➤ The relationship between an uncle or aunt 54 Appl. No. 16944/90, G v.
in relation to the child, their claim for legal recogni- and his/her nephew or niece may fall within the Netherlands, 8 Feb.
1993, 16 EHRR 38.
tion was deemed to relate only to private life. Were the meaning of family life where there is par- 55 Marckx v. Belgium, judg-
the Court to consider the matter it may indeed ticular evidence of close personal ties. Thus, in ment of 13 June 1979,
58
choose to follow its own precedent in X, Y & Z, Boyle v. the United Kingdom, family life was found para. 45.
56 Olsson v. Sweden, judg-
meaning that family life would include same-sex re- to exist between an uncle and his nephew, in ment of 24 March 1988.
lationships, notwithstanding the absence of a the light of the fact that the boy stayed for 57 Boughanemi v. France,
blood tie. weekends with his uncle, who was deemed by judgment of 24 April
1996.
the domestic authorities to be a “good father 58 Appl. No. 16580/90,
Is a blood tie in itself sufficient? figure” to him. Boyle v. the United King-
➤ Family life may exist between parents and chil- dom, Comm. Rep., 9 Feb.
1993.
While the absence of a biological link will not dren born into second relationships, or 59 Appl. No. 11418/85, Jolie
preclude a relationship from constituting family life, those children born as a result of an extra-mari- & Lebrun v. Belgium, 14
a mere blood or genetic link appears to be insuffi- tal or adulterous affair, particularly where the pa- May 1986, DR 47, p.
243.
cient for this purpose. Thus, the relationship be- ternity of the children has been recognised and 60 Appl. No. 9993/82, X v.
59
tween a sperm donor and the child born as a result the parties enjoy close personal ties. France, 5 Oct. 1982,
will not normally amount to family life under Arti- ➤ The relationship between adoptive parents DR 31, p 241, 5 EHRR
302; Söderbäck v. Swe-
cle 8 unless there is sufficient evidence that they en- and children will, in principle, attract the pro- den, judgment of 28 Oct
54 60
joy close personal ties in addition to the blood link. tection of Article 8. 1998.

18
➤ Whether ties between a child and his/her foster Is ownership sufficient to constitute a home?
68
parents will amount to family life will depend on In Gillow v. the United Kingdom the Court held
the facts of the case, in particular, whether the that the applicants, who had owned but not lived in
child has close personal ties with his/her natural their house for 19 years, could indeed call it a home
parents and the length of time s/he has been in within the meaning of Article 8. This was because,
61
the care of the foster family. The longer the fos- despite the length of their absence, they had always
ter-care arrangement, the greater the likelihood intended to return and they had retained sufficient
61 Appl. No. 8257/78, X that family ties will be found to exist. continuing links with the property for it to be
v. Switzerland, 10 July considered their home.
1978, DR 13, p 248. Can family life ever come to an end?
62 Appl. No. 8427/78,
Hendriks v. the Nether- Once established, family life does not come to Do business premises constitute a home?
62
lands, Comm. Rep. 8 an end upon divorce, or when the parties no longer In 1992 the Court extended the notion of home
March 1982, DR 29, p. 5; 63
5 EHRR 223. live together. Nor is it terminated by a decision to to cover some business premises in the context of
64
63 Berrehab v. the Nether- place a child in care. Although subsequent events, justifying a search of such premises under Article 8.
65 66 69
lands, judgment of 21 such as adoption or expulsion may break the tie of In Niemietz v. Germany, the Court decided that home
June 1988.
64 Andersson v. Sweden, family life, the Court has established that this can may extend, for example, to a professional person’s
67
judgment of 25 Feb. only happen in exceptional circumstances. office. Given that activities relating to a profession
1992, para. 72. or business may be conducted from a person’s pri-
65 Appl. No. 7626/76, X v.
the United Kingdom, 11 vate residence and activities which are not so re-
July 1977, DR 11 p. 160. 1.1.3 Home lated may be carried on in an office or commercial
66 Appl. No. 14830/89, premises it may not always be possible to draw pre-
Yousef v. the United
Kingdom, Comm. Rep., The meaning of home cise distinctions. In such circumstances, business
30 June 1992, para. 43. premises were entitled to the protection of Article 8.
67 Boughanemi v. France, In general, home, within the meaning of Arti-
judgment of 24 April cle 8, is where one lives on a settled basis and it may
1996.
68 Gillow v. the United be the case, therefore, that all living places con- 1.1.4 Correspondence
Kingdom, judgment of stitute a home within the meaning of Article 8
24 Nov. 1986, para. 46. para. 1. Holiday homes and work hostels or other The right to respect for one’s correspondence
69 Niemietz v. Germany,
judgment of 16 Dec. temporary long-term accommodation might be ex- is a right to uninterrupted and uncensored com-
1992. ceptions. munications with others.

19
What constitutes correspondence? what is required by Article 8. For example, the Court
has made it clear that the protection afforded to let-
While the meaning of correspondence clearly
ters and other correspondence between lawyers and
includes materials which cross by post, the Court
their clients, particularly detained persons, is great.
has also found the concept to include telephone
70 71
communications and telexes. As the literal mean-
ing of home has been expanded in this way, it is an-
ticipated that the concept will continue to be 1.2 Is there a positive obligation on
interpreted so as to keep pace with develop- the State to respect the Arti-
ments in technology which may bring other meth- cle 8 right and has it been
ods of communication, such as e-mail, within its
fulfilled?
sphere of protection. The appropriate level of pro-
tection may vary with the type of communication
While the essential object of Article 8 is to
method used however.
“protect the individual against arbitrary action by
Does the content of the communication matter? the public authorities”, the Court has held that
there may in addition be positive obligations inher-
74
The protection Article 8 offers relates to the ent in effective respect for the values it contains. 70 Klass v. Germany, judg-
means or method of communication, rather than its Thus, as well as the negative obligation not to inter- ment of 6 Sep. 1978,
content and so the State cannot argue, for example, fere arbitrarily with a person’s family and private life, para. 41.
71 Appl. No. 21482/93,
that telephone conversations about criminal ac- home and correspondence, the State may also Campbell Christie v. the
72
tivities fall outside the scope of Article 8 para. 1. In have to act affirmatively to respect the wide United Kingdom, 27 June
73
Halford v. the United Kingdom conversations by tele- range of personal interests set out in the provi- 1994, DR 78A, p. 119.
72 A v. France, judgment of
phone, whether business or private, were found sion. The basis for this interpretation of Article 8 is 23 Nov. 1993.
to be covered, as was the use of an office telephone. its reference to the individual’s right to respect for 73 Halford v. the United
private and family life etc., and this has allowed the Kingdom, judgment of
25 June 1997.
Is the identity of the sender or the recipient Court to expand its obligations beyond the right to 74 Kroon v. the Netherlands,
75
relevant? be left alone. In X & Y v. the Netherlands the Court judgment of 27 October
held that 1994, para. 31.
75 X & Y v. the Netherlands,
The identity of either the sender or the recipient [Article 8] does not merely compel the state to abstain judgment of 26 March
of the correspondence will play a part in determining from … interference: in addition to this primarily 1985.

20
negative undertaking, there may be positive obligations tent of the protected right, the Court has held that
inherent in an effective respect for private and family the aims mentioned in the second paragraph of Arti-
life … These obligations may involve the adoption of cle 8 may be relevant and so the test differs from
measures designed to secure respect for private life even that under Article 8 para. 2 where it is necessary to
in the sphere of the relations of individuals between strike a balance between a right already established
themselves. and the countervailing interests which the State
In certain circumstances, therefore, the Con- seeks to protect. In many occasions, the difference
vention will require the State to take steps to pro- between adopting a positive obligations approach
vide individuals with their Article 8 rights and it may and considering the case under Article 8 para. 2 in
also require them to protect persons from the ac- the normal way will be apparent from the Court’s
76
tivities of other private individuals which prevent reasoning but not its conclusion. On a practical
the effective enjoyment of their rights. level, the interests of the general community per-
haps start out heavier in the balance, with a certain
When will positive obligations apply? burden on the individual to establish that his inter-
ests clearly predominate. For example, the case-law
It is difficult to identify the circumstances in indicates that where an important individual right is
which compliance with Article 8 will require positive at stake and the applicant has endured great disad-
action. The Court has held that the notion of “re- vantage, a positive obligation may arise. On the
spect” is not clear-cut and because conditions and other hand, where this disadvantage is not so great
circumstances in Contracting States vary, what is re- or where instead an important state interest is at
quired to ensure respect for family life will vary con- stake, then this is less likely.
siderably from case to case. A wide margin of For example, in Marckx v. Belgium, the Court
appreciation is thus conceded to States in deciding found that respect for family life between an unmar-
what “respect” requires in the circumstances of a ried mother and her child placed a positive obliga-
particular application. According to the Court, the tion on the State to adopt measures designed to
76 See, for example, Gaskin State, in order to determine whether or not a posi- ensure the child’s integration into his/her family
77
v. the United Kingdom, tive obligation exists, must have regard to whether from the moment of birth. Here, the disadvantage
judgment of 7 July 1989, a fair balance has been struck between the endured by the unmarried mother and her daughter
para. 42.
77 Marckx v. Belgium, judg- general interest of the community and the in- was great in comparison to the lesser interest of the
ment of 13 June 1979. terests of the individual. In determining the con- State in protecting the family based on marriage.

21
Moreover, the margin of appreciation afforded to that the State was entitled to a wide margin of ap-
the State was narrow due to the fact that the legal preciation as to how it showed respect for family life
and social conditions among Contracting States re- for the parties concerned – a child born by AID and
flected the trend towards eliminating the unequal her transsexual father. As a result, the content of
treatment of unmarried mothers and their children. the positive obligation to respect family life was dif-
This was reflected by the adoption of the European ferent than in the Marckx case and less action was
Convention on the Legal Status of Children born required to fulfil it to satisfy Article 8. More specifi-
78
outside Wedlock. The positive obligation to re- cally, the Court rejected that respect for their family
spect family life was thus found to necessitate the life required the State to permit the transsexual’s
adoption of measures ensuring the child’s integra- name to be entered on the child’s birth certificate
79
tion into his/her family. as her father. While it had not been shown that the
The Court reached a different conclusion in the recognition of the filiation of a child born by AID
case of X, Y & Z v. the United Kingdom, however. To be- was contrary to the interests of the community, nor
gin with, it found that the lack of a common ap- had it been established as necessary to the welfare
proach among Convention States in the area meant of the child.

78 ETS No 85.
79 X, Y & Z judgment, judg-
ment of 26 March 1985.

22
Stage 2 of the Article 8 test ➤ gathering and storing information on a secret
police file.
83

2.1 Has there been an interference What does the applicant have to establish?
with the Article 8 right?
It is for the applicant to establish the fact of
Once it is established that the dispute con- interference. For example, in Campbell v. the United
84
cerns private or family life, home or correspond- Kingdom the government maintained that the appli-
ence then the Court goes on to examine the cant prisoner had not substantiated his claim that
substance of the complaint under Article 8 para. 2. his right to respect for his correspondence had been
Article 8 para. 2 provides that interfered with because he could not show that any
particular letter had been opened. However, the
[t]here shall be no interference by a public authority with Court was satisfied that there had been an interfer-
the exercise of this right except such as is in accordance ence for the purpose of the Convention because the
with the law and is necessary in a democratic society in prevailing prison regime allowed for letters to be
the interests of national security, public safety or the eco- opened and read, a condition which had been spe-
nomic well-being of the country, for the prevention of dis- cifically brought to the attention of the applicant
order or crime, for the protection of health or morals or and his lawyer. In such circumstances, the applicant
80 Olsson v. Sweden, judg- for the protection of the rights and freedoms of others. could claim to be a victim of an interference with his
ment of 24 March 1988.
81 Campbell & Fell v. the right to respect for his correspondence under Arti-
United Kingdom, judg- What constitutes an interference? cle 8. Thus, where the applicant cannot establish the
ment of 28 June 1984. certainty of the material damage which would con-
82 Chappell v. the United Once it is established that the dispute con-
Kingdom, judgment of stitute the interference, it will be sufficient if he
cerns an Article 8 right, the next stage of the test is
30 March 1989. can demonstrate a likelihood that the interfer-
83 Leander v. Sweden, judg- to determine whether the measure complained of
ence has occurred.
ment of 26 March 1987. interferes with that right. Examples include
84 Campbell v. the United
Kingdom, judgment of ➤ removing children from their parents and tak- Is the existence of legislation sufficient?
80
25 March 1992. ing them into public care;
85 Dudgeon v. the United 81 85
Kingdom, judgment of ➤ stopping prisoners’ correspondence; In Dudgeon v. the United Kingdom the applicant
82
22 October 1981. ➤ searching a person’s home; complained that legislation criminalising homo-

23
sexual conduct interfered unjustifiably with his right occasioned by the mere existence of secret
to respect for private life under Article 8. As the measures or of legislation permitting secret
prosecution of consenting adult males under the measures, without having to allege that such
legislation had not occurred for some time and the measures were in fact applied to him. However,
applicant himself had not been convicted or pros- it made it clear that this will occur under cer-
ecuted of an offence, the government contested tain conditions only. The relevant conditions
that the applicant’s right to respect for his private are to be determined in each case according to
life had been interfered with by the mere existence the Convention right alleged to have been in-
of legislation. However, the Court held that the fringed, the secret character of the measures
threat that such an action might be started was objected to, and the connection between the
neither illusory nor theoretical and therefore in the applicant and those measures.
87
personal circumstances of the applicant, the very ➤ In the case of Malone v. the United Kingdom,
existence of this legislation continuously and there was a dispute before the Court as to
directly affected his private life. whether the applicant’s telephone had in fact
been bugged. Apart from the agreement that
When will the existence of secret surveillance one telephone conversation had been inter-
legislation be sufficient to interfere with private cepted by the police, the Government declined
life? to disclose consistently to what extent, if at all,
As the authorities intend, many of the subjects his telephone calls and mail had been other-
of secret surveillance are oblivious to the interfer- wise intercepted. However, it was conceded
ence. Others may suspect it, but lack sufficient that
proof. The applicant’s difficulty in proving that his as a suspected receiver of stolen goods, he was a member
communications have been intercepted may lead of a class of persons against whom measures of postal
him/her to claim that the mere existence of the leg- and telephone interception were liable to be em- 86 Klass v. Germany, judg-
88
ployed. ment of 6 Sep. 1978,
islation interferes with his private life and corre- para. 34.
spondence under Article 8. This claim will only As a result, the Court concluded that the exist- 87 Malone v. the United
succeed in certain circumstances. ence of laws and practices which permit and estab- Kingdom, judgment of
lish a system for effecting secret surveillance of 2 Aug. 1984.
86 88 Malone v. the United
➤ In Klass v. Germany the Court held that an indi- communications alone amounted to an interference Kingdom, judgment of
vidual may claim to be the victim of a violation with the exercise of the applicant’s rights under Arti- 2 Aug. 1984, para. 64.

24
cle 8 “apart from any measures actually taken surveillance law, child protection and the intercep-
against him”. tion of prisoners’ correspondence.

2.2 If there has been an interfer- What is the meaning of “in accord-
ence with an Article 8 right: ance with law”?
In order to be “in accordance with law” the in-
2.2.1 is it in accordance with law? terference complained of must have a legal basis
2.2.2 does it pursue a legitimate aim? and the law in question must be sufficiently pre-
2.2.3 is it necessary in a democratic society? cise and contain a measure of protection
against arbitrariness by public authorities.
In order to be consistent with the Convention
any interference with the rights protected by Arti- The interference must have a legal
cle 8 para. 1 must fulfil all of the criteria listed in
basis
para. 2 of the provision. In particular, the interfer-
ence must be in accordance with law, it must pursue Measures will be problematic in this regard
one of the legitimate aims listed in the second para- where they are not specifically authorised by
graph and it must be necessary in a democratic so- statute and are regulated instead by administrative
ciety or proportionate to the pursuit of that aim. practice, or other non binding guidelines. An admin-
istrative practice, however well adhered to, thus
2.2.1 Is the interference in accordance with does not provide the guarantee required by “law”.
89
law? ➤ In Malone v. the United Kingdom the Court con-
sidered whether the power to intercept tele-
A measure which constitutes an interference phone conversations had a legal basis. At the
with an Article 8 right will only be compatible with time, telephone-tapping was regulated by ad-
that provision where it is in accordance with law. If ministrative practice, the details of which were
the measure complained of does not fulfil this legal- not published, and without specific statutory
ity requirement it will violate Article 8 and the case authorisation. The Court said that there was
89 Malone v. the United
Kingdom, judgment of will end there. Certain areas of law appear to be par- not sufficient clarity about the scope or the
2 Aug. 1984. ticularly vulnerable in this regard, including secret manner in which the discretion of the

25
92
authorities to listen secretly to telephone protection against arbitrary interference. More-
conversations was exercised: because this over, the exercise of discretion by administrative
was an administrative practice, it could be authorities may well satisfy the requirements of Arti-
changed at any time and this constituted a vio- cle 8 where it is subjected to review by the courts.
lation of Article 8. It is inevitable that some areas of law require
90
➤ More recently, in Khan v. the United Kingdom the greater discretion to be afforded to public authori-
Court held that the use of a covert listening de- ties than others and the compatibility of these laws
vice by the United Kingdom authorities was not with Article 8 has been considered by the European
in accordance with law within the meaning of Court.
Article 8 because there was no statutory sys-
tem to regulate the use of such devices, Child protection law
which was governed by Home Office Guidelines
93
which were neither legally binding nor directly In Olsson v. Sweden the applicants argued that
publicly accessible. the relevant legislation set no limits on the discre-
tion which it conferred on the social authorities in
The foreseeability requirement the area of public childcare, and was drafted in
terms so vague that its results were unforeseeable.
In order to satisfy Article 8’s legality require- While the Court acknowledged that the Swedish law
ment, the quality of the law in question must be was written in general terms, it found, nevertheless,
such that it is accessible to the persons con- that it satisfied the legal requirements of Article 8 90 Khan v. the United King-
cerned, and formulated with sufficient precision para. 2. In particular, the Court held that the cir- dom, judgment of 12 May
to enable them, if need be with appropriate ad- cumstances in which it may be necessary to 2000.
91 Andersson v. Sweden,
vice, to foresee, to a degree that is reasonable take a child into public care and in which a judgment of 25 Feb.
in the circumstances, the consequences which care decision may fall to be implemented are 1992, para. 75.
91
a given action may entail. This is known as the so variable that it would scarcely be possible 92 Olsson v. Sweden, judg-
ment of 24 March 1988,
foreseeability requirement and it means that a to formulate a law to cover every eventuality. para. 62.
law which confers a discretion is not in itself incon- Moreover, to confine the authorities’ entitlement to 93 Olsson v. Sweden, judg-
sistent with Article 8 as long as the scope of discre- act to cases where actual harm to the child has al- ment of 24 March 1988.
See also Andersson v.
tion and the manner of its exercise are indicated ready occurred might well unduly reduce the effec- Sweden, judgment of
with sufficient clarity to give the individual adequate tiveness of the protection which the child requires. 25 Feb. 1992, para. 62.

26
Importantly, in relation to the discretion exercised that in a system applicable to citizens generally,
under the legislation, the Court noted that the the law must be sufficiently clear in its terms to give …
legislation provided safeguards against arbi- an adequate indication as to the circumstances in which
trary interference to the extent that the exercise and the conditions on which public authorities are em-
of nearly all the statutory powers was either en- powered to resort to this secret and potentially danger-
trusted to or was subject to review by the admin- ous interference with the right to respect for private life
istrative courts at several levels. and correspondence.

Secret surveillance Telephone tapping


95
Secret surveillance law has, for obvious rea- In two cases against France – the Kruslin case
96
sons, been seen to be problematic with regard to and the Huvig case – it fell to the Court to consider
the foreseeability requirement. The question arises, whether French law regulating telephone-tapping by
therefore, as to how the requirement applies in such the police was in conformity with the foreseeability
an area. requirement of Article 8 para. 2. It held that

In Malone v. the United Kingdom the Court ac- [t]apping and other forms of interception of telephone
knowledged that the requirements of the Conven- conversations represent a serious interference with pri-
tion, with regard to foreseeability, vate life and correspondence and must accordingly be
cannot be exactly the same in the special context of inter- based on a “law” that is particularly precise. It is essen-
ception of communications for the purposes of police in- tial to have clear, detailed rules on the subject, espe-
vestigations as they are where the object of the relevant cially as the technology available for use is continually
law is to place restrictions on the conduct of individuals. becoming more sophisticated.
In particular, the requirement of foreseeability cannot In that respect the Court was of the opinion
mean that an individual should be enabled to foresee that French law (written and unwritten) did not
when the authorities are likely to intercept his communi- [i]ndicate with reasonable clarity the scope and manner
94 Leander v. Sweden, judg- cations so that he can adapt his conduct accordingly. of exercise of the relevant discretion conferred on the
94
ment of 26 March 1987. Similarly, in Leander v. Sweden the Court held public authorities. This was truer still at the material
95 Kruslin v. France, judg- that an individual could not claim to be able to fore- time, so that Mr Kruslin did not enjoy the minimum
ment of 24 April 1990.
96 Huvig v. France, judg- see precisely what checks would be made by the degree of protection to which citizens are entitled under
ment of 24 April 1990. special police service. Nevertheless, the Court said the rule of law in a democratic society.

27
97
In Rotaru v. Romania the applicant complained observed that no provision of domestic law lays
that the Romanian Intelligence Service (RIS) held down any limits on the exercise of those powers.
and used a file containing personal information on For instance, it observed that the relevant domestic
him, some of which he claimed was false and de- law did not set out any of the following:
famatory. The core issue was whether the law which ➤ the kind of information that may be recorded;
permitted this interference was accessible to the ap- ➤ the categories of people against whom surveil-
plicant and foreseeable as to its results. The Court lance measures such as gathering and keeping
first noted that the risks of arbitrariness are par- information may be taken;
ticularly great where a power of the executive is ➤ the circumstances in which such measures may
exercised in secret. It then went on to say that be taken, or
➤ the procedure to be followed.
since the implementation in practice of measures of se-
cret surveillance of communications is not open to scru- Nor did it places any limits on the age of infor-
tiny by the individuals concerned or the public at large, mation held or the length of time for which it may
99
it would be contrary to the rule of law for the legal dis- be kept. Moreover, in relation to the safeguards
cretion granted to the executive to be expressed in terms which were necessary to protect against arbitrary
of an unfettered power. Consequently, the law must in- use of the power to gather and archive information,
dicate the scope of any such discretion conferred on the the Court noted that Romanian law did not provide
competent authorities and the manner of its exercise any supervision procedure, either while the measure
with sufficient clarity, having regard to the legitimate ordered was in force or afterwards. Overall, then, it 97 Rotaru v. Romania, judg-
aim of the measure in question, to give the individual was found not to indicate with reasonable clarity ment of 4 May 2000.
98
adequate protection against arbitrary interference. the scope and manner of exercise of the relevant 98 Malone v. the United
Kingdom, judgment of
discretion conferred on the public authorities and 2 Aug. 1984, para. 67 and
The question was, therefore, whether domestic the holding and use by the RIS of information on the Rotaru v. Romania, judg-
law laid down with sufficient precision the circum- applicant’s private life was thus not “in accordance ment of 4 May 2000,
para. 55.
stances in which the RIS could store and make use with the law”, and in violation of Article 8. 99 Rotaru v. Romania, judg-
of information relating to the applicant’s private life. ment of 4 May 2000, par
Noting that the relevant law provides that informa- Rights of detained persons 57.
100 100 Herczegfalvy v. Austria,
tion affecting national security may be gathered, re- In Herczegfalvy v. Austria the requirement of judgment of 24 Sep.
corded and archived in secret files, the Court foreseeability was held not to be satisfied by deci- 1992.

28
sions under an Austrian law which allowed a mental the interference with the prisoner’s correspondence
patient’s curator to decide whether his correspond- was in accordance with law, as required by Article 8
ence should be sent on to him. A curator’s powers para. 2, the Court noted the following problems with
were set out in the most general terms and, accord- the relevant Polish law:
ing to the Court ➤ There was an absence of legal provisions, which
in the absence of any detail at all as to the kind of re- could serve as a legal basis for effectively lodg-
strictions permitted or their purpose, duration and ex- ing a complaint against censorship of corre-
tent or arrangements for their review, [these] provisions spondence of persons detained on remand.
do not offer the minimum degree of protection against ➤ Polish law allowed for automatic censorship of
arbitrariness required by the rule of law in a democratic prisoners’ correspondence by the authorities
101
society. conducting criminal proceedings.
Thus, while it may be acceptable to use statu- ➤ As a result, the law did not draw any distinction
tory instruments, rather than legislation, to fill in between the different categories of persons
the details of the necessarily wide legal authority to with whom the prisoner could correspond and
intercept personal and private communications, consequently, correspondence with the Om-
this is permissible only to the extent that the rel- budsman was also subject to censorship.
evant instruments are accessible to those in de- ➤ The relevant provisions had not laid down any
102
tention. Thus, in Silver v. the United Kingdom , where principles governing the exercise of this censor-
the stopping of the applicant’s letters was carried ship and in particular, they failed to specify the
out pursuant to directions to prison governors manner and the time-frame within which it
which did not have the force of law and which were should be effected.
not accessible to him, the interference with his right ➤ As the censorship was automatic, the authori-
101 Herczegfalvy v. Austria,
judgment of 24 Sep. to respect for his correspondence was deemed not ties were not obliged to give a reasoned deci-
1992, para. 91. to be in accordance with law and violated Article 8 sion specifying grounds on which it had been
104
102 Silver v. the United King- para. 2. effected.
dom, judgment of
25 March 1983. The Court reached a similar conclusion in the Taking the above into account, therefore, the
103
103 Niedbala v. Poland, judg- more recent case of Niedbala v. Poland where the Court concluded that Polish law failed to indicate with
ment of 12 July 2000. applicant prisoner complained that his letter to the reasonable clarity the scope and manner of exercise
104 Niedbala v. Poland, judg-
ment of 12 July 2000, Ombudsman had been intercepted and delayed in of discretion conferred on the public authorities in re-
para. 81. contravention of Article 8. With regard to whether spect of control of prisoners’ correspondence

29
amounting to a violation of Article 8 para. 2. given by the State is not the “real” reason motivat-
ing the interference, although the Court has not will-
2.2.2 Does the interference pursue a ingly accepted such a claim. In fact, the Court could
legitimate aim? be said to pay little attention to the aims invoked by
the State as a basis for its actions and often con-
Once an interference is found to be in accord- denses the aims invoked – such as the protection of
ance with law, the Court will proceed to question health and morals and the protection of the rights
105
whether it pursues a legitimate aim under Article 8 and freedoms of others – into one. Thus, in most
para. 2. Article 8 para. 2 contains a list of the aims cases, the Court will accept that States were acting
upon which the state can seek to rely in this regard. for a proper purpose and it has rarely if ever re-
For example, the State may argue that: jected the legitimate aim or aims identified, even
➤ the collection and storage of information about where this may be disputed by the applicant.
individuals is “in the interests of national secu-
rity”; 2.2.3 Is the interference necessary in a
➤ intercepting prisoners’ correspondence seeks democratic society?
to prevent “disorder and crime”;
➤ removing children from an abusive home or The final stage of the Article 8 test is the deter-
denying one party custody or contact aims to mination of whether the interference is “necessary
protect “health or morals” or the “rights and in a democratic society”.
freedoms of others” or that
➤ ordering an expulsion or deportation serves the What is the meaning of “necessary”?
interests of the “economic well-being of the
country”. It is clearly not sufficient that the State had
It falls on the respondent State to identify “some” reason for taking the measures that created
the objective or objectives of the interference, and the interference as the interference must be “neces-
the fact that the grounds for permissible interfer- sary”. In terms of the meaning of “necessary”, the 105 See Open Door Counsel-
106
ence are so wide – in the interests of national secu- Court explained in Handyside v. the United Kingdom ling v. Ireland, judgment
rity for example – means that the State can usually that while of 29 Oct 1992.
106 Handyside v. the United
make a plausible case in support of the interference. … it is not synonymous with “indispensable” … Kingdom, judgment of
The applicant claims frequently that the reason neither has it the flexibility of such expressions as “ad- 7 Dec. 1976.

30
missible”, “ordinary”, “useful”, “reasonable” or “desir- tion of the principle of proportionality.
able”.
The Court elaborated further in Olsson v. Swe- What is the principle of proportionality?
107
den, where it held that
… the notion of necessity implies that an interference Overall, the principle of proportionality recog-
corresponds to a pressing social need and, in particular, nises that human rights are not absolute and that
that it is proportionate to the legitimate aim pursued. the exercise of an individual’s rights must al-
Excessively strict or generous interpretations ways be checked by the broader public interest.
of the term “necessary” have thus been rejected by This principle is one way in which this balance is
the Court, which instead pursues a policy of propor- achieved and its use throughout the Court’s applica-
tionality. tion of the Convention is now widespread. The
Court has frequently reminded that:
The character of a democratic society? inherent in the whole of the Convention is a search for a
fair balance between the demands of the general interest
Surprisingly, perhaps, the Court has not de- of the community and the requirements of the protec-
110
scribed in great detail what it deems to be the char- tion of the individual’s fundamental rights.
acteristics of a democratic society. In Dudgeon v. the
108
United Kingdom, however, the Court spoke of toler- How is the principle of proportionality applied to
ance and broadmindedness as two of the hallmarks Article 8?
of a democratic society. In the context of Article 8, it
has stressed the importance of the rule of law in a In carrying out its review of whether domestic
democratic society and the need to prevent arbi- decisions are compatible with Article 8, the Court
107 Olsson v. Sweden, judg-
ment of 24 March 1988. trary interferences with Convention rights. More- applies the proportionality test, which, at its sim-
108 Dudgeon v. the United over, according to the Court, the Convention is plest, involves balancing the rights of the indi-
Kingdom, judgment of designed to maintain and promote the ideals and vidual and the interests of the State. The Court
22 Oct. 1981, para. 53. 109
109 Soering v. the United values of a democratic society. Overall, however, does not offer an appeal from the decisions of do-
Kingdom, judgment of what is necessary in a democratic society for the mestic courts, however, and it thus refrains from
7 July 1989, para. 87. purposes of Article 8 is determined by reference to substituting its opinion on the merits of any indi-
110 Soering v. the United
Kingdom, judgment of the balance achieved between the rights of the indi- vidual case. Instead, its role is to consider
7 July 1989. vidual and the public interest, through the applica- whether, in the light of the case as a whole, the

31
authorities had “relevant and sufficient rea- also, that the character of the democratic soci-
111
sons” for taking the contentious measures. ety is relevant to the exercise, as is evident
Deciding whether the interference is propor- from the Court’s consistent emphasis on pro-
tionate to the aim which it pursues is frequently a viding safeguards in order to protect the indi-
complex process, which involves consideration of vidual from arbitrary use of state power.
a number of factors. These include the interest to be
protected from interference, the severity of the in- The margin of appreciation
terference and the pressing social need which the
It is clear that the Court affords to the State a
State is aiming to fulfil.
margin of appreciation when deciding whether an
➤ In relation to the interest to be protected
interference with an Article 8 right is justified under
from interference, for example, the Court
112 paragraph 2 of that provision. The margin of appre-
noted in Dudgeon v. the United Kingdom that the
ciation afforded to competent national authorities
right to private enjoyment of sexual relations
will vary according to the circumstances, the
required “particularly serious reasons” to justify
subject matter and its background. It has al-
interference with it. Some rights will thus inevi-
ready been identified that factors to be taken into
tably be afforded more importance than others,
account in determining the scope of the margin of
making interferences with them very difficult to
appreciation in this area include the existence of
justify.
common ground among the laws of Contracting
➤ With regard to the nature of the interference,
States; the sensitivity of the area being considered
it is clear that the more far reaching and severe
and the variety in customs, policies and practices
the interference, the stronger the reasons re- 113
across Contracting States.
quired to justify it. Weightier reasons are
needed to justify a prohibition on contact be- As a rule, then, the scope of the margin of ap-
tween a parent and a child in care, than for ex- preciation will differ according to the context. For ex-
ample, a restriction on such contact. ample, it has been held to be particularly wide in
➤ The pressing social need served by the inter- areas such as child protection. Here, the Court 111 Olsson v. Sweden, judg-
ference will also require serious consideration has recognised that there is diversity in approaches ment of 24 March 1988.
and measures used to protect national security to child care and state intervention into the family 112 Dudgeon v. the United
Kingdom, judgment of
may be easier to justify than those seeking to among Contracting States, and it takes this into ac- 22 Oct. 1981.
protect morals, for example. It is noteworthy, count when examining such cases under the Conven- 113 See above.

32
tion by allowing States a measure of discretion when rect contact with the persons concerned, at the very
acting in this area. Moreover, the Court has also rec- stage when care measures are being envisaged or im-
114
ognised that due to their proximity to the sensi- mediately after their implementation. As a result
tive and complex issues being determined at the State enjoys a degree of discretion with regard to
national level, the domestic authorities are bet- the manner in which private and family life is re-
ter placed to make an assessment of the cir- spected under Article 8 and this is reflected in the way
cumstances of each case and to determine the in which the balance between the interference and its
most appropriate course of action. In care cases, aim is assessed.
for example, the national authorities benefit from di-

114 Olsson (No. 2)


v. Sweden, judgment of
30 Oct. 1992.

33
Part II: The substantive law Collection and storage of personal
information
The second part of this handbook details the The extent to which the State can collect, store
substantive case-law of the Commission and Court and use personal information about an individual
of Human Rights on the four rights protected by Ar- without his consent will depend on its compatibility
ticle 8 – the right to respect for private and family with Article 8. Such measures usually fall into two
life, home and correspondence. While the objective categories: the information collected and stored by
is to describe whether certain measures and activi- the police in the prevention and detection of crime
ties are compatible with Article 8, as not every sce- and the files maintained by the security services in
nario has been dealt with by Convention bodies this the protection of national security.
analysis cannot be exhaustive. The general rules es-
tablished by the Court in its case-law and set out in What information can be collected and
the discussion that follows should be applied as ap- stored by the police?
propriate.

Photographs

Private life Whether the taking of photographs by the police


amounts to an intrusion into an individual’s private
life will depend on whether it related to private mat-
The case-law on the right to respect for private ters or public incidents, and whether the material
life covers a wide variety of areas including the col- thus obtained was envisaged for a limited use or was
lection and storage of information, accessing per- likely to be made available to the general public.
115

sonal information, the regulation of names and 116


The case of Friedl v. Austria concerned the fact that
issues of physical and moral integrity. Issues relating the Vienna police authorities took photographs in the
to correspondence, which overlap with private life, course and during the conclusion of a demonstration
are dealt with in a separate section at the end. in which the applicant participated. Afterwards, the 115 Appl. No. 5877/72,
police established the identity of the applicant, re- 12 Oct. 1972.
116 Friedl v. Austria, Comm.
corded these personal data and stored them in an Rep., 19 May 1994,
administrative file relating to these events. However, p. 20.

34
the Commission failed to find that this constituted an the keeping of records relating to criminal
interference with his right to respect for private life cases of the past is relatively slight and may thus
and put forward three reasons for its decision: be regarded as necessary in a modern democratic
117
➤ there was no intrusion into the “inner society for the prevention of crime. In Friedl v. Aus-
circle” of the applicant’s private life in the tria, the authorities established the applicant’s iden-
sense that the authorities had not entered his tity for the purposes of prosecuting him for road
home and taken the photographs there; traffic offences, although the prosecution was not
➤ the photographs related to a public incident, pursued in view of the trivial nature of the offences.
namely a manifestation of several persons in a According to the Commission, it was relevant that
public place, in which the applicant was volun- the information obtained was only kept in a gen-
tarily taking part; eral administrative file recording the events in
➤ they were solely taken for the purposes of re- question, and that it was not entered into the data
cording the character of the manifestation and processing system. Where the opposite is true,
the conduct of the participants in it in view of then the compatibility of the interference with Arti-
ensuing investigation proceedings for re- cle 8 would have to be revisited.
lated offences.
However, in reaching its final conclusion, the Information relating to terrorist activity
Commission also attached weight to the fact that
the Government had given assurances that The information which the police can legiti-
the individual persons on the photographs taken re- mately keep on its records includes both records of
mained anonymous in that no names were noted down, past offences as well as information obtained in in-
the personal data recorded and photographs taken were vestigations where no prosecution is brought and
not entered into a data processing system, and no ac- there is no reasonable suspicion against the indi-
tion was taken to identify the persons photographed on vidual concerned in relation to any specific offence.
that occasion by means of data processing. The latter is specifically permitted where special
117 Appl. No. 1307/61,
considerations, such as combating organised
4 Oct. 1962, Collection 9
p. 53. Records relating to past criminal cases terrorism, can justify the retention of the mate-
118 McVeigh, O’Neill and rial concerned.
Evans v. the United King- 118
dom, 18 March 1981, DR The Commission has found that the interfer- ➤ In McVeigh v. the United Kingdom the applicants
24 p. 15. ence with an individual’s private life caused by were questioned, searched, fingerprinted and

35
photographed under anti-terrorism legislation, thorities should be able to use this information
and they argued that the subsequent retention when assessing the suitability of candidates for em-
of relevant records constituted an interference ployment in posts that are important for national
with their private life. However, the Commission security. It is the State’s responsibility to identify
accepted that the information was relevant those exceptional conditions and special jobs.
for intelligence purposes, and that there was However, in such cases, the Court has said that it
a pressing social need to fight terrorism which must be satisfied that there exist adequate and ef-
outweighed what it considered as minor in- fective guarantees against abuse. These are nec-
fringements of the applicants’ rights. essary, it said, in view of the risk that “a system of
119
➤ In Murray v. the United Kingdom the recording of secret surveillance for the protection of national se-
the applicant’s personal details and photo- curity poses of undermining or even destroying de-
121
graph on arrest was considered to be within the mocracy on the ground of defending it”. States
legitimate bounds of the process of investigat- must thus have in place an adequate framework of
ing terrorist crime. According to the Court, safeguards offering minimum standards of pro-
none of the personal details recorded appeared tection in order to prevent the abuse of power
irrelevant to the arrest and interrogation proce- by the State and the violation of Article 8 rights.
dures. This case suggests that the Court will
scrutinise the nature and extent of the infor- What procedural safeguards are required?
mation which the police and security
122
forces record, subject to the wide margin of In Leander v. Sweden the Court discussed in de-
appreciation normally applied in such cases. tail the character of procedural safeguards neces-
sary to protect an individual’s Article 8 rights. The
119 Murray v. the United
Collecting personal information in order to applicant had been prevented from obtaining per- Kingdom, judgment of
protect national security manent employment and dismissed from provi- 28 Oct. 1994.
sional employment on account of certain secret 120 Leander v. Sweden, judg-
ment of 26 March 1987,
The Court has accepted that in order to protect information which, the authorities believed, made para. 59.
national security, States need to have laws granting him a security risk. He complained that both the 121 Leander v. Sweden, judg-
the authorities the power to collect and store infor- storage and the release of this information, coupled ment of 26 March 1987,
para. 60.
mation in registers that are not accessible to the with a refusal to allow him an opportunity to refute 122 Leander v. Sweden, judg-
120
public. Moreover, it is also acceptable that the au- it, violated his right to respect for private life as ment of 26 March 1987.

36
guaranteed by Article 8 para. 1. While the Court take place and the procedure to be followed by
agreed that the personnel control system consti- the National Police Board when taking deci-
tuted an interference with the applicant’s private sions to release information.
life, it went on to find that it was necessary in a ➤ finally, the use of the information on the secret
democratic society with reference to the safeguards police-register in areas outside personnel con-
available to protect the applicant’s rights from trol was limited, as a matter of practice, to
abuse. cases of public prosecution and cases concern-
123
From the list of twelve safeguards which the ing the obtaining of Swedish citizenship.
Swedish Government believed provided adequate In Leander v. Sweden the Court attached much
protection against abuse, the Court attached impor- importance to the fact that the supervision of the
tance to a number of provisions which were de- proper implementation of the system was en-
signed to reduce the effects of the personnel trusted both to Parliament and independent in-
control procedure to an unavoidable minimum. stitutions such as the Chancellor of Justice, the
They were as follows: Parliamentary Ombudsman and the Parliamentary
124
➤ although the National Police Board enjoyed Committee on Justice.
discretion as to what information may be en- Moreover, in terms of the operation of the Na-
tered in the register this was regulated by law tional Police Board, the Court found it important
and circumscribed by instructions issued by that the parliamentary members of the Board
Government; participate in all decisions regarding whether or not in-
➤ the entering of information on the secret po- formation should be released to the requesting author-
lice register was subject to the requirements ity. In particular, each of them is vested with a right of
that the information be necessary for the spe- veto, the exercise of which automatically prevents the
cial police service and be intended to serve the Board from releasing the information. In such a case, a
123 Leander v. Sweden, judg- purpose of preventing or detecting “offences decision to release can be taken only by the Govern-
ment of 26 March 1987, against national security”; ment themselves and then only if the matter has been
para. 62.
124 Leander v. Sweden, judg- ➤ the relevant law was found to contain explicit referred to them by the National Police Commissioner
ment of 26 March 1987, and detailed provisions as to what information or at the request of one of the parliamentarians. This
para. 65. may be handed out, the authorities to which direct and regular control over the most important as-
125 Leander v. Sweden, judg-
ment of 26 March 1987, information may be communicated, the cir- pect of the register – the release of information – pro-
125
para. 65. cumstances in which such communication may vides a major safeguard against abuse.

37
Taken together, then, the safeguards contained culty deciding that the information contained in the
in the Swedish personnel control system were suffi- file concerned the applicant’s private and family life,
cient to fulfil the requirements Article 8, para. 2 in lack of access to which raised issues under Article 8.
that case. Overall, the Court will consider the merits It then went on to consider whether a fair balance
of each case individually and will refrain from making had been struck between the general interests of
references to the systems in place in other jurisdic- the community – in maintaining a confidential sys-
tions. Its role is thus to determine if the system tem of social services records – and the interests of
under scrutiny in the current case passes the thresh- the individual – in having access to information con-
old imposed by Convention guarantees and cerning his private life. In relation to the latter, the
achieves a compromise between the requirements Court noted that persons like the applicant have
of defending democratic society and the rights of a “vital interest” in receiving information nec-
the individual. essary to know and understand their own
childhood and early development. With respect
Accessing personal data held by the State to the general interest, however, the Court noted
the important link between receiving objective
Frequently, it is an individual’s inability to ac- and reliable information and maintaining a
cess the information which the State holds about confidential system of public records. As a re-
him/her that is the subject of complaint rather than sult, it found that a system, which makes access to
the fact that such data is being held on state records dependent on the consent of the contribu-
126
records. In Gaskin v. the United Kingdom the appli- tor is compatible, at least in principle, with Article 8.
cant, who was taken into care at a very young age However, difficulties arise, however, with regard to
and remained in care until he attained majority, securing the interests of the individual seeking ac-
wished to have access to the whole file relating to cess to records relating to his private and family life
the time he had spent in the care of the State. In when a contributor to the records either is not
contrast to the Leander case, the applicant in Gaskin available or improperly refuses consent. Ac-
did not complain about the fact that information cording to the Court, such a system will only be 126 Gaskin v. the United
was compiled and stored about him. Instead, he compatible with the principle of proportionality if Kingdom, judgment of 7
challenged the failure to grant him unimpeded ac- it provides that an independent authority finally de- July 1989.
127 Gaskin v. the United
cess to that information as a failure to respect his cides whether access has to be granted in cases where a Kingdom, judgment of 7
127
private life under Article 8. The Court had no diffi- contributor fails to answer or withholds consent. July 1989, para. 49.

38
Where no such procedure exists, there will thus earlier arrest and thus not in a way which in-
be a violation of Article 8. truded on his privacy.

Disclosing personal data to third Disclosure by police to the press


parties or the public Disclosure of details of arrest by the police to
The protection of personal data is of funda- the press may be problematic depending on the cir-
mental importance to a person’s enjoyment of his cumstances of the case. In 1995 an applicant com-
private and family life and as a result, its disclosure plained that details, which appeared in the press
to the public or third parties will constitute an inter- following his arrest on suspicion of indecent assault
ference with private life that is less difficult to justify on a boy, referring to police confiscation at his home
than its mere storage. In general, the public inter- of large quantities of child pornography, violated his
est in disclosure must outweigh the individual’s right to respect for private life. He complained that
right to privacy, having regard to the aim pursued the police had given incorrect details to the press
and the safeguards surrounding its use. together with details which would enable persons in
his neighbourhood to recognise him. The Commis-
Disclosure in the course of the investigation sion held that, presuming this was an interference, it
and prosecution of crime was justified as being a factual summary of
events, which pursued the legitimate aim of inform-
128
In Doorson v. the Netherlands the Commission ing the public on matters of general interest.
had to consider whether the interference with pri-
vate life caused by showing the applicant’s photo- Disclosure of medical data and confidentiality
graph from police files to third persons was justified
under Article 8 para. 2. It held that the interference, According to the Court, it is a vital principle
which aimed to prevent crime, was proportionate to in the legal systems of the Contracting Parties
that aim for the following reasons: to the Convention that the confidentiality of
129
128 Doorson v. the Nether- ➤ the photograph was used solely for investiga- health data be respected. Its importance re-
lands, 29 Nov. 1993, DR tion; lates not only to the individual’s right of privacy but
75, p. 231.
129 Z v. Finland, judgment of ➤ it was not generally available to the public; and also his/her confidence in the medical profession
25 Feb. 1997. ➤ it had been taken lawfully by police during an and the health services in general. Consequently,

39
failing to protect this confidentiality may lead to thus be taken on its merits and must take into ac-
those in need of medical assistance being deterred count the margin of appreciation that the State en-
from revealing personal information necessary to re- joys in such an area.
ceive the appropriate treatment or even from seek- The Court’s conclusion in Z v. Finland was that
ing such assistance in the first place. This, the Court the disclosure of the witness’s medical records was
has said, would not only endanger their own health “necessary”, within the meaning of Article 8 para. 2,
but where transmittable diseases are concerned it for the purposes of a trial. However, the Court went
would endanger the health of the community. on to find that the publication of the witness’s
name and HIV status in the appeal court judg-
In what circumstances can medical data be ment was not justified as necessary for any legiti-
disclosed? mate aim. A violation of Article 8 of the Convention
130
In Z v. Finland the applicant complained that was also disclosed from the fact that the criminal
her medical details, including her HIV status, were files containing details of the applicant’s medical
revealed, for the purposes of a criminal trial, violat- records (HIV status) would be made public within 10
ing her right to respect for her private life under Arti- years, while she might still be alive.
cle 8. The Court’s response was to find that
Disclosing medical data to an insurance
[i]n view of the highly intimate and sensitive nature of company
132
information concerning a person’s HIV status, any In MS v. Sweden the Court found that it was le-
State measures compelling communication or disclosure gitimate for State medical institutions to pass onto
of such information without the consent of the patient social insurance authorities details of the medical
call for the most careful scrutiny on the part of the history of the claimant for benefit. The measure was
Court, as do the safeguards designed to secure an effec- proportionate since the details disclosed were rel-
131
tive protection. evant to the claim, there was a duty of confidential-
The Court also accepted, however, that the in- ity and staff incurred civil and/or criminal liability for
terests of a patient and the community as a abuse. 130 Z v. Finland, judgment of
whole in protecting the confidentiality of medi- 25 Feb 1997.
cal data may be outweighed by the interest in 131 Z v. Finland, judgment of
25 Feb 1997, para. 96.
investigation and prosecution of crime and in 132 MS v. Sweden, judgment
the publicity of court proceedings. Each case must of 27 Aug. 1997.

40
Names on marriage has been held to amount to discrimina-
tion in violation of Article 14 in conjunction with Ar-
133
ticle 8.
The Court’s approach
Changing surnames
Although issues concerning the regulation of
personal names falls within the scope of private and In Sterjna v. Finland, the Finnish applicant com-
family life under Article 8, the fact that the Court has plained that his inability, under Finnish law, to
never found a violation of that provision in the area change his surname violated Article 8. In particular,
suggests that it is not an aspect to which great im- he claimed that his surname caused problems
portance is attached. In the first instance, as there is since it was Swedish and was liable to be mispro-
little common ground between Contracting States nounced by Finnish speakers, causing delays in
as to the restrictions on permissible name changes mail and giving rise to a nickname. However, the
and choices, the Court affords a wide margin of ap- Court was not persuaded that there was any par-
preciation in this area. Moreover, the Court has ticular inconvenience or singularity in his name,
stated that there are accepted public interest noting that many names give rise to nicknames and
considerations which can be used to justify distortions.
regulating restrictions on name changes and
choice. These include: Registration of first names
➤ the importance given to the stability of family
names; In Guillot v. France, the Court found that it was
➤ accurate population registration; compatible with Article 8 to prohibit the registration
➤ safeguards as to the means of personal identi- of a baby with the name “Fleur de Marie”. It was in-
fication; and fluenced in its decision by the fact that the child
➤ linking the bearers of a particular name to a could use the name in daily life, if not for official
given family. documents, and it also found that the “complica-
tions” that might arise were she to use one name for
However, although such restrictions have been official purposes and another name socially were in-
133 Burghartz v. Switzerland, found to be compatible with respect for private life, sufficient to raise issues of interference with either
judgment of 22 Feb 1994. the application of different rules to men and women private or family life.

41
Physical and moral integrity When will medical treatment violate
Article 8?
When will positive obligations be Most medical interventions which constitute
an interference with physical integrity as part of pri-
necessary to satisfy Article 8? vate life will be justified with regard to the need to
It is well established that the State may be protect the health and rights of the community at
under a positive obligation to protect persons from large, or the individual being treated. For example,
infringements on their physical and moral integrity. considering whether the compulsory administra-
134 136
X & Y v. the Netherlands concerned the lack of legal tion of food in Herczegfalvy v. Austria was held to
capacity of a 16-year-old mentally disabled girl to be compatible with respect for the applicant’s pri-
appeal against the decision of the public prosecutor vate life because, according to the psychiatric prin-
not to pursue criminal charges against her alleged ciples generally accepted at the time, medical
rapist. She claimed that this violated her rights necessity justified the treatment.
under Article 8 and in response, the Court held that
positive obligations could arise requiring a State to Are body searches compatible with
adopt measures even in the sphere of the relations
respect for private life?
of individuals between themselves. On the facts of
X & Y civil law remedies were found to offer in- Strip searches, including rectal examinations,
sufficient protection given the severe and vio- carried out for security reasons have not been
lent nature of the wrongdoing alleged. Moreover, found to be incompatible with Article 8 although
a loophole in the criminal law meant that it provided such measures will normally constitute an interfer-
her with no protection and as a result, the State was ence with respect for private life. However, interfer- 134 X & Y v. the Netherlands,
found to have failed to fulfil its positive obligation to ences of this kind will usually be justified bearing in judgment of 26 March
protect her right to physical integrity, giving rise to a mind the reasonable and ordinary require- 1985.
135 135 See further above.
violation of Article 8. ments of imprisonment in which wider measures 136 Herczegfalvy v. Austria,
of interference might be justified than for persons at judgment of 24 Sep.
liberty in pursuance of the aims of preventing crime 1992.
137 137 Appl. No. 8317/78,
and disorder. In McFeeley v. the United Kingdom, for McFeeley v. the United
example, frequent strip searches were found to Kingdom, 15 May 1980.

42
be required by the exceptional security re- lar society. However, it has held that a margin of
quirements of the Maze prison in Northern Ire- appreciation is left to Contracting States as to
land, where experience showed dangerous objects appropriate safeguards, including the age of con-
had been smuggled in. The Commission found that sent, required for the protection of the young.
while the circumstances were personally humiliating
they were not deliberately degrading particularly Can private sexual conduct ever be
given the lack of physical contact and the presence
regulated?
of a third officer to avoid abuse.
The extent to which private sexual conduct can
be regulated has been examined recently by the
Is the criminalisation of homosexu-
Court. The applicants in Laskey, Jaggard & Brown v. the
ality consistent with Article 8? 140
United Kingdom were prosecuted for engaging in
138
Dudgeon v. the United Kingdom established the group sado-masochistic activities, which they ar-
important principle that private sexual conduct, gued violated their right to private life under Arti-
which is a vital element of an individual’s personal cle 8. Although the Court questioned whether such
sphere, cannot be prohibited merely because it may actions could be considered as an aspect of private
shock or offend others. In such an intimate aspect life under that provision, it was not necessary for it
of private life, there must exist particularly seri- to decide the matter as, in any event, the prosecu-
ous reasons before interferences can be justi- tion of acts such as assault and wounding, not-
fied. The Court underlined in this context two of the withstanding the consent of the adult victims,
hallmarks of a democratic society: tolerance and was justified for the aim of the protection of
138 Dudgeon v. the United broadmindedness. In Dudgeon, therefore, it held that health, having regard to the extreme nature of the
Kingdom, judgment of the criminalisation of homosexual conduct between acts concerned.
22 Oct. 1981. 141
139 Norris v. Ireland, judg- consenting males constituted an unjustifiable inter- However, in ADT v. the United Kingdom the Court
ment of 26 Oct. 1988. ference with the applicant’s private life. considered whether the prosecution of the applicant
140 Laskey, Jaggard & Brown 139
v. the United Kingdom, In Norris v. Ireland the Court reached the same for recording his sexual activities on video tape con-
judgment of 19 Feb. conclusion with respect to Irish law which stituted an unjustifiable interference with the right to
1997. criminalised homosexual conduct and rejected the respect for his private life. While the Court agreed with
141 ADT v. the United King-
dom, judgment of 31 July claim that States should enjoy extensive discretion the Government that, at some point, sexual activities
2000. with regard to the protection of morals in a particu- can be carried out in such a manner that state inter-

43
ference can be justified, it went on to find that this certificates to record a transsexual’s gender
142
was not such a case. In particular, it was relevant that re-assignment. In doing so, it has accepted the
the applicant was involved in sexual activities with a argument that, since the birth register system is
restricted number of friends in circumstances in based on recording facts at the time they occurred,
which it was most unlikely that others would become any subsequent changes would amount to a falsifi-
aware of what was going on. Notwithstanding that the cation of the record. It has also accepted that meas-
activities were recorded on video tape, the Court ures protecting transsexuals from disclosure of the
found it relevant that the applicant was prosecuted gender re-assignment would have adverse effects,
for the activities themselves and not for the recording including an alleged risk of confusion and complica-
or for any risk of it entering the public domain. The tion in family and succession matters. The Court’s
activities were thus genuinely “private”, which conclusion has been, therefore, that in balancing
means that a narrow margin of appreciation applies the general interest in the community with the
as in other cases concerning intimate aspects of pri- interests of the individual, the scales tipped in
vate life. As a result of these factors, the Court con- favour of the general interest. This is particularly
cluded that both maintaining the legislation in force the case where the transsexuals are able to change
and prosecuting and convicting applicant were dis- first names and official documents. Despite its case-
proportionate to the aim of protecting morals and the law, however, the Court has admitted that it is con-
rights and freedoms of others under Article 8 para. 2. scious of the seriousness of the problems which
transsexuals face in this area and has thus stated
Failure to recognise transsexuals’ that the position should be kept under review.
change of gender
According to the Court, transsexuals seeking to Private life
obtain recognition of their change of gender and to
enjoy other Convention rights raises legal, social,
and correspondence 142 Rees v. the United King-
dom, judgment of 17 Oct.
medical and ethical issues. In the absence of clear 1986; Cossey v. the
consensus in Contracting States, therefore, it has af- The interception of communications, in the United Kingdom, judg-
forded a wide margin of appreciation in this area and form of telephone tapping or interrupting written ment of 27 Sep. 1990;
Sheffield and Horsham v.
it has consistently failed to find that respect for correspondence, has generally been found to con- the United Kingdom,
private life requires the amendment of birth stitute an interference with more than one of the in- judgment of 30 July 1998.

44
terests protected by Article 8 para. 1, usually the When and how are authorities allowed to
right to respect for private life and correspondence. intercept prisoners’ correspondence?
The contentious issues in such cases, which have
144
already been examined above, will invariably be In Campbell v. the United Kingdom the applicant
whether the applicant can prove that the alleged in- complained that correspondence to and from his
terference occurred and/or whether the measure solicitor and the Commission was opened and read
complained of was in accordance with law in com- by the prison authorities giving the Court an oppor-
pliance with Article 8 para. 2. The extent to which tunity to set down precise indications as to when
the interception of communications is a justifiable and how the authorities are allowed to open prison-
interference with private life and correspondence is ers’ correspondence. It began by affirming that cor-
set out below. respondence with lawyers is privileged under
Article 8 and especially important in a prison con-
Intercepting correspondence by text, where it may be more difficult for a legal adviser
to visit his client in person, for example because of
post
the distant location of the prison. It then went on to
Are prisoners entitled to have their correspond- note that the objective of confidential communica-
ence respected under Article 8? tion with a lawyer could not be achieved if this
means of communication were the subject of auto-
While it was originally argued that there were matic control. As a result, any such interference
implied restrictions on the exercise of Convention requires solid justification.
rights by prisoners, the Court rejected this proposi- According to the Court, the special protec-
143
tion in Golder v. the United Kingdom. However, it did tion which correspondence between a prisoner
recognise that the “necessity” for interfering and his lawyer enjoys under the Convention
143 Golder v. the United with the exercise of the right of a convicted means that the authorities may open a letter from a
Kingdom, judgment of prisoner to respect for his correspondence lawyer to a prisoner only
17 June 1971.
144 Campbell v. the United must be appreciated having regard to the ordi- when they have reasonable cause to believe that it con-
Kingdom, judgment of nary and reasonable requirements of impris- tains an illicit enclosure which the normal means of de-
145
25 March 1992. onment. Nevertheless, on the facts, it held that the tection have failed to disclose.
145 Campbell v. the United
Kingdom, judgment of decision to prevent the prisoner from correspond- Even then, the letter should be opened and
25 March 1992, para. 48. ing with his legal advisor violated Article 8. not read and suitable guarantees preventing the

45
reading of the letter should be provided, such as Do the same rules apply to remand prisoner’s
opening the letter in the presence of the pris- correspondence?
oner. According to the Court in Schönenberger &
148
In relation to the reading of a prisoner’s mail to Durmaz v. Switzerland, the same principles apply to
and from a lawyer, the Court held in Campbell that correspondence between a lawyer and a prisoner on
this should be permitted only in exceptional cir- remand. In this case, the applicants’ complaint was
cumstances, in particular only not that the authorities had apprised themselves of
when the authorities have reasonable cause to be- the content of the letter, but that they had failed to
lieve that the privilege is being abused in that the forward it to its addressee in violation of Article 8.
contents of the letter endanger prison security or The Government’s justification for refusing to for-
the safety of others or are otherwise of a criminal ward the letter was that it gave the remand prisoner
146
nature. legal advice which was of a nature that would jeop-
According to the Court, what may be regarded ardise the proper conduct of pending criminal pro-
as “reasonable” cause will depend on all the circum- ceedings. In effect, the letter advised Mr Durmaz of
stances, but his right to remain silent, something which the
it presupposes the existence of facts or information Court agreed was a lawful tactic provided for under
which would satisfy an objective observer that the Swiss Federal Court’s case-law, whose equivalent
privileged channel of communication was being could be found in other Contracting States. The in-
147
abused. terception of the correspondence was thus incom-
While the Government argued that affording a patible with Article 8.
special status to mail between a prisoner and his
solicitor would create a risk that such a system Can prisoners’ private correspondence be 146 Campbell v. the United
Kingdom, judgment of
would be abused, the Court held that the mere intercepted? 25 March 1992, para. 48.
possibility of abuse was outweighed by the 147 Campbell v. the United
need to respect the confidentiality attached Whether the interception of prisoners’ private Kingdom, judgment of
25 March 1992, para. 48.
to the lawyer-client relationship. Clearly, there- correspondence will be justified will depend largely 148 Schönenberger & Durmaz
fore, intercepting correspondence between a pris- on its content. As the objective of preventing dis- v. Switzerland, judgment
oner and his lawyer is an interference with order and crime under Article 8 para. 2 may “justify of 20 June 1998.
149 Golder v. the United
Article 8 rights which will be justified only in ex- wider measures of interference in the case of a … Kingdom, judgment of
149
ceptional circumstances. prisoner than in that of a person at liberty” some 17 June 1971, para. 45.

46
measure of control over prisoners’ correspondence be able, in order effectively to counter such threats,
is not of itself incompatible with the Convention. to undertake the secret surveillance of subversive el-
150
Silver v. the United Kingdom, for example, illustrates ements operating within its jurisdiction. The Court
how the interception of letters containing threats of has had to accept, therefore, that
violence or discussions about particular criminal ac- the existence of some legislation granting powers of se-
tivities may be found to be necessary in a demo- cret surveillance over the mail, post and telecommuni-
cratic society Article 8 para. 2. On the other hand, it cations is, under exceptional conditions, necessary in a
is not compatible with Article 8 to stop private let- democratic society in the interests of national security
152
ters “calculated to hold the authorities up to con- and/or for the prevention of disorder or crime.
tempt” or containing “material deliberately
calculated to hold the prison authorities up to con- What safeguards are required?
tempt”. According to the Court, measures which do
not pursue those aims or any other aim set out in While it is within the discretion of the State how
the provision will not be permissible and the inter- such a system of surveillance should operate, this
ception of purely personal or private corre- discretion is not unfettered. Similar to the State’s
spondence will thus be incompatible with the covert activities in other areas, therefore, the Court
151
Convention. must be satisfied that there are adequate and
effective guarantees against abuse whatever
Secret surveillance operations system is adopted. According to the Court, how-
ever, this assessment has a relative character
150 Silver v. the United King- Although the Court recognises that intelligence it depends on all the circumstances of the case, such as
dom, judgment of services may legitimately exist in a democratic soci- the nature, scope and duration of the possible measures,
25 March 1983.
151 Boyle & Rice v. the ety it has made it clear that powers of secret surveil- the grounds required for ordering such measures, the
United Kingdom, judg- lance of citizens are tolerable under the Convention authorities competent to permit, carry out and super-
ment of 27 April 1988. only in so far as they are strictly necessary for vise such measures, and the kind of remedy provided by
152 Klass v. Germany, judg- 153
ment of 6 Sept 1978, safeguarding the democratic institutions. In this the national law.
154
para. 48 regard, the Court has been influenced by the fact In Klass v. Germany the Court had to address
153 Klass v. Germany, judg- that democratic societies find themselves threat- whether German legislation, which authorised letter-
ment of 6 Sept 1978,
para. 50. ened by highly sophisticated forms of espionage opening and wire-tapping in order to safeguard na-
154 Ibid. and by terrorism, with the result that the State must tional security and prevent disorder and crime,

47
violated the applicant’s rights under Article 8 para. 1 The legal recognition of family ties
insofar as it lacked adequate safeguards against pos-
sible abuse. In relation to what protection is neces- Unmarried mother and her child
sary, the Court emphasised that, in principle,
judicial control of surveillance is desirable. The Court established in Marckx v.
155
However, it went on to approve the German system Belgium that family life between an unmarried
even though the supervisory control was vested not mother and her child is created by the fact of birth
in the courts but in a Parliamentary Board and a and the biological bond which it creates. This means
body called the G10 Commission, which the Board that the automatic and immediate transforma-
appointed. This was because it was satisfied that tion of this biological bond into a legal tie is
both bodies were independent of the authorities essential in order to guarantee respect for
carrying out the surveillance and have been given family life under Article 8. The fact that facilities
sufficient powers to exercise an effective and for recognition may vary across Contracting States
continuous control. The Court concluded, there- means that domestic authorities enjoy a margin of
fore, that taking notice of technical advances in the appreciation with regard to the practicalities of how
means of espionage and surveillance and of the de- recognition takes place. Importantly, however, “re-
velopment of terrorism in Europe, the German sys- spect for family life implies the existence in law
tem for controlling covert surveillance met the of safeguards that render possible, from the
requirements of Article 8 of the Convention. moment of birth, the child’s integration in the
156
family”. The Court has also found that domestic
laws relating to family ties must enable all con-
Family life cerned to lead “a normal family life”.

The position of the child born to unmarried


Once family life within the meaning of Article 8 parents
is found to exist protection flows from the provision
in a number of areas. 157
In Johnston v. Ireland the Court went on to find 155 Marckx v. Belgium, judg-
that the normal development of natural family ment of 13 June 1979.
156 Ibid., para. 31.
ties between unmarried parents and their chil- 157 Johnston v. Ireland, judg-
dren required that the latter be placed, legally ment of 18 Dec. 1986.

48
and socially in a position akin to that of a child the best interests of the child and with regard to
whose parents were married. Treating children the rights of the individuals, the Court concluded
differently by virtue of their parents’ marital status is that the social and legal disadvantages experi-
thus prohibited under the Convention reading Arti- enced by the child and her social father were
cle 8 together with the non-discrimination provi- unlikely to cause undue hardship in the circum-
sion, Article 14. stances. Overall, the Court was unconvinced that
the registration of the applicant as her father would
The child born by AID benefit the child concerned or indeed children con-
ceived by AID in general. As a result, it refused to
Not all parents and their children are entitled find implicit in Article 8 an obligation to recognise as
to have their natural family ties recognised under the father of a child a person who is not the biologi-
160
Article 8, although any exceptions must be justi- cal father.
fied with reference to the best interests of the
child under paragraph 2. In X, Y & Z v. the United King- The rights of unmarried fathers
158
dom the Court failed to find that respect for the Some States permit mothers to control
family life enjoyed by a female to male transsexual, whether the unmarried father of their child is en-
his partner and their daughter born by artificial in- tered onto the child’s birth certificate. Whether this
semination by donor required the recognition of the practice will violate Article 8 will depend on whether
transsexual as the child’s father on her birth certifi- it can be justified in the child’s best interests. Such
cate. The basis of its decision was the absence of justification will usually exist only where there is
common European standards with respect to grant- conflict between the parents and the mother ob-
ing parental rights to transsexuals and reflecting in jects to the entry on the child’s birth certificate on
law the relationship between a child conceived by the grounds that it will afford him automatic rights of
AID and the person performing the social role of fa- custody and access.
159
ther. This lack of consensus meant that the State
enjoyed a wide margin of appreciation when balanc- Is shared parental responsibility necessary to
158 X, Y & Z v. the United ing the rights of the individuals concerned with respect family life?
Kingdom, judgment of those of the community. The community or public
22 April 1997.
159 Ibid., para. 44. interest was served by the maintenance of a The Commission has found that the inability of
160 Ibid., para. 52. coherent system of family law which prioritises unmarried parents to enjoy joint legal custody of their

49
child responds to the circumstances which prevail the right to respect for family life under Article 8 is
where a child is born outside marriage and such treat- to be enjoyed by married, as well as separated,
164
ment is thus consistent with the Convention, even spouses together with their children. When, fol-
where both parents wish to have their factual situa- lowing separation, the right of custody and care of
tion of shared parental responsibility recognised in the child is awarded to one parent, then the other
161
law. The Court has not yet considered this issue. parent can claim that this decision violates his right
to respect for family life. The Court’s review of
Does the presumption that the husband is the whether domestic decisions of this kind are consist-
father violate Article 8? ent with Article 8 is influenced heavily by the wide
The Convention approach to the issue of pater- margin of appreciation which the State enjoys in
nity reflects the prevalence of the social and bio- this area and it is unlikely to find that a decision
logical, over the legal reality in the recognition awarding custody to one parent violates Article 8
of family ties. In 1993 a mother complained that unless the procedure followed was arbitrary or oth-
her inability to rebut the presumption that her hus- erwise failed to take the parties’ rights and interests
band was the father of her child, despite the fact into account. 161 Appl. No. 9519/81 v.
Germany, March 1984,
that he had disappeared years before the birth, vio- 6 EHRR 599. See also
162
lated her right to respect for family life. The Court When is the award of custody discriminatory? Appl. Nos. 7658/76 &
believed that the irrebuttable presumption violated 7659/76, X v. Denmark, 5
The Convention prohibits the domestic au- Dec. 1978, DR 15,
Article 8. In particular, it held that p. 128.
thorities from awarding, or refusing to award the 162 Appl. No. 18535/91, K, Z
respect for family life requires that biological and social real- custody and care of children to a particular parent & S v. the Netherlands,
ity prevail over a legal presumption which, as in the present on religious grounds. This was established in the Comm Rep, 7.4.93, Se-
165 ries A no 297-C, p 66.
case, flies in the face of both established fact and the wishes of case of Hoffmann v. Austria. The applicant in this 163 Kroon and Others v. the
163
those concerned without actually benefiting anyone. case was a Roman Catholic, who married a man of Netherlands, judgment of
the same religion and together, they had their chil- 27 Oct. 1994, para. 40.
164 Appl. No. 8427/78,
Custody, contact and care issues dren baptised and brought up in that faith. How- Hendriks v. the Nether-
ever, she later became a Jehovah’s Witness and lands, Comm. Rep., 8
Can an award of custody violate Article 8? divorced her husband, taking her children with her. March 1982.
165 Hoffmann v. Austria,
The couple contested custody in the Austrian judgment of 23 June
Family life does not cease with divorce and so courts and the lower courts awarded custody to the 1993.

50
mother. The Supreme Court reversed this decision, tory measures may be required where a child has
however, being persuaded, in part, by the negative lived with others for some time. Moreover, the na-
effects of the mother’s religion on the children, in- ture and extent of such preparation should depend
cluding its opposition to blood transfusions and on the circumstances of the case. Thus, while do-
public holidays and its position as a social minority. mestic authorities
The European Court found that the decision of must do their utmost to facilitate such co-operation,
the Austrian Supreme Court was incompatible with any obligation to apply coercion must be limited as all
the Convention insofar as it amounted to discrimi- interests and rights (particularly of the child) must be
167
nation on the basis of religion. While it did not deny taken into account.
that certain social factors concerning membership Overall, the State must take all measures
of the Jehovah’s Witnesses might tip the scales in fa- reasonably necessary in the circumstances to
vour of one parent when awarding custody – the enforce a parents’ rights to custody or access.
possible effect on the children’s social life of being Where such efforts are inadequate or unsuccessful,
associated with a religious minority and the hazards and responsibility cannot be attributed to the par-
attached to the mother’s total rejection of blood ent seeking enforcement, then a violation of Article
transfusions in the absence of a court order – the 8 will result. On the other hand, where the national
Court held that any distinction between parents authorities have taken all the necessary steps with a
based essentially on a difference in religion view to enforcing the right to contact as could rea-
alone was unacceptable. sonably be demanded in a difficult situation of con-
168
flict, then no violation will occur.
Does the failure to enforce parents’ rights violate
Article 8? Is there a greater obligation to enforce contact
166 Hokkanen v. Finland, than custody rights?
166
judgment of 23 Sep. The Court established in Hokkanen v. Finland
1994. that Article 8 may oblige the State to take active In Hokkanen v. Finland, the Court held that the
167 Ibid., para. 58.
168 Nuutinen v. Finland, measures with a view to enforcing court orders on authorities had failed to take adequate and appro-
judgment of 27 June matters of custody and contact. However, the obli- priate measures to enforce the applicant’s right to
169
2000. gation to ensure that family life is respected is contact with his daughter. However, it did not
169 Hokkanen v. Finland,
judgment of 23 Sep. not absolute. In particular, with regard to enforcing reach the same conclusion in relation to enforce-
1994. custody orders, the Court has noted that prepara- ment of the applicant’s custody rights and the even-

51
tual transfer of custody to the child’s grandparents, care of the State is found to be no longer necessary.
which were both found to be compatible with Arti- As to what is required to fulfil this obligation, the
cle 8. In particular, the Court found it important that Court has established that a fair balance has to be
the child in question had been in the custody of her struck between the interests of the child in remain-
grandparents for nearly six years when her legal cus- ing in public care and those of the parent in being
tody was eventually transferred to her carers during reunited with the child. In particular, it has held that
which time she had little contact with her father. This ... [i]n carrying out this balancing exercise, the Court
decision, said the Court, was clearly in the child’s will attach particular importance to the best interests of
best interests, a factor which served to justify the the child, which, depending on their nature and seri-
serious interference with the father’s Article 8 rights, ousness, may override those of the parent. In particu-
which it caused. Similarly, the authorities’ failure to lar, as suggested by the Government, the parent cannot
enforce the custody order when it was being chal- be entitled under Article 8 of the Convention to have
170
lenged in the courts was also consistent with the such measures taken as would harm the child’s.
171
Convention. In Johansen v. Norway the applicant’s daughter
Clearly, therefore, it appears that there is a had been placed in a foster home with a view to
greater obligation on the State to enforce orders in adoption by the foster parents, a decision which she
relation to contact, than custody matters. This is sought to challenge under Article 8. According to the
consistent with the Court’s view that without Court, measures such as those aimed at perma-
measures to prepare for the child’s return to nently depriving a parent of contact or custody,
his/her parents the implementation of a cus- should only be applied in exceptional circum-
tody order may be damaging to the child, whose stances and could be justified only where they
interests it is supposed to serve. are motivated by an overriding requirement
pertaining to the child’s best interests. On the
The positive obligation to reunite parents with facts of the case, the Court noted that the mother’s
their children access to her daughter in care was going well and that
there were signs of improvement in her life. The
Respect for family life under Article 8 clearly in- authorities’ view that the applicant was unlikely to 170 Johansen v. Norway,
volves a positive obligation to reunite parents with cooperate and that there was a risk of her disturbing judgment of 7 Aug. 1996,
para. 78.
their children. This obligation is usually invoked the daughter’s care if given access to the foster home 171 Johansen v. Norway,
where a temporary order placing the child into the was based, instead, on the difficulties experienced in judgment of 7 Aug. 1996

52
the implementation of the care decision concerning sons were found to be “relevant” and “sufficient”, as
her son. The Court concluded, therefore, that these there was evidence, for example, that the children
difficulties and risks were not of such a nature and were retarded in their development and other meas-
degree as to dispense the authorities altogether from ures had been tried without success. This satisfied
their normal obligation under Article 8 to take meas- the Court that the care order was compatible with
ures with a view to reuniting them. This was particu- Article 8. However, this will not always be the case
larly the case if the mother were to become able to despite the State’s wide margin of appreciation. In
173
provide the daughter with a satisfactory upbringing. K & T v. Finland the Court found, on the facts, that
The decision to deprive her of her parental rights thus the care order was not the only option for securing a
violated Article 8. child’s protection. In particular, the reasons used
to justify the care order were insufficient and
The Court’s approach in care cases the methods used in implementing those deci-
sions were excessive leading to a violation of
The Court does not offer an appeal from the Article 8. Thus, where the authorities fail to use a
decisions of domestic courts and it thus refrains care order as a measure of last resort and base such
from substituting its opinion on the merits of indi- a decision on reasons that are arbitrary and unjusti-
vidual decisions. In this area, therefore, its role is to fied in the circumstances, then this may give rise to a
assess whether a decision to place a child into care violation of Article 8.
is compatible with the Convention. In this regard,
its supervisory role is not limited to determin- The ultimate aim of family reunion
ing whether the State had exercised its discre-
tion reasonably, carefully and in good faith. The Court has established that given the fun-
Instead, it falls to the Court to consider damental relationship of family life between par-
whether the reasons used to justify an interfer- ents and their children, a care order is intended to
ence were “relevant and sufficient”. In Olsson be temporary in nature and its implementation
172 Olsson v. Sweden, judg- 172
ment of 24 March 1988. v. Sweden, for example, three children were taken guided always by the ultimate aim of family re-
174
173 K & T v. Finland, judg- into care because the social authorities considered union. Only in exceptional cases, therefore, can it
ment of 27 April 2000. that their development was in danger for a variety of be justified to act as if a care order should never be
174 Olsson v. Sweden, judg-
ment of 24 March 1988, reasons, including the parents’ inability to satisfy lifted and even if it is necessary for the child to
para. 81. their emotional and intellectual needs. Such rea- spend a long period of time in care, the aim of lift-

53
ing the order must inform all arrangements order is in force is not.
made during that time. In the Olsson case, the Any limit placed on the communication permit-
three children had been placed with separate foster ted between parent and child must be based on rel-
families, hundreds of kilometres from each other evant and sufficient reasons designed to protect the
and their parents, making it very difficult for them to interests of the child and to further reunification of
maintain contact. Considering whether this situation the family. In particular, there must be propor-
was compatible with respect for their family life, the tionality between the restrictions imposed on
Court noted that although the authorities had acted contact and the need served by those restric-
176
in good faith in implementing the care decision in tions. In Andersson v. Sweden a mother and her son
this manner, it was unacceptable that adminis- complained that their right to visits was severe cur-
trative difficulties, such as a lack of appropri- tailed and they were also prohibited from having
ate foster families or placements, should any contact by mail or telephone during a period
determine where the children would be which lasted eighteen months. While the reasons
175
placed. According to the Court, such problems advanced by the authorities in support of these
could play no more than a secondary role in the im- measures were relevant – the child was likely to ab-
plementation of a care order and its conclusion, scond from care where he needed treatment – the
therefore, was that, despite the parents’ unco- Court failed to find that they were sufficient to jus-
operative behaviour, the measures taken by the tify the severe measures imposed giving rise to a
authorities were not supported by sufficient reasons violation of Article 8.
for them to be proportionate to the aim pursued giv-
ing rise to a violation of Article 8. Procedural rights
The importance of contact with children in care The Court has established that there are proce-
dural rights implicit in respect for family life under
177
The Court clearly attaches much importance to Article 8. In W v. the United Kingdom the local 175 Olsson v. Sweden, judg-
ment of 24 March 1988,
the maintenance of contact between parents and authority passed a parental rights resolution in re- para. 82.
children, during a child’s placement in care. Fre- spect of the applicant’s child and then proceeded 176 Andersson v. Sweden,
quently, therefore, it will find that the making of a to take a number of decisions – including placing judgment of 25 Feb 1992.
177 W v. the United King-
care order is compatible with Article 8, while the re- the child in long-term foster care with a view to dom, judgment of 8 July
striction or refusal of contact with a parent while the adoption, restricting and eventually terminating the 1987.

54
father’s access – without advance consultation or Is the length of family proceedings relevant
discussion with the applicant. Considering whether to Article 8?
this was compatible with Article 8, the Court noted
that it was crucial in an area where decisions The impact of the length of family law proceed-
may prove irreversible (such as where a child ings on their outcome has implications for Article 8
may form new bonds with his alternative due to the fact that effective respect for family
carers) that there is adequate protection from life requires that future relations between par-
parents against arbitrary interferences. In the ent and child be determined solely in the light
circumstances of the case, the Court found that the of all relevant considerations and not by the
179
applicant was not informed or consulted in advance mere effluxion of time. Any procedural delay
in respect of a number of decisions which affected may thus lead to a de facto determination of the issue
his relationship with his daughter and that as a re- before the court and as a result, the relevant
sult, he was insufficiently involved in critical stages authorities are under a duty to exercise exceptional
of the decision making. Accordingly, the Court held diligence where there is a danger that a procedural
that the applicant had not been afforded the requi- delay will have an irreversible effect on the parties’
180
site consideration of his views or protection of his family life.
interests, giving rise to a violation of Article 8.
The precedent set therefore is that under Arti- Will the adoption of a child without
cle 8, parents, and where relevant, other family parental consent violate Article 8?
members, must be involved in any decision-
making process concerning their children to a Parents whose children are placed for adoption
degree sufficient to provide them with a req- may claim that this violates their right to respect for
178 Appl. No. 12402/86,
Price v. the United King- uisite protection of their interests. Thus, par- family life under Article 8 of the Convention. While it
dom, 14 July 1988. ticular attention must be paid to the procedural is apparent that an adoption order interferes with
179 W v. the United King- fairness of the decision-making process concern- family life, the circumstances of the case will de-
dom, judgment of 8 July
1987, para. 65. ing their children, whether administrative or judi- termine whether that interference can be justi-
180 H v. the United Kingdom, cial in nature, in which parents and other family fied by relevant and sufficient reasons with
judgment of 8 July 1987, members participate although the level of consul- reference to the rights and interests of the child
para. 85. 181
181 Johansen v. Norway, tation or involvement required may differ in re- concerned. In Johansen v. Norway the decision to
178
judgment of 7 Aug. 1996. spect of non-parental relatives. free the applicant’s daughter for adoption was found

55
to violate Article 8 because it was not based on rea- Will the adoption of a child without a
sons that were relevant and sufficient. However, the parent’s knowledge violate Article 8?
opposite conclusion was reached in Söderback v. Swe-
182
den, where the issue was the same but the context Once family life is found to exist between a
different. The applicant in Söderback also complained parent and a child, the placement of that child for
about the decision to free his child for adoption, but adoption without the parent’s consent or knowl-
in contrast to Johansen which concerned the sever- edge will constitute an interference with family
ance of links between a mother and her child who life which is very difficult to justify. In Keegan v. Ire-
183
was taken into care, this case involved the severance land the Court held that certain aspects of the
of links between a natural father and his child who Irish system of adoption violated Article 8. In
was in the mother’s care since her birth. According particular, the fact that the natural father had
to the Court, there were a number of important fac- no standing in the adoption process meant
tors here: that the child was placed immediately with pro-
➤ First, the case did not concern a parent who spective adopters with whom she began to form
had either custody of the child or who had as- bonds and by the time his application to chal-
sumed care of the child in any capacity. lenge the adoption came before the courts, the
➤ Second, at the relevant time, the contacts be- child was found to be secure and established in
tween the applicant and the child were infre- the adoptive home. Thus, the legal situation not
quent and limited in character and when the only
adoption was granted he had not seen her for jeopardised proper development of the applicant’s ties
quite some time. with his child, but also set in motion a process likely to
➤ Finally, the person adopting the child had prove irreversible, thereby putting the applicant at a
184
shared the care of the child with the child’s distinct disadvantage in the contest for custody.
mother almost since birth and she regarded According to the Court, therefore, the proce-
him as her father. The adoption would thus dural impropriety caused by the failure to 182 Soderback v. Sweden,
judgment of 28 Oct.
consolidate and formalise those ties. consult or inform the unmarried father about 1998.
Against this background, and having regard to his child’s placement amounted to a failure to 183 Keegan v. Ireland, judg-
the assessment of the child’s best interests made by respect his family life under Article 8, regard- ment of 26 May 1994.
184 Keegan v. Ireland, judg-
the domestic courts, the Court was satisfied that the less of the merits of placing the child for ment of 26 May 1994,
case disclosed no violation of Article 8. adoption. para. 55.

56
Immigration Does a child have a right to join a parent in a
Convention State?
An order deporting someone from a Conven-
tion State where their children or other people with
Article 8 does not guarantee a right to
whom they enjoy family life reside, or refusing to al-
choose the most suitable place to develop fam-
low a parent or other family member to join others 186
ily life. Thus in Ahmut v. the Netherlands the Court
in that State will interfere with their family life under
held that the refusal of the Dutch authorities to per-
Article 8. Such a measure will only be compatible
mit the Mr Ahmut’s 15-year-old son to enter the
with the Convention where it fulfils the require-
country where he himself had resided for some time
ments of Article 8 para. 2.
did not violate Article 8. In particular, the Court
Do non-national spouses have a right to live noted that the boy had lived most of his life in Mo-
together in a Convention State? rocco, with which he had strong linguistic and
The principles governing the extent of the cultural links and where he had been brought up by
State’s obligation to admit spouses were laid down other family members. The Court saw no reason why
by the Court in Abdulaziz, Cabales and Balkandali v. the the family life between the parties could not con-
185
United Kingdom. They are as follows: tinue the way it had before.
The fact that the family is able to return to
➤ There is no general obligation on a State to re- join the child may also be a decisive considera-
187
spect the choice by married couples of the tion. In Gul v. Switzerland, where the Turkish father
country of matrimonial residence. lived in Switzerland and had applied unsuccessfully
➤ States enjoy a wide margin of appreciation in for the 12-year-old son to join him, the Court ob-
this area. served that the parents had caused the separation
➤ It is relevant whether there are obstacles to es- by moving to Switzerland in the first instance, and
185 Abdulaziz, Cabales and tablishing the marital home elsewhere, in the that while it was admittedly difficult, given their
Balkandali v. the United country of the spouse or applicant’s own origin health problems, living in Turkey, there were no ob-
Kingdom, judgment of
28 May 1985. or whether there are any special reasons why stacles preventing them from living there.
186 Ahmut v. the Nether- they should not be expected to do so.
lands, judgment of 28 ➤ It is relevant whether when married they were When will expulsion violate Article 8?
Nov. 1996.
187 Gul v. Switzerland, judg- aware of the problems of entry and the limited
ment of 19 Feb. 1996. leave available. In order to determine whether a decision to de-

57
port a person from a Contracting State will be com- would be disproportionate to the aim sought to be
patible with respect for their private and family life, achieved by his/her deportation. In such cases the
the Court will look at the extent of the links which applicant has lived most of his/her life in the expel-
the individual enjoys with both the host state ling state, s/he has considerable social and family
and the receiving state which will be the indi- ties with the that State while having little contact or
vidual’s state of origin. Among the factors taking familiarity with the receiving state. For example, in
188
into account are: Moustaquim v. Belgium the applicant had arrived in
➤ the length of time spent and knowledge of the Belgium aged 2, all his close relatives were there and
language and culture in either State; had acquired Belgian nationality; he had received all
➤ the existence of family ties and a social circle in his schooling in French and visited Morocco only
the respective countries; twice on holiday. More recently, in Mehmi
189
➤ the impact on their relationship with those fam- v. France, the applicant had been born in France
ily members who remain behind, and and schooled there, and most of his family, includ-
➤ any other personal circumstances, such as ing his wife and three children, lived there, had ac-
health or psychological factors, which may quired French nationality and could not be
mean that the deportation has a particularly expected reasonably to live elsewhere.
drastic effect on the individual.
These factors then have to be balanced against When is deportation compatible with Article 8?
the reasons for the removal – either the prevention
of crime or disorder where there has been a breach In contrast, where the applicants had retained
of the criminal law, or the economic well-being of the some links with their country of origin their claims
country, where the country has a strict immigration under Article 8 are less successful. For example, in
190
policy – in order to determine whether the interfer- Boughanemi v. France the Court found it probable
ence with family life is proportionate to the need that the applicant had retained links with Tunisia,
thereby fulfilled. did not claim that he could not speak Arabic or that
188 Moustaquim v. Belgium,
he had cut off all ties with that country. It also gave judgment of 18 Feb 1991.
When is deportation contrary to Article 8? particular weight to the offences that he had com- 189 Mehmi v. France, judg-
mitted and the fact that he had cohabited with a ment of 26 Sep. 1997.
190 Boughanemi v. France,
The Court has found on a number of occasions French woman and had a child with her only subse- judgment of 24 April
that the effect on the individual’s Article 8 rights quent to the making of the deportation order. 1996.

58
The importance of parental links with their protection that flows is various and is outlined be-
children low. However, where a person enjoys a property right
191
In Berrehab v. the Netherlands the Court at- in relation to the house, any interference with that
tached particular importance to the effect that the right will raise issues, instead, under Article 1 of the
applicant’s deportation would have on his relation- first Protocol, which guarantees the right to peaceful
ship with his daughter in finding that the measure enjoyment of possessions.
was disproportionate to the aim of preserving the
economic well-being of the country. Although it was Protection from wilful damage
relevant that the applicant’s expulsion resulted
from his divorce, rather than any illegal or criminal At its most basic, Article 8 includes a right to
conduct, the girl’s young age and her need to have one’s home protected from attacks by the
remain in contact with her father were signifi- State and its agents. Thus, in Akdivar and Others v.
193
cant factors in the Court’s conclusion that the de- Turkey the Court found it established that the se-
portation would amount to a violation of Article 8. curity forces were responsible for the burning of the
applicants’ houses and the loss of their homes
192
Moreover, in Ciliz v. the Netherlands the Court which caused them to abandon the village and move
held that by failing to co-ordinate the various elsewhere. As there was no doubt that the deliberate
proceedings touching on the applicants’ family burning of their homes and contents constituted a
rights the authorities had not acted in a manner serious interference with the right to respect for
which enabled his ties with his son to be developed their family lives and homes under Article 8 and no
following the divorce. As a result, the decision-mak- justification for these interferences was offered by
ing process concerning both the question of his ex- the Government, the Court concluded that there
pulsion and the question of his access to his son had been a violation of Article 8.
had not afforded him the requisite protection of his
191 Berrehab v. the Nether- interests, giving rise to a violation of Article 8. Protection from nuisance
lands, judgment of 21
June 1988.
192 Ciliz v. the Netherlands, Home According to the Court, the concept of home
judgment of 11 July 2000. includes the peaceful enjoyment of residence
193 Akdivar and Ors v. Tur-
key, judgment of 16 Sep. Where it is established that a premises consti- there and Article 8 thus offers protection from in-
1996. tutes home within the meaning of Article 8 then the fringements upon private life and home by noise and

59
194
disturbances. In the Powell & Rayner case, which tween the interest of the town’s economic well-being
concerned complaints about excessive noise gener- – that of having a waste treatment plant – and the
ated by air traffic in and out of Heathrow airport, the applicant’s effective enjoyment for her right to re-
question was whether a fair balance had been struck spect for her home and family life.
between the competing interest of the individual and
the community, taking into account the measures What medical evidence will be required to
adopted by the authorities to control, abate and establish an interference with home and family
compensate for aircraft noise. The Court concluded life caused by pollution?
that it had and in particular found that there was Given the difficulty which may be experienced
no serious ground for maintaining that either the policy in proving a causal link between environmental pol-
approach to the problem or the content of the particular lution and damage to health, it is important that the
regulatory measures adopted by the UK authorities give Court accepted in Lopez Ostra that actual damage
195
rise to violation of Article 8. to health was not required by Article 8. On the
facts it concluded that
Protection from environmental nuisance [n]aturally, severe environmental pollution may affect
196
individuals’ well-being and prevent them from enjoying
In López Ostra v. Spain the Court established the their homes in such a way as to affect their private and
full applicability of Article 8 to the context of en- family health adversely without, however, seriously en-
197
vironmental nuisance. The applicant complained dangering their health.
about smells, noise and polluting fumes caused by a This suggests, therefore, that while evidence is
waste treatment plant situated a few metres from her necessary to illustrate an infringement with the en-
home and the infringement of her right to respect for 194 Powell and Rayner v. the
joyment of home and family life under Article 8, it is United Kingdom, judg-
her home, private and family life that this caused. On not necessary to establish a clear and direct causal ment of 21 Feb. 1990.
the facts of the case, the Court noted that the appli- link between the pollution and the health problems 195 Powell & Rayner v. the
cant and her family had had to live with the plant for a United Kingdom, judg-
of the applicants. ment of 21 Feb. 1990,
number of years and it considered the domestic find- para. 45.
ings related to the damage caused to their health to Access to information about environmental risks 196 López Ostra v. Spain,
be convincing. Even taking the State’s margin of ap- judgment of 9 Dec. 1994.
197 López Ostra v. Spain,
preciation into account, however, it held that the Where there are risks to health from severe en- judgment of 9 Dec. 1994,
State did not succeed in striking a fair balance be- vironmental pollution, it appears that persons who para. 51.

60
may claim to be affected may derive a right to it will respect the legislature’s judgement as to what
obtain information about these risks from the is in the public interest unless it is “manifestly with-
199
relevant authorities under Article 8 of the Conven- out reasonable foundation”.
tion. While Article 10 contains a right to receive in-
formation, the Court has maintained its view that Does Article 8 include a right to live in
this relates only to information which others wish to one’s home?
198
impart. In Guerra and Others v. Italy the applicants,
who lived near a chemical factory which had experi- It is clear from the case-law of the Court that
enced a serious explosion in the past and had been the right to respect for one’s home under Arti-
found to fall short of standards, claimed that they cle 8 does not always include a right to live
had not been given information about the risks pro- there. This issue arose in the case of Gillow v. the
200
duced by the factory or the measures to be adopted United Kingdom, in which the Channel Islands’ strict
in case of an accident. The Court found that residential housing control was challenged under Ar-
through its failure to provide the applicants ticle 8 of the Convention. Mr and Mrs Gillow built a
with essential information about the risks house on the island of Guernsey and obtained a li-
posed to them by severe environmental pollu- cence to live on the island. After living there for five
tion, the State had failed to fulfil its obligation years, the Gillows lived in a variety of places for
to secure the applicants’ right to respect for eighteen years since Mr Gillow’s employment took
private and family life. him around the world. The couple also maintained a
house in England. When they returned to live in
Regulation of ownership Guernsey after this eighteen-year absence, they
were refused the required licence and they argued
The compulsory transfer of property between that this violated their right to respect for their
198 Guerra and Ors v. Italy, private individuals may be justified under the Con- home. Although the Court found that the legislation
judgment of 19 Feb. vention where it pursues legitimate, social and eco- in question pursued a legitimate aim of regulating
1998.
199 James v. the United King- nomic policies. Moreover, where expropriation is population to prevent overdevelopment and to
dom, judgment of 21 Feb. concerned, the State enjoys a wide margin of ap- maintain the economy, it held that the refusal of
1986, para. 46. preciation as to how to respect the home due to both temporary and permanent licences to the ap-
200 Gillow v. the United
Kingdom, judgment of the nature of the political, economic and social is- plicants was disproportionate to that aim. In par-
24 Nov. 1986. sues involved. The Court has stated in this area that ticular, the Court criticised the insufficient weight

61
which the Housing Authority had given to the special could be justified with reference to the need to pro-
circumstances which weighed in favour of the appli- tect the economic well-being of the country and the
cants. It was relevant, the Court said, that the appli- rights and health of others under Article 8 para. 2,
cants had built this house as a home for the Court went on to find that a fair balance was
themselves and their family; they had rented out struck between the general interest and the appli-
the house while they were away thereby contributing cant’s right to respect for her home, a right which is
to the available housing stock on the island; there pertinent to her and her children’s personal security
were no other tenants for the property, which was and well-being. It emphasised that in the area of
in need of repair; and when they returned, the appli- planning controls the authorities enjoyed a
cants had no other home in England or elsewhere. wide margin of appreciation under Article 8 and
The Court reached a different conclusion in noted that it was not its role to enter into the merits
201
Velosa Barreto v. Portugal, where the applicant was of planning decisions. It was thus sufficient to verify
prevented from taking possession of the house he that the competing claims were given due consid-
inherited from his parents to live in it himself. The eration in a fair procedure.
Court held that because the measure was aimed at
the social protection of tenants and the domestic Searches and seizures of property
courts had found that he had no urgent need for the
property as he lived with other members of his fam- The Court has acknowledged that Contracting
ily, it held that a fair balance had been struck be- States may consider it necessary to resort to meas-
tween the individual and the community interest ures such as searches of residential premises and
under Article 8. seizures in order to obtain physical evidence of cer-
202
Buckley v. the United Kingdom concerned the tain offences. While such measures will normally in-
right of the applicant, who was a gypsy, to live in a terfere with a person’s rights under Article 8 para. 1
caravan on a piece of land which she had purchased – whether private life or home – the reasons ad-
for that purpose. The refusal to allow her planning duced to justify such measures must be rel-
permission which would have allowed her to live in evant and sufficient and not disproportionate to 201 Velosa Barreto
the caravan on that land was found by the Court to the aim pursued. Moreover, the Court must be satis- v. Portugal, judgment of
constitute an interference by a public authority with fied that the relevant legislation and practice afford 21 Nov. 1995.
202 Buckley v. the United
the exercise of her right to respect for her home. individuals adequate and effective safeguards Kingdom, judgment of
However, in considering whether the interference against abuse. The case-law has thus concen- 25 Sep. 1996.

62
trated on the requirements that searches be “law- ➤ These officials each have an obligation to stand
ful” and attended by adequate procedural safe- down if circumstances exist which could affect
guards against arbitrariness and abuse. their impartiality.
Notwithstanding the margin of appreciation which ➤ Searches can only be carried out in dwellings
the Contracting States have in this sphere, there- and other premises if it is likely that a suspect is
fore, the Court must be particularly vigilant where in hiding there or if objects or valuables liable
the authorities are empowered under national law to seizure or evidence of the commission of an
to order and effect searches without a judicial war- offence are to be found there.
203
rant. According to the Court, if individuals are to ➤ They cannot be conducted on Sundays, public
be protected from arbitrary interference by the holidays or at night “except in important cases
authorities with the rights guaranteed under Arti- or where there is imminent danger”.
cle 8, a legal framework and very strict limits on ➤ At the beginning of a search the investigating
such powers are called for. Secondly, the Court must official must produce evidence of identity and
consider the particular circumstances of each case inform the occupier of the premises of the pur-
in order to determine whether, in the concrete case, pose of the search and that person or a relative
the interference in question was proportionate to or other household member must be asked to
the aim pursued. attend.
➤ In principle, there will also be a public officer
What safeguards are required? present to ensure that the search does not de-
204
In Camenzind v. Switzerland it fell to the Court viate from its purpose.
to consider whether the Swiss legal framework gov- ➤ A record of the search is drawn up immediately in
erning home searches provided adequate protec- the presence of the persons who attended and if
tion of the applicant’s rights. According to the they so request, they must be provided with a
Court, the following features of the law were signifi- copy of the search warrant and of the record.
cant in this context: ➤ Searches for documents are subject to special
203 Camenzind v. Switzer- restrictions.
land, judgment of ➤ A search may only be effected under a written ➤ Suspects are entitled to representation what-
16 Dec. 1997. warrant issued by a limited number of desig- ever the circumstances.
204 Camenzind v. Switzer-
land, judgment of nated senior public servants and carried out by ➤ Anyone affected by an “investigative measure”
16 Dec. 1997. officials specially trained for the purpose. who has “an interest worthy of protection in

63
having the measure … quashed or varied” may to be sufficient protection to satisfy Article 8. For
206
complain to the federal court example, in Chappell v. the United Kingdom it was suf-
➤ A “suspect” who is found to have no case to an- ficient that the plaintiff’s solicitor rather than a
swer may seek compensation for any loss sus- court official carried out the Anton Piller order, since
205
tained. he was subject to heavy sanctions in breach of the
On the facts, the Court noted that the search undertakings to the court.
was carried out by a single official; and it took place
in the applicant’s presence after he had been al- Is prior judicial authorisation essential to
lowed to consult the file on his case and telephone a satisfy Article 8?
lawyer. Although it did last almost two hours and
covered the entire house, the investigating official In the course of enforcement of the ordinary
did no more than check the telephones and televi- criminal law, search warrants will generally require
sion sets; he did not search in any furniture, examine prior judicial authorisation if they are to be re-
any documents or seize anything. As a result, the garded as proportionate to that purpose under Arti-
Court accepted that the interference with the appli- cle 8. Where this is not the case – and domestic law
cant’s rights was proportionate to the aim pursued permits home searches without requiring a prior ju-
and no violation of Article 8 was found. dicial warrant – it will only be compatible with Arti-
Although it is clear that a search of this kind, cle 8 where the other legal rules governing the
based on a law containing such safeguards, will not search contain sufficient protection for the ap-
violate Article 8, it is uncertain whether a law in plicant’s rights under that provision. Thus, in Funke
207
which one or two of these safeguards are omitted v. France the customs authorities had searched the
will contain sufficient protection. The following is- applicant’s house in order to obtain information of
sues have been considered by the Court however. his assets abroad and seized documents concerning
foreign bank accounts in connection with customs
205 Camenzind v. Switzer-
Does judicial supervision provide offences, which were of a criminal character under
land, judgment of
French law. Under French law at the time, the cus-
adequate protection of Article 8 16 Dec. 1997, para. 46.
toms authorities had very wide powers, including 206 Chappell v. the United
rights? “exclusive competence to assess the expediency, Kingdom, judgment of
30 March 1989.
Where orders are issued by courts, with an ele- number, length and scale of inspections”. Above all, 207 Funke v. France, judg-
ment of judicial supervision built in, there is likely the Court held that ment of 25 Feb, 1993.

64
in the absence of any requirement of a judicial war- Searches and seizures in the investigation of
rant the restrictions and conditions provided for in terrorism
law … appear too lax and full of loopholes for the
interferences with the applicant’s rights to have It is clear that in their efforts to combat terrorism
been strictly proportionate to the legitimate aim states are entitled to take measures which might oth-
pursued. erwise be unjustifiable under Article 8 para. 2. The
209
case of Murray v. the United Kingdom, for example,
Is a judicial warrant sufficient to comply concerned the situation in Northern Ireland. Mrs
with Article 8? Murray and her family complained that the entry into
and search of their family home by the Army, includ-
Although the Court in the Funke case stressed ing the confinement of five family members for a
the essential nature of judicial authorisation for short while in one room, violated Article 8. Consider-
the actions of search and seizure, the fact that a ing whether this was the case the Court adverted to
judicial warrant has been obtained will not the responsibility of an elected government in a
always be sufficient to comply with Article 8 democratic society to protect its citizens and its insti-
208
para. 2. In Niemietz v. Germany the Court found tutions against the threats posed by organised terror-
that a search of the premises of a lawyer in pursuit ism and to the special problems involved in the arrest
of documents to be used in criminal proceedings and detention of persons suspected of terrorist-
was disproportionate to its purposes of preventing linked offences. These two factors, it said, affect the
disorder and crime and protecting the rights of fair balance that is to be struck between the exercise
others, notwithstanding the prior judicial approval. by the individual of the right guaranteed to him or her
The Court held that the warrant was drawn in terms under Article 8 para. 1, and the necessity under Arti-
which were too broad and the search impinged cle 8 para. 2 for the State to take effective measures
on the professional secrecy of some of the for the prevention of terrorist crimes. On the facts,
materials which had been inspected. As a result the Court noted that the domestic courts found that
208 Niemietz v. Germany, and because German law did not provide for any the principal applicant, Mrs Murray, was genuinely and
judgment of 16 Dec. special procedural safeguards relating to the exer- honestly suspected of the commission of a terrorist-
1992. cise of search powers, it was disproportionate to linked crime and it itself also found that this suspicion
209 Murray v. the United
Kingdom, judgment of the aim which it pursued and was found to violate was a reasonable one for the purposes of Article 5 of
28 Oct. 1994. Article 8. the Convention. The Court thus accepted that there

65
was, in principle, a need for powers to enter and course to measures such as house searches and
search the home of the Murray family in order to ar- seizures. In particular, it held that in order to pre-
rest Mrs Murray. Furthermore, the “conditions of ex- vent capital outflows and tax evasion States en-
treme tension”, as the House of Lords put it, under counter serious difficulties owing to the scale and
which such arrests in Northern Ireland have to be car- complexity of banking systems and financial chan-
ried out must be recognised. The Court noted the nels and to the immense scope for international
analysis of one of the Law Lords, when he said investment, made all the easier by the relative po-
[t]he search cannot be limited solely to looking for the rousness of national borders. It therefore recog-
person to be arrested and must also embrace a search nised that the State may need to conduct
whose object is to secure that the arrest should be peace- house searches and seizures in order to ob-
able. I … regard it as an entirely reasonable precaution tain physical evidence of exchange-control of-
that all the occupants of the house should be asked to as- fences and, where appropriate, to prosecute
semble in one room. … It is in everyone’s best interest those responsible. However, it went on to state
that the arrest is peaceably effected and I am satisfied that the relevant legislation and practice must af-
that the procedures adopted by the Army are sensible, ford adequate and effective safeguards against
reasonable and designed to bring about the arrest with abuse. This was not so in the present case. In par-
the minimum of danger and distress to all concerned. ticular, the Court held that the authorities had very
The European Court confirmed that these were wide powers and in the absence of any require-
indeed legitimate considerations which go to ex- ment of a judicial warrant the restrictions and con-
plain and justify the manner in which the entry into ditions provided for in law appeared too lax and
and search of the applicants’ home were carried out. full of loopholes for the interferences with the
The Court failed to find that the means employed by applicants’ rights to have been strictly proportion-
the authorities in this regard were disproportionate ate to the legitimate aim pursued. The Court went 210 Miailhe v. France, judg-
to the aim pursued. on to criticise the fact that the seizures made on ment of 25 July 1993. See
the applicants’ premises were wholesale and indis- the similar cases of Funke
v. France, judgment of
Searches and seizures in the investigation of criminate to such an extent that the customs 25 Feb. 1993 and
tax evasion authorities considered several thousand docu- Cremieux v. France, judg-
ments to be of no relevance to their inquiries and ment of 25 Feb. 1993,
210 which examined the
In Miailhe v. France the Court established that returned them to the applicants. Accordingly, there same French customs
in other areas too the State may need to have re- was a violation of Article 8. law.

66
Directorate General of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
http://www.coe.int/human_rights/
These human rights handbooks are intended as a very practical
guide to how particular articles of the European Convention on
Human Rights have been applied and interpreted by the European
Court of Human Rights in Strasbourg. They were written with legal
practitioners, and particularly judges, in mind, but are accessible
also to other interested readers.