Article 8 - European Convention On Human Rights

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Article 8

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Private Life

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Meaning of private life

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Niemietz v Germany - court refused to give an exhaustive definition of the notion of private life, but said that a laywer's relationship with his/her clients did come under Article 8 and so found a breach of N's right to private life when his offices were searched by the police.

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X & Y v Netherland

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Sexual life comes within Article 8.

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Evans v UK

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Decision to become a parent or not falls under private life.

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S and Marper v UK

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Fingerprints and DNA fall within private life and the system in the UK of keeping them on record even if people weren't charged or convicted was not proportionate and therefore there was a breach.

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A, B and C v Ireland

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Claimed that the Irish constitution preventing them from having abortions violated their right to private life. Strasbourg said there is no absolute right to abortion but the state must balance the rights on an individual basis. Only breach was of C's rights as she had not been able to get a clear answer as to whether she'd be able to have an abortion in Ireland.

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Bughartz v Switzerland

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A person's name comes within Article 8.

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Homosexuality

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Dudgeon v UK - criminal offence in Northern Ireland of consensual homosexual acts was a breach of D (a homosexual man)'s right to private life. No similar offence in the UK or any other MSs so they would not accept any need for this offence.

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Sutherland v UK

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Successfully challenged the age of consent for male homosexuals in England before the Commission as he had been directly affected by it and therefore it constituted an interference with his right to respect for private life.

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Laskey, Jaggard & Brown

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No breach when a group of male adult homosexuals were charged and convicted of crimes against the person for sadomasochism as it was justifiable on the grounds of protecting health due to the risk of infection as it made one of the participants bleed.

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ADT v UK

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There was a violation of their Article 8 right when a group of consensual adult male homosexuals engaged in group sexual activities in private and filmed it were convicted of gross indecency as it was consensual and in private.

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Smith & Grady v UK

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Breach of their Article 8 right when they were dismissed from the Armed Forces for being gay/lesbian despite having exemplary records. Strasbourg rejected the idea that the rule against having gay people in the Army could be justified on national security grounds and Britain have since changed the rule.

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Transsexuals

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Rees v UK - no European consensus on how to deal with post-op transgenders so they gave states a wide margin of appreciation and said that the British Government had found a good balance in recognising his male identity andchanging most official documents and his name but refusing to change his birthcertificate so no breach.

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B v France

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Despite the margin of appreciation Strasbourg found a breach in favour of B as France hadn't done enough to achieve a fair balance between B’s interests and the interests of society – she wanted to change to a feminine name and get a new ID card but they refused and it caused her problems in day-to-day life.

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Christine Goodwin v UK

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European consensus on post-op trans-genders had changed and so MSs were now required to give full legal recognition of post-op transsexuals and therefore there was a breach. The margin of appreciation can change as the European consensus develops – it can be reduced if there is more of a consensus.

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Secret surveillance

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Leander v Sweden - wide margin of appreciation given in national security matters as they differ widely between MSs but states have to justify secret surveillance systems - they have to be in accordance with the law (at least laid out in law) and necessary in a democratic society (had procedural safeguards which in this case was the ability to complain to the Swedish ombudsman) so could be justified under national security under 8(2).

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Hewitt & Harman v UK

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Applied Leander to the British Government and MI5 keeping secret files on H and H but as they were denying the existence of MI5 and internal security authorities at the time they were not regulated by law and so they could not use the 8(2)justification of national security as it was not “in accordance with law”.

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Khan v UK

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No legal regulation of high-tech surveillance devices at the time so it could not come within 8(2) as not “in accordance with the law” therefore a breach was found. There is now legal regulation of these surveillance devices.

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Family Life

Meaning

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Marckx v Belgium - Strasbourg recognised that the single parent relationship was a family relationship which should be recognised. Single parent families are families as a matter of law.

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X, Y and Z v UK

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X (a transgender male); Y (a female) and Z (their child born through the artificial insemination of Y) were considered a family unit but there was no breach when the British Government refused to register X as Z’s father because of the wide margin of appreciation not only because of the transsexual issue (this was before Christine Goodwin) but also because it involved artificial insemination so the state had a really wide margin of appreciation.

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Shalk and Kopf v Austria

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Same sex relationships can be classified as a family unit.

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Taking children into care

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W v UK - when a child is taken into care there are implied procedural obligations to consult the family.

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K & T v Finland

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In exceptional circumstances it may not be appropriate for the authorities to consult the family in what to do with the children. Not exceptional in this case, despite the fact that K had mental health problems as at the time the child was removed she was in hospital surrounded by the health authorities and that would be sufficient protection for the child, therefore it was not justifiable to take the child away from the mother so soon after birth.

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Reuniting children with their natural parents

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Ignacollo-Zennide v Romania - was a breach of her right to family life when the Romanian government had failed to swiftly enforce a court order to get her ex-husband to bring her daughters back. Court said positive obligations can be imposed and it was essential for them to act swiftly as the longer the abduction lasts the more damage is done to the family life.

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Deportation

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Berrehab v Netherlands - he was deported from the Netherlands after his marriage broke down despite his close continuing family relationship with his daughter. His deportation was not necessary in a democratic society due to that and the fact he was working and there was no improper behaviour on his part so there was a breach.

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Uner v Netherlands

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Criteria to apply on a case-by-case basis to allow MSs to balance their rights and the rights of individuals to a family life (in deportation cases):

- the nature and seriousness of the offence committed by the applicant

- the length of the applicant’s stay in the country from which he or she is to be expelled;

- the time elapsed since the offence was committed and the applicant's conduct during that period;

- the nationalities of the various persons concerned;

- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

- whether there are children of the marriage, and if so,their age; and

- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

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Two more criteria from Uner which may already be implicit in those identified:

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- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

- the solidity of social, cultural and family ties with the host country and with the country of destination

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Outcome in Uner

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No breach due to the seriousness of his criminal behaviour, the fact that he was a repeat offender and it wouldn't be difficult for his Dutch partner to go to Turkey and have a family life.

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Home

Meaning of home

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Gillow v UK - despite not living in their house on Guernsey for 20 years,Strasbourg said they could assert a right to this home as they hadn't owned a home anywhere else and had always planned to go back. Criminal proceedings were brought against them for living in their own house as they didn't have a licence to live there from the governing body. Strasbourg said it was not necessary in a democratic society to bring these proceedings against the Gillow’s as they had nowhere else to live, so couldn't be justified under 8(2).

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Buckley v UK

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Caravans unlawfully on agricultural land would be treated as homes for the purpose of 8(1) as she had nowhere else to go. However, the UK government invoked a number of legitimate aims for forcing her to move and Strasbourg upheld it as it was necessary in a democratic society so her claim failed.

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Niemietz v Germany

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Lawyer's office could fall within the meaning of a home.

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Lozidou v Turkey

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A person's intention sometime in the future to build a home on land is too vague and remote.

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Societe Colas Est v France

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Niemietz can be extended to purely corporate entities and the search by state officials of their offices in this case were found to be a breach. Even legal entities can claim buildings are their "home".

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Interferences

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Niemietz v Germany - state interfered with a right to respect for their home through a search.

Akdivar v Turkey - clear breach when state officials burned down the homes of all the villagers they believed to be helping the PKK.

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Environmental pollution

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Powell & Rayner v UK - complaint about noise pollution from Heathrow airport. Court accorded a broad margin of appreciation to look at their own circumstances and balance individual’s rights as there are difficult issues. But they must find a fair balance and in this case the UK government had found a fair balance as they had compulsorily purchased homes near the airport and had state subsidies on noise insulation and double glazing for houses a bit further away so no breach.

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Lopez Ostra v Spain

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Hadn't been a fair balance drawn by the Spanish authorities with the leather plant that produced horrible smells only a few meters from Ms Ostra's flat where she lived for two years after the plant was built, so there was a breach.

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Guerra v Italy

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Had been an explosion at a plant and women wanted information about safety precautions to take but were denied. Strasbourg found a breach as it required positive action to protect people from serious pollution as the fact that there had been an explosion in the past meant there was a real danger and the local mayor should have taken action.

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Hatton v UK

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Another noise pollution case about Heathrow, but tried to distinguish it by saying the night time noise pollution affected his family’s sleep. GC reinstated the fair balance test and the margin of appreciation accorded to MSs (after the Chamber had tried to get rid of it) and found that the UK had achieved a fair balance as there had been public consultations about the night flights and they had a specific formula about using either more planes with lower noise engines or fewer planes with louder engines. No breach.

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Fadeyeva v Russia

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Russia had not found a fair balance between Mrs F's interests and the fact that she was living in this area around the iron and steel plant that was designated not safe for people to live in. So there was a breach of the margin of appreciation.

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Correspondence

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Golder v UK - Strasbourg said the UK government could not restrict his right to correspondence just because of him being a prisoner and so their legitimate aims under 8(2) of rights of others and preventing crime were not applicable and so there was a breach.

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Silver v UK

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Prisoner’s correspondence rules were secret and argued they did not meet the requirements in 8(2). Strasbourg said “in accordance with the law” contains three requirements: (1) there must be national law providing for the interference (normally statutory but could be case law); (2) that national law must be adequately accessible; (3) that national law must be reasonably precise. The rules here were not adequately accessible and therefore weren’t reasonably precise so was not in accordance with the law and was a breach.

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Campbell v UK

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Not justifiable under 8(2) for prison officers to open correspondence from Strasbourg to a prisoner as it was clearly marked as from Strasbourg. Would have been a breach for them to read it.

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Petra v Romania

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Romanian prison system violated his right to correspondence as they must be able to correspond privately with Strasbourg.

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Foxley v UK

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Wasn't a legitimate aim for his trustee in bankruptcy to intercept his correspondence with his lawyer and therefore there was a breach.

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Klass v Germany

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German system of authorising the interception of telephone calls and statutory powers to authorise it if someone was suspected of serious crimes or espionage were justified by a legitimate aim, were in accordance with the law and necessary in a democratic society and there were sufficient safeguards so no breach.

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Malone v UK

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No regulation or statutory basis of the English system of telephone interception so there was a breach.

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Liberty and Others v UK

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Despite it now being on a statutory basis, there was still a breach as the legislation was too vague for people to know which communications were likely to be intercepted by the UK government.

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Kennedy v UK

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After Liberty you could bring complaints before special statutory tribunals, the law had been tightened and there was a UK code of practice so it now met the requirements of 8(2).