Art. 8 ECHR

Question 1

Is art.8 an absolute or qualified right?

Answer 1

It is a qualified right which states can seek to justify any interference.
4 specific rights in art.8(1) and art.8(2) allows states to justify actions.

Question 2

3 components to prove it is lawful to interfere with their art.8(1) right

Answer 2

1. Any interference should be “in accordance with the law”
2. Any interference should be “necessary in a democratic society”
3. Any interference must be for a “legitimate aim” – spelled out in the wording in art.8(2).

Question 3

Case which held that ‘private life’ under Art.8 has no comprehensive definition because it is ever-expanding its boundaries

Answer 3

Niemietz v Germany (1992)
“Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”
This shows that although the court won’t give a definition, they apply a broad approach.

Question 4

Case which held that one’s private life includes protection in their moral and sexual integrity

Answer 4

X. ; Y. v Netherlands (1985)

FACTS - 16yr old girl had severe learning disabilities. her father suspected she had been sexually assaulted in her care home but Dutch law said if the victim was 16 or over then they would have to formally go to the police which wasn’t possible because of her severe disability. wouldn’t let her father do it on her behalf

HELD - there had been a failure of the positive obligation of his daughter’s criminal law protection of private life – protection from serious sexual assault

Question 5

Case which found a violation of Art.8 right to private life through the retention of the applicants’ fingerprints, cellular samples and DNA profiles

Answer 5

S. and Marper v UK (2008)

This was a blanket and indiscriminate power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender. The retention is not time-limited and there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed

Question 6

Case in which the ECtHR rejected the argument that art.8 conferred a right to abortion

Answer 6

A. B. and C. v Ireland (2010)

But found that Ireland had violated the ECHR by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law.

Question 7

Case which held that laws making certain homosexual acts criminal in any event were contrary to Art.8.

Answer 7

Dudgeon v UK (1981)

HELD - Sexual conduct is ‘an essentially private manifestation of the human personality’. A person’s sexual life was ‘a most intimate aspect’ of private life within the convention.
- The more intimate the aspects of private life which are being interfered with, the more serious must be the reasons for doing so before the interference can be legitimate.

Question 8

Case which held a criminal conviction cannot constitute an interference with the right to respect for private life under Article 8, unless there are special circumstances in a particular case calling for a different conclusion.

Answer 8

Laskey, Jaggard; Brown v UK (1997)

HELD - A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation - there was no unjustifiable interference.

Question 9

Case about a UK ban on homosexuals within the armed forces under Art.8 ECHR

Answer 9

Smith & Grady v UK (1999)

HELD - was a breach of the applicants’ right to respect for their private and family life. The investigations into private lives and sexual activity were intrusive, and given the excessive consequences following, were also striking in their inability to admit of exceptions.

NB - the argument made in this case surrounding the fact that the UK courts were found to have such a high threshold for considering the rationality of Ministry of Defence policies that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights was needed or proportionate

Question 10

THREE cases regarding the protection of transsexuals under Art.8 ECHR

Answer 10

1. Rees v UK (1986) - about transsexuals right to an amended birth certificate -Strasburg found there was no European consensus and so they said states have a wide margin of appreciation

states acting outside this wide margin of appreciation -
2. B. v France (1992) - applied Rees and said they had a wide margin of appreciation but still recognised that the refusal to change her ID was causing such serious effect that they found a breach there

3. Christine Goodwin v UK (2002) - argued that now the majority of European states gave full legal rights to transsexuals and have been recognised and so the law under the ECHR should change and they shouldn’t be given a wide margin of appreciation - they agreed so there was found to be a breach so states now don’t have a wide margin of appreciation on the issue.

Question 11

Case which is an example of the close connection between European consensus and the margin of appreciation given by the ECtHR.

Answer 11

Christine Goodwin v UK (2002)

HELD that states will no longer have a wide margin of appreciation regarding the recognition of transsexuals as their preferred gender because the majority of European states gave full legal rights to transsexuals
- Critics might say the courts response in these cases they were clearly waiting for European consensus so they could respond to it.

Question 12

THREE cases on secret surveillance under Art.8 ECHR

Answer 12

1. Leander v Sweden (1987) - job at the naval museum
2. Hewitt & Harman v UK (1989) - found breach only because MI5 denied its existence at the time so there were no safeguards in place so wasn’t justified under Art.8(2)
3. Khan v UK (2000)

Question 13

What is the more traditional notion of private life?

Answer 13

secret surveillance cases - idea of a totalitarian state spying on its inhabitants

Question 14

Case which held it was a breach of art.8’s right to private life to keep secret files on citizens

Answer 14

Leander v Sweden (1987)

FACTS - man tried to get job at naval museum attached to the army base so needed a background check. The National police in Sweden secretly kept files on people who were deemed to be security risks and Leander flagged up as a risk.

HELD - keeping the secret files was a breach of art.8 BUT.. states should be given a wide margin of appreciation to decide their own national security issues, ECtHR aren’t in the best position to judge their national security threat.

Question 15

Secret service case which highlights the commission’s view that there needs to be legal safeguards to be justified under Art.8(2) ECHR

Answer 15

Hewitt & Harman v UK (1989)

Question 16

Legal authority for how they apply art.8 in secret surveillance cases

Answer 16

Khan v UK (2000)

FACTS - Khan was suspected as part of an international drugs trafficking network. He learnt through court proceedings that Sheffield police hid a bugging device on the outside of his house to record people in the house without their knowledge. This had been authorised by the chief constable. They got enough incriminating evidence and he was convicted with a lengthy prison sentence. A large part of evidence was that hidden surveillance device.

HELD - British govt sought to defend this in terms of the aim of preventing crime but the Strasbourg court focused on whether it was in accordance with the law, whether there were safeguards –> found it was incompatible
- there must be clear legislation and procedural safeguards

Question 17

Progressive case which recognised single parent families as a family relationship for the purposes of art.8

Answer 17

Marckx v Belgium (1979)

FACTS - under Belgian law whoever was an unmarried mother, the mother wasn’t automatically recognised as being the mother of the child. This meant she had to go through a special process to have a relationship with her child recognised. She said this was discriminatory

HELD - single parent families should be recognised as a family so Strasbourg found a breach of her right to family life and found art.8 combined with art.14 and art.18 which was discriminatory.

Question 18

Case which recognised married couples as a family unit for the purposes of Art.8 but held that this did not include an immigration right for foreign spouses

Answer 18

Abdulaziz, Cabables & Balkandali v UK (1985)
FACTS - 3 married women who were foreign nationals but had permission to live in the UK wanted their husbands to have permission to get into the country.

HELD - recognised married couples as a family unit but they said there is no immigration right for foreign spouses under Art.8.
BUT… they did win their second argument – art.8 with art.14 – arguing that at the time foreign men could bring in their foreign wives so there was gender sex discrimination in immigration law.

Question 19

FOUR cases on what relationships come within family life under Art.8(1) ECHR

Answer 19

1. Marckx v Belgium (1979)
2. Abdulaziz, Cabables & Balkandali v UK (1985)
3. X., Y. & Z. v UK (1997)
4. Schalk and Kopf v Austria (2010)

Question 20

Case which identified the sorts of factors Strasbourg take into account and that they will take a wide approach when considering what is a family relationship under Art.8(1) ECHR

Answer 20

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

FACTS - a post-operative transgender male cohabited with Y (female) for over 10 years then they had a child (Z) through artificial insemination so had no genetic relation to X. Authorities would not let X to be the father on the birth certificate

HELD - failed because it was before Christine v Goodwin so states were given a wide margin of appreciation and sam-sex couples weren’t recognised as a family unit at the time.
But, they did state that they would take a number of factors into account - “including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.”

Question 21

Case which recognised same-sex relationships within the scope of family life under art.8

Answer 21

Schalk and Kopf v Austria (2010)

HELD - two men cohabiting were a family unit. But, their claim technically failed because they were arguing that as a family unit they should be allowed to marry which goes against the definition of marriage in Art.12 and there isn’t european consensus.

Question 22

Case which sets out limitations on state officials in taking children to prevent a breach of their Art.8(1) right to family life

Answer 22

W v UK (1987)

FACTS - W and his wife were married and had several children. They realised they couldn’t look after all their children so placed one of their children in care of local authority. The authorities took more and more without consulting the parents until the child was adopted so the parents had not PR over them.

HELD - They recognised there was no wording in art.8 about assuming rights to children but they said they would read in that the state should take reasonable steps and procedures to inform and consult the natural parents

Question 23

Case on the issue of reuniting children with their natural parents in potential conflict with individual’s Art.8(1) right to family life

Answer 23

Ignacollo-Zennide v Romania (2000)
- any obligation to apply coercion can only be limited since the interests, rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and [his or her] rights under Article 8 of the Convention

Question 24

TWO cases on the issue of deportation in potential conflict with individual’s Art.8(1) right to family life

Answer 24

1. Berrehab v Netherlands (1988) -
   - deportation of a foreign national from a contracting state in which his child resided violate Art.8 because the refusal to renew the work permit and the expulsion of the father prevented the applicants from maintaining regular contact.
2. Uner v Netherlands (2006)
   - case concerning the expulsion and/or exclusion of a settled migrant following a criminal conviction.

Question 25

Case which developed factors that the courts should take into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction

Answer 25

Uner v Netherlands (2006)

HELD - must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’ within the meaning of article 8.

some e.g. of factors to be taken into account - seriousness of offence, how long they’ve resided in the country, applicant’s family situation, if they have children etc.

Question 26

Case which held that ‘Home’ under Art.8(1) ECHR is an autonomous concept which does not depend on classification under domestic law

Answer 26

Buckley v UK (1996)
- A denial of permission for a gypsy to live on his own land was not a breach of his human rights.

HELD - Whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links.

NB - similar to the reasoning in Niemietz

Question 27

Case which extended the meaning of “home” under Art.8(1) ECHR as including the right to respect for a company’s registered office, branches or other business premises

Answer 27

Societe Colas Est v France (2002)

FACTS - the applicant companies contested the lawfulness of the searches and seizures carried out by the official inspectors, without any judicial authorisation, had infringed their right to respect for their home under Article 8.

HELD - this was a violation

Question 28

Example of interference with an applicant’s ‘home’ under Art.8(1) ECHR

Answer 28

Akdivar v Turkey 1996
Whether there was sufficient evidence to establish that the state was responsible for violations under Articles 8 and 1 ECHR arising from the destruction of the applicants’ homes - held there was a violation of Art. 8

Question 29

Cases on the issue of environmental pollution as a violation of Art.8(1) right to ‘his home’

Answer 29

1. Powell & Rayner v UK (1990) - there’s a wide margin of appreciation on the issue
2. Lopez Ostra v Spain (1994) - Spain in breach for doing nothing for nearly 2yrs to tackle a pollution problem they had authorised
3. Guerra v Italy (1998) - states have positive obligations to look after constitutes from serious pollution, by failing to give them info there was a breach.
4. Hatton v UK (2001) - Heathrow expansion case on noise pollution

Question 30

Case which shows that states can also be liable when a private company is the source of the pollution as a violation of one’s right to ‘his home’ under Art.8(1) ECHR

Answer 30

Lopez Ostra v Spain (1994)

Question 31

Case - Can’t keep relitigating the same issue under art.35. so they wanted to challenge Heathrow but knew the earlier case was there so they distinguished it by saying they were complaining about noise pollution at night time.

Answer 31

Hatton v UK (2001)

FACTS - Hatton was arguing this noise pollution was different because it woke them up and stopped them from going to sleep. Complaint about the state regulation. UK argued that they do regulate it and had strict rules on night flights e.g. fewer loads planes flying. They said this system was within the margin of appreciation and justified for the UK’s economic well being

HELD - on first consideration the court applied a stricter test that maximising economic well being wasn’t enough, states had to minimise serious environmental risks
BUT… on its rehearing the GC reinstated the old test of state margin of appreciation balancing protection of constituents and the economic interests –> so no breach

Question 32

pollution as a violation of Art.8(1) rights to a home was found because a state had allowed someone to live in an area which was meant to be uninhabited and did nothing to rehouse her when she asked

Answer 32

Fadeyeva v Russia (2005)
FACTS - Largest iron and steel works in Russia. Because it was such a large facility it was realised that this produced a large amount of pollution

HELD - applied the margin of appreciation test but even within this they held in favour of the complainant. They acted outside of that margin for years by allowing someone to live in that area.

Question 33

Cases on written correspondence between prisoners and the outside world as a breach of individuals Art.8 ECHR rights

Answer 33

1. Golder v UK (1975)
2. Silver v UK (1983)
3. Campbell v UK (1992) - rare case of censorship of correspondence with prisoners and Strasbourg itself