Art. 8 ECHR Flashcards
(33 cards)
Is art.8 an absolute or qualified right?
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.
3 components to prove it is lawful to interfere with their art.8(1) right
- Any interference should be “in accordance with the law”
- Any interference should be “necessary in a democratic society”
- Any interference must be for a “legitimate aim” – spelled out in the wording in art.8(2).
Case which held that ‘private life’ under Art.8 has no comprehensive definition because it is ever-expanding its boundaries
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.
Case which held that one’s private life includes protection in their moral and sexual integrity
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
Case which found a violation of Art.8 right to private life through the retention of the applicants’ fingerprints, cellular samples and DNA profiles
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
Case in which the ECtHR rejected the argument that art.8 conferred a right to abortion
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.
Case which held that laws making certain homosexual acts criminal in any event were contrary to Art.8.
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.
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.
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.
Case about a UK ban on homosexuals within the armed forces under Art.8 ECHR
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
THREE cases regarding the protection of transsexuals under Art.8 ECHR
- 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
- 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.
Case which is an example of the close connection between European consensus and the margin of appreciation given by the ECtHR.
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.
THREE cases on secret surveillance under Art.8 ECHR
- Leander v Sweden (1987) - job at the naval museum
- 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)
- Khan v UK (2000)
What is the more traditional notion of private life?
secret surveillance cases - idea of a totalitarian state spying on its inhabitants
Case which held it was a breach of art.8’s right to private life to keep secret files on citizens
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.
Secret service case which highlights the commission’s view that there needs to be legal safeguards to be justified under Art.8(2) ECHR
Hewitt & Harman v UK (1989)
Legal authority for how they apply art.8 in secret surveillance cases
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
Progressive case which recognised single parent families as a family relationship for the purposes of art.8
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.
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
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.
FOUR cases on what relationships come within family life under Art.8(1) ECHR
- Marckx v Belgium (1979)
- Abdulaziz, Cabables & Balkandali v UK (1985)
- X., Y. & Z. v UK (1997)
- Schalk and Kopf v Austria (2010)
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
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.”
Case which recognised same-sex relationships within the scope of family life under art.8
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.
Case which sets out limitations on state officials in taking children to prevent a breach of their Art.8(1) right to family life
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
Case on the issue of reuniting children with their natural parents in potential conflict with individual’s Art.8(1) right to family life
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
TWO cases on the issue of deportation in potential conflict with individual’s Art.8(1) right to family life
- 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. - Uner v Netherlands (2006)
- case concerning the expulsion and/or exclusion of a settled migrant following a criminal conviction.
