Article 6 – Right to liberty and security
Everyone has the right to liberty and security of person.
The guarantee of personal liberty reflects the European Convention on Human Rights. Personal liberty may be curtailed by imprisonment and by other state actions involving any element of detention.
Regard must be had to the type, duration, effect and manner of implementation of the measures in question that deprive the person concerned of his liberty in a way that is comparable to imprisonment.
There is a right to security which is not reflected in the European Convention on Human Rights wording.
The rights apply against state and state bodies. There is a positive obligation to take steps to ensure that persons are not deprived of liberty by persons of whom the state authorities have or ought to have knowledge. This applies with extra effect where a person is vulnerable.
The restrictions on the rights, which are potentially permitted are equivalent to those in Article 5 of the European Convention on Human Rights.
(a) the lawful detention of a person after conviction by a competent court
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
The protection is both substantive and procedural. Where there is a deprivation of liberty, there is a right to be informed promptly of the reason and any charges that arise if the detention is criminal.
There is a right to a speedy and effective remedy. There is also in effect a right to compensation, where detention is unlawful.
The deprivation of liberty must be in accordance with law and must not be arbitrary. It must be carried out in good faith based on a ground of detention which is justified. The place and conditions of detention must be appropriate. The detention must not exceed what is reasonably necessary in the circumstances.
The evolution of EU competence in Justice and Home Affairs has led to near-automatic provisions for extradition through the European arrest warrant. It has been held that Article 6 places limits and conditions in the detention of persons under European arrest warrants.
Article 6 is relevant in EU asylum law and criminal cooperation and in the detention of asylum seekers. Detention is permissible only for the purpose of deportation proceedings. Persons can be detained with a view to deportation even pending asylum applications, but this will depend on the particular circumstances. When an asylum claim by a person detained is later rejected, the person continues to be detained for the purpose of the Article 5 exception above.
Article 7 – Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 7 corresponds directly to Article 8 of the European Convention on Human Rights. Article 52(3) of the Charter specifically requires that it must be interpreted in conformity with it.
.There is very extensive case law on the European Convention right which has several distinct elements.
Article 7 is supplemented by Article 8 in relation to data protection, Article 33 family and professional life, Article 24 rights of the child and Article 37 environmental protection.
Article 7 places both negative and positive obligations of the state. The state must not interfere with the right unless one of the grounds in Article 8 applies.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Private life under the European Convention on Human Rights is a broad concept that covers privacy but goes well beyond this. It gives effect and protects personal autonomy. It guarantees elements of one’s personal identity. This includes gender, identity, rights to one’s image, respect for one’s name access to information about one’s origin.
States are required under Article 8 of the Convention to establish laws, frameworks and procedures to protect and give effect to private life. The rights interact with the basic EU Treaty protections for free movement and establishment. Very limited public policy, health and security grounds are allowed under the Treaty and under the Charter.
Family life originally covered married couples and their r children. However, it has evolved bout considerably with the case law under the European Convention on Human Rights to include same-sex couples and their children, unmarried cohabiting partners, persons with a de facto family links such as foster parents. In particular circumstances, it may extend to siblings’ grandparents and grandchildren.
The right of EU citizens to be accompanied by their family in exercising their free movement rights and rights of family reunification arise under the Convention and under the Charter. They are reflected in EU legislation on free movement and family reunification.
The deportation of a family member from a member state may only be justified on the basis of public policy, public security, or public health in cases within the scope of EU law. The justification must be objective and justifiable in accordance with one of the justifiable limitations on the right. Measures must comply with fundamental rights.
The extradition of a person to a state of origin which criminalises homosexual acts with imprisonment breaches the Article.
Home & Communications
The protection applies to a person’s home. Loss of the family home or intrusion on it, may interfere with the right. Article 7 is worded differently to the ECHR and refers to a right of accommodation. Given the limited scope of the Charter in relation to housing matters is thought to add little to the protection of the privacy of the home.
The home includes business premises in accordance with case law ordered European Convention on Human Rights. This issue arises in relation to warrants and search powers. There are strict conditions for interference with and intrusion into the home. Generally, it must be justified by a warrant and there must be sufficient procedural and substantive protections.
Article 7 extends to communications in the same way as the European Convention on Human Rights. It extends to all communications regardless of form and whether personal or business in nature. The issue arises in relation to surveillance and interception of communications whether by search or by electronic interception. There is a significant ECHR caselaw on these issues.
Article 8 – Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
The basic principles of data privacy protected by the GDPR, and other EU legislation are guaranteed by Article 8 of the Charter. The right has been recognised by extension of Article 8 of the European Convention on Human Rights. The Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.
As with GDPR, personal data is data which identifies a natural person. Data must be very processed fairly. Consent must be informed. Alternatively, there must be some other legitimate basis. There is a right of access to personal data.
In Google v Spain the European Court recognised a right to be forgotten as part of Article 8. This may be enforced against Internet service providers. It may be exercised where at the point in time, the information concerned should no longer be linked to the person because it is no longer necessary for the reason originally collected or processed.
Article 8 has been raised in the context of transfers of data to third countries. The third countries are required to have sufficient protections in relation to the data. There have been a series of cases in relation to the adequacy of the US shield rock by Mr Schrems. There must be limits on controls on access to the data and its use.