Personality and identity.
Article 8 issues have sometimes arisen in the context of adopted or fostered children seeking to know the identity of their birth parents. Adoption systems usually provide for high levels of confidentiality.
In Odievre v France the natural mother had requested that her identity not be disclosed. French law did not allow a mechanism for the child to learn about her biological mother. The court accepted that information is within the scope of Article 8. By 10 to 7, the court decided that the balance did not breach Article 8. Some minority judges indicated that the state should establish an independent authority to consider matters case by case.
In Jaagi v Switzerland a 67-year-old sought to exhume the remains of the person whom he believed to be his father for DNA testing. The court emphasised that the right to know one’s identity does not decrease with age. The court held that the refusal by authorities breached Article 8.
In Shofman v Russia the registered father discovered via DNA that he was not the father of a child. There was a strict time limit for challenging which was found to be unnecessary and thereby breach article 8.
Similarly, in Phinikaridou v Cyprus, a deathbed confession of true paternity by the applicant\’s mother could not be challenged due to time limits. This was also found to breach Article 8 as unnecessarily restrictive.
In Paulik v Slovakia a DNA test established that the registered father was not the biological father some 38 years after birth. There was a violation because the national law did not allow the position to be reversed.
In Rozanski v Poland the applicant was seeking to establish paternity where the national provisions did not allow for proper consideration of the possibility. There was a breach of Article 8, because of the absence of adequate state mechanisms to consider the matter.
In X, Y & Z v UK 1997 a female-to-male transsexual in a stable relationship was artificially inseminated by an anonymous donor. The registrar indicated that only the biological man could be registered as father. Because states were allowed a wide margin of appreciation and there was no consensus on the issue the majority held there to be no breach. A number of dissenting judges held to the contrary.
In Buckley v UK a gypsy who lived a nomadic lifestyle challenged the refusal of planning permission for a caravan on her land. The refusal did not breach the guarantee because the planning legislation pursued a legitimate state objective and its procedural framework allowed expression to be given to individual circumstances. There was no established home.
In Chapman v United Kingdom, the person had moved onto land and were refused planning permission. Although the enforcement of planning affected their private and family life and home, the interference was justified as necessary in a democratic society. The planning process could consider e various issues including the cultural and identity issues of people of different backgrounds. Seven dissenting judges were prepared to find that there was a violation.
By the early 2000 there was a growing consensus on the cultural identity of groups
In Connors v UK summary procedures were employed to remove persons from the local party traveller site. The summary scheme was disproportionate and breached Article 8 lacking sufficient process. The local authority failed to weigh sufficiently the position of minorities requiring special consideration for their needs and lifestyle within the regulatory framework.
In Aksu v Turkey a book about the gypsies of Turkey was claimed to be offensive and contain negative stereotyping. The court held that the state\’s positive obligation to protect private life was not breached. The protection for freedom of expression weighed in the balance and the decision was made within the state\’s margin of appreciation.
In Ciubotaru v Moldova the state refused to register a person\’s Romanian ethnic identity and deemed them to be of another ethnic identity. This was considered by the court to be an element of private life and identity, particularly by designating them with another ethnicity. The refusal was held to breach Article 8 in the circumstances.
in Kuric v Slovenia. The applicants’ status as permanent residents were removed after independence in 1991 because they had citizenship in another former Yugoslavian state. The measures breached Article 8. The implications for the persons concerned were not justified by measures necessary in democratic state to achieve a legitimate aim of national policy.
In Burghartz v Switzerland the husband had chosen the wife\’s family name, and this was recognised under German law. They were Swiss nationals and Switzerland\’s refused on their return, to allow the husband to use his surname with his wife’s surname although a wife would be permitted to use her family name with that of her husband. The European Court recognised that a name is part of personals identification and link to family and that Article 8 applies. There was a violation of Article 8 despite the state\’s right to regulate names. The regulations were discriminatory and unnecessary in circumstances where the wife was allowed to use both family names.
In Stjerna v Finland the applicant was not permitted to change his name. It was recognised that a name was a critical part of identification, but the regulation was within the state\’s margin of appreciation.
In Axl v Finland the official spelling of a name breached the Convention. There was no evidence that the mandatory form of the name was required to preserve cultural and linguistic law identity.