Family life article 8
The European Court of Human Rights has developed and expanded on the meaning of the protection of family, life the home and correspondence in various contexts. In Niemietz v Germany the court indicated that it was “neither possible nor necessary to attempt an exhaustive definition of the notion of family life. However, it would be too restrictive to limit the notion to an inner circle in which the individual may live his personal life as he chooses and to exclude therefrom the outside world not encompassed within that circle. Respect for family life must also comprise to a certain degree the right to establish and develop relationships with other human beings. It does not in principle exclude professional or business activities. The working life gives an opportunity of developing relationships with the outside world which may be part and parcel of a person’s life.”
In Peck v UK the court said
“Private life is a broad term not susceptible to exhaustive definition.… [but] it includes elements such as gender identification, name, sexual orientation and sexual life and important elements of the personal sphere protected by article 8. It protects the right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is therefore a zone of interaction of a person with others even in a public context which may fall within the scope of private life.”
In Stubbings v UK the court indicated that the concept of private life includes the physical and moral integrity of the person. It includes the concepts of identity and personal development.
In Odievre v France, it was said that “ personal development includes details of a person\’s identity as a human being and the vital interests protected by the Convention on obtaining information necessary to discover the truth concerning important aspects of one\’s personal identity such as the identity of one’s parent, birth and in particular the circumstances in which a child is born forms part of a child’s the trials and subsequently the adult’s private life guaranteed by article 8 of the Convention.
In various cases taken by states against Greece in the late 1960s, the court found that the suspension of the Greek Constitution and intrusion by state forces into homes at night to effect arrests contravene the Convention.
In Cyprus v Turkey, the exclusion of Greek Cypriots from their home in occupied northern Cyprus, constituted a breach of the Convention rights of the persons concerned.
The protection of the home does not include a right to a particular house or home or a right to a house or home, to be provided by the state. The protection extends to temporary dwellings and to some business premises.
Correspondence includes materials sent through the post email or other telecommunications. The key element is the communication rather than the medium.
Cases have arisen in relation to interference with prisoner’s letters. interception of phone calls and internet surveillance. The right must be balanced with the rights of the state. In Luardo v Italy a requirement of bankruptcy law to hand over correspondence of the bankrupt going back 14 years was held to breach Article 8.
Article 8 includes both positive and negative obligations on the part of state authorities. Broadly similar principles apply in relation to justification of the state action or inaction. There must be a fair balance between the competing interests of the individual and the community.
In Dickson v UK the court indicated that the state may be obliged in some contexts, to take measures designed to secure respect for private and family life even in dealings between private persons, and not only in state matters.
In A,B and C v Ireland concerning clarity on abortion rules in Ireland the court indicated that some factors concern the applicant; the importance of the interest at stake and whether fundamental values or essential aspects of private life are an issue and the impact on the applicant of a discordance between the social reality and the law the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8. Some factors concern the position of the state whether the alleged obligation is narrow and defined or broad and indeterminate and …the extent of any burden the obligation would impose on the state.
YF v Turkey involved a nonconsensual gynaecological examination. This was clearly subject to be subject to Article 8 considerations.
Gillan and Quinton v UK concerned stop and search powers under the Terrorism Act. A person could be physically searched stopped and obliged to submit to a search in a public place. Article 8 applied in principle and action had to be justified accordingly. Because the powers allowed a senior officer to mandate the use where it was expedient and not, for example where there was reasonable suspicion there was insufficient protection against abuse and the provision was found to contravene Article 8.
In X & Y V Netherlands there was insufficient protection for private room homes for those with special needs by way of effective rights of complaint and recourse. There was a right of criminal complaint for the individual but as the person lacks capacity it was ineffective notwithstanding the existence of this civil remedy which could be taken by a representative.
In MC V Bulgara a rape law which required that the victim had actively resisted the nonconsensual sex contravened the Article 8 requirement for effective antirape laws and procedures. A v c Croatia emphasised the similar duty of states to have laws to protest effectively to protect against domestic violence. The laws must exist and be enforced.
In Georgel and Stoicescu v Romania, the court held that the failure of the state to deal with and endemic problem of stray dogs in Bucharest endangering the public in a serious and direct way constituted a breach of the state’s obligations under Article 8.
In Costello Roberts v UK, it was suggested that states may be obliged under Article 8 to place some limits on school disciplinary measures. In this particular case, the disciplinary regime, including some elements of corporal punishment, did not breach the protection in the circumstances.
In Chappel v UK, the civil remedy of an Anton pillar order which involves pre-emptive searches of property for the purpose of seizing material infringing intellectual property was considered in the context of the search of a home. With the necessary safeguards by way of solicitors undertaking the search, Article 8 was not contravened.
In Funke v France, the court considered search powers for customs officers of the applicant\’s home. It emphasised that there must be adequate safeguards against abuse, but this was not the case under the particular circumstances. No warrant was required. No specific offence was alleged; Article 8 was breached.
In Niemietz v Germany a lawyer\’s office was searched under warrant to establish the identity of a client who was believed to be using a false name. Although the action was legitimate it was found to be disproportionate relative to the objective pursued in particular because it impinged on professional confidence between lawyer and client without sufficient procedural safeguards.
Similarly, searches of lawyers\’ files to find journalistic sources were held to require stricter procedural protections than those applied in Roemen and Schmit.
In Keegan v UK a mistaken search of the applicant\’s house was held to contravene the Article because there were insufficient procedures to connect the offence and the premises, relative to the impact on the innocent occupiers of the house.
In In Kyrtatos v Greece, the court indicated that Article 8 is engaged in respect of environmental pollution only if there was a specific harmful effect on a person or his family. It did not apply to a general deterioration in the environment.
In Guerra v Italy, there was a positive obligation on the state to notify persons in the vicinity concerning risks from a dangerous factory activity.
In Fadayeva v Russia, the court indicated that there might be a positive obligation to require the state to rehouse persons living close to places where there are toxic emissions which are such as to be hazardous to health.
Taskin v Turkey indicated that where a proposed activity might affect the lives of persons in the vicinity there must be genuine and procedurally fair environmental impact assessment.
Hatton v UK involved noise from Heathrow Airport which was claimed to constitute a breach of Article 8. The regime for authorisation was found to comply with the U.K.\’s obligations under the Convention.
In McCann v UK a de facto summary eviction procedure whereby a person\’s right to remain had been terminated without a proper meaningful process breached the Article 8 guarantee. The court indicated that the procedure should apply in respect of the prospective loss of the person’s right in their home.
In Gillow v United Kingdom, the applicant challenged Guernsey laws permitting the occupation of a house which they owned. They had lived in Guernsey while working there and acquired a house which they subsequently let while working elsewhere. They were refused permission to return and convicted of unlawful occupation. It was legitimate that there may be legislation regulating who could live on Guernsey. However, the manner of its application in the circumstances breached Article 8.