Article 8 of the European Convention on Human Rights

Last updated

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe.

Contents

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.

Article 8 is considered to be one of the convention's most open-ended provisions. [1]

Family life

In X, Y, and Z v. UK, the Court recalls that "the notion of 'family life' in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships. When deciding whether a relationship can be said to amount to 'family life', a number of factors may be relevant, including whether the couples 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.

Home

In Niemietz v Germany case the court gave broader meaning to the 'home' notion including professional/business premises such as a lawyer's office. [2]

Private life

For better understanding of perception of "private life" case law should be analyzed. In Niemietz v. Germany, the Court held that it "does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he choose and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise [3] to a certain degree the right to establish and develop relationship and develop relationship with other human beings."

Case law

Article 8 clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).

The notion of private life in the Article 8 is also interpreted as including some duty of environmental protection. [12] [ self-published source? ]

Cases involving LGBT rights

The following cases deal with the applicability of Article 8 to issues related to LGBT people including the recognition of same-sex marriage, laws prohibiting sodomy, and access to health services for transgender people.

Violation of the convention by mass surveillance

Mass surveillance, such as by the programs revealed in Edward Snowden's global surveillance disclosures, is often accused of violating the 8th article of the European Convention on Human Rights. [16] [17] [18] [19] [20]

A 2014 report to the UN General Assembly by the United Nations' top official for counter-terrorism and human rights condemned mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions and makes a distinction between "targeted surveillance" – which "depend[s] upon the existence of prior suspicion of the targeted individual or organization" – and "mass surveillance", by which "states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites". Only targeted interception of traffic and location data in order to combat serious crime, including terrorism, is justified, according to a decision by the European Court of Justice. [21]

See also

Notes

  1. ↑ Elizabeth Wicks; Bernadette Rainey; Clare Ovey (12 June 2014). Jacobs, White and Ovey: the European Convention on Human Rights. Oxford University Press. p. 334. ISBN   978-0-19-965508-3.
  2. ↑ Mowbray, Alastair (2007). Cases and Materials on the European Convention on Human Rights . Oxford University Press. ISBN   978-0-19-920674-2.
  3. ↑ "Guide Article 8" (PDF). Retrieved 2020-10-26.
  4. ↑ (in Italian) Vincent A. De Gaetano, Alcune chiavi di lettura del sistema Cedu Archived 2019-04-30 at the Wayback Machine , Questione giustizia, speciale n. 1/2019 (La Corte di Strasburgo a cura di Francesco Buffa e Maria Giuliana Civinini).
  5. ↑ R v Brown [1993] UKHL 19 , [1994] 1 AC 212, [1993] 2 WLR 556, [1993] 2 All ER 75(11 March 1993)
  6. ↑ Laskey and others v United Kingdom [1997] ECHR 4 (19 February 1997), European Court of Human Rights
  7. ↑ Rotaru v. Romania (2000) ECHR 28341/95, paras. 43–44: "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past ... In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8(1) of the Convention."
  8. ↑ "Gillan and Quinton v United Kingdom" . Retrieved 9 February 2011.
  9. ↑ "HUDOC Press Release: Arbitrary and abusive secret surveillance of mobile telephone communications in Russia". hudoc.echr.coe.int. 2015-12-04. Retrieved 2016-04-15.
  10. ↑ The Northern Ireland Human Rights Commission's Application [2015] NIHC 96(QB) , [2015] NIQB 96(30 November 2015), High Court (Northern Ireland)
  11. ↑ "European Court to France: DNA Database Violates Fundamental Rights". HL Chronicle of Data Protection. 2017-09-08. Retrieved 2021-03-19.
  12. ↑ Buyse, Antoine (2009-04-08). "Nuisance From Outside the Prison". ECHR Blog. Retrieved 2013-09-01.
  13. ↑ "Courts' refusal to order reimbursement of top-up costs of transsexual's gender re-assignment treatment". Archived from the original on 7 August 2011. Retrieved 9 January 2010.
  14. ↑ "Gender-neutral passport denied". The Times . ISSN   0140-0460 . Retrieved 2021-07-12.
  15. ↑ Ames, Jonathan. "Fight for genderless passport taken to the Supreme Court". The Times . ISSN   0140-0460 . Retrieved 2021-07-12.
  16. ↑ Harding, Luke (26 January 2015). "Mass surveillance is fundamental threat to human rights, says European report". The Guardian. Retrieved 2 January 2017.
  17. ↑ Greenwald, Glenn (15 October 2014). "UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights". The Intercept. Retrieved 2 January 2017.
  18. ↑ McCarthy, Kieren. "European human rights court rules mass surveillance illegal". The Register.
  19. ↑ "UN Says Mass Surveillance Violates Human Rights". Techdirt. 17 October 2014. Retrieved 2 January 2017.
  20. ↑ "Does government spying violate human rights law? - Right Now". Right Now. 11 March 2014. Retrieved 2 January 2017.
  21. ↑ Asthana, Anushka (25 December 2016). "Revealed: British councils used Ripa to secretly spy on public". The Guardian. Retrieved 2 January 2017.

Further reading

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">Human Rights Act 1998</span> Act of Parliament of the United Kingdom

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.

<span class="mw-page-title-main">Human rights in the United Kingdom</span> Overview of the observance of human rights in the United Kingdom

Human rights in the United Kingdom concern the fundamental rights in law of every person in the United Kingdom. An integral part of the UK constitution, human rights derive from common law, from statutes such as Magna Carta, the Bill of Rights 1689 and the Human Rights Act 1998, from membership of the Council of Europe, and from international law.

X. v. the United Kingdom was a 1978 case before the European Court of Human Rights, challenging the Sexual Offences Act 1956 in the United Kingdom. The case addressed privacy protections and age of consent laws for homosexuals.

Norris v. Ireland was a case decided by the European Court of Human Rights (ECHR) in 1988, in which David Norris successfully charged that Ireland's criminalisation of certain homosexual acts between consenting adult men was in breach of Article 8 of the European Convention on Human Rights.

The margin of appreciation is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights.

Article 10 of the European Convention on Human Rights provides the right to freedom of expression and information. A fundamental aspect of this right is the freedom to hold opinions and receive and impart information and ideas, even if the receiver of such information does not share the same opinions or views as the provider.

In the European Convention on Human Rights, Article 2 protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be justified. The exemption for the case of lawful executions has been subsequently further restricted by Protocols 6 and 13, for those parties who are also parties to those protocols.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The Belgian Linguistic case (1968) 1 EHRR 252 is a formative case on the right to education under the European Convention of Human Rights, Protocol 1, art 2. It related to "certain aspects of the laws on the use of languages in education in Belgium", was decided by the European Court of Human Rights in 1968.

Privacy in English law is a rapidly developing area of English law that considers situations where individuals have a legal right to informational privacy - the protection of personal or private information from misuse or unauthorized disclosure. Privacy law is distinct from those laws such as trespass or assault that are designed to protect physical privacy. Such laws are generally considered as part of criminal law or the law of tort. Historically, English common law has recognized no general right or tort of privacy, and offered only limited protection through the doctrine of breach of confidence and a "piecemeal" collection of related legislation on topics like harassment and data protection. The introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law.

Mosley v United Kingdom [2011] 53 E.H.R.R. 30 was a 2011 decision in the European Court of Human Rights regarding the right to privacy under Article 8 of the European Convention on Human Rights. An application to the court was made by Max Mosley, the former president of the FIA, after his successful breach of confidence legal case against the News of the World. In that case, the court unanimously rejected the proposition that Article 8 required member states of the Council of Europe to legislate to prevent newspapers printing stories regarding individual private lives without first warning the individuals concerned. It instead held that it fell within each state's margin of appreciation to determine whether to legislate on that matter.

Smith and Grady v UK (1999) 29 EHRR 493 was a notable decision of the European Court of Human Rights that unanimously found that the investigation into and subsequent discharge of personnel from HM Forces on the basis they were homosexual was a breach of their right to a private life under Article 8 of the European Convention on Human Rights. The decision, which caused widespread controversy at the time led the UK to adopt a revised sexual-orientation-free Armed Forces Code of Social Conduct in January 2000. In UK law the decision is notable because the applicants' case had previously been dismissed in both the High Court and Court of Appeal, who had found that the authorities' actions had not violated the principles of legality including Wednesbury unreasonableness, thus highlighting the difference in approach of the European Court of Human Rights and the domestic courts.

<i>Demir and Baykara v. Turkey</i> 2008 European Court of Human Rights case

Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.

Article 12 of the European Convention on Human Rights (ECHR) provides for two constituent rights: the right to marry and the right to found a family. With an explicit reference to ‘national laws governing the exercise of this right’, Article 12 raises issues as to the doctrine of the margin of appreciation, and the related principle of subsidiarity most prominent in European Union Law. It has most prominently been utilised, often alongside Article 8 of the Convention, to challenge the denial of same sex marriage in the domestic law of a Contracting state.

The right to personal identity is recognised in international law through a range of declarations and conventions. From as early as birth, an individual's identity is formed and preserved by registration or being bestowed with a name. However, personal identity becomes more complex as an individual develops a conscience. But human rights exist to defend and protect individuality, as quoted by Law Professor Jill Marshall "Human rights law exist to ensure that individual lifestyle choices are protected from majoritarian or populist infringement." Despite the complexity of personal identity, it is preserved and encouraged through privacy, personality rights and the right to self-expression.

The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

Christine Goodwin v. United Kingdom is a case decided by the European Court of Human Rights on 11 July 2002. The applicant, Christine Goodwin, a United Kingdom national born in 1937, was a transgender woman. She claimed that she had problems and faced sexual harassment at work during and following her gender-affirming surgery. She also alleged that the fact that she kept the same National Insurance number meant that her employer had been able to discover that she previously worked for them under another name and sex, with resulting in embarrassment and humiliation.

<i>Carson & Another v Secretary of State for Work and Pensions</i>

Carson & Another v Secretary of State for Work and Pensions [2003] EWCA Civ 797 was heard in the Court of Appeal in the Supreme Court on 17 June 2003 before Lord Justice Brown, Lord Justice Laws, and Lord Justice Rix.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.