Article 8 of the European Convention on Human Rights

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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.

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