1 Introduction
1.5 Methodology
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1.5 Methodology
The Chapter 2 analyses the background of the Article 8 of the ECHR. For this purpose I am discussing various aspects and documents relevant to the overall understanding of this article, its meaning and position in the context of the ECHR.
Therefore, it is necessary to give a basic overview about the human rights law and also discuss its status and justification. I am also clarifying some of the basic terms, often encountered in human rights studies, such as the universality, margin of appreciation, necessity in democratic society or the overlapping consensus. In the second chapter, I am also further elaborating my understanding of the individual and collective human rights concept in order to avoid any misunderstanding regarding the usage of these two terms.
In the Chapter 2, I also touch upon the background of basic human rights documents. However, for purpose of this thesis, it is not necessary to extensively review the evolution of human rights and its basic bills, treaties and declarations, which preceded the current understanding and state of affairs. Therefore, I am omitting detailed analysis of such documents.17 For my work, the crucial period of the human rights movement can be linked to the time right after the World War II, and the following human rights movement in the second half of the twentieth century onwards. This movement is associated with the creation and adoption of the most important human rights conventions, such as ECHR, ICCPR, and ICESCR etc. For this thesis, I would introduce the European Convention of Human Rights and the European Court of Human Rights. The ECHR, signed on 4 November 1950 and operating since 3 September 1953 with the establishment of the European Court of Human Rights, is regarded as the most procedurally developed and effective judicial
17 For example see various national bills of rights and constitutions (the United States Declaration of Independence, the French Declaration of Rights of Man and of the Citizen etc.).
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structure protecting human rights.18 19 In this chapter I would analyze some characteristics of the ECHR such as that it practically focus only on civil and political rights, ignoring the questions regarding economic, cultural rights. I will also elaborate on the assertion, which indicates that the ECHR is too brief on the subject of the minority rights.20 I will also discuss the scope and effectiveness of the European Court of Human Rights as well as the admissibility criteria for cases to be admitted.
The Chapter 3 of my thesis will be the analysis of cases from the European Court of Human Rights. In certain cases, if it is necessary or interesting for my studies, there are references to cases from the ICCPR, ICECSR and CEDAW. In all the selected cases I want to highlight the linkage of the complicated relationship between individual and collective human rights, most of them are referring to the Article 8 from the ECHR. However, I will also introduce two cases, regarding to other articles, which are highly relevant and especially noteworthy, to the issues I concerned. My decision to include these two cases can also illustrate that the relatively complicated relationship between different human rights can be identified also in other articles.
In addition to review the Article 8 “Right to respect for private and family life,” I will also view the Article 5 “Right to Liberty and Security,” Article 7 “No Punishment without Trial,” and the Article 9 “Freedom thought, conscience and religion.” These articles can be understood in very different ways, resulting in quite opposite and contradictory implementations by States. In order to narrow the scope of my thesis, I decided to focus particularly on the Article 8, and analyze relevant cases from the European Court of Human Rights, where we can identify the conflict between individual and collective human rights. Article 8 is dealing with the private
18 James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 18.
19 Javaid Rehman, International Human Rights Law (Pearson Education Limited, 2010) at p. 184.
20 Ibid p. 185
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and family life in a very broad sense; therefore we can come across various cases dealing not only with privacy, but also environmental protection, anti-terrorism measurements, minority rights etc. My attempt is not to elaborate each aspect or field in detail and find all relevant cases dealing with them; instead, my decision to select different cases is to illustrate the fact that the ambiguous relationship between individual and collective human rights can be found in all different types of cases dealing with various issues.
Article 8 says that everyone's private and family life should be respected, without any interference by public authority unless “it 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.”21 In order to show the possible variance of interpretation of this Article, I have selected several cases for studying, namely the Dudgeon v. United Kingdom,22 and Gillan and Quinton v. the United Kingdom.23 Other cases I want to analyze in my thesis, discuss different issues such as the special obligation regarding vulnerable and minority groups. In the case of Chapman v. The United Kingdom,24 there is a conflict between the Romani family, with a different style of living, and the majority of population. Other cases are discussing positive and negative obligations of state. In K v Germany,25 the German state is trying to protect its citizens, but breaches the rights of individuals. In the Lautsi and Others v. Italy,26 the plaintiff is accusing Italy of not protecting the rights of other than Christian citizens, because of the crucifixes in the
21 ECHR, Article 8(2).
22 ECHR, Dudgeon v the United Kingdom, Application No. 7525/76 (1981).
23 ECHR, Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010).
24 ECHR, Chapman v. the United Kingdom, Application No. 27238/95 (2001).
25 ECHR, K v Germany, Application No. 61827/09 (2012).
26 ECHR, Lautsi and Others v. Italy, Application No. 30814/06 (2011).
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classrooms. The case of V.C. v. Slovakia,27 is dealing with the enforced sterilization of Romani women, in order to ensure “healthy population” for the majority. The case Von Hannover v. Germany,28 is discussing the freedom of the press and the right of the individual for privacy.
27 ECHR, V.C. v. Slovakia, Application No. 18968/07 (2011).
28 ECHR, Von Hannover v. Germany (No. 2) [GC] - 40660/08 (2012).
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