2 Article 8 Background
2.6 Article 8 – The Right to Respect for Private and Family Life
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2.6 Article 8 – The Right to Respect for Private and Family Life The Article 8 of the ECHR states: “Everyone has the right to respect for his private and family life, his home and his correspondence," and "There shall be no interference by a public authority with the exercise of this right except such as is sin accordance with law and necessary in 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.”83
Article 8 is dealing with issues of private and family life, but it does not specifically explains what does the so-called private life mean, and how can we define it. In various cases the Court made judgments from which we can get certain idea of the meaning. For example in the Case of Niemietz v. Germany, the Court stated that:
“…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 chooses and to exclude therefrom entirely the outside world not encompassed within the circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationship with other human beings.”84
In other case Botta v. Italy, the Court stated that: “private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings”85 It is also worthy to note that the understanding of family life is much
83 ECHR, Article 8.
84 Case of Niemietz v. Germany, Application No. 13710/88 (1992), Para. 29.
85 Case of Botta v. Italy, Application No. 21439/93 (1998), Para. 32.
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broader according to various judgments. For example in the Case of Marckx v.
Belgium Court noted that: “…Committee of Ministers of the Council of Europe regards the single woman and her child as one form of family and no less than others.”86 Also in the Case of Elsholz v. Germany, Court commented that: “the notion of family under this provision is not confined to marriage-based relationship and may encompass other de facto “family” ties where the parties are living together out of wedlock.”87
The last issue, which is important to explain, is the understanding of the word
“home” in the Article 8. According to Court’s judgment in the Case of Buckley v. the United Kingdom “…there was nothing in the wording of Article 8 or in case-law of the Court or Commission to suggest that the concept of “home” was limited to residences which had been lawfully established.”88 Also in the Case of Gillow v. the United Kingdom, 89when the Court was deciding whether the plot, where the gipsy family was residing could be regarded as a home, the Court noted that: “…applicants had established the property in question as their home, had retained ownership of it intending to return there, had lived in it with a view to taking up permanent residence, had relinquished their other home and had not established any other in the United Kingdom. That property was therefore to be considered their “home” for the purposes of Article 8.”90
This article covers both the negative and positive obligations. The negative obligations are described in the first paragraph, which says that no one should interfere in private and family life of an individual. However the second paragraph is
86 Case of Marckx v. Belgium, Application No. 6833/74 (1979), Para. 31.
87 Case of Elsholz v. Germany, Application No. 25735/94 (2000), Para. 43.
88 Case of Buckley v. the United Kingdom, Application No. 20348/92 (1996), Para. 53.
89 Case of Gillow v. the United Kingdom, Application No. 9063/80 (1987).
90 Case of Buckley v. the United Kingdom, Application No. 20348/92 (1996), Para. 54.
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more concrete stating that there should be no interference by public authorities. The positive obligation under this article means that even though the State should not interfere, it still should facilitate the law enforcement of this right. This precedence was laid out by various cases, but summed up by the Case of Airey v. Ireland in 1979.91 In the Court judgment we can read that: ”the Court does not consider that Ireland can be said to have "interfered" with Mrs. Airey’s private or family life: the substance of her complaint is not that the State has acted but that it has failed to act.
However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family…”92 In the following paragraph court stated that: ”In Ireland, many aspects of private or family life are regulated by law. As regards marriage, husband and wife are in principle under a duty to cohabit but are entitled, in certain cases, to petition for a decree of judicial separation; this amounts to recognition of the fact that the protection of their private or family life may sometimes necessitate their being relieved from the duty to live together. Effective respect for private or family life obliges Ireland to make this means of protection effectively accessible, when appropriate, to anyone who may wish to have recourse thereto. However, it was not effectively accessible to the applicant: not having been put in a position in which she could apply to the High Court, she was unable to seek recognition in law of her de facto separation from her husband. She has therefore been the victim of a violation of Article 8.”93
91 Case of Airey v. Ireland, Application No. 6289/73 (1979).
92 Ibid. Para. 32.
93 Ibid. Para. 33.
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The second paragraph of the Article 8 contains few terms I find necessary to mention. Firstly, in what situation can be the interference “in accordance with the law,”
and secondly, what constitutes the interference, which is “necessary in democratic society.”
In the Sunday Times v. the United Kingdom, the Court stated that: “…word "law"
in the expression "prescribed by law" covers not only statute but also unwritten law.
Accordingly, the Court does not attach importance here to the fact that contempt of court is a creature of the common law and not of legislation. It would clearly be contrary to the intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not "prescribed by law" on the sole ground that it is not enunciated in legislation: this would deprive a common-law State which is Party to the Convention of the protection of Article 10 (2) (art. 10-2) and strike at the very roots of that State’s legal system.”94
In the paragraph 49 the Court further elaborated the requirements, which constitute the interference to be “prescribed by law.” Court defined two conditions:
the adequate access to the law, when “the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case,” and the second conditions dealing with the precise formulation of the law. Such law
“unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail ... Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which, to a greater or lesser
94 Case of Sunday Times v. the United Kingdom, Application No. 6538/74 (1979), Para. 47.
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extent, are vague and whose interpretation and application are questions of practice.”95
In the Case of Silver and Others v. the United Kingdom, the Court summarized and established general principles of the relatively ambiguous term “necessary in a democratic society.” The Court stated that: “…(a) the adjective "necessary" is not synonymous with "indispensable", neither has it the flexibility of such expressions as
"admissible", "ordinary", "useful", "reasonable" or "desirable”… (b) The Contracting States enjoy a certain but not unlimited margin of appreciation in the matter of the imposition of restrictions, but it is for the Court to give the final ruling on whether they are compatible with the Convention… (c) The phrase "necessary in a democratic society" means that, to be compatible with the Convention, the interference must, inter alia, correspond to a "pressing social need" and be "proportionate to the legitimate aim pursued”… (d) Those paragraphs of Articles of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted …”96