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Article 8 European Convention on Human Rights - Right to respect for private and family life

 
Article 8
 
"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." 
 
 
 
This imposes two obligations on states:
 
1. Not to interfere with the stated rights:
 
Libert v France [2018] ECHR 185
 
2. A positive obligation to prevent others  from interfering with those rights:
 
Barbulescu v Romania [2017] ECHR 742
 
 
 
Article 8 is a qualified right, meaning the state may lawfully limit the rights conferred. The courts need to balance the competing interest of the individual as against the community as a whole.
 
 
Any limitation must be: 
 
  • in accordance with law
  • necessary and proportionate
  • for a legitimate aim
 
 
The burden of proof lies with the complainant to demonstrate an interference with their right. The burden then shifts to the state to demonstrate the interference was justified because it is in accordance with law, necessary in a democratic society and proportionate.
 
 

In accordance with law

 
For the interference to be compliant with Art 8 it must be in accordance with law:
 
Klaus Muller v Germany [2020] ECHR 821
 
Not only must it comply with domestic law, but also the rule of law:
 
Halford v UK [1997] ECHR 32
 
National  law must be clear, foreseeable and adequately accessible:
 
Silver v UK [1984] ECHR 5
 
It must be sufficiently foreseeable to enable individuals to act within the law:
 
Lebois v Bulgaria [2017] ECHR 927 
 
 

Necessary in a democratic society

 
The court undertakes a balance between the right of the individual and the interest of the Member state. 'Necessary' indicates a pressing social need and a margin of appreciation is afforded to the state and it must be proportionate to the legitimate aim:
 
Dudgeon v UK [1983] ECHR 2
 
 
Klaus Muller v Germany [2020] ECHR 821
 
 
Z v Finland [1997] ECHR 10
 
 

Legitimate aim

 
 
Legitimate aims are those specified in Art 8:
 
  • National security
  • Public safety
  • Economic wellbeing of the country
  • Prevention of disorder or crime
  • Protection of health or morals
  • Protection of the rights and freedoms of others
 
 

Protected interests

 
Art 8 protects four interests:
 
  1. Private life
  2. Family life
  3. Home
  4. Correspondence
 
1. Private life
 
Private life is a broad concept incapable of exhaustive definition:
 
Niemietz v Germany [1992] ECHR 80
 
Pretty v UK [2002] ECHR 427
 
Peck v UK [2003] ECHR 44
 
 
It covers physical and psychological integrity:  Denisov v Ukraine [2018] ECHR 1061
 
 
It includes the right to a private social life:  Botta v Italy [1996] ECHR 83
 
 
Privacy includes well being and dignity: Beizaras and Levickas v Lithuania [2020] ECHR 19
 
 
Personality development: Von Hannover v Germany [2005] ECHR 555
 
 
Protection of personal data:  ML & WW v Germany [2018] ECHR 551
 
 
A persons image: Reklos & Davourlis v Greece [2009] ECHR 200
 
 
Restrictions on access to a profession:  Lekaviciene v Lithuania [2017] ECHR 592
 
 
Protection from violence: E.S & others v Slovakia [2009] ECHR 1282
 
 
Prohibition of abortion for health reasons: A B C v Ireland [2010] ECHR 2032
 
 
Decision to become or not to become a parent:   Evans v UK [2007] ECHR 265
 
 
The circumstances of giving birth:  Ternovszky v Hungary [2010] ECHR 2028
 
 
The right to conceive:  S.H and others v Austria [2011] ECHR 1878
 
 
Protection from non consensual sterilisation: I.G and others v Slovakia [2012] ECHR 1910
 
 
Forced medical treatment: Glass v UK [2004] ECHR 103
 
 
The non-consensual taking of blood and saliva samples: Jalloh v Germany [2007] ECHR 721
 
 
Preservation of mental health: Bensaid v UK [2001] ECHR 82
 
 
End of life issues: Pretty v UK [2002] ECHR 427; Haas v Switzerland [2011] ECHR 2422; Koch v Germany [2012] ECHR 2031; Nicklinson v UK [2015] ECHR 709; Gard v UK [2017] ECHR 605