Article 8: Right to Respect for

Private and Family Life, Home

and Correspondence

Lecturer: Eoin Delap BL

Announcements
• Thank you for your flexibility
▫ Return to normal schedule next week
• Assignment is now posted on Moodle
▫ Deadline is 23:59 on 12 November 2023
Research Tools
• Access the
ECHR case law guides
▫ Excellent and free online
resource
▫ They give you the basics – but
not really critical assessment
▫ Make sure you go beyond
these Guides
Article 8 ECHR
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 wellbeing 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 ECHR
• “[L]east defined and most unruly of the rights enshrined in the
Convention” per Burton J in Wright v. Secretary of State for Health
[2006] EWHC (admin) §66
• Places an obligation on state to respect the individual’s rights
• Four concepts covered
▫ Private Life
▫ Family Life
▫ Home
▫ Correspondence
• None are defined in the Convention
Scope of Rights
• Court has taken an expansive view of these concepts
• These concepts have broadened over time
▫ E.g. gender identity, childcare proceedings, search and seizure
powers, data protection, and environmental issues
• Living instrument doctrine has allowed the court to expand these
rights in line with social norms
• Contains a negative obligation
▫ State must refrain from arbitrary interference
• Also procedural safeguards
▫ State must ensure adequate protection in domestic decision making
Scope of Rights
• Court first considers if complaint falls within scope of Art. 8
• Draws a distinction between a positive and negative right
▫ Negative – state must refrain from doing something
▫ Positive – State must do something to vindicate one’s right
• Margin of appreciation plays an important role in Art. 8,
particularly with regard to positive obligations
Private Life
• Broad concept that makes it difficult to apply
• Court has consistently taken a broad view of private life
▫ Not just a right to be free from interference, but also a right to have
space to fulfil one’s personal potential
• “Respect for private life must also comprise to a certain degree the right
to establish and develop relationships with other human beings.”
▫ Niemetz v. Germany 16 EHRR 97, 29
• Case concerned search of lawyer’s office and Article 8 applied despite
professional context
Private Life
• X v. Germany – preservation of a police file came with data protection
and Art. 8
• Undisputed now that Article 8 applies to data protection
• Physical and bodily integrity now covered by Art. 8
▫ X and Y v. Netherlands 8 EHRR 235
Family Life
• Family life now much broader than 1950s definition
• Good example of the Court’s evolutive method, i.e. taking account of
changing social circumstances
• Formal relationships fall within Article 8 generally, e.g. marriage
• Non-marital relationships may also, with factors such as
▫ Cohbaitation, length of relationship, demonstrable commitment such as
children, etc.
• Being engaged without more unlikely to be enough
Family Life
• Previously, same sex couples were considered “private life”, but not
“family life”
• Rapid development in this area has brough same sex couples under
“family life”
• Children enjoy family life in relation to parents where they are in a
relationship
• Where parents are non-cohabiting, mother enjoys family life, but father
may not in all circumstances
Correspondence
• Correspondence interpreted broadly: phone, email, etc.
• Newly developed forms of communication likely to fall under
“correspondence”
• Papers and files generally also included
▫ Very significant protection in the business context
Reproductive Rights
Medically-Assisted Reproduction

SH v. Austria (57813/00)
• Concerned prohibition of all egg and sperm donations for IVF in Austria
• This was found to be a violation of the Article 8 rights of two couples
who were reliant on them to have children
• Wide margin of appreciation on IVF as there is no consensus yet
• Court recognised the right to conceive a child and make use of medically
assisted reproduction
• Warned that this is a fast moving area
Reproductive Rights
Surrogacy
Mennesson v. France
• Concerned legal recognition of parents
• France refused to recognise parental relationship of intended parents
for foreign born child
• The Court found that the parents’ rights had not been violated, but that
the child’s had, particularly due to the refusal to recognise its
relationship with its biological father
Reproductive Rights
Surrogacy
Paradiso and Campanelli v. Italy
• Child removed from parents as national law did not recognise foreign
surrogacy
• Issue was whether the child’s removal was proportionate
• Court said it was disproportionate, but the remedy was not necessarily
the return of the child given its ties with its guardians
The Family Life of Non-Nationals
• Expulsion or refusal of admission alone cannot be the basis for a claim
under Article 8
• In the East African Asians case, the Court said it required that explusion
or refusal disrupts the family unit
• In such cases, it may be necessary to consider Article 8

• Court will then consider if the order:

▫ Serves a legitimate aim
▫ Is necessary in a democratic society
 Serves a pressing social need
 Is proportionate to that aim
The Family Life of Non-Nationals
CG v. Bulgarian
• Turkish national deported on basis he was a threat to national security
• He was considered to be a drug dealer
• The Court said there must be some adversarial process
The Family Life of Non-Nationals
Boultif v. Switzerland
• Algerian national living in Switzerland with Swiss wife
• He was convicted for a violent robbery and served 16 months in prison
• He was forced to move to Italy, where he could not live with his family
• The Court found this was a violation of Article 8
• See quote on following slide on the relevant factors…
The Family Life of Non-Nationals
In assessing the relevant criteria in such a case, the Court will consider the nature and
seriousness of the offence committed by the applicant; the duration of the applicant’s
stay in the country from which he is going to be expelled; the time which has elapsed
since the commission of the offence and the applicant’s conduct during that period;
the nationalities of the various persons concerned; the applicant’s family situation,
such as the length of the marriage; other factors revealing whether the couple lead a
real and genuine family life; whether the spouse knew about the offence at the time
when he or she entered into a family relationship; and whether there are children in
the marriage and, if so, their age. Not least, the Court will also consider the
seriousness of the difficulties which the spouse would be likely to encounter in the
applicant’s country of origin, although the mere fact that a person might face certain
difficulties in accompanying her or his spouse cannot in itself preclude expulsion. 48
The Family Life of Non-Nationals
Nasri v. France
• Concerned an Algerian national who was deaf and without speech from
birth
• He had lived in France all his life with his parents and eight siblings
• He was convicted of a gang rape
• Given the effects on the Applicant, removal would be disproportionate
Privacy
State Surveillance
• State surveillance will breach Article 8 unless it is proportionate
• Instances of this include:
▫ Khan v. United Kingdom (App. No. 35394/97, 12th May 2000),
surveillance without being provided for in law
▫ Malone v. United Kingdom (1985) 7 EHRR 14, breach of Article 8 unless
there are sufficient safeguards
▫ Safeguards required considered in Kennedy v. United Kingdom (App. No
26839/05, 18th May 2010)
Privacy
State Disclosure of Private Information
• Nikolaishvili v. Georgia (App. No. 37048/04, 13th January 2009) non-
consensual disclosure is an interfere and must be justified
• Peck v. United Kingdom (App. No. 44647/98, 28th January 2003)
release of footage of a suicide attempt was a breach of Article 8

Also includes an obligation to Protect Against Breaches by Others

• Ribalda v. Spain (App. No. 1874/13, 9th January 2018) covert
surveillance of employees in a supermarket breached Article 8
Privacy
Privacy v. Freedom of Expression
• Restrictions on freedom of expression may be justified to vindicate
privacy rights
▫ Axel Springer AG v. Germany (App. Np. 39954/08, 7th February 2012)
 Factors include
 (i) the contribution of publication to debate of general interest; ]
 (ii) the role or function of the person featured in the publication; and
 (iii) the prior conduct of that person. Margin of appreciation is granted.
▫ Von Hannover v. Germany (No. 2) (App. No. 40660/08, 7th February 2012)
 Applied Axel Springer in relation to daughter of the Prince of Monaco
▫ Einarsson v. Iceland (App. No. 24703/15, 7th November 2017) accusation
that someone is a rapist without proof not a matter of opinion
Bodily Integrity
• State obliged to protect the physical and psychological integrity of the
individual
▫ Stoicescu v. Romania (App. No. 9718/03, 26th July 2011) State failed to
protect the applicant from known danger of wild dogs in Bucharest
▫ A. v. Croatia (App. No. 55164/08, 14th October 2010) State failed to
protect deceased from husband who was known to be violent
Self-Identity
• State must refrain from imposing laws which may restrict or inhibit self-
expression unless justified.

Sexual Identity
• Norris v. Ireland (App. No. 10581/83, 26th October 1988); Smith and
Grady v. United Kingdom (App. No. 33985/96, 27th September 1999).

• Some restrictions may be justified:

▫ Laskey v. United Kingdom (App. No. 21627/93, 19th February 1997)
▫ Stubing v. Germany (App. No. 43547/08, 12th April 2012)
▫ B and L v. United Kingdom (App. no. 36536/02, 13 September 2005)
Self-Identity
Gender Identity
• Rees v. United Kingdom (App. No. 9532/81, 17th October 1986) no
obligation for system of registration of change of gender.
• Goodwin v. United Kingdom (App. No. 28957/95, 11th July 2002),
application of the living instrument doctrine, Court finds there is a right
to register one’s change of gender

Same-Sex Relationships
• Schalk and Kopf v. Austria (App. No. 30141/04, 24th June 2010)
insufficient consensus on topic to find right
Self-Identity
Same-Sex Relationships
• Oliari v. Italy (App. No. 18766/11, 21st July 2015) no right to marry, but
state obliged to provide some legal recognition of same-sex
relationships
Medical Autonomy
Involuntary Treatment
• Y.F. v. Turkey (App. No. 24209/94, 22nd July 2003) forcible
gynaecological exam to determine if abuse took place in custody was
disproportionate
• Storck v. Germany (App. No. 61603/00, 16th June 2005) involuntary
detention in psychiatric hospital was disproportionate and state was
complicit
Medical Autonomy
Restriction on Assisted Dying
• Pretty v. United Kingdom (App. No. 2346/02, 29th April 2002)
restricting assisted dying was a proptionate interference
• Haas v. Switzerland (App. No. 31322/07, 20th January 2011) criteria for
assisted dying upheld