The Right to Respect for Private and Family Life, Home and Correspondence

Июль 29, 2022

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The Right to Respect for Private and Family Life, Home and Correspondence

Содержание

2. Article 8, ECHR Every body has the right to respect for his private and family life,
3. The Concept of Private Life The right to be oneself The right to live as oneself
4. Respect for physical and moral integrity Right to a personal identity The Concept of Private Life
5. Respect for personal or private space Respect for sexual orientation, identity and relations The Concept of
6. Respect for sexual orientation, identity and relations Privacy and intrusive publications Collection of personal data by
7. The Concept of Private Life Policing and collecting evidence Medical care and confidentiality Access to health
8. Surveillance All forms of covert policing and surveillance will engage Article 8. Secret surveillance is tolerable
9. What is meant by family life? The ECHR contains no definition of “family life” The notion
10. Unconventional family life Unmarried fathers The extended family Family “ties” do not in themselves constitute family
11. Children and human rights The Convention applies to children as it does to adults No general
12. Taking children into care Article 8 is engaged at all stages in care cases: • leading
13. Immigration and the European Convention on Human Rights Two category of cases have emerged: • Those
14. Developing principles before the European Court of Human Rights The Boultif criteria These include: the nature
15. Home Covers right of access to and occupation of premises, a right not to be expelled
16. Correspondence Covers the right to communicate and the confidentiality of private communications. All forms of communication
17. Restricting rights Any restriction on civil and political rights must be prescribed by law. The restriction
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Article 8, ECHR
Every body 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.

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The Concept of Private Life
The right to be oneself

The right to live as oneself
The right to keep to oneself
The right to inter-relate socially with others
The right to develop and fulfil one’s own personality

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Respect for physical and moral integrity
Right to a personal

identity

The Concept of Private Life

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Respect for personal or private space
Respect for sexual orientation, identity

and relations

The Concept of Private Life

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Respect for sexual orientation, identity and relations
Privacy and intrusive publications

Collection of personal data by the State

The Concept of Private Life

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The Concept of Private Life
Policing and collecting evidence
Medical care

and confidentiality
Access to health information
Victims’ rights

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Surveillance
All forms of covert policing and surveillance will engage Article

8.
Secret surveillance is tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. Such interference must be supported by relevant and sufficient reasons and must be proportionate to the legitimate aim or aims pursued.

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What is meant by family life?
The ECHR contains no

definition of “family life”
The notion is interpreted widely
The existence of “family life” is a question of fact.
Some family relationships automatically are protected by Article 8:
a child born to parents who are lawfully
married
the relationship between a mother and her child

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Unconventional family life
Unmarried fathers
The extended family
Family “ties”

do not in themselves constitute family life
Atypical family structures
Transsexuals
Same sex couples
Artificial insemination/adoption
Children born to unmarried parents

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Children and human rights
The Convention applies to children as

it does to adults
No general provision recognising the need for special protection and assistance to be given to the child. The ECHR should be read with the UN Convention on the Rights of the Child
Nielsen v Denmark (28.11.1988) the Court held that
the rights of the child may be limited by those who
have parental rights and responsibilities with regard
to their custody and care.
The importance of the family unit is recognised but, “the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the State to provide safeguards against abuse.”
Positive obligations exist

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Taking children into care
Article 8 is engaged at all stages

in care cases:
• leading up to seeking a care order,
• the judicial stage of care proceedings, and
• after the care order has been made.
In Olsson v Sweden (24.03.1988) the Court held that the making of the care decision was not a violation of the Convention but that the way in which that decision was subsequently implemented violated Article 8.

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Immigration and the European Convention on Human Rights
Two category of cases

have emerged:
• Those involving the expulsion of integrated migrants (both second generation and long term residents) normally on public order grounds following a criminal conviction;
• Those involving the decision to expel or to refuse to admit third country nationals with close family members in the Contracting State, normally on economic interest grounds, or for the maintenance of immigration policy.

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Developing principles before the European Court of Human Rights
The Boultif criteria

These include:
the nature and seriousness of the offence;
the length of the applicant’s stay in the country from which he is going to be expelled;
the time elapsed since the offence was committed as well as the applicant‘s conduct in that period;
the nationalities of the various persons concerned;
the applicant’s family situation such as length of the marriage, and other factors going to the effectiveness of a couple’s family life;
whether the spouse knew about the offence at the time when he or she entered in to a family relationship; and
whether there are children of the relationship and if so their age.

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Home
Covers right of access to and occupation of premises, a

right not to be expelled and enjoy the home without interference or intrusion and a right not to be evicted or to have one’s home destroyed.
It also encompasses the right to enjoyment of the residence free from pollution.

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Correspondence
Covers the right to communicate and the confidentiality of private communications.
All

forms of communication are protected.

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Restricting rights
Any restriction on civil and political rights must be prescribed

by law.
The restriction must be justified by one of the aims recognised under the European Convention.
The restriction must be shown to be “necessary in a democratic society”.
Any qualification to rights cannot be applied in a discriminatory fashion.