3) Legitimate aim
4) Necessary in a democratic society
IV) Relation of article 8 ECHR with other rights
1) Relation between the interests protected by article 8 ECHR
2) Relation of article 8 ECHR with other convention rights
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.
Art. 8 ECHR guarantees the right to respect for private life, family life, home and correspondence. Its scope is very broad; it extends to many areas of life and has an impact on different legal fields reaching from family law to criminal law.
The protection afforded by Art. 8 ECHR is not without limits. The rights enshrined in paragraph 1 may be interfered with subject to the conditions laid down in paragraph 2.
In accordance with this structure of Art.8, the following approach to scrutinizing cases, in which this article may have a bearing, may be taken:
- in a first step, it should be established whether there is an interference with the right to private life, familiy life, home or correspondence. To this end, it has to be established whether a certain measure, action or omission (see below) falls within the scope of one the interests, which Art.8 para 1 protects, and whether it has some impact on the way in which the rights can be exercised, whether it limits the extend to which the right can be enjoyed. The scope of private life, familiy life, home and corresponce are dealt with on the parts of this website dealing with the respective rights.
- then it should be scrutinized whether this interference is justified pursuant to Art.8 para 2 ECHR
When assessing whether a certain conduct on the part of the state falls within the scope of Art.8 ECHR, it should be borne in mind that Art. 8 – as the other articles of the Convention – entails positive obligations. Contracting states do not meet their obligation to secure the rights enshrined in the Convention (see Art. 1 ECHR) by simply refraining from interferences. They can also be obliged to actively employ certain measures with a view to ensuring that the Convention rights become effective. Measures states have to take to meet their positive obligations may include, (but are not limited to)
- passing legislation in order to ensure the enjoyment of rights guaranteed in the Convention,
- conducting effective investigations in cases of alleged violations ofhuman rights or
- ensuring that factual conditions for exercising rights are met.
For example, in the case Marckx./.Belgium, the Court stated:
'the object of the Article  is "essentially" that of protecting the individual against arbitrary interference by the public authorities. Nevertheless 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 family life. This means, amongst other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (art. 8), respect for family life implies in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible as from the moment of birth the child's integration in his family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 8-1) without there being any call to examine it under paragraph 2 (art. 8-2).'
In this case, the applicants were a mother and her daughter, who had been born out of wedlock. At the material time, there was no legal bond between a mother and an 'illegitimate child'. In order to create such a legal bond, the mother had to recognise the child formally, which entailed certain enquiries and involved some expenses. In addition to that, the law foresaw other disadvantages for children born out of wedlock, for example regarding the possibility to inherit properties.
The Court found that this legal framework violated the applicants' right to family life and that Belgium was under a positive obligation to pass different legislation in that respect.
Thus, potential infringements of Art. 8 ECHR may be scrutinized examining the following questions:
- does a certain measure fall within the scope of Art.8, i.e. Is the case somehow related to interest protected by Art.8, does Art.8 potentially play a role of this case?
- does it interfere with one of the interests protected by Art.8?
- is there a positive obligation to respect that interest
- is the interference in accordance with a law
- does it pursue a legitimate aim as laid down in Art.8 para 2 ECHR
- is the interference necessary in a democratic society
Since the scope of the interests which article 8 paragraph 1 ECHR protects are dealt with below on the pages dedicated to the respective rights, a very short overview of the ambit of these rights shall suffice here.
- The right to private life embraces personal autonomy, the right to make choices regarding one’s own life without interference by the state, to develop one’s own personality and to establish relationships with others and to communicate. Aspects of the right to private life include the physical and psychological integrity of a person, sex life and gender, personal data, reputation, names and photos.
- The notion family life extends to the legally acknowledged ties between persons related by blood or marriage. Central relationships of family life are those of husband and wife and parent and child. Beyond this, ties between siblings, grandparents and grandchildren or uncle/aunt and nephews/niece may also fall within the scope of article 8 ECHR. Ties which are legally not recognized may also attract the protection afforded by the right to family life. In these cases, the European Court of Human Rights applies a number of criteria (such as duration of the relationship, cohabitation) in order to ascertain whether a given relationship is embraced by the right to family life under article 8 ECHR.
- Home is the physically defined place where private life and family life develops. It does not matter whether this space is the property of the affected person or even legally inhabited. The notion also may also encompass business premises, temporarily inhabited spaces or caravans.
- The right to respect for correspondence under article 8 ECHR enshrines the right to uncensored and uninterrupted communication. Although the notion ‘correspondence’ might be understood as referring to letters only, it is acknowledged that article 8 also affords protection to communication via the phone, fax, parcels, telexes or private radio.
The rights to respect for private life, family life, home and correspondence are not granted without limits. They may be restricted subject to the conditions laid down in article 8 paragraph 2 ECHR. Pursuant to this provision, interferences with one of the rights enshrined in article 8 paragraph 1 ECHR have to
· Be in accordance with the law
· Serve one of the legitimate goals set out in article 8 paragraph 2 ECHR
· Be necessary in a democratic society
Article 8 paragraph 2 ECHR provides that interferences with the interests protected by article 8 paragraph 1 ECHR have to be ‘in accordance with the law’. The language employed in article 8 paragraph 2 ECHR differs from the one used in articles 9, 10 and 11 ECHR, which allow for the restriction on the rights they guarantee subject to the condition that the limitation is ‘prescribed by law’. This difference in wording does not indicate a difference in substance, though (Malone v UK, para 66; Silver and Others v UK, p. 85). The European Court of Human Rights applies the same principles when assessing the legal bases for interferences with article 8 ECHR as when restrictions of one of the other articles mentioned above are in question. Terms such as ‘based on a law’, ‘prescribed by law’ or ‘in accordance with the law’ are used interchangeably in resolutions of the Court
'Law' refers to written laws as well as unwritten law (Sunday Times v UK, para 47)
To justify an interference with one of the rights protected by article 8 paragraph 1 it is not sufficient that there is just some basis for the interference in domestic law. The Court has developed a number of requirements a law has to meet in order to qualify as a basis for interferences with one of the rights under article 8 ECHR. While some of them apply to all legal provisions designed to justify interferences with article 8 of the Convention, the ECtHR has held that particularly strict standards have to be met when the interferences which are concerned take place in secret (as it is for example the case with phone interceptions). The fact that the affected persons do not have the possibility to challenge the measure calls for very well-developed safeguards against abuse. Special requirements for secret measures such as phone interceptions are dealt with separately.
A law or legal provision which prescribes an interference with one of the rights protected by article 8 ECHR has to be accessible, sufficiently clear as to be circumstances under which an interference may be justified and consistent with the rule of law.
The law which prescribes an interference with a right under article 8 has to be publicly accessible. Citizens have to be able to obtain information subject to which conditions their rights may be interfered with.
In Kuznetsov v. Ukraine, the applicant was a prison inmate. He was serving a long term prison sentence after having been transferred from death row. Regulation on the prison regime passed by the Prosecutor General’s Office, the Ministry of Justice and the Supreme Court foresaw that long-term prisoners could send only one letter per month. They also restricted the number of visits by family members to one per month. The visits had to take place under surveillance by two prison guards. The European Court of Human Rights noted that these regulations were not publicly available and therefore did not qualify for interferences with the right to correspondence and family life such as the restriction of visits or the number of letters. Consequently, the Court found a violation of article 8 ECHR.
Liberty v. UK concerned the interception of phone calls between Northern Ireland and Great Britain by British authorities. The interceptions were carried out on the basis of the ‘Investigatory Powers Act’ (Out of security concerns, the British government refused to confirm that phone calls were intercepted, but agreed to conduct the proceedings before the European Court of Human Rights based on the assumption that it did). The Secretary of State issued guidelines regarding the storage, screening, handling and deletion of the information obtained. These guidelines were not public. For this reason, the European Court of Human Rights concluded that the basis for the interference was not publicly accessible and did not provide sufficient safeguards against arbitrary interference. It found a violation of article 8 ECHR.