Article 8 ECHR
Encyclopedia
Article 8 of the European Convention on Human Rights
provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".
: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).
The notion of private life in the Article 8 is also interpreted as including some duty of environmental protection.
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".
Case law
This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligationsPositive obligations
Positive obligations in human rights law denote a State's obligation to engage in an activity to secure the effective enjoyment of a fundamental right, as opposed to the classical negative obligation to merely abstain from human rights violations....
: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).
- Golder v. United Kingdom (1975) 1 EHRR 524, prisoner requested a lawyer because he said he wanted to sue a guard for defamation. Access was denied. This violated the right to a fair trial (Article 6 ECHRArticle 6 ECHRArticle 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an independent and impartial tribunal within reasonable...
) and client confidentiality. - Silver v. United Kingdom (1981) 3 EHRR 475
- Modinos v. CyprusModinos v. CyprusModinos v. Cyprus is a judgment of the European Court of Human Rights concerning Article 8 of the European Convention on Human Rights- Case :...
(1993) Ruling invalidating Section 171 of the Criminal Code of CyprusSection 171 of the Criminal Code of CyprusSection 171 of the Criminal Code of Cyprus was a section of the Cyprus Criminal Code, which was enacted in 1929, that criminalized homosexual acts between consenting male adults...
under which male homosexual acts were banned, finding that there had been a breach under Article 8 of the applicant's right to respect for private life. - Smith and Grady v United KingdomSmith and Grady v United KingdomSmith and Grady v UK 29 EHRR 493 was a notable decision of the European Court of Human Rights that unanimously found that the investigation into and subsequent discharge of personnel from the Royal Navy on the basis they were homosexual was a breach of their right to a private life under Article...
(1999) 29 EHRR 493, the investigation into and subsequent discharge of personnel from the Royal Navy on the basis of sexual orientation was a breach of the right to a private life under Article 8. - Van Kück v. Germany (2003) Inadequate access to a fair hearing in a case involving reimbursement by a private medical insurer for costs of hormone replacement therapyHormone replacement therapyHormone replacement therapy may refer to:*Hormone replacement therapy *Hormone replacement therapy *Hormone replacement therapy *Androgen replacement therapy -See also:...
and gender reassignment surgerySex reassignment surgerySex reassignment surgery is a term for the surgical procedures by which a person's physical appearance and function of their existing sexual characteristics are altered to resemble...
by a transsexual woman, where undue burden had been placed upon her to prove the medical necessity of the treatment, was a violation under Article 8 and Article 6 § 1. - Mosley v. News Group Newspapers Ltd [2008] EWHC 1777 (QB), per Eady J, whereby equitable breach of confidence is extended to protect Art. 8 rights.
- S and Marper v United Kingdom (2009) - the United Kingdom National DNA Database - data retention period curtailed.
- A, B and C v Ireland (2010) - no "Right to Abortion"
The notion of private life in the Article 8 is also interpreted as including some duty of environmental protection.