1. Criminal Law Aspect of the European Convention on Human Rights The Right to Respect for Private and Family Life Article 8 ECHR Zlata Đurđević durdevic@pravo.hr

2. Criminal Law Aspect of the European Convention on Human Rights Coprehensive Right Connection between Art. 8 and other rights –Art. 2. Right to die Right to abortion –Art. 3. Right to physical integrity – also Art. 8 –Art. 5. Privacy in prison? –Art. 6. Art. 8 rights are civil rights – protection in line with Art. 6 Fair trial rights Illegal evidence –Art. 9. Right to freedom of thought, conscience and religion –Art. 10. Freedom of expression celebrities, politicians – freedom of the press balancing, proportionality test

3. Criminal Law Aspect of the European Convention on Human Rights Controversial right Rapidly receding right –Social networks –Internet Do we need that right as a human right? Why do we give up of that right today so easily?

4. Criminal Law Aspect of the European Convention on Human Rights Right to respect for private and family life Article 8. ECHR Right to respect for private and family life Article 8. ECHR 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.

5. Criminal Law Aspect of the European Convention on Human Rights Four interests 1. Private life 2. Family life 3. Home 4. Correspondence autonomous notions absence of definitions, teoretical concepts

6. Criminal Law Aspect of the European Convention on Human Rights Private life Own personal life Relationships with other beings Outside world

7. Criminal Law Aspect of the European Convention on Human Rights Private life  Free pursuit of the development and fulfillment of one’s personality  Development of relationships with other persons and the outside world (Niemietz v. Germany, 1992)  Types of relationship:  Outside family  Sexual activities  Social activities  Business relationship

8. Criminal Law Aspect of the European Convention on Human Rights Private life  Outside family foster parents and children they have looked after parties who are not yet married relationship between homosexuals  Sexual activities sexual identity sexual orientation and activity a most intimate aspect of private life (Dungeon) every sexual activity?

9. Criminal Law Aspect of the European Convention on Human Rights Homosexuals Dungeon v. United Kingdom, 1981 -first, mailstone case on the criminalization of male homosexuality -interrogated by the police about his sexual activities -violation -decriminalization in Northern Ireland in 1982 -decriminalization of homosexual behavior – minimum European standard – Romania – 1996 COE/ EU Norris v. Ireland, 1988 Modinos v. Cyprus, 1993 Prior to Dungeon all applications regarding homosexuality mostly from Germany were rejected by the Commission as ‘manifestly ill-founded’ – protection of health or morals (8/2) ADT v. U.K., 2000 -Criminalization of private consensual group sexual activity Dungeon Cited by US Supreme Court in Lawrence v Texas, 2003 -The Texas statute (sodomy law) making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause (14 Am)

10. Criminal Law Aspect of the European Convention on Human Rights Social activities Social activities: imprisoned persons (McFeeley v. the United Kingdom, 1980) effective enjoyment of social life –immigration cases Business relationships: personal relationships in business context (Niemietz v. Germany, 1992 )

11. Criminal Law Aspect of the European Convention on Human Rights Physical and moral integrity Interferences that entail adverse effects for physical or moral integrity Compulsory medical treatment –blood and urine tests, vaccination, TB tests etc. Safety measures –seatbelts, safety appliances etc. Act of violence, attacks on one’s physical integrity –Sandra Jankovic v. Croatia

12. Criminal Law Aspect of the European Convention on Human Rights Family life  Court’s flexible approach to the interpretation  Case-by-case approach, steadily development  Close personal ties between the parties  Ends only in exceptional circumstances 1.The family based on marriage lawful Marriage married couple + their children genuine 2. Unmarried couples and their children a)Relationship between a mother and her child-> automatically b)Unmarried couples who live together + their children

13. Criminal Law Aspect of the European Convention on Human Rights 3. Other relationships a)Children and their grandparents (Marckx v. Belgium, 1979) b)Siblings (Olsson v. Sweden, 1988) c)Uncle/aunt and nephew/niece (Boyle v. UK, 1993) d)Parents and children born into second relationships, extra- marital or adulterous affairs (Jolie and Lebrun v. Belgium, 1986) e)Adoptive parents and children (X. v. France, 1998) f)Children and foster parents (under certain circumstances) (X. v. Switzerland, 1978)

14. Criminal Law Aspect of the European Convention on Human Rights Family life-dilemmas 1.Cohabitation- not a sine qua non of family life (Berrehab v. the Netherlands, 1988) 2.Family life without marriage or cohabitation- possible- relationship between parents and their children-> automatically (Boughanemi v. France, 1996) 3.Potential family life- can fall within the scope of Article 8 (adoption without consent of a father - Keegan v. Ireland, 1994) 4.Blood tie 1.not always necessary - transsexual and his child born by AID - X,Y&Z v. UK, 1997 2.not always enough ( a sperm donor - G v. the Netherlands, 1993) 5. Same sex relationships-> not yet considered

15. Criminal Law Aspect of the European Convention on Human Rights Home  place where one lives on a settled basis  does not necessarily include the right to live in one’s home FROM WILFUL DAMAGE PROTECTION FROM OF FROM NUISANCE ENVIROMENTAL HOME NUISANCE FROM SEARCHES AND SEIZURES

16. Criminal Law Aspect of the European Convention on Human Rights 1.Ownership: -sufficient continuing links with the property (Gillow v. the United Kingdom, 1986) - wide margin of discretion regarding the regulation of ownership 2.Business premises - the notion of home may extend to offices ( Niemietz v. Germany, 1992)

17. Criminal Law Aspect of the European Convention on Human Rights Correspondence  uninterrupted and uncensored communication with others  protection relates to the means or method of communication, not the content  identity of the sender or the recipient matters  interpretation will vary due to technological progress 1.Post 2.Telephone 3.Telex 4.e-mail (Copland v. the United Kingdom, 2007)

18. Criminal Law Aspect of the European Convention on Human Rights Activities and measures interfering with rights under Article 8 searching a person’s home telephone tapping (not using a radio channel) –Klass v. Germany, 1978 –Malone v. UK, 1984 secret surveillance collection of personal data (census, fingerprinting, photography, medical data, secret police file) accessing personal data (Gaskin v. the United Kingdom, 1998) stopping prisoners’ correspondence

19. Criminal Law Aspect of the European Convention on Human Rights State’s obligations under Article 8 Negative – –the right to be left alone “Duty of a State not to interfere arbitrarily with a person’s private and family life, home and correspondence.” Positive –effective respect for rights conferred upon individuals by Art. 8 –“to respect for” – basis for expanding rights –Two obligations state has to provide rights state has to protect persons against other private individuals

20. Criminal Law Aspect of the European Convention on Human Rights Justifications for limitation  public authority  in accordance with the law  necessary  in a democratic society in the interest of: 1. NATIONAL SECURITY 2. PUBLIC SAFETY 3. ECONOMIC WELL-BEING 4. PREVENTION OF DISORDER OR CRIME 5. PROTECTION OF HEALTH 6. PROTECTION OF MORALS 7. PROTECTION OF RIGHTS AND FREEDOMS OF OTHERS

21. Criminal Law Aspect of the European Convention on Human Rights The margin of appreciation  very important in determining violation of Art. 8  domestic margin of appreciation  legislator and other domestic bodies (Handyside v. the United Kingdom, 1976)  no unlimited power or appreciation  European supervision  is the infringement justifiable (Article 8/2)  was there a positive obligation The scope of margin of appreciation depends on: -common ground of the Contracting Parties to the issue or various customs, policies and practices -legal area and context of the case -existence of common conception of certain terms (e.g. morals) etc.

22. Criminal Law Aspect of the European Convention on Human Rights Article 8 test Stage I. 1. Is the complaint within the scope of Article 8? the applicant has to prove that his complaint is in the scope of Article 8 + - no issue under the Convention 2. Is there a positive STAGE II. obligation and has it been fulfilled?

23. Criminal Law Aspect of the European Convention on Human Rights 1.Has there been an interference with the Article 8 right? the applicant has to prove the fact of interference - likelihood interference collection and storage of personal information disclosure of personal data regulation of names medical treatment body search criminalization of homosexuality, failure to recognize transsexuals regulation of private sexual conduct intercepting correspondence secret surveillance legal recognition of family ties custody, contacts, care issues rights in family proceedings deportation and expulsion searches and seizures of property etc. ESTABLISHEDESTABLISHED Stage II.

24. Criminal Law Aspect of the European Convention on Human Rights A. Is the interference in accordance with the law ? - burden of proof – on state 1. Legal basis - statutory basis 2. Forseeability argument accessible and precise protection against arbitrariness YESYES GENERAL INTEREST OF THE INTEREST OF COMMUNITY AN INDIVIDUAL Was it in accordance with the law?

25. Criminal Law Aspect of the European Convention on Human Rights B. Does it pursue a legitimate aim? - the burden of proof on State (Art 8/2) C. Is it necessary in a democratic society? 1.Necessary corresponds to a pressing social need proportionate to the aim pursued are there effective procedural guarantees 2. Democratic society - tolerance - broadmindedness - the rule of law - no arbitrariness in application of the Convention - fair ballance of interests etc. GENERAL INTEREST OF THE INTEREST OF COMMUNITY AN INDIVIDUAL

26. Criminal Law Aspect of the European Convention on Human Rights