Text of 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.

A) Article 8 ECHR – Introduction

I) Overview

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 toprivate 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 – entailspositive 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.

 

Article 8 paragraph 1 ECHR

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.