Last Updated on May 14, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Other rights and freedoms
Right to respect for one’s private and family life, home and correspondence (Article 8)
Private life[155]
The judgment in Dubská and Krejzová v. the Czech Republic[156] concerned domestic law which allowed the applicants to have home births but rendered it unlawful for health professionals to assist.
The applicants wished to give birth at home assisted by midwives. Giving birth at home was not unlawful but midwives could have been sanctioned for assisting. The first applicant considered that the hospital had not respected her wishes when she gave birth to her first child so she gave birth to her second child at home; given the risk of sanctions, she could not find any medical assistance. The Constitutional Court rejected her complaint on procedural grounds (the majority expressed doubts as to the compliance of domestic law with Article 8 of the Convention and encouraged debate about the need for new legislation on this topic). The second applicant gave birth to her first two children at home with the assistance of a midwife. She had her third child in hospital: given the then existing risk of sanctions, she could not find a medical professional willing to assist a home birth. She considered that that hospital did not respect certain of her wishes.
Both applicants complained under Article 8 that Czech law did not allow health professionals to assist home births. The Grand Chamber held that there had been no violation of that provision.
The case is interesting because it addresses the proportionality of domestic law which allows home births but which prevents (through sanctions) health professionals from assisting. It is to be distinguished from Ternovszky v. Hungary[157] where health professionals were dissuaded from assisting home births due to ambiguous legislation and where the violation was therefore limited to a finding that the impugned interference was not “in accordance with the law”. Two points are worth noting.
(i) The Grand Chamber acknowledged that “giving birth is a unique and delicate moment in a woman’s life”. It confirmed, in line with Ternovszky, that giving birth (encompassing as it does issues of physical and moral integrity, medical care, reproductive health and protection of health-related information) and the choice of birth place, are fundamentally linked to a woman’s private life and fall within the scope of Article 8 of the Convention.
(ii) The Grand Chamber found that the interference with the applicants’ right to respect for their private lives was not disproportionate to the legitimate aim of protecting the health and safety of mother and child during and after delivery.
A key element in this balancing exercise was the finding that the margin of appreciation accorded to the State was wide. The case concerned an important public interest in the area of public health (the laying down of rules for the functioning of a health-care system incorporating both public and private institutions) and, further, a complex subject of health-care policy requiring an assessment of scientific and expert data concerning the respective risks of home and hospital births. Social and economic policy was also relevant as a home-birth framework would have budgetary implications. Moreover, there was no European consensus capable of narrowing the State’s margin of appreciation.
A further element in this assessment was the Court’s acceptance that the risks for mother and baby, even with a health professional attending, were higher in a home-birth context.
Finally, while the applicants’ concerns about the conditions in which they would give birth in hospital could not be disregarded, the Grand Chamber referred to certain domestic initiatives which had been taken to seek to improve matters and invited, as the Chamber had done, the authorities to “make further progress by keeping the relevant legal provisions under constant review so as to ensure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country”.
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The issue in Kahn v. Germany[158] was whether an award of damages was an inevitable consequence of an infringement of an applicant’s personality rights.
The applicant minors were the children of a famous national sports personality. They successfully obtained a court order against a publisher requiring it to refrain from publishing photographs of them on pain of payment of a fine. The publisher repeatedly breached the injunction and on three occasions was made to pay a fine, although in a lesser amount than requested by the applicants. The fines were paid to the State. The applicants meanwhile sought compensation for breach of their personality rights. Their civil action was dismissed. Ultimately the Constitutional Court accepted the view of the civil courts that, given the nature of the breach of the applicants’ personality rights, their recourse to the fines procedure and the imposition of fines on the publisher was in the circumstances a sufficient and preventive form of just satisfaction.
In the Convention proceedings, the applicants contended that the circumstances of the case disclosed a failure on the part of the respondent State to respect their right to respect for their private life, in breach of Article 8. They criticised in particular the domestic courts’ rejection of their compensation claim. The Court ruled against them.
The judgment is noteworthy in that the Court had to decide whether an award of damages should inevitably follow from a breach of Article 8 in the circumstances alleged by the applicants, namely the unauthorised publication of photographs of minors notwithstanding the publisher’s repeated disobedience of court orders not to publish. On that point, the Court stressed the importance of the margin of appreciation available to States when determining their response to such circumstances. On the facts of the applicants’ case, it observed, among other things, that the domestic courts had on each occasion considerably increased the amount of the fine to be paid by the publisher and that the applicants had not availed themselves of the possibility to appeal against the level of the fine in order to have it increased. It also had regard to the domestic courts’ findings that the infringement of the applicants’ right was not so serious as to warrant the payment of damages to them, stressing that domestic law did not exclude the payment of damages in all circumstances. In this connection, it observed that the applicants’ faces had been obscured in the photographs, or were not visible in them, and the purpose of publishing them was to draw attention to their parents’ troubled relationship. Finally, the fines procedure offered the advantages of speed and simplicity, being triggered by the mere fact of the publication of the photos.
The Court’s conclusion is of interest. It noted that Article 8 of the Convention could not be construed as requiring in all circumstances the payment of monetary compensation to a victim of a breach of personality rights. It was open to States to envisage other redress mechanisms to secure the protection of such rights, such as a prohibition-on-publishing order backed up by a fines procedure. The fact that the fines were paid to the State and not to the victim could not be seen to be a disproportionate limitation on the efficacy of such mechanism.
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The Vasileva v. Bulgaria[159] judgment concerned a claim for damages by a patient against a surgeon and hospital following an operation. Various expert medical reports were produced in the proceedings. After examining the reports (with the exception of a report that had been prepared by a surgeon employed by the defendant hospital), the domestic courts found no evidence of negligence by the surgeon.
In the Convention proceedings, the applicant complained, inter alia, of a lack of impartiality on the part of the medical experts in the malpractice proceedings and, in particular, of the experts’ lack of objectivity regarding surgical procedures carried out by a fellow practitioner. The complaint was examined under Article 8.
The Court found, in the first place, that the Convention does not require a special mechanism to be put in place to facilitate the bringing of medical malpractice claims or a reversal of the burden of proof when the burden is borne by the claimants. In that connection, the Court observed that unjustifiably exposing medical practitioners to liability was detrimental to both practitioners and patients.
Secondly, recourse to medical experts in cases of this type was consistent with the Convention, which does not require medical evidence to be obtained from specialised institutions.
The interest of the case lies in the Court’s examination of the safeguards in place under the domestic law to ensure the reliability of evidence produced by medical experts.
The Court considered in detail both the domestic rules governing the experts’ objectivity and the domestic courts’ role and powers with respect to medical experts and their reports.
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The Sousa Goucha v. Portugal[160] judgment concerned a well-known celebrity who alleged that he had been defamed during a television comedy show shortly after making a public announcement concerning his sexual orientation.
The late-night show was intended to be humorous and included a quiz in which guests were asked to choose the best female television host from a list of names including the applicant’s. The applicant’s name was deemed to be the right answer. The applicant lodged a criminal complaint against the television company for defamation and insult, arguing that it had damaged his reputation by creating confusion between his gender and sexual orientation.
The domestic courts found that a reasonable person would not have perceived the joke as defamatory because, even if it was in bad taste, it was not intended to criticise the sexual orientation of the applicant, a public figure. The joke referred to certain visible characteristics of the applicant which could be attributed to the female gender, and had been made in the context of a comedy show known for its playful and irreverent style. The criminal proceedings were therefore discontinued.
The Court examined the application under Article 8 of the Convention, the main issue being whether, in the context of its positive obligations, the State had achieved a fair balance between the right to protection of reputation and the right to freedom of expression. Endorsing the approach adopted by the domestic authorities’ in the instant case, the Court noted that in Nikowitz and Verlagsgruppe News GmbH v. Austria[161] it had introduced the criterion of the reasonable reader in cases involving satire.
The Court clarified the scope of its examination in cases relating to comedy shows, observing that the States enjoy a wide margin of appreciation when dealing with parody.
Unlike the position in other cases concerning satirical forms of expression (see, for example, Alves da Silva v. Portugal[162], and Welsh and Silva Canha v. Portugal[163]), the joke in the applicant’s case had not been made in the context of a debate of public interest. The Court stated that in such circumstances an obligation could arise under Article 8 for the State to protect a person’s reputation where the statement went beyond the limits of what was considered acceptable under Article 10.
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The judgment in R.B. v. Hungary[164] concerned the procedural obligation to investigate racial abuse and threats directed at an individual of Roma origin.
The applicant, who is of Roma origin, complained to the authorities that she had been subjected to racial and threatening abuse by a person taking part in police-supervised anti-Roma marches organised in her neighbourhood over a period of several days. The prosecuting authorities ultimately discontinued their investigation into the applicant’s complaint because they were unable to establish whether the accused’s act had given rise to the domestic-law offences of harassment or violence against a member of a group.
In the Convention proceedings, the applicant alleged, among other things, breaches of Articles 3, 8 and 14 of the Convention. The Court found a violation of Article 8 on account of the inadequacy of the investigation into the applicant’s allegations of racially motivated abuse. The judgment is noteworthy for the following reasons.
In the first place, the Court found that the accused’s utterances and acts, although overtly discriminatory and to be seen in the light of the anti-Roma rally in the applicant’s locality, were not so severe as to cause the kind of fear, anguish or feelings of inferiority needed to engage Article 3 (compare and contrast cases in which sectarian and homophobic abuse were accompanied by physical violence: P.F. and E.F. v. the United Kingdom[165]; Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia[166]; and Identoba and Others v. Georgia[167]). The complaint under Article 3 was therefore manifestly ill-founded.
Secondly, the Court’s finding of a procedural breach of Article 8 represents a new development in the case-law in this area. For the Court, the applicant was racially abused and threatened because she belonged to the Roma community. Her ethnic identity was an aspect of her private life and the abuse and threats to which she had been subjected, bearing in mind the overall anti-Roma hostility deliberately generated by the marchers in her neighbourhood, necessarily interfered with her right to respect for her private life. In the Court’s view, the authorities were required to take all reasonable steps to unmask any racist motive in the incident complained of and to establish whether or not ethnic hatred or prejudice may have played a role in it. They had failed to do so in the applicant’s case since the investigation carried out into alleged violence of a member of an ethnic group was too narrow in its scope (the police limited themselves to assessing whether the accused’s threats had been directed against the applicant or uttered “in general”) and was confined by the terms of the relevant criminal law (the provision of the Criminal Code on harassment did not contain any element alluding to racist motives).
Thirdly, the judgment is another illustration of the Court’s condemnation of racism. It emphasised in the judgment that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies … Moreover, … in situations where there is evidence of patterns of violence and intolerance against an ethnic minority …, the positive obligations incumbent require a higher standard of States to respond to alleged bias-motivated incidents”.
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The judgment in Biržietis v. Lithuania[168] concerned the absolute prohibition on growing a beard in prison.
The applicant, who was a prisoner at the time, complained of the absolute prohibition on growing a beard irrespective of its length or tidiness, as contained in the internal rules of the prison where he served his sentence. His objection to the prohibition was ultimately rejected by the Supreme Administrative Court on the ground that the wish of a prisoner to grow a beard could not be considered a matter of fundamental rights unless linked to the exercise of a relevant right such as the freedom of religion (which was not in issue in the applicant’s case). It further held that the impugned prohibition could be justified as a necessary and proportionate measure in view of the prison authorities’ need to be able to identify prisoners quickly.
The Court found that Article 8 had been breached. The following points are worthy of note.
In the first place, the Court, disagreeing with the domestic court, observed that the choice to grow a beard should be seen as part of one’s personal identity and therefore fell within the scope of private life. Article 8 was therefore applicable. In its conclusion on the violation of Article 8, it further observed that the applicant’s decision on whether or not to grow a beard “was related to the expression of his personality and individual identity [which was] protected by Article 8 of the Convention”.
Secondly, on the question of the necessity of the absolute prohibition, the Court noted that the ban did not appear to cover other types of facial hair, for example moustaches, thus raising concerns about the arbitrariness of its application. It was of particular importance for the Court’s finding of a breach that the Government had failed to demonstrate the existence of a pressing social need to justify the prohibition. Significantly, it noted that the Parliamentary Ombudsman had concluded in a case similar to the applicant’s that the prohibition could not be justified by considerations of hygiene or by the need to identify prisoners.
The Court’s judgment is a further illustration of the flexibility of the notion of “private life” and a confirmation of the established case-law that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty. There is no question that a prisoner forfeits his or her Convention rights merely because of his or her status as a person detained following conviction. The circumstances of imprisonment, in particular considerations of security and the prevention of crime and disorder, may justify restrictions on those rights; nonetheless, any restriction must be justified in each individual case (see, for example, Dickson v. the United Kingdom[169]).
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The judgment in B.A.C. v. Greece[170] concerned an asylum-seeker’s prolonged state of uncertainty over his asylum status and the precarious personal situation caused by it.
The applicant, a Turkish national, arrived in Greece in 2002. His asylum request – based on his alleged torture in Turkey on account of his political views – was rejected. He appealed to the competent minster. In January 2003 the Consultative Commission on Asylum gave a positive opinion on his request. However the minister had not at the date of the Court’s judgment taken a position on the request. No reasons had been given for this. Meanwhile, Turkey had requested the applicant’s extradition. The request was ultimately rejected by the Greek Court of Cassation in 2013 with reference to the risk of ill-treatment which the applicant would face if returned to Turkey.
In the Convention proceedings the applicant alleged among other things that there had been a breach of his right to respect for his private life having regard to the lengthy period of uncertainty he had had to endure coupled with the precariousness of his personal situation. The Court agreed with the applicant. The judgment is noteworthy in that it is unusual for the Court to find a breach of Article 8 on account of the length of time taken to process an asylum request to its conclusion. In Jeunesse v. the Netherlands[171], it stressed that, where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country’s society, to form relationships and to create a family there. However, this did not automatically entail that the authorities of the Contracting State concerned were, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country.
The Court’s finding in the instant case must be seen in context. As to the question of uncertainty, it drew attention to the following considerations: the lengthy silence of the minister on the applicant’s request; the above-mentioned favourable opinion issued by the Consultative Commission on Asylum on the applicant’s request; the rejection of Turkey’s extradition request. The uncertainty which the applicant had experienced and continued to experience over his status was of a different dimension to that felt by an applicant awaiting the outcome of his or her asylum proceedings, it being understood, the Court stressed, that such proceedings must be concluded within a reasonable time (see paragraph 39 of the judgment in this connection and the support found in M.S.S. v. Belgium and Greece[172], cited above). As to the precariousness of the applicant’s situation, it further observed among other things that owing to his unresolved status the applicant faced restrictions in obtaining access to the job market, opening a bank account, acquiring a tax number and pursuing university studies.
For the Court, the authorities had failed to secure the applicant’s right to respect for his private life by not putting in place an effective and accessible procedure which would have allowed the applicant’s asylum request to be examined within a reasonable time, thus reducing as much as possible the precariousness of his situation.
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The judgment in Vukota-Bojić v. Switzerland[173] concerned the use in social-insurance proceedings of data compiled by private investigators on the applicant’s movements.
The applicant was injured in a road accident. The accident gave rise to various disputes regarding her capacity to work, the causal link between the alleged extent of her disability and the accident, and the amount of benefits to which she was entitled. The insurance company handling the applicant’s case, acting within the framework of powers conferred on it under the State insurance scheme, decided to place her under surveillance. Private investigators commissioned by the insurance company monitored the applicant’s movements on four different dates over a period of twenty-three days. The insurance company sought to use the detailed surveillance reports in court proceedings in order to contest the level of disability alleged by the applicant and the accuracy of the medical reports she relied on. As to the lawfulness of the monitoring of the applicant’s movements by private investigators, the Federal Court ultimately ruled that the measure had been lawful and the evidence so obtained could be admitted in evidence in the insurance proceedings.
In the Convention proceedings the applicant alleged among other things that the legal provisions which had served as the basis of her surveillance lacked clarity and precision, which meant that the interference with her right to respect for her private life had been unlawful and therefore in breach of Article 8 of the Convention.
The Court ruled in favour of the applicant, finding that the interference was not “in accordance with the law”. The judgment is of interest in that the Court concluded that the acts of surveillance and hence the interference with the applicant’s Article 8 right were attributable to the State. It noted that the insurance company, although a private body, was implementing the State insurance scheme under delegated powers and was regarded in domestic law as a public authority. On that account the applicant’s case was to be distinguished from the earlier case of De La Flor Cabrera v. Spain[174], where the Court was called upon to decide whether Spain had discharged its positive obligations to secure the right to respect for private life in the context of surveillance measures ordered by a private insurance company with no link to the State.
The judgment is also noteworthy as regards the Court’s approach to the issue of “interference” given that the monitoring of her activities was limited to the video-recording and photographing of her behaviour in public when going about her business. On that point the Court noted (paragraph 58):
“… the applicant was systematically and intentionally watched and filmed by professionals acting on the instructions of her insurance company on four different dates over a period of twenty-three days. The material obtained was stored and selected and the captured images were used as a basis for an expert opinion and, ultimately, for a reassessment of her insurance benefits.”
Finally, the Court’s assessment of the legal basis for the surveillance is of significance given the circumstances of the case, and in particular its acceptance that the surveillance must be seen to have interfered less with her private life than, for instance, telephone tapping.
The Court was critical of the following shortcomings in the level of safeguards in place to prevent abuse: the legislative framework had failed to indicate any procedures to be followed for the authorisation or supervision of the implementation of secret surveillance measures in the specific context of insurance disputes; in the absence of any details as regards the maximum duration of the surveillance measures or the possibility of their judicial challenge, insurance companies (acting as public authorities) were granted a wide discretion in deciding on the circumstances which justified surveillance measures and their duration; the legal provisions were silent on the procedures to be followed for storing, accessing, examining, using, communicating or destroying the data collected by means of secret surveillance. The Court also attached weight to the fact that in the applicant’s case a number of matters remained unclear: (i) the place and length of storage of the report containing the impugned footage and photographs, (ii) the persons who could access it, and (iii) the existence of legal means of contesting the handling of said report.
Private and family life
The Ramadan v. Malta[175] judgment concerned the issue of revocation of acquired citizenship.
The applicant, an Egyptian national at the time, acquired Maltese citizenship by reason of his marriage to a Maltese national in 1993. A child was born of the marriage. The marriage was annulled in 1998. The applicant subsequently remarried in Malta, this time to a Russian national with whom he had two children, both of whom were Maltese nationals. The authorities revoked the applicant’s citizenship in 2007 on the ground that his marriage to the Maltese citizen had been simulated since the only reason he had married her had been to acquire Maltese citizenship. The applicant, who was represented by a lawyer, was heard by the authorities before they came to their decision and he later unsuccessfully mounted a constitutional challenge to that decision.
The applicant contended that the decision to deprive him of his Maltese citizenship breached his rights under Article 8 of the Convention, asserting among other things that he was now stateless since he had had to renounce his Egyptian citizenship in order to become a citizen of Malta and was now at risk of removal. The Court found otherwise.
In previous cases, the Court had observed that, although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it could not be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual (see Karassev v. Finland[176], Slivenko and Others v. Latvia[177], Savoia and Bounegru v. Italy[178] and Genovese v. Malta[179]). Although most of the cases concerning citizenship brought before the Court had concerned applicants claiming the right to acquire citizenship and the denial of recognition of such citizenship, this was the first case in which the Court had had to address the revocation of citizenship. Significantly, the Court observed that the loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life. On that account there was no reason to distinguish between the two situations and the same test should therefore apply. Thus, an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 because of its impact on the private life of the individual.
The Court’s analysis of whether or not the decision to revoke the applicant’s Maltese citizenship complied with Article 8 was based on two considerations: firstly, whether the decision to withdraw the applicant’s citizenship was arbitrary and, secondly, the impact of the decision on the applicant’s situation.
As to the former, it noted that there was a clear legal basis for revoking the applicant’s citizenship and the applicant had been afforded hearings and remedies consistent with procedural fairness. It is noteworthy that the Court addressed the delay in adopting the decision given the time that had elapsed between the annulment of the applicant’s marriage and the adoption of the revocation decision. On that point it noted among other things that any delay had not disadvantaged the applicant, who had continued to benefit from the situation complained of (compare Kaftailova v. Latvia[180]), bearing in mind also that that situation had come about as a result of the applicant’s fraudulent behaviour and any consequences complained of were to a large extent a result of his own choices and actions (compare Shevanova v. Latvia[181]).
As regards the consequences of the withdrawal of citizenship, it observed among other things that the applicant was not currently at risk of removal from Malta (and therefore not a victim of a breach of Article 8 in so far as the removal order was concerned); he had been able to pursue his business activities and to reside in Malta and it was still open to him to apply for a work permit and a residence permit in Malta, which could eventually make him eligible for citizenship; he had not substantiated his claim that he had relinquished his Egyptian nationality nor demonstrated that he would not be able to reacquire it if he had done so.
Family life[182]
The judgment in Paposhvili[183], cited above, concerned the deportation of a seriously ill foreigner who risked being separated from his wife and three children.
The applicant, a Georgian national, faced deportation and a ban on re-entering Belgium for ten years on public-interest grounds (he had several criminal convictions). While in prison, he was diagnosed and treated for serious illnesses. Since the domestic proceedings he brought to challenge his removal on medical grounds were unsuccessful, he complained to the Court, inter alia under Article 8 of being separated from his wife and three children who had been granted indefinite leave to remain in Belgium. The applicant died in June 2016.
The Grand Chamber found that his removal would have violated Article 8.
The Grand Chamber reiterated the procedural obligation under that provision to assess the impact of the applicant’s removal on his family life given his state of health and, notably, clarified that the authorities should have examined whether, in the light of the applicant’s specific situation at the time of removal, the family could reasonably have been expected to follow him to Georgia or, if not, whether observance of the applicant’s right to respect for his family life required that he be granted leave to remain in Belgium for the time he had left to live. His removal without an assessment of these factors would have given rise to a violation of Article 8 of the Convention.
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The Kocherov and Sergeyeva v. Russia[184] judgment concerned the obligations of national courts when restricting the parental rights of parents with disabilities.
The first applicant, who had a mild intellectual disability, lived for twenty-nine years in a neuropsychological care home. He married a fellow resident of the home who had been deprived of her legal capacity on mental-health grounds. The couple had a daughter (the second applicant) who was placed in a children’s home as a child without parental care. The first applicant was registered as her father. He consented to her staying at the children’s home until it became possible for him to take care of her. Throughout the second applicant’s stay there, he maintained regular contact with her. His marriage to the second applicant’s mother was declared void shortly afterwards because of her legal incapacity.
The first applicant left the care home to move into social housing and expressed his intention to have the second applicant live with him under his care. However, the children’s home applied for a court order restricting his parental authority, arguing that the second applicant had difficulties in communicating with her parents and that she felt anxiety and stress in their presence. The first applicant produced an expert report on his discharge from the care home which concluded that his state of health enabled him to exercise fully his parental authority. He also produced a report by the custody and guardianship authority which described the living conditions in his accommodation as appropriate for his daughter.
The district court decided to restrict for the time being the first applicant’s parental authority over his daughter. Relying in particular on statements by the representatives of the children’s home, it found that the first applicant was not yet ready to look after his daughter, who therefore had to remain in public-authority care. The district court’s decision was upheld on appeal. The first applicant then lodged an application with the Court.
A year later, after the commencement of the Convention proceedings and after the first applicant’s wife had recovered her legal capacity and the couple had remarried, the restriction on the first applicant’s parental authority was finally lifted.
The Court examined the case under Article 8. It is of interest that, while it found the reasons relied on by the domestic courts to be relevant, it considered them insufficient to justify such an interference with the applicant’s family life. The Court closely examined the reasoning of the domestic courts in order to determine whether the interference was proportionate to the pursued legitimate aim of child protection.
It found that the first applicant’s prolonged residence in a specialist institution could not by itself be regarded as a sufficient ground to prevent him from recovering his parental authority. Domestic courts had to take into account and analyse, in the light of the adduced evidence, parents’ emotional and mental maturity and their ability to take care of their children. In the instant case, the first applicant’s evidence had never been challenged by his adversary, who had not produced other evidence calling it into question. A mere reference to the first applicant’s diagnosis, without taking into account his aptitude to be a parent and his actual living conditions, was not a “sufficient” reason to justify a restriction on his parental authority. Likewise, the mother’s legal incapacity could not by itself justify the refusal of the first applicant’s request. The domestic courts should have decided the case by reference to the first applicant’s behaviour and given valid and sufficient reasons for rejecting his request.
The judgment thus highlights the obligation Article 8 imposes on national courts to have regard to the interests of disabled parents and to fully examine their arguments when their parental rights are challenged by official child-protection authorities.
Home
The Ivanova and Cherkezov v. Bulgaria[185] judgment concerned the imminent execution of a demolition order and the scope of the protection afforded to a home with no planning permission.
The applicants built a house without planning permission. The local authority served a demolition order on them. The first applicant brought judicial review proceedings to challenge the lawfulness of the order arguing, among other things, that the execution of the order would entail for her the loss of her only home. The domestic courts ruled against her, finding that the house had been built unlawfully and its construction could not be legalised under the transitional amnesty provisions of the governing legislation.
The Court found that the circumstances of the case gave rise to a breach of Article 8 of the Convention but no breach of Article 1 of Protocol No. 1. Its reasoning for so doing is interesting in that it illustrates the difference in the interests protected by the respective provisions and hence the scope of protection afforded by them, especially when it comes to the application of the proportionality requirement to the facts of a particular case.
As to the Article 8 complaint, the Court essentially focused on whether the demolition would be “necessary in a democratic society”. Its approach to that question was informed by its judgments in previous cases in which it had read into domestic procedures to evict tenants from public-sector housing (see, for example, McCann v. the United Kingdom[186]; Paulić v. Croatia[187]; and Kay and Others v. the United Kingdom[188]) or occupiers from publicly owned land (see, for example, Chapman v. the United Kingdom[189]) a requirement to afford due respect to the interests protected by Article 8, given that the loss of one’s home is an extreme form of interference with the right to respect for one’s home (see, for example, McCann, § 49), regardless of whether the person concerned belongs to a vulnerable group.
This is the first case in which the Court has applied that requirement – essentially an individualised proportionality assessment – to the imminent loss of one’s home consequent to a decision to demolish it on the ground that it had been knowingly constructed in breach of planning regulations.
The Court’s finding of a breach of Article 8 was based on the fact that the domestic courts were only required to have regard to the matter of illegality, and they confined themselves to that issue to the exclusion of any consideration of the possible disproportionate effect of the implementation of the demolition order on the applicants’ personal situation.
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The judgment in K.S. and M.S. v. Germany[190] concerned a search of the applicants’ home on the basis of a warrant issued on the strength of evidence allegedly obtained in breach of domestic and international law.
The German tax authorities instigated proceedings against the applicants for suspected tax evasion. The proceedings were triggered following receipt of information about the applicants’ assets held in a Liechtenstein bank. The information (together with data relating to many other account holders domiciled in Germany for tax purposes) had been illegally copied by an employee of the bank and purchased by the German secret service before finding its way to the tax authorities. Relying on this information, a prosecutor obtained a warrant from a court for a search of the applicants’ home. The applicants’ challenge to the lawfulness of the search was ultimately dismissed by the Federal Constitutional Court, which found it to be settled case-law that there was no absolute rule that evidence which had been acquired in violation of procedural rules could not be used in criminal proceedings. The Federal Constitutional Court did not find it necessary to decide whether the data had been obtained in breach of international and domestic law, as the lower court was prepared to assume that the evidence might in fact have been acquired unlawfully. In the Convention proceedings the applicants invoked Article 8 of the Convention.
The Court found that the Convention had not been breached. The judgment is of interest in that the Court had to address the question whether an interference with the right to respect for one’s home could be considered lawful (“in accordance with the law”) notwithstanding that the interference had its origin in information which had been (allegedly) obtained in breach of domestic and international law.
In the context of Article 6 of the Convention the Court has repeatedly found that the admission and use of evidence obtained in breach of domestic law did not automatically give rise to unfairness (see, for example, Bykov v. Russia[191]). This would appear to be the first occasion on which the Court has had to determine whether such evidence undermined the lawfulness requirement of Article 8.
It held that in view of the answer provided by the Constitutional Court to the applicants’ complaint (see above), the interference had a basis in domestic law (the relevant provisions of the Code of Criminal Procedure) and that the applicants had been able to foresee – if necessary with the aid of legal advice – that the domestic authorities would consider that the search warrant could be based on the Liechtenstein data despite the fact that they may have been acquired in breach of domestic or international law.
The Court returned to this issue when examining the necessity test, in particular the existence of safeguards to avoid arbitrariness and to ensure respect for the proportionality principle in the issue and execution of the warrant (see, for example, Société Colas Est and Others v. France[192] and Buck v. Germany[193]). It observed among other things that the search had been ordered by a judge; the evidence relied on had not been the result of a serious deliberate or arbitrary breach of procedural rules which systematically ignored constitutional safeguards; and the lawfulness of the warrant was the subject of ex post facto judicial review. On the proportionality issue, it was noted, inter alia, that the Liechtenstein data were the only evidence available at the relevant time that suggested that the applicants might have evaded paying tax, and the search warrant appeared to have been the only means of establishing whether the applicants were in fact liable for tax evasion, a serious offence. There was no indication that the tax authorities at the relevant time had deliberately and systematically breached domestic and international law in order to obtain information relevant to the prosecution of tax crimes or were purposely acting in the light of any established domestic case-law confirming that unlawfully obtained tax data could be used to justify a search warrant. Furthermore, the German authorities, in issuing the search warrant, had not relied on real evidence obtained as a direct result of a breach of one of the core rights of the Convention. In view of these and other considerations, the Court concluded that the impugned evidence, even accepting that it was tainted with illegality, had not undermined the arguments in favour of the necessity of its use. Article 8 of the Convention had not been breached.
Correspondence
The judgment in D.L. v. Bulgaria[194], cited above, concerned, inter alia, the right of minors detained in a closed educational institution to communicate with the outside world. The applicant, a minor, was placed in a closed educational institution on account of, among other things, her antisocial behaviour and the risk that she would become further involved in prostitution.
In the Convention proceedings, the applicant alleged that her correspondence and telephone conversations with third parties were automatically and systematically monitored or supervised, in breach of Article 8. The Court found a breach of that provision.
The Court emphasised the distinction to be drawn between minors placed under educational supervision and prisoners when it comes to the application of restrictions on correspondence and telephone communications. The margin of appreciation enjoyed by the authorities is more restricted in the case of the former.
The Court observed that the monitoring of the applicant’s correspondence with the outside world was automatically and systematically enforced with no regard being had to the status of the addressee. While such a blanket control was of itself problematic when applied to a prisoner, the Court stressed the specific needs of young people placed in closed educational institutions who have not been convicted of criminal offences. The purpose of their confinement was to ensure that they are provided with education and assisted with their preparation for their return to society. The authorities were thus obliged to see to it that minors had sufficient contact with the outside world, including by means of written correspondence. In the instant case the restrictions imposed on the applicant were indiscriminate with the result that letters she might wish to send to or receive from her lawyer or an interested non-governmental organisation would not be treated as confidential. In addition, monitoring of correspondence was without limitation in time and the authorities were not required to justify the decisions they had taken.
The Court was equally critical of the restrictions placed on the applicant’s use of the telephone. The telephone conversations of all minors in the institution were supervised with no assessment made of whether, for example, the correspondent was a family member or if a phone call could pose a possible risk to the security of the institution.
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155. See also under Article 14 below, Di Trizio v. Switzerland, no. 7186/09, 2 February 2016.
156. Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, ECHR 2016.
157. Ternovszky v. Hungary, no. 67545/09, 14 December 2010.
158. Kahn v. Germany, no. 16313/10, 17 March 2016.
159. Vasileva v. Bulgaria, no. 23796/10, 17 March 2016.
160. Sousa Goucha v. Portugal, no. 70434/12, 22 March 2016.
161. Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 22 February 2007.
162. Alves da Silva v. Portugal, no. 41665/07, 20 October 2009.
163. Welsh and Silva Canha v. Portugal, no. 16812/11, 17 September 2013.
164. R.B. v. Hungary, no. 64602/12, 12 April 2016.
165. P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, 23 November 2010.
166. Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007.
167. Identoba and Others v. Georgia, no. 73235/12, 12 May 2015.
168. Biržietis v. Lithuania, no. 49304/09, 14 June 2016.
169. Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007-V.
170. B.A.C. v. Greece, no. 11981/15, 13 October 2016.
171. Jeunesse v. the Netherlands [GC], no. 12738/10, § 103, 3 October 2014.
172. M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 262, ECHR 2011.
173. Vukota-Bojić v. Switzerland, no. 61838/10, 18 October 2016.
174. De La Flor Cabrera v. Spain, no. 10764/09, 27 May 2014.
175. Ramadan v. Malta, no. 76136/12, ECHR 2016 (extracts).
176. Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II.
177. Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II (extracts).
178. Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006.
179. Genovese v. Malta, no. 53124/09, § 30, 11 October 2011.
180. Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 53, 7 December 2007.
181. Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 49, 7 December 2007.
182. See also, under Article 1, Article 5 and Article 13, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, ECHR 2016, under Article 3, A.B. and Others v. France, no. 11593/12, 12 July 2016, and Paposhvili v. Belgium [GC], no. 41738/10, 13 December 2016, and, under Article 8 and Article 14, Di Trizio v. Switzerland, no. 7186/09, 2 February 2016, and Pajić v. Croatia, no. 68453/13, 23 February 2016.
183. Paposhvili v. Belgium [GC], no. 41738/10, ECHR 2016, see also under Article 3 above.
184. Kocherov and Sergeyeva v. Russia, no. 16899/13, 29 March 2016.
185. Ivanova and Cherkezov v. Bulgaria, no. 46577/15, 21 April 2016. See also under Article 1 of Protocol No. 1 below.
186. McCann v. the United Kingdom, no. 19009/04, § 46, ECHR 2008.
187. Paulić v. Croatia, no. 3572/06, 22 October 2009.
188. Kay and Others v. the United Kingdom, no. 37341/06, 21 September 2010.
189. Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I.
190. K.S. and M.S. v. Germany, no. 33696/11, 6 October 2016.
191. Bykov v. Russia [GC], no. 4378/02, §§ 89-91, 10 March 2009.
192. Société Colas Est and Others v. France, no. 37971/97, § 48, ECHR 2002-III.
193. Buck v. Germany, no. 41604/98, § 45, ECHR 2005-IV.
194. D.L. v. Bulgaria, no. 7472/14, 19 May 2016. See also Article 5 § 1 (d) above.
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