Right to respect for one’s private and family life, home and correspondence (Article 8)

Last Updated on September 22, 2021 by LawEuro

Overview of the Case-law of the ECHR 2018

Other rights and freedoms

Right to respect for one’s private and family life, home and correspondence (Article 8)

Private life

Denisov v. Ukraine[103] concerned the notion of private life in the context of employment disputes.

The applicant was dismissed from the position of President of the Kyiv Administrative Court of Appeal on the basis of a failure to perform his administrative duties properly. He remained as a judge in the same court. He complained under Article 8 of a violation of his right to respect for his private life.

The novel aspect of this judgment concerns the applicability of Article 8 and, in particular, whether the applicant’s dismissal as President while retaining his position as a judge fell within the scope of the right to respect for “private life”, it being noted that Article 8 had been found to be applicable in a relatively recent and similar context (Erményi v. Hungary[104]).

A number of points are noteworthy.

(i) A divergent practice in dealing with the scope of “private life” on admissibility and merits was noted, which the Grand Chamber considered could not be justified. It confirmed the following strict approach:

“As the question of applicability is an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits.”

(ii) Based on a thorough review of relevant case-law, the Grand Chamber set down the principles by which to assess whether employment disputes fall within the scope of “private life”, which it summarised as follows.

“115. The Court concludes from the above case-law that employment-related disputes are not per se excluded from the scope of ‘private life’ within the meaning of Article 8 of the Convention. There are some typical aspects of private life which may be affected in such disputes by dismissal, demotion, non-admission to a profession or other similarly unfavourable measures. These aspects include (i) the applicant’s ‘inner circle’, (ii) the applicant’s opportunity to establish and develop relationships with others, and (iii) the applicant’s social and professional reputation. There are two ways in which a private-life issue would usually arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employs the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employs the consequence-based approach).

116. If the consequence-based approach is at stake, the threshold of severity with respect to all the above-mentioned aspects assumes crucial importance. It is for the applicant to show convincingly that the threshold was attained in his or her case. The applicant has to present evidence substantiating consequences of the impugned measure. The Court will only accept that Article 8 is applicable where these consequences are very serious and affect his or her private life to a very significant degree.

117. The Court has established criteria for assessing the severity or seriousness of alleged violations in different regulatory contexts. An applicant’s suffering is to be assessed by comparing his or her life before and after the measure in question. The Court further considers that in determining the seriousness of the consequences in employment-related cases it is appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. This analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remains for the applicant to define and substantiate the nature and extent of his or her suffering, which should have a causal connection with the impugned measure. Having regard to the rule of exhaustion of domestic remedies, the essential elements of such allegations must be sufficiently raised before the domestic authorities dealing with the matter.” (Emphasis added.)

In sum, the Court defined those aspects of private life (inner circle, outer circle, reputation) relevant to employment disputes. In addition, since the reasons for the applicant’s dismissal did not concern his private life (but rather his performance in a public arena), this was a case concerning the alleged consequences of a dismissal on private life: the burden and standard of proof (in italics above) were developed therefore by the Grand Chamber as regards the impugned consequences of a dismissal. On the facts, the Court found that the applicant had not demonstrated that the consequences affected the relevant three aspects of his private life, so that his complaint under Article 8 was incompatible ratione materiae.

(iii) The reasoning on the applicant’s “professional and social reputation” is interesting, the core question being whether his dismissal encroached upon his reputation in such a way that “it seriously affected his esteem among others, with the result that it ha[d] a serious impact on his interaction with society”. His dismissal as President could not be considered to have affected the core of his “professional reputation”: he retained his position as a judge; he had been dismissed as President only on the basis of his lack of managerial skills (contrast the criticism of the applicant in Oleksandr Volkov v. Ukraine[105]); and, while he may have been at the apex of his legal career, he had not specified how this loss of esteem had “caused him serious prejudice in his professional environment” (namely, his future career as a judge). As regards his “social reputation” it was important that his dismissal for the above-noted reason did not concern a wider moral/ethical aspect of his personality and character (contrast Lekavičienė v. Lithuania[106], and Jankauskas v. Lithuania (no. 2)[107]).

Anchev v. Bulgaria[108] concerned the exposure of individuals on account of their affiliation to the former security services during the communist regime.

The applicant held a number of government and other important positions in post-communist Bulgaria which made him subject to the 2006 Law on access to and disclosure of documents and exposure of the affiliation of Bulgarian citizens to State Security and the intelligence services of the Bulgarian People’s Army. Pursuant to that Law an independent Commission tasked with its implementation conducted a series of investigations into the applicant’s possible affiliation to the security services managed by State Security under the former communist regime. The Commission took three separate decisions in respect of the applicant, on each occasion ordering his exposure on the basis of information about him found in the State Security records which had survived their partial and covert destruction shortly after the fall of the communist regime in 1989. Exposure entailed the publication of the Commission’s findings. The Act did not provide for sanctions or any legal disabilities such as disenfranchisement or disbarment from holding official office or engaging in public or private professional activities. The applicant twice challenged the lawfulness of the Commission’s decisions, arguing that the material relied on to expose him did not clearly prove that he had been a collaborator. The domestic courts ultimately ruled that the Commission did not have to check whether the applicant had in fact collaborated or consented to being a collaborator since it had found State Security records relating to his involvement in its work. That of itself was sufficient to give rise to exposure.

The applicant complained before the Court that the exposure decisions had breached his right to respect for his private life under Article 8 of the Convention. The applicant contended in particular that the exposure scheme did not provide for an individual assessment of the reliability of the evidence available with respect to each person featuring as a collaborator in the surviving records of the former security services, or of his or her precise role, instead requiring the exposure of any such person.

The Court declared the complaint inadmissible as being manifestly ill-founded. The decision is of interest in view of its treatment of the necessity of the interference, and in particular the manner in which the Court compared and contrasted the exposure scheme with the lustration approach adopted by other States in a similar context.

The Court observed that the key issue was to determine whether, in adopting the exposure scheme under the 2006 Law, the authorities had acted within their margin of appreciation. On that point, it noted that Contracting States which have emerged from undemocratic regimes have a broad margin of appreciation in choosing how to deal with the legacy of those regimes. This part of the Court’s analysis is noteworthy for its comprehensive review of its previous case-law in this area which illustrates the diversity of the approaches which the new democracies have taken with a view to addressing their past.

The Court observed that the Bulgarian Parliament, following much debate and with cross-party support, had ultimately legislated for a system exposing an individual’s affiliation with the former security services in preference to the enactment of a lustration law. It noted that the 2006 Law had been declared constitutional by the Constitutional Court following a careful review which took account of the relevant case-law principles, a factor which only served to reinforce Bulgaria’s wide margin of appreciation in devising the policy underpinning the 2006 Law.

The Court gave weight to a number of considerations which confirmed that Bulgaria had not exceeded its margin of appreciation, including: exposure did not give rise to sanctions or legal disabilities (compare and contrast Sidabras and Džiautas v. Lithuania[109]), and it was not certain that exposed persons had been prejudiced as a result in their professional or private life – the applicant has in fact continued to be active in the business world and public life; the Law was only directed at persons who, since the fall of the communist regime, had taken up important functions in the public or private sectors (compare and contrast Sõro v. Estonia[110]); the process of exposure was attended by a number of safeguards to prevent arbitrariness or abuse including the right of an individual concerned to have access to the records relied on by the Commission and to seek judicial review of the Commission’s decision to expose him or her.

Turning to the applicant’s complaint concerning the lack of assessment of individual situations, the Court observed that if all the files of the former security services had survived, it might have been feasible to assess the exact role of each of the individuals mentioned in them. Since many of these files had been covertly destroyed, the Bulgarian legislature had chosen to provide for the exposure of anyone found to feature in any of the surviving records, even if there were no other documents showing that he or she had in fact collaborated. It further noted that, when reviewing that solution, the Constitutional Court had stated that, otherwise, collaborators whose files had survived would unjustifiably have been treated less favourably. In view of the circumstances in which a large number of the files of the former security services had been destroyed, that had to be seen as a weighty reason for the legislative scheme adopted by Bulgaria.

Hadzhieva v. Bulgaria[111] concerned an applicant minor allegedly left to her own devices following her parents’ arrest and detention for thirteen days.

The applicant was 14 years old at the time of the events giving rise to the application. She was alone at home on 4 December 2002 when police officers arrived to arrest her parents with a view to the execution of an extradition request issued in respect of them by Turkmenistan. Her parents were out at the time. They were arrested on their return and taken into custody. The applicant remained alone in the flat. She was reunited with her parents on 17 December 2002 following their release on bail. The applicant was unsuccessful in her claim for compensation for the stress and suffering she endured on account of the alleged failure of the authorities to organise support and care for her during her parents’ detention. The court of appeal found that, even if the applicant had been left alone after their arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated at a court hearing on 6 December 2002, two days after her arrest, that there had been someone to take care of her.

In the Convention proceedings, the applicant contended that the circumstances of the case disclosed a breach of Article 8. The crucial issue was to determine whether the respondent State had discharged its positive obligations under that Article to secure the protection of the applicant’s right to respect for her psychological integrity. Interestingly, the Court agreed with the applicant, but only as regards the two-day period between her parents’ arrest and the court hearing on 6 December 2002 during which, according to the record, the applicant’s mother had confirmed that the applicant was being cared for. In respect of the remaining period it found that there had been no breach of Article 8.

As regards the two-day period, the Court noted that under domestic law the authorities had the responsibility to either place the applicant’s parents in a position to arrange for her care at the time of their being taken into custody, or to enquire into the applicant’s situation of their own motion. Once the authorities had established the circumstances relating to her care in her parents’ absence, if it appeared necessary, they had an obligation to provide the applicant with assistance, support and services as needed, either in her own home, or in a foster family or at a specialised institution. The authorities had failed to comply with their positive obligation under Article 8 to act in order to ensure that the applicant, who was a minor left without parental care, was protected and provided for in her parents’ absence.

As to the period between the date of the court hearing and the release of her parents, the Court noted among other things that, in addition to being recorded as stating in court that there was someone to care for her daughter, the applicant’s mother did not, at any point in time – either before or after that hearing, at the time of her arrest or later from prison – raise with any authority the question of the applicant’s care during her detention. Neither did her father, who had been arrested at the same time and together with the mother, alert any authority at any point in time that his daughter had been left alone or that he had any concerns about her care in his absence. It is noteworthy that the Court gave weight to the fact that the applicant’s parents were educated, professional persons and at all times legally represented. In the circumstances, the Court considered that the competent authorities had no reason to assume, or suspect, after the court hearing on 6 December 2002 that the applicant had been left alone and not provided for in her parents’ absence. On that account, the fact that the authorities did not act of their own motion to ensure that the applicant’s welfare was not at risk did not amount to a breach of their positive obligations under Article 8.

The case is interesting in view of the novelty of the context in which the complaint arose and, as regards the facts alleged, the Court’s analysis of the scope of the State’s obligation under Article 8 of the Convention.

Libert v. France[112] concerned the opening by a public-sector employer of an applicant employee’s files that were stored on the hard disk of his professional computer and marked “personal”.

The applicant was employed by the SNCF, the French State railway company. He was suspended from his functions pending the outcome of an internal investigation. During the applicant’s absence, his employer analysed the content of the hard disk of his office computer. Files were found containing, among other things, a very considerable number of pornographic pictures and films. The applicant was dismissed. He complained in the domestic proceedings that his employer had breached his right to respect for his private life by opening, in his absence, a file marked “giggles” stored on the hard disk which he had clearly designated as containing “personal data”. The domestic courts rejected his argument, not being persuaded that the description the applicant had given to the hard disk and the name given to the file were sufficient to indicate that the content was private, thereby requiring his presence before the file could be accessed by his employer. The domestic courts further observed in line with previous case-law of the Court of Cassation that an employee could not designate the whole of the hard disk of his or her office computer as “personal” since the hard disk was, by default, for professional use and data files stored on it were presumed to relate to professional activities, unless the employee had clearly indicated that the content was private (the Court of Cassation precedent relied on had referred to “personal” in this connection).

The applicant alleged in the Convention proceedings that the circumstances of his case disclosed an unjustified interference with his right to respect for his private life. The Court found that there had been no breach of Article 8.

The judgment is of interest in that it represents a further contribution to the growing case-law on surveillance at the place of work (see, in this connection, as regards monitoring of telephone and Internet use: Bărbulescu v. Romania[113]; Halford v. the United Kingdom[114]; Copland v. the United Kingdom[115]; and, as regards video surveillance: Köpke v. Germany[116] ; Antović and Mirković v. Montenegro[117]; and López Ribalda and Others v. Spain[118]).

The following points may be highlighted.

In the first place, the Court confirmed that information stored on an office computer that had clearly been marked as private was in certain circumstances capable of falling within the notion of “private life”, thus attracting the applicability of Article 8. It noted in this connection that the SNCF tolerated the occasional use by its employees of their office computers for private purposes subject to their compliance with the applicable rules.

Secondly, unlike in Bărbulescu (cited above), for example, the Court examined the applicant’s complaint from the standpoint of an alleged interference by the State with the applicant’s Article 8 right. The SNCF was a public-law entity even if it displayed certain features of a private-law nature. In Bărbulescu the source of the infringement of the applicant’s right was a private employer, which meant that the Court had to examine in that case the applicant’s complaint from the perspective of the State’s compliance with its positive obligation to protect the applicant’s right to respect for his private life.

Thirdly, the Court accepted that at the material time it was the settled case-law of the Court of Cassation that any data files created by an employee on his office computer were presumed to be professional in nature unless the employee had clearly and precisely designated such files as “personal”. If the employee did so, the files could only be accessed by his employer in the employee’s presence or after the latter had been duly invited to be present. The inference in the instant case thus had a lawful basis with adequate safeguards to prevent arbitrariness. The Court reverted to this matter when examining the proportionality of the interference.

Fourthly, the Court acknowledged with reference to the treatment of the legitimate-aim requirement in Bărbulescu (§ 127) that an employer had a legitimate interest in ensuring the smooth running of the company, and that this could be done by establishing mechanisms for checking that its employees were performing their professional duties adequately and with the necessary diligence.

Finally, the Court was satisfied that the domestic courts had given relevant and sufficient reasons for the interference (see above) and that safeguards were in place to prevent the employer’s arbitrary access to an employee’s information that was clearly marked as being private (see, however, in this connection, the Court’s finding in Bărbulescu). It is interesting to note that the Court did not find it problematic that the Court of Cassation in a previous ruling appeared to accept that the designation of a hard disk or a file as “personal” – which was that used by the applicant – was sufficient to convey the private nature of the content. For the Court, what was significant was that the employer’s Charter governing the use of its computer system stressed that private information had to be clearly marked “private”.

M.L. and W.W. v. Germany[119] concerned the refusal of the applicants’ request to oblige media organisations to anonymise online archive material concerning their criminal trial and conviction.

The applicants were convicted of the murder of a well-known actor. Their trial received a great deal of media attention at the time. While serving their sentences the applicants tried unsuccessfully on several occasions to have their criminal proceedings reopened. Following their release they requested – for reasons related to their social reintegration – a number of media organisations which had reported on their case to anonymise the personal information held on them in their online archives. The Federal Court of Justice ultimately dismissed their challenge of the refusal of the media organisations to comply with their request.

In the Convention proceedings, the applicants contended that that decision had breached their right to respect for their private life guaranteed by Article 8. The Court disagreed.

This is the first occasion on which the Court has been asked to determine whether a domestic court has struck the right balance between the privacy rights of an individual, viewed in terms of his right to protection of his personal data, and the Article 10 right of a media organisation to make available to the public online its historical record of the information which it has already published about that individual.

Firstly, it reaffirmed that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private life (Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland[120]).

Secondly, turning to Article 10 it reiterated that the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. The maintenance of Internet archives is a critical aspect of this role and such archives fall within the ambit of the protection afforded by Article 10. Regarding press archives it observed in line with its earlier case-law, in particular Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2)[121] (§§ 27 and 45), that

“… while the primary function of the press in a democracy is to act as a ‘public watchdog’, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. …”

Interestingly, the Court was careful to distinguish between the circumstances of the instant case – the applicants’ request for anonymity was directed at the media organisations which had published the information about them at the time of their trial and then stored it electronically – and cases in which individuals exercise their data-protection rights with respect to their personal information which is published on the Internet and which, by means of search engines, may be accessed and retrieved by third parties and used for profiling purposes. The Court observed that, depending on the context, the balancing exercise between the competing Article 8 and Article 10 rights may produce different results when it comes to the assertion of a right to have one’s personal data anonymised or erased.

As to whether the Federal Court of Justice struck a fair balance between the competing interests at stake in the applicants’ case, it is interesting to note that the Court considered that it could have regard in this context to the non-exhaustive list of considerations it had formulated in its earlier case-law while bearing in mind that certain of these considerations may have less relevance to the circumstances of this case than others (Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 165, and the case-law referred to therein). It will be recalled that those considerations are: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the news report; the prior conduct of the person concerned; and the content, form and consequences of the publication.

Applying these criteria to the facts of the applicants’ case, and having regard to the wide margin of appreciation which domestic courts enjoy in carrying out this exercise, the Court concluded that the Federal Court of Justice’s refusal of their request did not amount to a failure to protect their Article 8 rights. The Court noted among other matters the lawful nature of the original reporting on the applicants, the importance of preserving and ensuring the availability of that information, and the conduct of the applicants with regard to the media.

Private and family life

Lozovyye v. Russia[122] concerned the authorities’ failure to notify parents of their son’s death.

In 2005 the applicants’ son was murdered. He was buried before they were notified of his death. Some measures had been taken by an investigator from the competent prosecutor’s office – without success – to trace family members with a view to enabling them to join the criminal proceedings as victims. Having eventually learnt of their son’s death, the applicants were allowed to have his body exhumed. He was subsequently given a family burial in his home town. The applicants unsuccessfully sued for compensation.

In the Convention proceedings, the applicants alleged a violation of their right to respect for their private and family life guaranteed by Article 8 of the Convention. The Court found for the applicants.

The judgment is of interest in that this is the first time that the Court has addressed the scope of Article 8 of the Convention in circumstances where it is alleged that the State failed in its duty to inform the next of kin of the death of a close family member. This is a question which concerns the State’s positive obligations to protect the values guaranteed by Article 8, in the instant case the right to respect for private and family life.

The Court expressed the positive obligation in the following terms (paragraph 38):

“The Court … takes the view that in situations such as the one in the present case, where the State authorities, but not other family members, are aware of a death, there is an obligation for the relevant authorities to at least undertake reasonable steps to ensure that surviving members of the family are informed.”

Interestingly, it found that the domestic law and practice on this matter lacked clarity, but that was not of itself sufficient to find a breach of Article 8. The crucial issue was the adequacy of the authorities’ response. The Court confined itself to the circumstances of the case. The scope of the obligation in this area will of course vary depending on the facts: for example, the impossibility of identifying the deceased person will no doubt have a bearing on the intensity of the obligation. Here, the identity of the applicants’ son was known to the authorities, and there were various options available to them to establish that the applicants were the parents of the deceased (for example, using the records of telephone calls he received or made), to locate them and to notify them of their son’s death. It could not be concluded that they had made all reasonable and practical efforts to discharge their positive obligation. Significantly, the trial court in the criminal proceedings criticised the investigator who had been tasked with locating the next of kin for failing to take sufficient steps in this connection, having regard to the information at her disposal.

Solska and Rybicka v. Poland[123] concerned the exhumation of deceased persons’ remains in the context of a criminal investigation without the consent of the families.

As part of the ongoing investigation into the crash of the Polish Air Force plane in Smolensk in April 2010 which resulted in the death of all ninety-six persons on board, including the President of Poland and many high-ranking officials, the State Prosecutor’s Office ordered in 2016 the exhumation of eighty-three of the bodies. The intention was to conduct autopsies to determine among other things the cause of death and to verify the hypothesis of an alleged explosion on board the plane. The applicants’ husbands died in the crash. They objected to the exhumation of their remains, but to no avail. There was no possibility of independent review of or appeal against the decision.

The applicants complained in the Convention proceedings of a breach of Article 8 of the Convention. The Court agreed.

The following points may be highlighted.

This is the first occasion on which the Court has addressed the applicability of Article 8 to a situation where family members oppose the exhumation of the remains of a deceased relative for the purposes of a criminal investigation. It held that the applicants could invoke the protection of Article 8 under both its family and private-life heads. The Court was able to draw on case-law on related matters demonstrating that issues pertaining to the way in which the body of a deceased relative was treated, as well as issues regarding the ability to attend a burial and pay respects at the grave of a relative, have been recognised as coming within the scope of the right to respect for family or private life under Article 8 (see, most recently, Lozovyye v. Russia[124], where the Court held that the applicants’ right to respect for their private and family life had been affected by the failure of the State to inform them of their son’s death before he had been buried).

It is noteworthy that the Court situated its analysis of the interference with the applicants’ Article 8 rights within the framework of the respondent State’s procedural obligation under Article 2 to carry out an effective investigation into the cause of the plane crash and the consequential loss of life.

In describing the scope of a Convention-compliant investigation in the light of its established case-law (see Armani Da Silva v. the United Kingdom[125], and the cases referred to therein), the Court noted that, where appropriate, the authorities are required to perform an autopsy on the body of a deceased (ibid., § 233). Importantly, it observed that an effective investigation may, in some circumstances, require the exhumation of the remains of a body (see, mutatis mutandis, Tagayeva and Others v. Russia[126]), and there may be circumstances in which exhumation is justified, despite the family’s opposition.

At the same time, the Court stressed that a due balance had to be found between the requirements of an effective investigation and the private and family-life interests which may be implicated. In the instant case the investigation concerned “an incident of unprecedented gravity, which affected the entire functioning of the State”. Nevertheless, “the requirements of the investigation’s effectiveness ha[d] to be reconciled to the highest possible degree with the right to respect for [the applicants’] private and family life”.

The Court found that domestic law did not provide for any weighing of interests in the applicants’ case. When issuing his order, the prosecutor was not required to assess whether the aims of the investigation could have been attained through less restrictive means, nor was he required to evaluate the possible implications of the impugned measures for the private and family life of the applicants. Furthermore, the prosecutor’s decision was not amenable to appeal before a criminal court or any other form of adequate scrutiny before an independent authority. In sum, Polish law did not provide sufficient safeguards against arbitrariness with regard to a prosecutorial decision ordering exhumation. The applicants were thus deprived of the minimum degree of protection to which they were entitled. The interference was not therefore “in accordance with the law” and the Court was thus dispensed from having to review compliance with the other requirements of Article 8 § 2.

Private and family life and home

National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France[127] concerns the impact of anti-doping measures on the rights of sportsmen and women.

The applications were introduced by a number of representative sports associations and leading sportsmen and one sportswoman. The applicants contested the impact that the domestic “whereabouts” measures had on their right to respect for their private and family life and home (as well as on their right to freedom of movement). The applicants criticised the intrusive nature of the measures imposed on those selected to form the annual testing pool for doping controls, namely the obligation to provide detailed, accurate and at all times up-to-date information for the coming three-month period on their daily whereabouts – including when they were not in competition or training or were in places unrelated to their sports activities. Of particular concern to them was the accompanying requirement to specify for each day of the week a one-hour slot between 6 a.m. and 9 p.m. when they would be available for unannounced testing at the location indicated. They pointed out the negative repercussions this regime had on the management and planning of their daily and family life as well as on their right to respect their home given that drugs tests could be conducted there.

The applications were declared inadmissible as regards both the sports associations and a large number of individual applicants for failure to demonstrate that they had been directly and individually affected by the impugned restrictions.

The judgment is noteworthy as regards the remaining applicants in that the case marks the first occasion on which the Court has examined in detail the application of Convention law to the area of sport. It is of further interest in that the Court also addressed the issues raised by the case from the standpoint of international and European law standards embodied in instruments such as Unesco’s International Convention against Doping in Sport (19 October 2005, “the Unesco Convention”), the (non-binding) World Anti-Doping Code (2009 version) and the Council of Europe’s Anti-Doping Convention (16 November 1989). It is of interest that the World Anti-Doping Agency, which prepared the World Anti-Doping Code, intervened in the proceedings as a third party, which is a measure of their importance for countries in general in tackling this issue. Also of interest is the fact that France modelled its approach when adopting the “whereabouts” requirement on the recommendations contained in the World Anti-Doping Code, which, in accordance with the Unesco Convention, are binding on States Parties to it. France has ratified that Convention. This was a matter of considerable significance for the Court when examining whether France had exceeded its margin of appreciation when balancing the competing interests in this field.

The Court accepted that the “whereabouts” requirement interfered with the values of private and family life and home protected by Article 8. Among other considerations it noted that the obligation to be present at a specified location each day of the week for a specified one-hour period impacted on the quality of the applicants’ private life and also entailed consequences for the enjoyment of their family life. In addition to restricting their personal autonomy as regards the planning of their day-to-day private and family life, the Court further observed that the requirement could lead to a situation in which applicants had no other choice but to choose their home address as the designated place for the purpose of testing for doping, with implications for their right to enjoy their home.

The Court accepted that the impugned measure was in accordance with the law. Regarding the legitimacy of the aim pursued, it was satisfied that the “whereabouts” requirement had been introduced in order to address the protection of the health of sports professionals and, beyond that group, the health of others, especially young people engaged in sport. Moreover, it could accept that the requirement was linked to the promotion of fair play by eliminating the use of substances which conferred an unfair advantage on the user, as well as any dangerous incentive which their use may be seen to have, especially by young amateur sportsmen and women, for increasing performance on the sports field. Importantly, the Court also observed that spectators should be able to expect that the sports events they attended reflected fair-play values. For these reasons, the Court considered that the “whereabouts” restrictions could further be justified in terms of the protection of the rights and freedoms of others. The Court’s analysis of the legitimacy issue is interesting in view of its readiness to draw on the aims and objectives underpinning the international texts in this area.

Turning to the question of necessity, the Court underscored two fundamental considerations when assessing the existence of a pressing social need for the impugned measures. Firstly, the scientific and other expert studies attested to the harmful effects of doping on the health of sports professionals; the dangers of its use beyond that circle, especially among young people involved in sport, were also well documented. On that latter point, which is a public-health consideration, the Court, in line with the international material referred to above, accepted that sports professionals must be expected to serve as exemplary role models given their influence on young people aspiring to succeed on the sports field. Secondly, tracing the history of regulation in this area, the Court noted that there was a consensus at the European and international levels on the need for States to take action against doping in sport. Given the difficult scientific, legal and ethical issues involved in this area, States must be afforded a wide margin of appreciation under the Convention when deciding how to react at the national level. Such margin can be shaped by the existence of a consensus at the international level on the type of anti-doping strategies to be adopted. For its part, France, like other member States which had ratified the Unesco Convention, implemented in its domestic law the “whereabouts” provisions of the World Anti-Doping Code (2009 version) drafted by the World Anti-Doping Agency (see above). France’s action was thus in line with the international consensus on the need to combat doping by means of “whereabouts” measures and unannounced doping tests.

As to whether a fair balance had been struck between the applicants’ Article 8 rights and the aims relied on by the respondent State – the protection of health and the rights and freedoms of others – the Court attached weight to the following considerations: inclusion in the testing pool was limited in principle to one year; it was for those selected for inclusion to indicate where they could be located, including at their home if that was their choice, as well as the one-hour slot when they would be available for testing; and the implementation of the “where­abouts” measure was accompanied by procedural safeguards enabling individuals to contest before the courts both their selection and any sanctions imposed on them for failure to comply with the measure.

For the Court, a fair balance had been struck, and there had been no breach of Article 8.


The decision in F.J.M. v. the United Kingdom[128] concerned the relationship between landlords and tenants in the private sector compared with the public sector and the application of the proportionality test in this context.

The applicant suffers from mental-health problems. Her parents bought a house on the strength of a mortgage, pledging the house as security. The applicant lived there, paying rent to her parents. After a certain time, the applicant’s parents (the mortgagors) defaulted on the mortgage payments. The mortgagee sought a possession order, the grant of which would have brought the applicant’s tenancy to an end. The applicant unsuccessfully resisted the grant of the order in the domestic proceedings. In the Convention proceedings she complained under Article 8 that the possession order was a disproportionate measure and that she was unable to have its proportionality determined by a court. The Court found her complaint to be manifestly ill-founded and therefore inadmissible.

The decision is interesting in that it allowed the Court to confirm its recent judgment in Vrzić v. Croatia[129]. In that judgment, the Court expressly acknowledged, for the first time, that the principle that any person at risk of losing his or her home should be able to have the proportionality of the measure determined by an independent tribunal did not automatically apply in cases where possession was sought by a private individual or body. On the contrary, the protection of the Convention rights of the private individuals or bodies concerned and the balance to be struck between their respective interests could be embodied in domestic legislation.

The conclusion in the Vrzić judgment was in contrast to the approach developed by the Court in response to complaints under Article 8 of the Convention lodged by tenants of State-owned or socially owned property faced with, for example, the threat of eviction (see Panyushkiny v. Russia[130]; Pinnock and Walker v. the United Kingdom[131]; Kay and Others v. the United Kingdom[132]; Paulić v. Croatia[133]; McCann v. the United Kingdom[134]; and Connors v. the United Kingdom[135]). In such cases – the “public landlord” cases – the Court found that the applicant tenants, even if their right to occupation had come to an end, should be able to obtain a ruling from a domestic court on whether, given their individual circumstances, their eviction was a proportionate response to the pressing social need relied on by the authorities.

Interestingly the Court in the instant case, drawing on and developing the reasoning in Vrzić, cited above, rationalised the difference in approach in the following terms (paragraph 42).

“As the Court noted in Vrzić, in such cases there are other, private, interests at stake which must be weighed against those of the applicant. However, the distinction in fact runs deeper than that. … there are many instances in which the domestic courts are called upon to strike a fair balance between the Convention rights of two individuals. What sets claims for possession by private-sector owners against residential occupiers apart is that the two private individuals or entities have entered voluntarily into a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected … If the domestic courts could override the balance struck by the legislation in such a case, the Convention would be directly enforceable between private citizens so as to alter the contractual rights and obligations that they had freely entered into.”

The Court noted that the applicant’s case had to be viewed against the background of domestic legislation which set out how the Convention rights of the interested parties were to be respected and which reflected the State’s assessment of where the balance should be struck between the Article 8 rights of residential tenants (such as the applicant) and the Article 1 of Protocol No. 1 rights of private-sector landlords (in effect, the mortgagee in the instant case given that the applicant’s parents had secured the mortgage by pledging the house as security).

Reviewing the domestic courts’ treatment of the issues raised by the applicant’s case, the Court observed that in striking that balance the authorities had had regard, inter alia, to the general public interest in reinvigorating the private residential rented sector, something which the domestic courts in the applicant’s case had accepted was best achieved through contractual certainty and consistency in the application of the relevant law. It was also noteworthy that the applicant had agreed to the terms of the tenancy, and the applicable legislation clearly defined the nature of those terms and the circumstances in which the tenancy could be brought to an end. Significantly, the Court added – in line with the domestic courts’ views – that if a private tenant could require a court to conduct a proportionality assessment before making a possession order, the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging. Finally, it attached importance to the fact that the domestic legislation had made provision for cases of exceptional hardship by allowing the courts to delay the enforcement of the possession order for a period of time.

In sum, the Court’s decision reflects the specific features of the private rental market and the consequential lower level of Article 8 protection afforded to private tenants in terms of procedural safeguards and intensity of judicial review.


103. Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018. See also under Article 6 § 1 (Right to a fair hearing in civil proceedings – Applicability) and Article 8 (Private life) above.

104. Erményi v. Hungary, no. 22254/14, 22 November 2016.

105. Oleksandr Volkov v. Ukraine, no. 21722/11, ECHR 2013.

106. Lekavičienė v. Lithuania, no. 48427/09, 27 June 2017.

107. Jankauskas v. Lithuania (no. 2), no. 50446/09, 27 June 2017.

108. Anchev v. Bulgaria (dec.), nos. 38334/08 and 68242/16, 5 December 2017, made public on 11 January 2018.

109. Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004-VIII.

110. Sõro v. Estonia, no. 22588/08, 3 September 2015.

111. Hadzhieva v. Bulgaria, no. 45285/12, 1 February 2018.

112. Libert v. France, no. 588/13, 22 February 2018.

113. Bărbulescu v. Romania [GC], no. 61496/08, 5 September 2017 (extracts).

114. Halford v. the United Kingdom, 25 June 1997, Reports of Judgments and Decisions 1997-III.

115. Copland v. the United Kingdom, no. 62617/00, ECHR 2007-I.

116. Köpke v. Germany (dec.), no. 420/07, 5 October 2010.

117. Antović and Mirković v. Montenegro, no. 70838/13, 28 November 2017.

118. López Ribalda and Others v. Spain, nos. 1874/13 and 8567/13, 9 January 2018 (not final).

119. M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, 28 June 2018.

120. Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 136-37, 27 June 2017.

121. Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, ECHR 2009.

122. Lozovyye v. Russia, no. 4587/09, 24 April 2018.

123. Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, 20 September 2018.

124. Lozovyye v. Russia, no. 4587/09, § 34, 24 April 2018.

125. Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 232-39, 30 March 2016.

126. Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 509, 13 April 2017.

127. National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France, nos. 48151/11 and 77769/13, 18 January 2018.

128. F.J.M. v. the United Kingdom (dec.), no. 76202/16, 6 November 2018.

129. Vrzić v. Croatia, no. 43777/13, 12 July 2016.

130. Panyushkiny v. Russia, no. 47056/11, 21 November 2017.

131. Pinnock and Walker v. the United Kingdom (dec.), no. 31673/11, 24 September 2013.

132. Kay and Others v. the United Kingdom, no. 37341/06, 21 September 2010.

133. Paulić v. Croatia, no. 3572/06, 22 October 2009.

134. McCann v. the United Kingdom, no. 19009/04, ECHR 2008.

135. Connors v. the United Kingdom, no. 66746/01, 27 May 2004.

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