Guide on Article 8 of the European Convention on Human …

1 Guide on Article 8 of the European Convention on Human Rights Right to respect for private and family life, home and correspondence Updated on 31 August 2021 Prepared by the Registry. It does not bind the Court. Guide on Article 8 of the Convention Right to respect for private and family life European Court of Human Rights 2/161 Last update: Publishers or organisations wishing to translate and/or reproduce all or part of this report in the form of a printed or electronic publication are invited to contact for information on the authorisation procedure. If you wish to know which translations of the Case-Law Guides are currently under way, please see Pending translations. This Guide was originally drafted in English.

2 It is updated regularly and, most recently, on 31 August 2021. It may be subject to editorial revision. The Case-Law Guides are available for downloading at (Case-law Case-law anal-ysis Case-law guides). For publication updates please follow the Court s Twitter account at Council of Europe/ European Court of Human Rights, 2021 Guide on Article 8 of the Convention Right to respect for private and family life European Court of Human Rights 3/161 Last update: Table of contents Note to readers .. 6 I. The structure of Article 8 .. 7 A. The scope of Article 8 .. 7 B. Should the case be assessed from the perspective of a negative or positive obligation? .. 8 C. In the case of a negative obligation, was the interference conducted in accordance with the law ? .. 10 D.

3 Does the interference further a legitimate aim? .. 12 E. Is the interference necessary in a democratic society ? .. 13 F. Relation between Article 8 and other provisions of the Convention and its Protocols .. 13 1. Private and family life .. 14 2. Home and correspondence .. 20 II. Private life .. 23 A. Sphere of private life .. 23 1. Applicability in general .. 23 2. Professional and business activities .. 26 B. Physical, psychological or moral integrity .. 30 1. Victims of violence/abuse .. 30 2. Reproductive rights .. 32 3. Forced medical treatment and compulsory medical procedures .. 34 4. Mental illness/mesure of protection .. 35 5. Health care and treatment .. 37 6. End of life issues .. 39 7. Disability issues .. 39 8. Issues concerning burial and deceased persons .. 40 9. Environmental issues.

4 42 10. Sexual orientation and sexual life .. 43 C. Privacy .. 44 1. Right to one s image and photographs; the publishing of photos, images, and articles .. 45 2. Protection of individual reputation; defamation .. 47 3. Data protection .. 51 4. Right to access personal information .. 51 5. Information about one s 52 6. File or data gathering by security services or other organs of the State .. 53 7. Police surveillance .. 55 8. Stop and search police powers .. 56 9. Home visits, searches and seizures .. 57 10. Lawyer-client relationship .. 58 11. Privacy during detention and imprisonment .. 59 D. Identity and autonomy .. 60 1. Right to personal development and 60 Guide on Article 8 of the Convention Right to respect for private and family life European Court of Human Rights 4/161 Last update: 2.

5 Right to discover one s origins .. 61 3. Legal parent-child relationship .. 62 4. Religious and philosophical convictions .. 63 5. Desired appearance .. 63 6. Right to a name/identity documents .. 63 7. Gender identity .. 64 8. Right to ethnic identity .. 66 9. Statelessness, citizenship and residence .. 68 10. Deportation and expulsion decisions .. 69 11. Marital and parental status .. 70 III. Family life .. 71 A. Definition of family life and the meaning of family .. 71 B. Procedural obligation .. 72 C. Margin of appreciation in relation to family 73 D. Sphere of application of family life .. 73 1. Couples .. 73 2. Parents .. 76 3. Children .. 77 4. Other family relationships .. 88 5. Immigration and expulsion .. 91 6. Material interests .. 96 7. Testimonial privilege .. 97 IV. 98 A.

6 General points .. 98 1. Scope of the notion of home .. 98 2. Examples of interference .. 99 3. Margin of appreciation .. 101 B. Housing .. 101 1. Property owners .. 102 2. Tenants .. 103 3. Tenants partners/unauthorised occupancy .. 104 4. Minorities and vulnerable persons .. 104 5. Home visits, searches and seizures .. 106 C. Commercial premises .. 108 D. Law firms .. 109 E. Journalists homes .. 110 F. Home environment .. 111 1. General approach .. 111 2. Noise disturbance, problems with neighbours and other nuisances .. 113 3. Pollutant and potentially dangerous activities .. 114 V. Correspondence .. 115 A. General points .. 115 Guide on Article 8 of the Convention Right to respect for private and family life European Court of Human Rights 5/161 Last update: 1. Scope of the concept of correspondence.

7 115 2. Positive obligations .. 116 3. General approach .. 117 B. Prisoners correspondence .. 117 1. General principles .. 117 2. Where interference with prisoners correspondence may be necessary .. 120 3. Written correspondence .. 120 4. Telephone conversations .. 121 5. Correspondence between prisoners and their lawyer .. 122 6. Correspondence with the Court .. 123 7. Correspondence with journalists .. 125 8. Correspondence between a prisoner and a doctor .. 125 9. Correspondence with close relatives or other individuals .. 126 10. Correspondence between a prisoner and other addressees .. 126 C. Lawyers correspondence .. 127 D. Correspondence of private individuals, professionals and companies .. 130 E. Surveillance of telecommunications in a criminal context .. 131 F. Special secret surveillance of citizens/organisations.

8 134 1. Secret measures of surveillance .. 134 2. Bulk interception regimes .. 138 List of cited cases .. 140 Guide on Article 8 of the Convention Right to respect for private and family life European Court of Human Rights 6/161 Last update: Note to readers This Guide is part of the series of Guides on the Convention published by the European Court of Hu-man Rights (hereafter the Court , the European Court or the Strasbourg Court ) to inform legal practitioners about the fundamental judgments and decisions delivered by the Strasbourg Court. This particular Guide analyses and sums up the case-law on Article 8 of the European Convention on Human Rights (hereafter the Convention or the European Convention ). Readers will find herein the key principles in this area and the relevant precedents.

9 The case-law cited has been selected among the leading, major, and/or recent judgments and deci-sions.* The Court s judgments and decisions serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention , thereby contributing to the observance by the States of the engagements undertaken by them as Contract-ing Parties (Ireland v. the United Kingdom, 154, 18 January 1978, Series A no. 25, and, more recent-ly, Jeronovi s v. Latvia [GC], no. 44898/10, 109, ECHR 2016). The mission of the system set up by the Convention is thus to determine issues of public policy in the general interest, thereby raising the standards of protection of Human rights and extending Human rights jurisprudence throughout the community of the Convention States (Konstantin Markin v.)

10 Russia [GC], 89, no. 30078/06, ECHR 2012). Indeed, the Court has emphasised the Convention s role as a constitutional instrument of European public order in the field of Human rights (Bosphorus Hava Yollar Turizm ve Ticaret Anonim irketi v. Ireland [GC], no. 45036/98, 156, ECHR 2005VI, and more recently, and v. Spain [GC], nos. 8675/15 and 8697/15, 110, 13 Febru-ary 2020). This Guide contains references to keywords for each cited Article of the Convention and its Addi-tional Protocols. The legal issues dealt with in each case are summarised in a List of keywords, cho-sen from a thesaurus of terms taken (in most cases) directly from the text of the Convention and its Protocols. The HUDOC database of the Court s case-law enables searches to be made by keyword.