Donna Gomien
Associate
Professor, Norwegian Institute of Human Rights
University of Oslo
"Short guide to the European Convention on Human Rights" pp. 61 - 64, 70, 119-125 Council of Europe Publishing 1998
The rights to privacy: Article 8, Article 12 and Article 5 of Protocol No.7
Rights to family life, home and correspondence, to marry and found a family and to equality of spouses
Article 8 (Right to respect for private and family life)
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Article 12 (Right to marry)
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.Protocol No. 7, Article 5 (Equality between spouses)
Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.
The articles that guarantee respect for privacy, family life, home and correspondence, the right to marry and to found a family and to the equality of spouses protect a wide range of overlapping and interrelated rights. As a result, the case-law does not lend itself to a lucid discussion on a right-by-right basis. Therefore, the following chapter will focus on some of the most important themes within the areas covered by the relevant articles.
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2. Right to private life
In its report in the case of Van Oosterwijk v. Belgium (Comm. Rept of 1979) (transsexual wishing
to have
birth certificate altered), the Commission
delineated the right
to respect for private life under Article
8 of the Covention:
The right to respect for "private life" is the right to privacy, the right to live as far as one wishes, protected from publicity .... It comprises also, to a certain degree, the right to establish and develop relationships with other human beings especially in the emotional field, for the development and fulfilment of one's own personality.
And in its report in the case of Br・gemann and Scheuten v. the Federal Republic of Germany (Comm. Report of 1977) (abortion rights), the Commission alluded to the parameters within which the right to private life must be exercised:
The claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests.
The Commission and Court have reviewed several cases claiming State violations of the right to privacy through the criminalisation of homosexual activities. In the cases of Dudgeon v. the United Kingdom (1981), Norris v. Ireland (1988) and Modinos v. Cyprus (1993), the Court held that a State's prohibition of homosexual acts between consenting adults constituted an unjustifiable interference with the right to respect for private life under Article 8. On the other hand, the Court found no violation where a Government prosecuted certain individuals for engaging in sado-masochistic practices (Laskey, Jaggard and Brown v. the United Kingdom (1997)). In addition to the Van Oosterwijk case mentioned above, the Commission and Court have reviewed other claims from transsexuals that State refusals to alter the birth registers constitute violations of the right to respect for private life. In both the Rees v. the United Kingdom (1986) and the Cossey v. the United Kingdom (1990) cases, the Court has held that the State is under no obligation under Article 8 to alter official birth records to accommodate changes of sex. But in the latter case, the Court noted that in future a State might be obliged to guarantee the right of a transsexual to marry, in spite of a "wrong" sexual classification in the birth register: however, the Court was unwilling to find a violation of the right to marry under Article 12 at that particular juncture. The Court did find a violation of the right to respect for private life on virtually the same facts as in Rees and Cossey in the case of B v. France (1992), on the grounds that French law and practice on civil status placed a significantly more onerous burden on transsexuals than occured in the United Kingdom.
(snip)
6. The right to marry and found a family
(snip)
The Commission and Court have been unwilling so far to find a violation of Article 12 where a State has refused to faciliate the marriage of transsexuals to a person of the newly-opposite sex (Rees v. the United Kingdom (1986)). However, the Court expressed its willingness to keep an open mind on this issue in future in its decision in the Cossey v. the United Kingdom case (1990).
(snip)
Discrimination: Article 14
Article 14 (Prohibition of discrimination)
The enjoyment of the rights and freedoms set forth in this Conven-tion shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Both national and international law address principles of equality and non-discrimination. These principles may have a formal aspect, for example as regards consistent treatment of all persons by the law, and a material aspect, for example as regards the equal distribution of rights and benefits within a given society. In both its aspects, the law makes some distinctions amongst the beneficiaries of rights: the important question is when these distinctions become prohibited discrimination. High Contracting Parties are permitted a wide margin of appreciation to determine the circumstances in which certain distinctions are appropriate (Lithgow and Others v. the United Kingdom (1987)).
The European Convention on Human Rights protects the rights of individuals, not groups as such. Its Article 14 also protects the rights of individuals and not groups. In practical terms this means that only parties who are directly affected by a violation of one or more of the rights protected under the Convention may bring a claim in Strasbourg no one may file an application on behalf of another allegedly injured party The Convention does not provide for actio populans Even in "group" applications, each individual within the group must allege to be a victim (See also the discussion related to Article 34 on individual applications, p 142 )
There is no general duty of non-discrimination in the Convention Instead, the protection of Article 14 is accessory to the other substan-tive rights in the Convention it has no independent life of its own That being said, however, the Commission and Court have stated that even if a State is found to have complied with its obligations to respect one of the substantive rights at issue in a given case, it may neverthe-less be found to have violated that same right in conjunction with Article 14. It did so in the Belgian Linguistics case (1968), in which a group of French-speaking parents contested their children's lack of access to French-language schools in the Brussels periphery due exclusively to the residence of the parents, while the Flemish-speaking community was not so limited In deciding this case, the Court applied criteria comparable to those it applied in cases reviewing issues arising under articles with built-in restriction clauses, that is the legitimacy of the aim to be achieved by a given practice and the proportionality between the means employed and that legitimate aim
One possible exception to the rule that Article 14 only acts as an accessory to the other substantive rights in the Convention occurred in the case of East African Asians v the United Kingdom (Comm Rept 1973 unpublished) In this case the United Kingdom refused to allow British passport holders who had been expelled from Uganda, Kenya, and Tanzania to enter and to settle in the United Kingdom The individuals complained to the Commission that the denial of entry was racially motivated and thus in violation of Article 14 and the degrading treatment clause of Article 3 It is important to note in this context that the Convention does not guarantee the right to enter or to immigrate The Commission noted in its public pronouncements on the matter that racially-motivated actions may in some circumstances violate Article 3, even though the substance of the discrimination itself does not relate to the provision or denial of any right protected by the Convention.
1 Impermissible distinctions under Article 14
Any differential treatment by the State of individuals in similar situa-tions must have an objective and reasonable Justification The Court held that this standard was not met in the case of Marckx v Belgium (1979), in which a mother and her natural child claimed violations of Protocol No 1, Article 1 (property), Article 8 (family life) and Article 14 in the operation of the Belgian legal regime applicable to children born out of wedlock The Court held that the situations of both mother and child were sufficiently analogous to those between a married woman and her child that the State could not justify the differential treatment it had imposed The sole exception was in relation to the child's claims that her right to property under Protocol No 1, Article 1 was violated the Court held this provision inapplicable to an expectation of inheri-tance When a new pair of applicants in the same circumstances as in the Marckx case filed an application twelve years later, the Court reaffirmed its holding, but did not rule on the claim of a violation of the right to property (Vermeire v Belgium (1991)) The Court applied the same principles in the case of Inze v Austria (1987), finding a violation in the application of an Austrian inheritance law that gave precedence to children born in wedlock over those born out of wed-lock when attributing agricultural land on the intestacy of the parent.
In the case of Abdulaziz, Cabales, and Balkandali v the United Kingdom (1985) the three applicants claimed violations of Article 8 (family life) and Article 14 in the operation of United Kingdom immi-gration laws which made it more difficult for foreign men to Join their fiancees or wives legally resident in the country than for foreign women to join their husbands In finding no violation of Article 8, the Court noted that Contracting States have no obligation to respect a married couple's choice of country of residence and thereby to accept non-national spouses for settlement However, the Court held that the United Kingdom had violated Article 14 in conjunction with Article 8, stating:
The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more fa-vourable treatment is not called for by the Convention.
It is thus the inequity of particular treatment that is at issue under Article 14, not the comparison of different options a State chooses among when restricting the exercise of a given substantive right.
The Court also found a violation of Article 8 in connection with Article 14 on the grounds of discrimination on the basis of sex in the case of Burghartz v. Switzerland (1994), in which a man, upon marrying, was not permitted to put his name before his wife's and to take her name as the family name, whereas the opposite practice was permitted.
Family life was again at issue in the case of Hoffmann v. Austria (1993). The applicant in this case was a woman who became a Jeho-vah's Witness, having previously been a Roman Catholic. At a later date, when she and her husband divorced, the Austrian courts awarded custody of their children to the husband, citing her religious affiliation as the sole grounds for the decision. The Court found a violation of her right to family life under Article 8 in conjunction with Article 14. They did so again in the case of Keegan v. Ireland (1994) where the acknowledged father of a child born out of wedlock was neither consulted nor informed prior to the child being adopted.
In the case of Schuler-Zgraggen v. Switzerland (1993), the govern-ment cancelled the disability pension of a woman who had given birth to a child, justifying its action by invoking an assumption that she would have terminated her formal employment on the occasion to become a full-time housewife and mother. The Court found a violation of Article 6 (1) (determination of a civil right) and Article 14 on the grounds that such an assumption had no reasonable or objective justification. It found a violation of these two provisions again in the case of Canea Catholic Church v. Greece (1997), holding that the refusal of the civil court to recognise the legal personality of the applicant church, whereas it did so for other religious denominations, constituted a violation both of the right of access to court and of the right not to be discriminated against in the enjoyment of that right.
The Court has found violations of the right to property guaranteed under Article 1 of Protocol No. 1 in conjunction with Article 14 in several cases. In the case of Darby v. Sweden (1990) the applicant claimed the violation of Article 9 (religion), Article 1 of Protocol No. 1 (property) and Article 14 in the operation of a Swedish law requiring non-resident workers to pay a church tax from which resident workers could choose to be exempted. The Court held that such a restriction violated Article 1 of Protocol No. 1 in conjunction with Article 14, and declared it unnecessary to consider the alleged violation of Articles 9 and 14. In the case of Van Raalte v. the Netherlands (1997) the Court found a violation where childless women over the age of 45 were exempted from paying into a social fund for the benefit of children, whilst men of the same age were not. The Court also found a violation of Article 1 of Protocol No. 1 and Article 14 where the Austrian Gov-ernment denied social benefits to a lawfully resident alien on the grounds that he was not a citizen, although he had made contributions to the national social fund (Gaygusuz v. Austria (1996)).
2. Permissible distinctions under Article 14
In the case of Van der Mussele v. Belgium (1983) a Belgian trainee lawyer required to undertake a certain number of uncompensated cases for indigent clients complained of a violation of Articles 4 (forced labour) and 14. The Court held that the State was justified in imposing such a requirement on lawyers, as not only were lawyers in a different position from other professionals who were not under the same obligation (dentists, doctors, judges, and others), but also the con-tested practice was one means by which Belgium could implement another right guaranteed by Article 6 of the Convention (fair trial).
Article 14 was raised in conjunction with Article 5 (deprivation of liberty) in the case of Ireland v. the United Kingdom (1978). The applicant government alleged that the United Kingdom applied its Special Powers Act, which was intended to contribute to the fight against terrorist activities, in a discriminatory fashion, focusing its force on the Catholic community to the exclusion of the Protestant commu-nity in Northern Ireland. In spite of statistical evidence supporting this claim, neither the Commission nor the Court found a violation of Article 14 taken together with Article 5, given the government's margin of appreciation. It is worth noting in this context that both the Irish and the United Kingdom Governments agreed that a public emergency existed within the meaning of Article 15 (which provides for derogations from the Convention in certain circumstances). The Court held that any difference in the treatment of those committing acts of terrorism in Northern Ireland could be justified in that the aim pursued was legitimate and the means employed were not dispropor-tionate to the ends to be achieved.
In the case of Rasmussen v. Denmark (1984) a man wished to contest the paternity of a child borne by his wife but was refused permission to do so as the time-limit had run out. The wife, on the other hand, could apply for a paternity test at any time prior to the child's reaching the age of majority, should she have chosen to do so. The Court found no violation of Article 14 in conjunction with Article 8 (family life), as the Danish Government could justify a distinction between the situation of mothers and fathers.
In three cases addressing a number of aspects of the right to form and join trade unions, the Court held that there were no violations of either Article 11 or Article 11 in conjunction with Article 14 (National Union of Belgian Police (1975); Schmidt and Dahlstrom (1976); Swedish Engine Drivers Union (1976)).
In contrast to the cases discussed in the previous section of this chap-ter, the Court found no violation of Article 1 of Protocol No. 1 in conjunction with Article 14 where the Italian Government placed restrictions on the right of certain property owners to regain property they had rented out. The Court held that the State could legitimately draw distinctions between residential and non-residential property in this regard (Spadea and Scalabrino v. Italy (1995)).
3. Non-interpretation of Article 14 issues
The Commission and Court have sometimes been reluctant to consider alleged violations of Article 14 in cases in which they have already found one or more violations of substantive rights guaranteed under other articles of the Convention. For example, in the case of Johnston and Others v. Ireland (1986) the natural daughter of an unmarried couple claimed that certain Irish laws violated her rights to family life under Article 8 in conjunction with Article 14. On finding a violation of the former article the Court declared that it was unnecessary to exam-ine the Article 14 issue. In the case of Dudgeon v. the United Kingdom (1981) a homosexual man argued that Northern Ireland's prohibition on sexual activity between a man over the age of 21 and one below that age violated not only Article 8 (private life), but Article 14, in that the age of consent for lesbian and heterosexual relations was 17 for both parties. The Court found a violation of Article 8, but stated "there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations of the same right". The Court thus declined to review the Article 14 claim.