2.1 The right to marry (Article 12 ECHR)

Both the UDHR, on which the ECHR is based, and the Convention contain a provision on the right to marry and found a family. Article 12 ECHR holds: ‘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.’ Its equivalent is found in Article 16 UDHR, which is somewhat more elaborate and specifies: ‘(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Obviously, Article 12 is related to Article 8 ECHR. Still, there were a number of reasons for the authors of both documents to separate the right to marry and found a family from the right to protection for family life.

First, Article 8 ECHR was conceived as providing only negative liberties to citizens, namely the right to be free from arbitrary interferences by the state. In contrast, Article 12 contains positive liberties, namely that of founding a family and marrying. Thus while Article 12 protects the creation of a family, Article 8 ECHR guarantees respect for already established family life.²⁷ Second, both provisions have a different background. While the rationale for adopting the right to privacy was primarily connected to concerns over negative liberty, Article 12 was principally regarded as an equality provision, in relation to the ban on racially mixed marriages by the fascist regimes of that time²⁸ and the position of woman and children, in connection to arranged marriages and child-marriages, still widely spread at that time.²⁹ Third and finally, following the classic liberal assumption that the individual and the family precede the society and the state, the authors of the Declaration and the Convention believed that governments could never limit or restrict the right to marry and found a family in essence as by doing so, they would undermine their own foundations.³⁰ This is why Article 12 ECHR does not contain a general limitation clause, as Articles 8, 9, 10 and 11 of the Convention do, but only provides that the national laws may govern the exercise of the right to marry and found a family.³¹

In the case law of the former Commission and the Court, however, the role of Article 12 has been almost completely marginalized.³² First, Article 12 ECHR has been interpreted in a very conservative and restrictive manner. For example, the Court has excluded from its scope same sex marriages³³ and has allowed far reaching restrictions on the rights of immigrants to marry.³⁴ Likewise, it has held that the right to found a family only refers to founding a family through biological means and through natural reproduction. Alternative ways to do so, like adoption³⁵ or artificial insemination,³⁶ have been denied protection under the scope of Article 12 ECHR. Finally, the Court has held that the room for states to limit and regulate the right to marry and found a family is not narrower than in relation to Article 8, but wider as the right to marry and found a family is strongly connected to moral and cultural standards, which differ from country to country, necessitating a wide margin of appreciation for national states.³⁷

Second, by contrast, Article 8 ECHR has been interpreted in a very wide and extensive manner. For example, the Court has accepted that positive liberties are protected under Article 8 ECHR, such as the right to found a family and develop and maintain family ties. Moreover, bastard children and adopted children and families founded through artificial insemination, which do not enjoy protection under Article 12 ECHR, are considered to fall under the scope of family life under Article 8. Likewise, other modes of cohabitation than marriage and cohabiting homosexual couples are approached from the perspective of Article 8 of the Convention.³⁸ Consequently, Article 8 has almost entirely subsumed the rights contained in Article 12 ECHR. This holds true even for cases which regard specifically the right to marry and found a family. For example, the impossibility to found a family due to involuntary sterilization³⁹ or the desire to found a family through in vitro fertilisation⁴⁰ are dealt with under Article 8 and not Article 12 ECHR. Likewise, the legal incapacity of a person to marry is treated as an issue connected to the right to privacy and not the right to marry.⁴¹ As a final example, not only do states have a negative obligation to protect the right to found a family under Article 8, they may under certain circumstances have a positive obligation under that provision, and not Article 12 ECHR, to facilitate artificial insemination, for example, if this is a prisoner’s only way to fulfill his desire to found a family with his spouse.⁴² In conclusion, although the right to marry and found a family was explicitly excluded form Article 8 ECHR by the authors of the Convention, the Court has overturned that decision. Although these freedoms do not follow from the classic right to privacy, it may be a part of one’s personality right as it relates to one’s personal development in the relational sphere.

2.2 The right to a fair trial (Articles 5, 6, 13 and 34 ECHR)

Though the right to a fair trial is in no way subsumed by the right to privacy, there are numerous examples in which the right to a fair trial and related procedural requirements are granted protection by the Court by referring to Article 8 of the Convention, instead of Articles 5, 6, 13 or 34 ECHR. Peculiar to the Court’s case law is that most matters regarding the respect for private correspondence under Article 8 relate either directly or indirectly to the right to a fair trial.⁴³ The right of prisoners to petition to the Court, their freedom to correspond in private with their lawyer and even the sanctity of a lawyer’s office, are all treated as matters that fall under the scope of Article 8 ECHR. The Court acknowledges that in order to petition, one must correspond with the Court, and holds that correspondence with a solicitor is ‘a preparatory step to the institution of civil legal proceedings and, therefore, to the exercise of a right embodied in another Article of the Convention, that is, Article 6 (art. 6)’⁴⁴ and that ‘where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of the Convention’.⁴⁵ Nevertheless, these matters are dealt with under the scope of the right to privacy even although the goal of guaranteeing (the secrecy of) correspondence between a prisoner and a court or his lawyer is not so much guaranteeing his privacy, but safeguarding an effective system of petition and complaint and the right to a fair trial.

More importantly, there are a number of cases in which the Court deals with elements of a right to a fair process directly under Article 8 ECHR. ‘It is true that Article 8 (art. 8) contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 (art. 8). [] The decision-making process must therefore, in the Court’s view, be such as to secure that their views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them.’⁴⁶

Most cases in which these procedural requirements play a role regard matters of parental authority, such as with regard to the custody over a child by divorced parents or the placing in a foster home of children living in an unstable environment. It follows from the fact that the child’s interest always prevails that if a parent is separated for an extensive period from his child, it is often not in the interest of the latter to be reunited with his father, mother or both. From this fact follows an increased interest in a speedy and resolute process, since lengthy procedures may lead to the de facto determination of a case.⁴⁷ Moreover, a fair balance should be struck between the interests of the mother and the father. Although the Court has been reluctant to focus on substantive rights in such matters, it has granted both parents under the scope of Article 8 ECHR, among others, the right to be heard, to be informed in full about existing reports and documents and to have their interests weighed in a fair and balanced manner,⁴⁸ even although these matters are more directly related to Article 6 ECHR and the right to a fair process.

In the case law of the Court, however, these principles have also been increasingly adopted under the right to privacy in other matters, such as the loss of one’s home due to destruction or expropriation,⁴⁹ cases in which immigrants are expelled⁵⁰ and cases that regard the quality of the living environment. For example, the Court has held that where ‘a State must determine complex issues of environmental and economic policy, the decision-making process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake. The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question. Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.’⁵¹ Consequently, under Article 8 ECHR, citizen’s now have a right to actively steer and influence decisions that affect their lives in general, which fits in the scope and purpose of personality rights, but seems at odds with the focus of classic privacy rights.

2.3 The protection of honor and reputation (Article 10 ECHR)

The European Convention is based on the Universal Declaration and likewise, Article 8 ECHR is based on Article 12 UDHR, which holds: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation.’ When drafting the Universal ­Declaration, the inclusion of the protection of honor and reputation was already heavily discussed as it is principally concerned with horizontal relationships and attacks by or through the media.⁵² Although it was finally accepted under the UDHR, the authors of the ECHR, only focusing on vertical relationships (between state and citizen) did not include the protection of a person’s reputation as a subjective right under the right to privacy, but transferred it to paragraph 2 of Article 10 ECHR, containing the right to freedom of ­expression.⁵³

Article 10 ECHR provides: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ Consequently, under the Convention, the right to reputation is not a right of the individual, it is one of the grounds on which states may, and not must, legitimately limit the right to freedom of expression and the freedom of the press.

This sharp choice has been honored by the Court in the early case law on Article 8 ECHR, in which it was held ‘that the right to honor and good name as such is not protected’ under the scope of the right to privacy.⁵⁴ For example, in 2000, when an applicant complained that the judgments of the domestic courts contained derogatory statements which amounted to a breach of Article 8 of the Convention, the Court held ‘that the applicant’s complaint relates to a perceived affront to his dignity and reputation caused by statements made by the trial judge when handing down sentence and by the Court of Appeal when upholding that sentence. This is not a matter which falls within the protection guaranteed by Article 8 of the Convention. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention [].’⁵⁵

However, gradually, the Court has accepted that under certain circumstances, a person may successfully put forward a case in which the respect for his reputation and honor is the central element. First, by accepting the doctrine of positive obligations, the Court has held that states may be required to limit the freedom of speech in order to ensure respect for a person’s reputation and honor, for example by guaranteeing a fair balance between the different interests involved in its national judicial system. ⁵⁶ Among others, it has been held that ‘[] where a question arises of interference with private life through publication in mass media, the State must find a proper balance between the two Convention rights involved, namely the right to respect for private life guaranteed by Article 8 (Art. 8) and the right to freedom of expression guaranteed by Article 10 (Art. 10) of the Convention.’⁵⁷ Furthermore, the Court has come to accept that individuals may invoke their interest in the protection of their honor and reputation when the behavior of public authorities affect their legitimate concerns, for example when courts or governmental organizations make public certain private and delicate details about their behavior, mental status or physical disabilities.⁵⁸

Finally, in more recent cases, the Court seems willing to accept a full-fletched right to the protection of one’s reputation as an interest protected by Article 8 ECHR. The first time it did so, in the case of Pfeifer v. Austria from 2007, the Court referred to its previous case law and drawing from these notions stressed ‘that a person’s reputation, even if that person is criticized in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”. Article 8 therefore applies.’⁵⁹ In its subsequent case law, this line is confirmed⁶⁰ and extrapolated to the protection of honor. In a case of 2009 the Court held: ‘In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation and also honour as part of the right to respect for private life. In Pfeifer, the Court held that a person’s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour.’⁶¹ Consequently, although it was left out deliberately by the Convention authors, the right to protection of reputation and honor is brought back under the scope of Article 8 ECHR and accepted as subjective rights in the Court’s recent jurisprudence. The protection of honor and reputation is perhaps the classic difference between privacy and personality rights, being traditionally excluded from the scope of the former and included in the scope of the latter right.

2.4 Conclusion

These are but a few examples of a larger trend; others might be found in the encroachment of the right to privacy upon the freedom of association, the freedom of religion and especially the right to bodily integrity. The protection of bodily integrity is linked to the notion of privacy, but was explicitly rejected from the scope of Article 12 UDHR and 8 ECHR by the authors of both documents.⁶² In the ECHR, bodily integrity is protected predominantly under Articles 2 and 3 ECHR. Still, the bodily and psychological integrity of a person, especially in the medical sphere, are primarily discussed under the scope of Article 8 ECHR. For example, compulsory tuberculin test or chest x-rays,⁶³ vaccination schemes,⁶⁴ gynecological examinations,⁶⁵ medical treatments,⁶⁶ and being forced to share an environment where smoking is allowed,⁶⁷ disciplinary measures and punishments inflicted by a school,⁶⁸ psychiatric examination ordered by a Court,⁶⁹ the requirement that a prisoner produce a urine sample,⁷⁰ a compulsory medical intervention, even if it is of minor importance,⁷¹ the right to euthanasia,⁷² the right to abortion,⁷³ the positive obligation of the state to ensure access to public buildings for the handicapped⁷⁴ and providing financial assistants for medical treatment,⁷⁵ all must be considered, according to the ECtHR, within the scope of right to privacy.

Although these matters of bodily and psychological integrity fall somewhere in the intermediate zone between the right to privacy and the right to life and to be free from inhuman and degrading treatment, the Court has consistently approached these issues from the perspective of Article 8 ECHR, which is yet another example of its widened scope. In conclusion, Article 8 ECHR has almost wholly subsumed the material scope originally intended for the right to marry and found a family, Article 12 ECHR. Specific to Article 8 ECHR is also that the Court has held that there are procedural requirements implicit in the notion of the right to private life, which has extended the scope of the right to privacy considerably. The Court has finally, against the explicit intentions of the authors of the Convention, accepted the right to protection of one’s reputation and honor as a subjective right protected by the right to privacy.

3.1 The right to personal development (Articles 22, 26 and 29 UDHR)

Although, the Convention is based on the Universal Declaration on Human Rights, the Convention only contains civil and political rights. Socio-economic rights were transferred to an optional Protocol by the authors of the Convention.⁷⁸ By contrast, the Declaration guarantees a number of socio-economic rights and other non-‘civil and political rights’, such as the right to enjoy the cultural life of the community, the right to a standard living and the right to rest and leisure.⁷⁹ The Convention, in contrast to the Declaration, is a legally binding document and while civil and political rights are relatively concrete and can be legally binding, the other category of rights, ‘on the other hand, was considered to consist not of legal rights but of programmatic rights, the formulation of which necessarily is much vaguer and for the realisation of which the States must pursue a given policy, an obligation which does not lend itself to incidental review of government action for its lawfulness.’⁸⁰ Consequently, such rights are rejected from the scope of the Convention.

Specifically denied by the authors of the Convention are the many references in the Declaration to the right to personal development. Article 22 UDHR holds that everyone has the right to social security and is entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 26 UDHR specifies that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. Finally, Article 29 UDHR states that everyone has duties to the community in which alone the free and full development of his personality is possible. Although the authors regarded dignity and personal development as underlying rationales of the Convention as a whole, they were not accepted as subjective rights due to their vague and unenforceable nature.

Although the right to privacy was originally focussed on providing citizens with the negative right to be free from arbitrary interferences and the negative obligation of states to abstain from such interferences,⁸¹ the Court has gradually diverged from the intention of the authors by accepting both positive obligations for national governments and granting a right to positive freedom to individuals.⁸² In a case dating from 1976, the former Commission held: ‘For numerous anglo-saxon and French authors the right to respect for “private life” is the right to privacy, the right to live, as far as one wishes, protected from publicity. [H]owever, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one’s own personality.’⁸³ Following this line, the right to privacy is interpreted increasingly as a right that guarantees the development and expression of one’s identity and personality,⁸⁴ among others by stressing ‘the fundamental importance of [the protection of private life] in order to ensure the development of every human being’s personality.’⁸⁵

According to the ECtHR, states are under an obligation, inter alia, to allow individuals to receive the information necessary to know and to understand their childhood and early development as this is held to be of importance because of ‘its formative implications for one’s personality’.⁸⁶ Moreover, the right ‘to develop and fulfill one’s personality necessarily comprises the right to identity and, therefore, to a name’.⁸⁷ Consequently, a person has the right to maintain or change his name, especially when a person has undergone an identity-change, such as transsexuals.⁸⁸ The Court has also condemned legislation which had the aim or effect of stigmatizing the identity of minority groups, such as bastard children and homosexuals⁸⁹ and has furthermore held that states may be required under Article 8 ECHR to provide special aid to minorities in order to maintain and develop their identity.⁹⁰ It goes too far to provide an exhaustive list of examples,⁹¹ but reference can be made, inter alia, to the obligation to wear prison clothes, which is held to be an ­interference with a prisoner’s private life due to the stigma it creates.⁹² To provide yet another example of how broad the scope of this approach is, it has been decided by the Court that the refusal of the authorities to allow an applicant to have his ashes scattered in his garden on his death is so closely related to his private life that it comes within the sphere of Article 8 of the Convention ‘since persons may feel the need to express their personality by the way they arrange how they are buried’.⁹³

With regard to the development and fulfilment of one’s identity in the external sphere, among others, the Court has not only protected (the creation of) the family sphere,⁹⁴ it has also accepted that Article 8 ECHR ‘protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world’.⁹⁵ Moreover, the right to privacy has been extended to the professional sphere, so that wire-tapping professional conversations, the seizures of business documents and the sanctity of the ‘home’ of a person’s professional working place are provided protection under Article 8 ECHR.⁹⁶ This is so, according to the Court, because private life ‘encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature’⁹⁷ and because Article 8 ECHR does not exclude, in principle, ‘activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’.⁹⁸ These are but a few of the examples from which it may appear that the right to develop one’s identity and personality both in private and in public, both in the personal and the professional realm, has been accepted by the Court as one of the core rationales underlying Article 8 ECHR. This again is an obvious example of the shift of the interpretation of Article 8 ECHR from a classic right to privacy to a more encompassing personality right.

3.2 The right to property (Article 1 First Protocol to the ECHR)

The right to property has not only been rejected from the scope of the Convention as a whole, it has also been rejected from the right to privacy specifically. When drafting the documents, the question was posed a number of times whether or not Article 12 UDHR and Article 8 ECHR should include, besides the concepts already contained therein, a reference to the inviolability of private property. When drafting the UDHR, for example, one of the first drafts, proposed by Panama, not only contained a separate provision on the right to property but also embodied an article that specified: ‘Freedom from unreasonable interference with his person, home, reputation, privacy, activities, and property is the right of every one.’⁹⁹ Throughout the traveaux preparatoires of the UDHR, the right to property has been put in and out the provision on privacy at various times.¹⁰⁰

Likewise, during the drafting phase of the ECHR, a number of delegates felt that the protection of home and to some extent, the protection of family life, also included an economical aspect. Others wanted to include a right to protection of personal property in the Convention as they held that that the right to own property is a pre-condition of personal and family independence.¹⁰¹ Still at the very end of the discussions, proponents of acknowledging a right to property under the Convention held that ‘property is not merely an ‘economic right’, but an extension of human personality, the essential basis of stable family life’.¹⁰² Even though this relationship was undisputed, the right to property also contains a purely economic aspect, which, like the right to education, was regarded both non-essential and unenforceable.¹⁰³

Consequently, the protection of economic interests was referred to the first Protocol to the Convention, Article 1, which holds: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ This provision is even more elaborate than Article 17 of the UDHR, which provides: ‘(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.’

Nevertheless, in the case law of the Court, property rights and more general economic issues have been accepted under the scope of Article 8 ECHR, therewith again (like with the right to reputation) accepting one of the classic differences between the right to privacy and personality rights, in favour of the latter. First, it is interesting to note that most cases concerning the protection of the home regard the eviction or expropriation of homes and the destruction of a person’s home by army forces.¹⁰⁴ Although such practices obviously have an impact on an individual’s private and family life, these matters cannot in themselves be qualified as privacy-infringements and arguably, are more related to the right to respect for property and protection against unlawful expropriation.

Second, family property is assessed under the scope of the right to privacy, among others in relation to inheritance matters. For example, in the famous Marckx case of 1979, the Court found a violation of Article 8 in combination with Article 14, because the national law of Belgium differentiated between legitimate ­children and illegitimate children in terms of paternity rights, by reason both of the restrictions on their capacity to receive property from their mother and of their total lack of inheritance rights on intestacy over the estates of their near relatives on their mother’s side.¹⁰⁵ More in general, state practices and legal provisions that differentiate between individuals on the basis of their marital status, gender, sexual preference or on any other ground have been dealt with under the scope of Article 8 ECHR, in combination with Article 14 ECHR. For example, when an applicant claimed to have been a victim of discrimination on the ground of his sexual orientation in that the Supreme Court had denied him the status of ‘life companion’ of his late partner, which had consequences for his right to succeed the tenancy of the flat he had been living in, the Court accepted that this led to an interference with Article 8 together with Article 14 ECHR.¹⁰⁶ Again, it might be suggested that the right to succeed the tenancy is more related to property and economic concerns than to a right to privacy.

Third and finally, as referred to earlier, the Court has held on numerous occasions that the right to privacy also provides protection to the full fulfillment and development of a person’s identity in the public sphere. Consequently, it has held that restrictions imposed on access to certain professions may have a significant impact on a person’s private life¹⁰⁷ and dismissal from office has been found to interfere with the right to respect for private life.¹⁰⁸ For example, the Court has held that the dismissal of a person ‘from the post of judge affected a wide range of his relationships with other persons, including the relationships of a professional nature. Likewise, it had an impact on his “inner circle” as the loss of job must have had tangible consequences for material well-being of the applicant and his family.’¹⁰⁹ Accepting that dismissal from office falls under the scope of Article 8 ECHR not only extents the right to privacy considerably, it also comes close to a right to work, accepted under Article 23 UDHR,¹¹⁰ which was explicitly rejected from the scope of the Convention by the authors.

In any event, again, it might be argued that the protection of job opportunities is more directly related to economic concerns than to issues relating to the respect for private life. In conclusion, although the authors of the Convention where not blind to the idea that ‘property is not merely an ‘economic right’, but also an extension of human personality, the essential basis of stable family life’, they choose not only to reject if from the scope of Article 8 ECHR, but from the Convention as a whole, as the right to property was regarded both peripheral and unenforceable.¹¹¹ Still in the case law of the Court, property rights and related economic concerns are increasingly granted protection under the scope of Article 8 ECHR if an issue directly or indirectly relates to a person’s private life, family life or home. This trend cannot easily be reconciled with the classic focus of the right to privacy, but the right to property is often recognized as an integral part of personality rights.

3.3 The right to nationality (Article 15 UDHR)

The Universal Declaration also contains a right to nationality. Article 15 UDHR holds: ‘(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’ The principled rejection of such a right under the Convention was respected by the Court in its initial jurisprudence on the point of applicants claiming the right to a certain nationality, a residence permit or objected to being extradited to their country of birth. It accepted as principle that states enjoy, as a matter of well-established international law and subject to their treaty obligations, a right ‘to control the entry, residence and expulsion of aliens’.¹¹²

However, gradually, the Court has diverged from its original approach.¹¹³ For example, in 1991, the Court held that the deportation of a foreigner may violate his right to family life noting that ‘at the time the deportation order was made, all the applicant’s close relatives - his parents and his brothers and sisters – had been living in Liège for a long while; one of the older children had acquired Belgian nationality and the three youngest had been born in Belgium. Mr Moustaquim himself was less than two years old when he arrived in Belgium. From that time on he had lived there for about twenty years with his family or not far away from them. He had returned to Morocco only twice, for holidays. He had received all his schooling in French. His family life was thus seriously disrupted by the measure taken against him, which the Advisory Board on Aliens had judged to be “inappropriate”. Having regard to these various circumstances, it appears that, as far as respect for the applicant’s family life is concerned, a proper balance was not achieved between the interests involved, and that the means employed was therefore disproportionate to the legitimate aim pursued. Accordingly, there was a violation of Article 8 (art. 8).’¹¹⁴ In 2001, the Court took this approach a step further and obliged a state to grant a family reunion with a family member living abroad.¹¹⁵ It has also restricted the governments’ margin of appreciation.

With regard to expelling criminal immigrants, the Court adopts a proportionality test, identifying as relevant factors the nature and seriousness of the offence committed by the applicant, the nationalities of the various persons concerned, the length of the applicant’s stay in the country, the time elapsed since the offence was committed, the applicant’s conduct during that period, the applicant’s family situation, such as the length of the marriage and whether there are children of the marriage, and if so, their age, the best interests and well-being of the children in particular in relation to the seriousness of the difficulties which they and the spouse are likely to encounter in the country to which the applicant is to be expelled, whether the spouse knew about the offence at the time when he or she entered into a family relationship, and the solidity of social, cultural and family ties with the host country and with the country of destination.¹¹⁶

With regard to non-criminal immigrants and immigration control in the economic interest of a country, the Court seems to adopt an even narrower margin of appreciation for national authorities. It does not so much weigh the economic interest involved against the individual interest, but rather determines whether in the particular circumstances of the case, an exception should be made to the general, in itself legitimate, policy. For example, when the Dutch government decided to expel an immigrant, which would have seriously affected her and the ties with her child, because she had not pursued to regularize her stay in the Netherlands until more than three years after first arriving in that country and her stay there had been illegal throughout her stay, the Court held that ‘by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism.’¹¹⁷ Thus, although the policy was deemed legitimate in itself, the application of the regulation in this particular case placed an excessive burden on the claimant.

In more recent cases, the Court has gone even further.¹¹⁸ It has also held that the concept of private life alone, without a reference to the interests of family members, can legitimize a claim for a residence permit or an objection to being extradited if a person’s private life is so intrinsically connected to a specific country, among others in relation to language, work, friends, other social contacts, the possibility to develop his personality and explore his identity, the fact that that person’s quality of life would be severely diminished by his exclusion from that country’s territory, etcetera. The Court has held not only that under circumstances, governments must grant a residence permit or reunite a family, but also that the granting of a residence permit as such falls principally within the protective scope of Article 8 ECHR.¹¹⁹ Furthermore, even although a state never authorized a stay of an illegal immigrant in the first place, it may still be held to grant a permanent residence permit.¹²⁰ Consequently, on the point of a right to obtain a residence permit and therewith a legal status and identity, it has been accepted by the Court that such matters fall under the scope of Article 8 ECHR. Although such a right is not directly linked to the classic conception of the right to privacy, it may be connected to one’s personal development and the possibility to build a new life in a new country.

3.4 Conclusion

There are other examples of the trend, in which the Court accepts rights explicitly rejected from the scope of the Convention under Article 8 ECHR, the most famous one perhaps being the right to education, which was seen as a non-essential or peripheral right.¹²¹ The right to education was discussed by the Convention authors together with the protection of family life, as later protected under the scope of Article 8 ECHR, and the right to found a family, provided in Article 12 ECHR, under the umbrella concept of ‘family rights’.¹²² Still, in contrast to the other two rights, the right to education was referred to the first Protocol of the Convention, Article 2, specifying: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ However, rather early in its case law, in the famous Linguistic case of 1968, the Court discussed under both the right to education and the right to privacy a matter which regarded a Belgium law under which French speaking parents living in the Dutch-speaking part of the country could only provide their children with an education in French if they would send them to the other part of the country.¹²³

Although the Commission held that that under certain circumstances it is possible that the right to privacy might also apply to educational matters, it was very skeptical and hesitant to do so. The Court summarized the Commission’s position as follows: ‘In the view of the Commission, which confirmed before the Court the unanimous opinion expressed on this point in its Report, Articles 8 and 12 (art. 8, art. 12) of the Convention and Article 2 of the Protocol (P1-2) each govern “a clearly defined sector of private and family life”. The Commission deduces from this that “even if it is accepted” that those three provisions might, “in certain circumstances”, “be applied jointly or in conjunction”, one must beware of interpreting any one of them in a way which would involve an extension of the “rights recognised by the other two”. In particular, “it is not conceivable that Article 8 (art. 8) should encroach on the sphere of Article 2 of the Protocol (P1-2) or even less that it should add something to that Article”. Any such result would, moreover, “be contrary to the intention of the Contracting Parties as is clearly revealed” by the “preparatory work”. The object then of Article 8 (art. 8) “is not to guarantee the right to education, considered as a corollary of the freedom of private life, or the rights of parents with regard to their children’s education, considered as a consequence of the right to respect for private and family life”.’¹²⁴ The Court, however, seemed less hesitant and assessed the claim of the parents both under Article 2 of the first Protocol and under Article 8 ECHR independently as it held that ‘the Convention must be read as a whole. Consequently a matter specifically dealt with by one of its provisions may also, in some of its aspects, be regulated by other provisions of the Convention’,¹²⁵ which apparently also applied to the provisions from the Protocols.

This line has had two consequences in the jurisprudence of the Court. First, it has been adopted as principle that Article 2 of the Protocol must be read in the light of, among others, the right to privacy.¹²⁶ Secondly, the right to privacy has been applied to a number of matters which primarily relate to educational issues. For example, in the case of Cyprus v. Turkey from 2001, it was found that there were restrictions in Cyprus on the freedom of movement of Greek-Cypriot and Maronite schoolchildren living in the northern part of the country attending schools in the south, that although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them, and finally, that the schoolbooks that were used were subjected to a “vetting” procedure, that this procedure was cumbersome and that a relatively high number of school-books were being objected to by the Turkish-Cypriot administration. The Court used these facts not only to assess whether Turkey had interfered with Article 2 of the first Protocol, but also to find a violation of Article 8 ECHR.¹²⁷

Consequently, although of the three ‘family rights’, the right to education was explicitly rejected from the Convention by its authors, by interpreting the right to education in the light of the right to privacy and by assessing educational matters under the scope of Article 8 ECHR, it is at least partially brought back under the scope the Convention by the Court. This is only yet another example of general trend, which may also be discovered in relation to the protection of one’s identity and the development of one’s personality to the fullest, which was rejected from the scope of the Convention, the right to a residence permit, a legalized stay and family reunion and the protection of property, the inclusion of economic concerns and even the dismissal from work under the scope of the right to privacy.

4.1 The right to data protection

The right to data protection is related to, but nevertheless different from, the right to privacy. Reference can be made to the European Union’s Charter of Fundamental Rights from 2000,¹²⁹ in which Article 7, containing the right to privacy, specifies that everyone has the right to respect for his or her private and family life, home and communications. Article 8 holds that everyone has the right to the protection of personal data concerning him or her, that such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. It also holds that every­one has the right of access to data which has been collected concerning him or her and the right to have it rectified and that compliance with these rules shall be subject to control by an independent authority. This is what is called the right to data protection, which in Europe, is most prominently protected by the EU’s Data Protection Directive,¹³⁰ but also by the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, from the Council of Europe.¹³¹

Both rights have a quite distinct background, tradition and rationale. The right to data protection is of more recent origin¹³² and is tied in many ways to the rise of modern technology with which the collection, storing and processing of personal data has become increasingly easy.¹³³ The right to data protection is focused on horizontal, rather than vertical relationships, and provides the citizen with protection against companies like Google and Facebook. It should be noted that ‘personal data’, a key notion in the Data Protection Directive, is not the same as private or privacy sensitive data.¹³⁴ It may also refer to public and non-sensitive information, if this could be used to identify someone. ‘Even ancillary information, such as “the man wearing a black suit” may identify someone out of the passers-by standing at a traffic light.’¹³⁵

Following the living instrument doctrine, the Court has been willing to accept a number of the notions essential to the right to data protection under the scope of the right to privacy.¹³⁶ It has accepted, for example, that storing personal data, such as transcripts of telephone conversations, photos, hospital records or bodily material, triggers the application of Article 8 ECHR, it has held that if a large collection of sensitive personal data is in government hands, in principle, the individual has a right to access such information and the Court has laid down certain limits on the use and transferal of personal data by and to third parties. Similar to most data protection rules, the Court has accepted that personal data may only be collected for specific and legitimate purposes and has accepted a positive obligation for states to lay down adequate data protection rules.¹³⁷

Moreover, following the line that private life also protects one’s public and professional life, the Court has been willing to apply Article 8 ECHR on public data and on professional communications,¹³⁸ which has allowed it to find that the systematic collection and storing of data by security services on particular individuals constituted an interference with these persons’ private lives, even if that data was collected in a public place or concerned exclusively the person’s professional or public activities.¹³⁹ Likewise, a GPS device attached to a person’s car, collecting and storing data concerning that person’s whereabouts and movements in the public sphere, was also found to interference with Article 8 ECHR.¹⁴⁰ As a final example, large surveillance systems, collecting the personal data of potentially all citizens of the state, is accepted as an issue falling under the right to privacy.¹⁴¹ Consequently, though not all principles embodied under the European Data Protection Directive are accepted under the Convention,¹⁴² a number of principles of the right to data protection are guaranteed under the scope of Article 8 ECHR. The protection of personal data is yet another classic difference between the right to privacy and personality rights.

4.2 Minority rights

In the early jurisprudence of the former Commission and the Court, it was held that a second home, a building site, a professional working place, a temporary shelter or other unconventional houses did not fall under the scope of ‘home’. For example, with regard to the search of a person’s car, which functioned as his home, the Commission held: ‘[] la Commission estime que le domicile – “home” – dans le texte anglais de l’article 8 (art. 8)- est une notion précise qui ne pourrait être étendue arbitrairement et que, par conséquent, la fouille de la voiture en stationnement dans les circonstances de la présente affaire, ne saurait être assimilée à une fouille dimiciliaire qui entre dans le domaine d’application de l’article 8 (art. 8).’¹⁴³ However, like the Declaration, the Convention is drafted in two official languages, English and French, and like the Universal Declaration on Human Rights, the French version of the European Convention does not refer to ‘maison’, ‘chez’ or ‘residance’ but rather to the concept ‘domicile’. Domicile has a broader scope than the concept of ‘home’ and might, for example, be used to refer to professional dwellings. In its more recent case law, it is the concept of ‘domicile’, rather than ‘home’, that is increasingly referred to by the Court.

The Court has held as principle that the concept of ‘home’ is not limited to those buildings which are lawfully occupied or which have been lawfully established.¹⁴⁴ Furthermore, accepting caravans and other mobile homes and temporary shelters under the concept of ‘home’ has had important consequences for Gypsies and other nomadic groups,¹⁴⁵ who generally do not possess a fixed shelter or home.¹⁴⁶ This doctrine has gradually been expanded to include certain minority rights and the protection of minority life styles. For example, the Commission has been willing ‘[] to accept that the consequences, arising for the applicants from the construction of the hydroelectric plant, constitute an interference with their private life, as members of a minority, who move their herds and deer around over a considerable distance. It is recalled that an area of 2,8 km2 will be covered by water as a result of the plant. In addition, it must be acknowledged that the environment of the said plant will be affected. This could interfere with the applicants possibilities of enjoying the right to respect for their private life.’¹⁴⁷

This line has had specific consequences for Romas and Gypsies, which the Court regards as vulnerable groups in need of special protection. For example, the Court has stressed in reference to an applicant that the ‘[] occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant’s stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.’¹⁴⁸

What is more, states may be under the positive obligation to take active measures to respect and facilitate the development of these minority identities. The Court has emphasized the ‘[] emerging international consensus amongst the Contracting States of the Council of Europe, recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves, but also to preserve a cultural diversity of value to the whole community.’¹⁴⁹ This right to respect for minority life requires states to accept ‘that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases’ in order to allow them to fully explore, develop and express their identity, and that governments ‘should pursue their efforts to combat negative stereotyping of the Roma’, among others, because ‘any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group’.¹⁵⁰

The right to the respect for minority identity and the protection of the minority life style, partially accepted under the recent case law of the Court, are commonly considered as rights of groups, such as minorities and indigenous people. These group rights are so called ‘third generation’ rights, which go beyond the scope of the first generation rights, the classic civil and political rights, and the socio-economic rights, which are referred to as second generation rights, which are mostly characterized as individual rights.¹⁵¹ Third generation rights, focus on solidarity and respect in international, interracial and intergenerational relations. Beside the minority rights, third generation rights include the right to peace, the right to participation in cultural heritage and the right to live in a clean and healthy living environment, which is discussed next.

4.3 Environmental protection

In an early case from 1986, regarding the level of noise caused by airports in the vicinity of an individual’s house, the Commission has previously held that Article 8 ECHR ‘cannot be interpreted so as to apply only with regard to direct measures taken by the authorities against the privacy and/or home of an individual. It may also cover indirect intrusions which are unavoidable consequences of measures not at all directed against private individuals. In this context it has to be noted that a State has not only to respect but also to protect the rights guaranteed by Article 8 para. 1. Considerable noise nuisance can undoubtedly affect the physical well-being of a person and thus interfere with his private life. It may also deprive a person of the possibility of enjoying the amenities of his home.’¹⁵² In subsequent case law, it was accepted that similarly, noise nuisance may be produced by nuclear power plants working day and night in a rural area¹⁵³ and by nightclubs near someone’s home.¹⁵⁴

Although the Court has not yet been willing to guarantee the right to preservation of the natural environment as such under the scope of Article 8 ECHR,¹⁵⁵ gradually building on the notion of protection against noise pollution, the former Commission and the Court have been willing to discuss more and broader effects on the general living environment, such as radiation and vibrations emitted by a transformer,¹⁵⁶ electro smog¹⁵⁷ and air pollution, smog and fumes.¹⁵⁸ Although the Court has accepted that environmental pollution must reach a minimum level of severity, it has also specified that this is a relative concept which depends on all circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life.¹⁵⁹

The notion of quality of life, in particular, is a rather vague concept, the Court acknowledges: ‘There is no doubt that serious industrial pollution negatively affects public health in general. However, it is often impossible to quantify its effects in each individual case, and distinguish them from the influence of other relevant factors, such as age, profession etc. The same concerns possible worsening of the quality of life caused by the industrial pollution. The “quality of life” is a very subjective characteristic which hardly lends itself to a precise definition.’¹⁶⁰ Not only is the notion of ‘quality of life’ under Article 8 ECHR rather abstract, the causal relationship between the unhealthy living environment and specific, personal harm is generally difficult to prove. Still, the Court is willing to refer to notions of ‘not implausible’ and ‘not impossible’, as a standard of proof, to find a violation of Article 8 ECHR. Consequently, the shift from a privacy to a personality right has meant that a number of third generation rights have been included under Article 8 ECHR, such as the possibility to develop and express one’s minority identity and to life in a pleasant environment.

4.4 Conclusion

In conclusion, the Court has accepted a variety of rights not contained in the Convention, especially with a reference to the right to privacy. This includes the right to data protection, to live in a clean and healthy living environment and the right of minorities to protect, develop and express their minority identity. Again, these are just a few of the examples; another example may be the right to a name, which is neither accepted under the UDHR and ECHR, but is accepted in subsequent human rights documents.¹⁶¹ Still, the Court has accepted the right to a name with a reference to Article 8 ECHR. ‘The right to develop and fulfill one’s personality necessarily comprises the right to identity and, therefore, to a name’.¹⁶² In forming, creating and maintaining one’s identity, the Court has held that personal names may be of pivotal importance. Consequently, it has assessed cases under the scope of Article 8 ECHR in which a spouse complained that she had to adopt the surname of her husband, even though she was known by her maiden name in her inner circle and in professional relationships. The Court has also accepted that under certain circumstances, children have the right to choose their forename or their surname and finally the Court has granted that individuals have the right to alter their birth-given name.¹⁶³