Guide on Article 8 of the Convention – Right to respect for private and family life
the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (Noveski v. the former Yugoslav Republic of Macedonia (dec.), § 61). 13. The Court has also articulated the State’s procedural obligations under Article 8, which are particularly relevant in determining the margin of appreciation afforded to the member State. The Court’s analysis includes the following considerations: whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decisionmaking process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (Buckley v. the United Kingdom, § 76; TandaMuzinga v. France, § 68; M.S. v. Ukraine, § 70). This requires, in particular, that the applicant be involved in that process (Lazoriva v. Ukraine, § 63) and that the competent authorities perform a proportionality assessment of the competing interests at stake and give consideration to the relevant rights secured by Article 8 (Liebscher v. Austria, 2021, §§ 64-69). 14. In some cases, when the applicable principles are similar, the Court does not find it necessary to determine whether the impugned domestic decision constitutes an “interference” with the exercise of the right to respect for private or family life or is to be seen as one involving a failure on the part of the respondent State to comply with a positive obligation (Nunez v. Norway, § 69; Osman v. Denmark, § 53; Konstatinov v. the Netherlands, § 47 ).
C. In the case of a negative obligation, was the interference conducted “in accordance with the law”? 15. The Court has repeatedly affirmed that any interference by a public authority with an individual’s right to respect for private life, family life, home and correspondence must be with in accordance with the law (see notably Vavřička and Others v. the Czech Republic [GC], §§ 266-269 and the notion of “law” under the Convention; Klaus Müller v. Germany, §§ 48-51). This expression does not only necessitate compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law (Big Brother Watch and Others v. the United Kingdom [GC] § 332, underlining in §§ 333-334 that the meaning of “foreseeability” in the context of secret surveillance is not the same as in many other fields; see also the importance of the protection of lawyerclient confidentiality in Saber v. Norway, § 51). 16. The national law must be clear, foreseeable, and adequately accessible (Silver and Others v. the United Kingdom, § 87). It must be sufficiently foreseeable to enable individuals to act in accordance with the law (Lebois v. Bulgaria, §§ 66-67 with further references therein, as regards internal orders in prison), and it must demarcate clearly the scope of discretion for public authorities. For example, as the Court articulated in the surveillance context (see the outline of the requirements in Falzarano v. Italy (dec.), §§ 27-29), the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any measures of secret surveillance and collection of data (Shimovolos v. Russia, § 68). In VukotaBojić v. Switzerland the Court found a violation of Article 8 due to the lack of clarity and precision in the domestic legal provisions that had served as the legal basis of the applicant’s surveillance by her insurance company after an accident. 17. The clarity requirement applies to the scope of discretion exercised by public authorities. Domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of
European Court of Human Rights
10/161
Last update: 31.08.2021
