Guide on Article 8 of the Convention – Right to respect for private and family life
which Article(s) the complaints should be examined (Radomilja and Others v. Croatia [GC], § 114; Sudita Keita v. Hungary, § 24).
1. Private and family life a. Article 2 (right to life) 1 and Article 3 (prohibition of torture) 2 32. Regarding the protection of the physical and psychological integrity of an individual from the acts of other persons, the Court has held that the authorities’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention (see for instance, Buturugă v. Romania, § 44, as regards domestic violence; N.Ç. v. Turkey, as regards sexual abuse, and the summary of the case-law on the States’ positive obligations, see §§ 94-95 and R.B. v. Estonia, §§ 78-84) – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, inter alia, Söderman v. Sweden [GC], § 80 with further references therein) or against medical negligence (see § 127 in Nicolae Virgiliu Tănase v. Romania [GC] with further references therein). Drawing on the case-law on Article 2, the Court stated that Member States had a positive obligation inherent in Articles 3 and 8 to enforce the sentences of sex offences (E.G. v. the Republic of Moldova, §§ 39-41). On the other hand, in a case of a road-traffic accident in which an individual sustained unintentional life-threatening injuries, the Grand Chamber did not find Article 3 or 8 applicable but rather it applied Article 2 (ibid., §§ 128-32). 33. In its case-law on Articles 3 and 8, the Court emphasised the importance to children and the other vulnerable members of society of benefiting from State protection where their physical and mental well-being were threatened (Wetjen and Others v. Germany, § 74, Tlapak and Others v. Germany, § 87; A and B v. Croatia, §§ 106-113). The Court found a breach of both of these Articles given the failure to protect the personal integrity of a vulnerable child in the course of excessively long criminal proceedings relating to sexual abuse, which it considered to be a serious case of secondary victimisation (N.Ç. v. Turkey). In the two cases against Germany, the Court reiterated that the fact of regularly caning one’s children was liable to attain the requisite level of severity to fall foul of Article 3 (Wetjen and Others v. Germany, § 76; Tlapak and Others v. Germany, § 89). Accordingly, in order to prevent any risk of ill-treatment under Article 3, the Court considered it commendable if Member States prohibited in law all forms of corporal punishment of children. However, in order to ensure compliance with Article 8, such a prohibition should be implemented by means of proportionate measures so that it was practical and effective and did not remain theoretical (Wetjen and Others v. Germany, §§ 77-78; Tlapak and Others v. Germany, §§ 90-91). 34. In the immigration context, during periods of mass influx of asylum-seekers and substantial resource constraints, recipient States should be entitled to consider that it falls within their margin of appreciation to prioritise the provision of Article 3 protection to a greater number of such persons over the Article 8 interest of family reunification of some (M.A. v. Denmark [GC], §§ 145-146). 35. The Court has stated that when a measure falls short of Article 3 treatment, it may nevertheless fall foul of Article 8 (Wainwright v. the United Kingdom, § 43, as regards strip-search). In particular, conditions of detention may give rise to an Article 8 violation where they do not attain the level of severity necessary for a violation of Article 3 (Raninen v. Finland, § 63). The same would apply to 1 2
See the Guide on Article 2 (Right to life). See the Guide on Article 3 (Prohibition of torture) – Currently being processed.
European Court of Human Rights
14/161
Last update: 31.08.2021
