B. Should the case be assessed from the perspective of a negative or positive obligation?

5. The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority (Libert v. France, §§ 40-42). This obligation is of the classic negative kind, described by the Court as the essential object of Article 8 (Kroon and Others v. the Netherlands, § 31). However, Member States also have positive obligations to ensure that Article 8 rights are respected even as between private parties (Bărbulescu v. Romania [GC], §§ 108-111 as to the actions of a private employer). In particular, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life (Lozovyye v. Russia, § 36). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, for example, Evans v. the United Kingdom [GC], § 75, although the principle was first set out in Marckx v. Belgium). 6. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (Hämäläinen v. Finland [GC], § 65; Gaskin v. the United Kingdom, § 42; Roche v. the United Kingdom [GC], § 157). These principles may also be relevant in the education context (F.O. v. Croatia, §§ 80-82 citing Costello-Roberts v. the United Kingdom, § 27, as regards school discipline). Where the case concerns a negative obligation, the Court must assess whether the interference was consistent with the requirements of Article 8 paragraph 2, namely in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society. This is analysed in more detail below. 7. In the case of a positive obligation, the Court considers whether the importance of the interest at stake requires the imposition of the positive obligation sought by the applicant. Certain factors have been considered relevant for the assessment of the content of positive obligations on States. Some of them relate to the applicant. They concern the importance of the interests at stake and whether “fundamental values” or “essential aspects” of private life are in issue or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administration and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8. Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question is whether the alleged obligation is narrow and precise or broad and indeterminate (Hämäläinen v. Finland [GC], § 66). 8. As in the case of negative obligations, in implementing their positive obligations under Article 8, the States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (for example, X and Y v. the Netherlands, §§ 24 and 27; Christine Goodwin v. the United Kingdom [GC], § 90; Pretty v. the United Kingdom, § 71). Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (X, Y and Z v. the United Kingdom, § 44; Fretté v. France, § 41; Christine Goodwin v. the United Kingdom [GC], § 85). There will also often be a wider margin if the State is required to strike a balance between competing private and public interests or Convention rights (Fretté v. France, § 42; Odièvre v. France [GC], §§ 44-49; Evans v. the United Kingdom [GC], § 77; Dickson v. the United Kingdom [GC], § 78; S.H. and Others v. Austria [GC], § 94).

9. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State’s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal law provisions. The State therefore has a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (M.C. v. Bulgaria). Children and other vulnerable individuals, in particular, are entitled to effective protection (X and Y v. the Netherlands, §§ 23-24 and 27; August v. the United Kingdom (dec.); M.C. v. Bulgaria). In this regard, the Court has, for example, held that the State has an obligation to protect a minor against malicious misrepresentation (K.U. v. Finland, §§ 45-49). The Court has also found the following acts to be both grave and an affront to human dignity: an intrusion into the applicant’s home in the form of unauthorised entry into her flat and installation of wires and hidden video cameras inside the flat; a serious, flagrant and extraordinarily intense invasion of her private life in the form of unauthorised filming of the most intimate aspects of her private life, which had taken place in the sanctity of her home, and subsequent public dissemination of those video images; and receipt of a letter threatening her with public humiliation. Furthermore, the applicant is a well-known journalist and there was a plausible link between her professional activity and the aforementioned intrusions, whose purpose was to silence her (Khadija Ismayilova v. Azerbaijan, § 116). 10. The State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (Osman v. the United Kingdom, § 128; M.C. v. Bulgaria, § 150; Khadija Ismayilova v. Azerbaijan, § 117; E.G. v. the Republic of Moldova, §§ 39-41). In E.G. the Court held that granting an amnesty to a perpetrator of sexual assault was in breach of the positive obligation under both Articles 3 and 8 of the Convention (§§ 4150). In the Khadija Ismayilova case, the Court held that where the Article 8 interference takes the form of threatening behaviour towards an investigative journalist highly critical of the government, it is of the utmost importance for the authorities to investigate whether the threat was connected to the applicant’s professional activity and by whom it had been made (Khadija Ismayilova v. Azerbaijan, §§ 119-120). 11. In respect of less serious acts between individuals, which may violate psychological integrity, 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 (ibid., § 47; X and Y v. the Netherlands, §§ 24 and 27; Söderman v. Sweden [GC], § 85; Tolić and Others v. Croatia (dec.), §§ 94-95 and § 99). Moreover, as regards the right to health, the Member States have a number of positive obligations in this respect under Articles 2 and 8 (Vasileva v. Bulgarie, §§ 63-69; İbrahim Keskin v. Turkey, § 61). 12. In sum, the State’s positive obligations under Article 8 implying that the authorities have a duty to apply criminal-law mechanisms of effective investigation and prosecution concern allegations of serious acts of violence by private parties. Nevertheless, only significant flaws in the application of the relevant mechanisms amount to a breach of the State’s positive obligations under Article 8. Accordingly, the Court will not concern itself with allegations of errors or isolated omissions since it cannot replace the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators’ criminal responsibility (B.V. and Others v. Croatia (dec.), § 151). Previous cases in which the Court found that Article 8 required an effective application of criminal-law mechanisms, in relations between private parties, concerned the sexual abuse of a mentally handicapped individual; allegations of a physical attack on the applicant; the beating of a thirteen-year-old by an adult man, causing multiple physical injuries; the beating of an individual causing a number of injuries to her head and requiring admission to hospital; and serious instances of domestic violence (ibid., § 154, with further references therein). In contrast, as far as concerns less serious acts between individuals which may cause injury to someone’s psychological well-being,