DR ÖĞRETİM GÖREVLİSİ MURAT TÜMAY

Tebliği Buradan İzleyebilirsiniz.

 

 

Protection of the Right to Respect for Private and Family Life in Cases of European Court of Human Rights

Law Faculty

 

Abstract:

            The family is the fundamental part of a civilised society. The healthy working of the society depends on a healthy family structure in the society. This presentation paper deals with the issue of protection of the right to respect for private and family life in European Court of Human Rights. Particularly, the paper will look at how the European Court of Human Rights is dealing with protection of family in its cases.  The right to protection of family life is guaranteed at the level of major international law acts in the area of human rights protection: The Universal Declaration of Human Rights 1948, The International Covenant on Civil and Political Rights 1966. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 may be also referred to such acts.[1] It’s suggested that ECtHR operating under the monitoring mechanism provided by the Convention pays conspicuous attention to issues of the right to respect for private and family life guaranteed under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The content of private and family life concepts in ECtHR practice is studied. The Court’s understanding of invasion of private and family life on the part of the state under Part 2 Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and legal views of ECtHR are considered.[2] Protection of human rights in the area of environmental conservation pursuant to Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and corresponding elaborated approaches are studied.

Key Words:  Family life, Respect to Family, European Convention on Human Rights, European Court of Human Rights,

  1. Introduction

 

1.1  General Overview

 

The right of protection from arbitrary interference with personal and family life is regulated and protected by major international conventions in the area of human rights protection: Art. 12 of The Universal Declaration of Human Rights 1948, Art. 17 of The International Covenant on Civil and Political Rights 1966.

 

This right is also protected at the level of regional international organizations, among them is Council of Europe which would be the subject of this paper. The Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is one of key international conventions created within the framework of Council of Europe (hereinafter referred to as – the European Convention on Human Rights, European Convention, the Convention). Art. 8 of the European Convention on Huma Rights guarantees everyone the right to respect for private and family life. İt states that  “Everyone has the right to respect for his private and family life, his home and his correspondence”.

 

The European Convention on Human Right’s succes is a result of its established unique protection mechanism of human rights and freedom.  This mechanism foremost involves practice of European Court of Human Rights.[3]

 

According to an overview data of 1959-2014, the European Court rendered 1085 judgments on complaints about violation of Art.8 of the European Convention by State Parties to the Convention from 1959 to 2014. Given this, ECtHR adopted 17754 regulations in total over the specified period, among them 14877 involved at least one infringement of the European Convention (European Court of Human Rights, 2015). This statistics therefore  shows that protection of the right to respect for private and family life is significant on the part of Council of Europe.[4]

 

The main purpose of Art. 8 of the Convention is prevention of government intervention into the exercise of guaranteed rights. However we should bear in mind that, recognized freedom is far from being absolute. State can accept some restrictions if criteria stipulated in item 2 of the Contention and Court’s established practice are met.

 

  1. Definition of Family life and the Meaning of Family under Convention

 

According to the case law of the ECtHR, the essential ingredient of family life is the right to live together so that family relationships may develop normally[5] and members of the family may enjoy each other’s company.[6] The notion of family life is an autonomous concept[7]. Consequently, whether or not “family life” exists is essentially a question of fact depending upon the real existence in practice of close personal ties.[8]

The Court therefore looks at de facto family ties, such as applicants living together, in the absence of any legal recognition of family life.[9] Other factors will include the length of the relationship and, in the case of couples, whether they have demonstrated their commitment to each other by having children together.[10] In Ahrens v. Germany, § 59, the Court found no de facto family life where the relationship between the mother and the applicant had ended approximately one year before the child was conceived and the ensuing relations where of a sexual nature only. The conformity of the applicants’ conduct with the law is also a factor to be considered.[11] So, it can be seen from the case law, as for the “family life” notion in ECtHR practice the notion of family within the meaning of Art. 8 of the Convention involves not only registered marital relations but other “family” connections, which provide that their participants live together beyond legal marriage. For example, it’s provided in § 44 of judgment in the case of “Keegan v. Ireland” (European Court of Human Rights, 1994).

 

A child born of a marital relationship is ipso jure part of that “family” unit from the moment and by the very fact of his or her birth.[12] Thus, there exists between the child and its parents a bond amounting to family life. The existence or non-existence of “family life” within the meaning of Article 8 is a question of fact depending upon the real existence in practice of close personal ties, for instance the demonstrable interest and commitment by the father to the child both before and after birth.[13] Where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth, or as soon as practicable thereafter, the child’s integration in his family.[14]

In spite of the absence of a biological tie and of a parental relationship legally recognised by the respondent State, the Court found that there existed family life between the foster parents who had cared for a child on a temporary basis and the child in question, on account of the close personal ties between them, the role played by the adults vis-à-vis the child, and the time spent together (Moretti and Benedetti v. Italy, § 48; Kopf and Liberda v. Austria, § 37). In addition, in the case of Wagner and J.M.W.L. v. Luxembourg – which concerned the inability to obtain legal recognition in Luxembourg of a Peruvian judicial decision pronouncing the second applicant’s full adoption by the first applicant – the Court recognised the existence of family life in the absence of legal recognition of the adoption. It took into consideration that de facto family ties had existed for more than ten years between the applicants and that the first applicant had acted as the minor child’s mother in every respect. In these cases, the child’s placement with the applicants was respectively recognised or tolerated by the authorities. On the contrary, in Paradiso and Campanelli v. Italy [GC], having regard to the absence of any biological tie between the child and the intended parents, the short duration of the relationship with the child (about eight months) and the uncertainty of the ties from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court considered that the conditions enabling it to conclude that there had existed a de facto family life had not been met (§§ 156-157) (compare and contrast D. and Others v. Belgium dec.)

 

  1. Parents and Children under Convention

 

3.1  Medically Assisted Procreation/right to Become Genetic Parents

 

Like the notion of private life, the notion of family life incorporates the right to respect for decisions to become a parent in the genetic sense.[15] Accordingly, the right of a couple to make use of medically assisted procreation comes within the ambit of Article 8, as an expression of private and family life.[16] However, the provisions European Court of Human Rights of Article 8 taken alone do not guarantee either the right to found a family or the right to adopt (E.B. v. France [GC], § 41).  The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation (S. H. and Others v. Austria [GC], § 100). However, they are not in themselves sufficient reasons for a complete ban on a specific artificial procreation techniques such as ovum donation; notwithstanding the wide margin of appreciation afforded to the Contracting States, the legal framework devised for this purpose must be shaped in a coherent manner which allows the different legitimate interests involved to be adequately taken into account (ibid.). The Court found no violation of Article 8 where domestic law permitted the applicant’s former partner to withdraw his consent to the storage and use by her of embryos created jointly by them, preventing her from ever having a child to whom she would be genetically related.[17]

Article 8 also protects children born to a surrogate mother outside the member State in question, whose legal mother according to the foreign State could not register as a legal mother under French law. However, the Court does not require that States legalise surrogacy and, furthermore, States may demand proof of parentage for children born to surrogates before issuing the child’s identity papers.[18] Paradiso and Campanelli v. Italy [GC] concerned the separation and placement for adoption of a child conceived abroad through surrogacy and brought back to Italy in violation of Italian adoption laws (§ 215). The Court found that no family life had existed in this particular case and considered it under the notion of “private life”.

 

3.2  Children

 

3.2.1  Mutual enjoyment

 

The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life within the meaning of Article 8 of the Convention (even if the relationship between the parents has broken down), and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention.[19] The Court has found that an applicant’s secret and extrajudicial abduction and arbitrary detention resulted in the deprivation of mutual enjoyment between family members and was therefore a violation of Article 8 (El-Masri v. the former Yugoslav Republic of Macedonia [GC], §§ 248-250). The Court has also found a violation of Article 8 where the applicant was kept in isolation for more than a year, separated from his family, who did not have any information on his situation (Nasr and Ghali v. Italy, § 305).

 

The Court has also found that a State’s continuing failure to provide an applicant with credible information as to the fate of her son constituted a continuing violation of the right to mutual enjoyment and respect for her family life.[20] A refusal to allow a child to accompany her mother to another country for the purposes of the latter’s postgraduate education based on the absence of the consent of both parents needs to be examined in the light of the child’s best interest, avoiding a formalistic and mechanical approach.[21]

 

3.2.2 Relationship Between Natural Mother and Children

 

A natural mother’s standing suffices to afford her the necessary power to apply to the Court on her child’s behalf too, in order to protect his or her interests.[22] The Court regards a single woman and her child as one form of family no less than others. In acting in a manner calculated to allow the family life of an unmarried mother and her child to develop normally, the State must avoid any discrimination on grounds of birth (Marckx v. Belgium, §§ 31 and 34). The development of the family life of an unmarried mother and her child whom she has recognised may be hindered if the child does not become a member of the mother’s family and if the establishment of affiliation has effects only as between the two of them.[23]

 

3.2.3 Relationship Between Natural Father and Children

 

The Court observes that the notion of family life in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage (Keegan v. Ireland, § 44; Kroon and Others v. the Netherlands, § 30). The application of this principle has been found to extend equally to the relationship between natural fathers and their children born out of wedlock. Further, the Court considers that Article 8 cannot be interpreted as only protecting family life which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock (Nylund v. Finland (dec.); Shavdarov v. Bulgaria, § 40). In the latter case, the Court accepted that the presumption of paternity meant that the applicant was not able to establish paternal affiliation by law, but that he could have taken other steps to establish a parental link, hence finding no violation of Article 8.

 

4. Parental Allowances, Custody/Access, and Contact Rights

 

The Court has stated that while Article 8 does not include a right to parental leave or impose any positive obligation on States to provide parental leave allowances, at the same time, by enabling one of the parents to stay at home to look after the children, parental leave and related allowances promote family life and necessarily affect the way in which it is organised; thus, parental leave and parental allowances come within the scope of Article 8.[24] There is a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount.[25] The child’s best interests may, depending on their European Court of Human Rights nature and seriousness, override those of the parents.[26] The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (Neulinger and Shuruk v. Switzerland, § 134). The child’s interests dictate that the child’s ties with the family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family.[27]

 

5. Family Reunification

 

Where immigration is concerned, Article 8, taken alone, cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory.[28] Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest.[29] Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion.[30]

 

6.     Margin of Appreciation in Relation to Family Life

 

A number of factors must be taken into account when determining the width of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8. The Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care by way of an emergency order (R.K. and A.K. v. the United Kingdom) or when framing their divorce laws and implementing them in specific cases[31] or in respect of the determination of a child’s legal status.[32] The margin of appreciation is more limited regarding questions of contact and information rights (Fröhlich v. Germany*). And much narrower when it comes to prolonged separation of a parent and child. In such cases, States have an obligation to take measures to reunite parents and children (Elsholz v. Germany [GC]; K.A. v. Finland).

 

7.     Conclusion

 

In conlusion, as we can see when we make a thorugh assesment of EctHR cases,  protection of the right to respect for private and family life holds a prominent place in the practice of European Court of Human Rights.  The European Court interprets private life maximally broadly with regard to evolving dynamics of social life development, including various aspects covered by the concepts of physical, psychological, or moral integrity, privacy, identity. The specified aspects are distinguished in Practical Guide on Admissibility Criteria; they contribute to most effective protection of citizens’ rights, but are not obligatory for the Court. Family life can also cover the wide range of relations, concerning relations of couples, and also parents and children, other types of family relations, financial issues. This notion is an autonomous concept in the framework of the European Court practice.

 

REFERENCES

 

Abdülkadir Pekel, Aile Hayatına Saygı, AİHM’in geliştirdiği ilkeler bağlamında bir inceleme, Liberte 2016, s.24

 

European Court of Human Rights, 2015, Overview 1959-2014, Retrieved from http://www.echr.coe.int/ Documents/Overview_19592014_ENG.pdf.

 

Nurbalaeva, A.M. (2011), “The right to respect for private and family life in European Court of Human Rights practice”, Juridical Herald of Dagestan State University

 

L.Yu.Fomina, Protetion of the Right to Respect for private and Family Life in European Court of Human Rights, Euroepan Research Studies, Volume XIX, Special Issue, Part B, 2016, s.98

 

 

ECHR CASES

 

Marckx v. Belgium, § 31

Olsson v. Sweden (no. 1), § 59

Paradiso and Campanelli v. Italy [GC], § 140

Johnston and Others v. Ireland, § 56

X, Y and Z v. the United Kingdom, § 36

Berrehab v. the Netherlands, § 21

L. v. the Netherlands, § 36

Kroon and Others v. the Netherlands, § 32

Dickson v. the United Kingdom [GC], § 66, Evans v. the United Kingdom [GC], § 72

S.H. and Others v. Austria [GC], § 82

Evans v. the United Kingdom [GC], § 82

Mennesson v. France; Labassee v. France; D. and Others v. Belgium; Foulon and Bouvet v. France, §§ 55-58

Monory v. Romania and Hungary, § 70; Zorica Jovanović v. Serbia, § 68; Kutzner v. Germany, § 58; Elsholz v. Germany [GC], § 43; K. and T. v. Finland [GC], § 151

Zorica Jovanović v. Serbia, §§ 74-75 

Penchevi v. Bulgaria, § 75

M.D. and Others v. Malta, § 27

Gnahoré v. France, § 59

Jeunesse v. the Netherlands [GC], § 107; Biao v. Denmark [GC], § 117

Abdulaziz, Cabales and Balkandali v. the United Kingdom, §§ 67-68; Gül v. Switzerland, § 38; Ahmut v. the Netherlands, § 63; Sen v. the Netherlands; Osman v. Denmark, § 54; Berisha v. Switzerland, § 60 

Rodrigues da Silva and Hoogkamer v. the Netherlands, § 38; Ajayi and Others v. the United Kingdom (dec.); Solomon v. the Netherlands (dec.)

Babiarz v. Poland, § 47

Fröhlich v. Germany*, § 41

 

 

 

 

 

 

 



[1] L.Yu.Fomina, Protetion of the Right to Respect for private and Family Life in European Court of Human Rights, Euroepan Research Studies, Volume XIX, Special Issue, Part B, 2016, s.98

[2] Abdülkadir Pekel, Aile Hayatına Saygı, AİHM’in geliştirdiği ilkeler bağlamında bir inceleme, Liberte 2016, s.24

[3] Nurbalaeva, A.M. (2011), “The right to respect for private and family life in European Court of Human Rights practice”, Juridical Herald of Dagestan State University, No. 1, p 47-50

[4] European Court of Human Rights, 2015, Overview 1959-2014, Retrieved from http://www.echr.coe.int/ Documents/Overview_19592014_ENG.pdf.

[5] Marckx v. Belgium, § 31

[6] Olsson v. Sweden (no. 1), § 59

[7] Marckx v. Belgium, § 31

[8] (Paradiso and Campanelli v. Italy [GC], § 140

[9] Johnston and Others v. Ireland, § 56

[10] X, Y and Z v. the United Kingdom, § 36

[11] Paradiso and Campanelli v. Italy [GC], § 156

[12] Berrehab v. the Netherlands, § 21

[13] L. v. the Netherlands, § 36

[14]  Kroon and Others v. the Netherlands, § 32

[15] Dickson v. the United Kingdom [GC], § 66, Evans v. the United Kingdom [GC], § 72

[16] S.H. and Others v. Austria [GC], § 82

[17] Evans v. the United Kingdom [GC], § 82

[18]  Mennesson v. France; Labassee v. France; D. and Others v. Belgium; Foulon and Bouvet v. France, §§ 55-58

[19] Monory v. Romania and Hungary, § 70; Zorica Jovanović v. Serbia, § 68; Kutzner v. Germany, § 58; Elsholz v. Germany [GC], § 43; K. and T. v. Finland [GC], § 151

[20] Zorica Jovanović v. Serbia, §§ 74-75 

[21] Penchevi v. Bulgaria, § 75

[22] M.D. and Others v. Malta, § 27

[23] ibid., § 45; Kearns v. France, § 72

[24] Konstantin Markin v. Russia [GC], § 130; Petrovic v. Austria, §§ 26-29; Di Trizio v. Switzerland, §§ 60-62

[25]  Neulinger and Shuruk v. Switzerland [GC], § 135; X v. Latvia [GC], § 96

[26] Sahin v. Germany [GC], § 66

[27] Gnahoré v. France, § 59

[28] Jeunesse v. the Netherlands [GC], § 107; Biao v. Denmark [GC], § 117

[29]  Abdulaziz, Cabales and Balkandali v. the United Kingdom, §§ 67-68; Gül v. Switzerland, § 38; Ahmut v. the Netherlands, § 63; Sen v. the Netherlands; Osman v. Denmark, § 54; Berisha v. Switzerland, § 60 

[30] Rodrigues da Silva and Hoogkamer v. the Netherlands, § 38; Ajayi and Others v. the United Kingdom (dec.); Solomon v. the Netherlands (dec.)

[31]  Babiarz v. Poland, § 47

[32] Fröhlich v. Germany*, § 41


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