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Published: Fri, 02 Feb 2018

Human Rights Essay

Private life,
in the Court’s view, includes a person’s physical and psychological integrity;
the guarantee afforded by article 8 of the Convention is primarily intended to
ensure the development, without outside interference, of the personality of
each individual in his relations with other human beings.

While the essential object of Article 8 is to protect 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
negative undertaking, there may be positive obligations inherent in effective
respect for private or family life.

These
obligations by involve the adoption of measures designed to secure respect for
private life even in the sphere of the relations of individuals between
themselves. However, the concept of respect is not precisely defined. In order
to determine whether such obligations exist, regard must be had to the fair
balance that has to be struck between the general interest and the interests of
the individual, while the State has, in any event, a margin of apreciation
(Botta v. Italy, European Court of Human Rights).

Appraise the case law on
Article 8 ECHR under the HRA 1998 for compliance with these standards’.

I.
Introduction

The protection
of the human rights has been a priority for the European Community since its
creation. For this reason the provisions that are related with the so-called
‘freedoms’ of the person are characterised as fundamental ones. However, there
are times that personal ‘rights’ are violated and the efforts for their
restoration – through the procedures that have been developed for this purpose
– end to failure. One of the most important rights of this category is that of
private life the protection of which has been delegated to the authorised
European and national Courts by the application of the provisions included in
the article 8 ECHR. In UK, the Courts use the above article combined with the
provisions included in the British legislation and mainly the Human Rights Act
of 1998, to protect the private life as a basic personal right examining in
each case the fulfilment of the requirements that are contained in the relevant
legislation.

II.The right
of ‘private life’ under the view of the European Convention of Human Rights –
article 8 – and the Human Rigts Act of 1998 – definition and content

Article 8 of
ECHR does not include a clear definition of ‘private life’. It just describes the possible
parameters of the right avoiding to include a detailed description of it. More
specifically he refers – as an example – to the ‘family life, home and corespondance’. Of course
there could be the opinion that the ‘private life’ as mentioned in the above
article has a particular explanation – which is not included – ane that the
elements which follow it, i.e. ‘family life’, ‘home’ and ‘correspondence’, have
their own meaning and are separate rights that can enforce their respect.
However, from the next paragraph (2) we can assume that the aspects of a
person’s life as described in paragraph (1) constitute a ‘single’ right that
could be summarized in the phrase ‘private life’. More specifically, the law
refers to ‘the exercise of this right’ defining in this way that the
right protected by this provision is one, that of the private life.

As for the
application of this right in the UK, the existing Human Rights Act of 1998
(which has as a main task the activation and the protection of the rights
included in the ECHR) secures the recognition of the above right and creates
the environment that will promote its application in the everyday’s activities.
The HRA contains specific provisions for the interpretation of all the
Convention rights (including the right of ‘private life’) as well as for the
participation and the power of the authorities to supervise and to enforce its
application. The above Act does not modify the existing rights (as included in
the ECHR) but it simply specifies the role and the extension of power of the
authorities regarding the application and the protection of these provisions.

III. Problems
arising during the application of the existing legislation (8 ECHR) by the Courts
with the use of HRA 1998 – compliance with standards

Altough the
provision related with the respect of the private life is well known and has
been applied for a long time, the area and the circumstances of its application
are still in question and there are times that the violation of the right is not clearly
recognized
– or even is disregarded – because of the simultaneous existence of a relevant
public right which has the priority of application under all the circumstances.
The structure of the provision of article 8 of ECHR can create by itself a lot
of problems regarding the respect of the right. Although in the 1st paragraph the prohibition of the violation of the right is clearly stated, the
2nd paragraph specifies a number of aims the pursuit of which can
justify interference with article 8 rights, as par example the ‘economic
well-being of the country’ or ‘the protection of the rights and freedoms of
others’. Towards that direction it was decided by the court (Wood v United
Kingdom) that the covert surveillance measures which the police had applied in
the case of Clayton Wood, constituted an interference which was not in
accordance with the law and that there was no effective remedy (Privacy and
Data Protection, 2004). A. Rowley (2005) examines a very important issue
regarding the respect of ‘private life’ as it is stated in the ECHR, this of
the anti-social behaviour orders. The problem in the specific occasion is the
publicity that follows the orders and which is justified by the UK law (see
also Guidance on Publishing Anti Social Behaviour Orders, 1/3/2005). The
publicity of ASBOs is considered by A. Rowley as a very ‘sensitive’ matter
(regarding the risk of violation of article 8 ECHR) and as a measure it is
suggested that such a decicion should be first examined for its necessity, its
structure and its benefits both for the public and the perpetrator. We should
notice that here that the ‘sacrifice’ of the personal right in favour of the public
one that is taken place in such an occasion, cannot be accepted as totally
justified. Of course there are cases where this ‘violation’ could be considered
as absolutely necessary (when the ‘dangerous’ and ‘violent’ behaviour of a
person is totally proved) but even then the evidence used for such an
assumption has to be examined thoroughly for its validity and the measures
taken have to be in accordance with the desired target.

Another issue
that is very connected with the respect of the private life is that of the
application of extradition as it can be considered in relation with the general
rights of the natives of a state under the national and international rules.
For the specific legislative piece, the European Convention, extradition can be
regarded as opposite to its provisions especially the one of article 8. On the
other hand article 8 – in a case of this nature – places an obligation upon the
state’s authorities that if they aren’t willing to prosecute, then the burden
is on them to justify their decision (see also The Lawyer, 2004, 19)

A very common
violation of the right to ‘private life’ occurs regarding the gathering,
keeping and distribution of personal data. These data can refer to many aspects
of the personal life, from leizure time to medical treatments. The way that
most of the enterprises are structured and operate can justify the collection
of different types of data at a first stage.
However, when the reason of their existence has vanished, they should be
destroyed mostly for safety reasons. This is a rare phenomenon and in most
cases the data that have obtained from one person (sometimes even without his
knowledge) are kept
and may be used anytime in accordance with the intentions of the holder.

The right for
‘private life’ is used extensively relating the disputes between the State and
the foreigners. The use of article 8 of ECHR is usually combined here with the
article 14 of ECHR (prohibition of discrimination). The use of the provisions
of the ECHR is seen as a ‘vehicle’ for a positive result in cases that there
are no alternatives legal arguments that could be used successfully (see also
Chichester District Council v First Secretary of State and others, 2004 and R –
on the application of Mehmeti – v the Secretary of State for the Home
Department).

IV.
Conclusion

From the above
mentioned we could come to the conclusion that the right of ‘private life’ is
not limited to a particular aspect of person’s life. It may be found associated
with a variety of human activities
depending on the social position and the culture of the specific person.
However, this does not mean that its usage is permitted under all the circumstances
of the daily activities. Moreover, even in the conditions that its application
would appear as necessary its violation is sometimes unavoidable. In these
cases, the decision for the existence or not of breach of the right belongs to
the Courts (the European and the National Ones), which have to apply the
relevant legislation after the careful examination of the evidence and only in
cases, that the violation of the right can be strongly assumed. However, we
should notice that the above decision if often difficult to be taken mainly
because of the extremely fine borders that separate the personal rights from
the public ones.

References

A. Journals

  • Bailey – Harris,
    R., (2004), ‘Case Report: Human Rights’, Family Law, 34 (639)
  • Davey, R.,
    (2005), ‘Practice Points: Injecting Some Caution Into Drug Testing’, Law
    Society Gazette, 102.2 (33)
  • Fletcher, G. P.,
    (2005), ‘Articles – Parochial Versus Universal Criminal Law’, Journal of
    International Criminal Justice, 3.1 (20)
  • International
    Journal of Evidence and Proof, ‘Noticeboard – Retention of DNA Samples After
    Acquittal – United Kingdom (England)’, Jan2005, 9 (55)
  • Johnston, C.,
    Kaye, J., (2004), ‘Does the UK Biobank have a legal obligation to feedback
    individual findings to participants?’, Medical Law Review, 2004.12 (239)
  • Law Society
    Gazette, ‘Legal Update: Law Reports’, Oct2004, 101.40 (28)
  • Layard, A.,
    (2004), ‘Human Rights in the balance – Hatton and Marcic’, Environmental Law
    Review, 6.3 (196)
  • Medical Law
    Review, ‘United Kingdom – The right to Require Life – Prolonging Treatment’,
    Sep2004, 12 (306)
  • Mitchell, E.,
    (2005), ‘Tackling anti-social behaviour’, New Law Journal, 155.7164 (250)
  • Rowley, A.,
    (2005), ‘Named and Shamed’, New Law Journal, 155.7170 (481)
  • O’Ferrall, G.
    M., (2005), ‘Ancillary Relief, Equitable Interests and Criminal Confiscation
    Orders’, Family Law, 35 (227)
  • Prest, C.,
    (2005), ‘The right to respect for family life: obligations of the State in
    private law children cases’, Family Law, 35 (124)
  • Privacy and Data
    Protection, ‘Police Bugging – Unlawful’, Dec2004, 5.2 (1)
  • The Lawyer,
    ‘Analysis: Home or away’, October 11, 2004, p. 19
  • Wenderoth, A.,
    (2004), ‘Private lives in the public eye – recent developments in the law of
    Privacy’, Privacy and Data Protection, 4.8 (10)
  • Wicks, E.,
    (2004), ‘Late Termination of Pregnancy for foetal abnormality: medical and
    legal perspectives’, Medical Law Review, 2004.12 (285)

B. Cases

  • Andrews v
    Reading Borough Council, 7/2/2005, Queen’s Bench Division
  • Chichester
    District Council v First Secretary of State and others, 29 September 2004,
    Court of Appeal (Civil Division)
  • Commission of
    the European Communities v Kingdom of Belgium, 19 September 202, Court of
    Justice of the European Communities
  • Dow Chemical
    Iberica, SA and others v Commission of the European Communities, joined cases
    97/87, 98/87 and 99/87, Court of Justice of the European Communities
  • E v Director of
    Public Prosecutions, 1 February 2005, Divisional Court (UK)
  • HM Customs and
    Excise Commisioners and Long v A, Civ2003
  • Huang and others
    v Secretary of State for the Home Department, 1 March 2005, Court of Appeal
    (Civil Division)
  • Jones v Hipgrave
    and another, 15 December 2004, Queen’s Bench Division
  • Marcic v Thames
    Water, 2003, Court of Appeal
  • Mthokozisi v
    Secretary of State for the Home Department, 20 December 2004, Queen’s Bench
    Division (Administrative Court)
  • Price and others
    v Leeds City Council, 16 March 2005, Court of Appeal (Civil Division)
  • R (on the
    application of Lekstaka) v Immigration Appeal Tribunal, 18 April 2005,
    Administrative Court
  • R (on the
    application of O’Reilly) v Blenheim Healthcare Ltd, 10 February 2005,
    Administrative Court
  • R (on the
    application of Mehmeti) v The Secretary of State for the Home Department, 3
    December 2004, Queen’s Bench Division (Administrative Court)
  • R (on the
    application of Taylor) v Governor of HMP Risley, 29 October 2004,
    Administrative Court
  • X v Commission
    of the European Communities, 5 October 1994, Court of Justice of the European
    Communities

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