词条 | Article 8 of the European Convention on Human Rights |
释义 |
Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international treaty to protect human rights and fundamental freedoms in Europe. Right{{quote|Article 8 – Right to respect for private and family life1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.}} Article 8 is considered to be one of the Convention's most open-ended provisions.[1] Family lifeIn X, Y, and Z v. UK, the Court recalls that "the notion of 'family life' in Article 8 is not confined solely so the families based on marriage and may encompass other de facto relationship. When deciding whether a relationship can be said to amount to 'family life', a number of factors may be relevant, including whether the couples live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means. HomeIn Niemietz v Germany case the court gave broader meaning to the 'home' notion including professional/business premises such as a lawyer's office.[2] Private lifeFor better understanding of perception of "private life" case law should be analyzed. In Niemietz v. Germany, the Court held that it "does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he choose and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise[3] to a certain degree the right to establish and develop relationship and develop relationship with other human beings." Case lawArticle 8 clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).
The notion of private life in the Article 8 is also interpreted as including some duty of environmental protection.[9] Cases involving LGBT rightsThe following cases deal with the applicability of Article 8 to issues related to LGBT people including the recognition of same-sex marriage, laws prohibiting sodomy, and access to health services for transgender people.
Violation of the convention by mass surveillanceMass surveillance, such as by the programs revealed in Edward Snowden's global surveillance disclosures, is often accused of violating the 8th article of the European Convention on Human Rights.[11][12][13][14][15]A 2014 report to the UN General Assembly by the United Nations' top official for counter-terrorism and human rights condemned mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions and makes a distinction between "targeted surveillance" – which "depend[s] upon the existence of prior suspicion of the targeted individual or organization" – and "mass surveillance", by which "states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites". Only targeted interception of traffic and location data in order to combat serious crime, including terrorism, is justified, according to a decision by the European Court of Justice.[16] See also
Notes1. ^{{cite book|author1=Elizabeth Wicks|author2=Bernadette Rainey|author3=Clare Ovey|title=Jacobs, White and Ovey: the European Convention on Human Rights|url=https://books.google.com/books?id=TGygAwAAQBAJ&pg=PA334|date=12 June 2014|publisher=Oxford University Press|isbn=978-0-19-965508-3|page=334}} 2. ^{{Cite book|title=Cases and Materials on the European Convention on Human Rights|last=Mowbray|first=Alastair|publisher=Oxford University Press|year=2007|isbn=978-0-19-920674-2|location=|pages=}} 3. ^https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf 4. ^{{cite web |title=R v Brown [1993] UKHL 19(11 March 1993) |url=http://www.bailii.org/uk/cases/UKHL/1993/19.html |accessdate=8 March 2016}} 5. ^Rotaru v. Romania (2000) ECHR 28341/95, paras. 43–44: "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past ... In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8(1) of the Convention." 6. ^{{cite web |title=Gillan and Quinton v United Kingdom |url=http://www.bailii.org/eu/cases/ECHR/2010/28.html |accessdate=9 February 2011}} 7. ^{{Cite web|url=http://hudoc.echr.coe.int/eng?i=003-5246347-6510358|title=HUDOC Press Release: Arbitrary and abusive secret surveillance of mobile telephone communications in Russia|date=2015-12-04|website=hudoc.echr.coe.int|access-date=2016-04-15}} 8. ^{{cite BAILII |litigants = The Northern Ireland Human Rights Commission's Application |court = NIHC |division = QB |year = 2015 |num = 96 |date = 30 November 2015 |courtname = auto |parallelcite = [2015] NIQB 96}} 9. ^{{cite web |author=Antoine Buyse |url=http://echrblog.blogspot.com/2009/04/nuisance-from-outside-prison.html |title=Nuisance From Outside the Prison |publisher=Echrblog.blogspot.com |date=2009-04-08 |accessdate=2013-09-01}} 10. ^{{cite web|url=http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/428d9879f1ceb95341256d430055d7c2?OpenDocument|title=Courts' refusal to order reimbursement of top-up costs of transsexual's gender re-assignment treatment|archiveurl=https://web.archive.org/web/20110807115523/http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/428d9879f1ceb95341256d430055d7c2?OpenDocument|archivedate=7 August 2011|deadurl=yes|accessdate=9 January 2010}} 11. ^{{cite web|last1=Harding|first1=Luke|title=Mass surveillance is fundamental threat to human rights, says European report|url=https://www.theguardian.com/world/2015/jan/26/mass-surveillance-threat-human-rights-council-europe|publisher=The Guardian|accessdate=2 January 2017|date=26 January 2015}} 12. ^{{cite web|last1=Greenwald|first1=Glenn|title=UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights|url=https://theintercept.com/2014/10/15/un-investigator-report-condemns-mass-surveillance/|publisher=The Intercept|accessdate=2 January 2017}} 13. ^{{cite web|last1=McCarthy|first1=Kieren|title=European human rights court rules mass surveillance illegal|url=https://www.theregister.co.uk/2016/01/20/human_rights_court_rules_mass_surveillance_illegal/|publisher=The Register}} 14. ^{{cite web|title=UN Says Mass Surveillance Violates Human Rights|url=https://www.techdirt.com/articles/20141015/07353028836/un-says-mass-surveillance-violates-human-rights.shtml|publisher=Techdirt|accessdate=2 January 2017}} 15. ^{{cite web|title=Does government spying violate human rights law? - Right Now|url=http://rightnow.org.au/opinion-3/does-government-spying-violate-human-rights-law/|publisher=Right Now|accessdate=2 January 2017|date=11 March 2014}} 16. ^{{cite web|last1=Asthana|first1=Anushka|title=Revealed: British councils used Ripa to secretly spy on public|url=https://www.theguardian.com/world/2016/dec/25/british-councils-used-investigatory-powers-ripa-to-secretly-spy-on-public|publisher=The Guardian|accessdate=2 January 2017|date=25 December 2016}} External links
3 : Article 8 of the European Convention on Human Rights|Articles of the European Convention on Human Rights|Privacy law |
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