Right to Respect for Private and Family Life, Home and Correspondence – A Practical Guide to the Article 8 Case-Law of the European Court of Human Rights, Päivi Hirvelä and Satu Heikkilä

More than any other provision enshrined in the European Convention on Human Rights (ECHR), the Article 8 right to respect for private and family life, home and correspondence has evolved by means of judicial interpretation into a myriad of distinct rights. In fact, no other provision has inspired allegations of judicial activism in the Strasbourg Court as much as Article 8, nor demonstrated the Convention’s potential as a ‘living instrument’ to keep pace with societal and ethical developments in the Council of Europe States. By offering a comprehensive examination of the different facets of Article 8 as they emerge from Strasbourg litigation to date, the book Right to Respect for Private and Family Life, Home and Correspondence – A Practical Guide to the Article 8 Case-Law of the European Court of Human Rights, authored by Päivi Hirvelä and Satu Heikkilä and published by Intersentia in 2022, makes an important contribution to the human rights literature.

The authors are well-placed for the mammoth enterprise of navigating the intricacies of Article 8 case law and providing a representative account of the main streams of jurisprudence. In fact, Päivi Hirvelä is a former judge of the ECHR (2007–2015) and Satu Heikkilä is a non-judicial Rapporteur at the Court for cases involving Finland and Sweden. Against the background of a very large number of judgments issued in relation to Article 8 complaints, the aim of their project, as explained by the authors in the Acknowledgements, is to assist individuals outside the Court to distinguish the more relevant cases, that is cases that contribute to establishing new principles or clarifying existing Strasbourg case law. The book follows the case law up until the end of March 2022.

The book is helpfully structured around the four guarantees combined in Article 8 ECHR: the right to respect for private life, the right to respect for family life, the right to the protection of the home, and the right to the protection of a person’s correspondence. There is a very detailed table of contents allowing the reader to locate specific issues of interest in their context (as opposed to using the index search), for example, sexual orientation and job requirements, enforcement of contact decisions, evictions and other housing issues, lawyer–client correspondence, etc.

The first chapter provides a useful introduction to the cluster of rights protected by Article 8 ECHR, viewed against the broader backdrop of the Convention system. It explains the meaning of negative and positive obligations in human rights law, the impact of the Court’s dynamic interpretation on the scope of this provision, and the typical algorithm for the analysis of applications brought under Article 8 (the three-pronged test under the second paragraph, which permits interferences that are ‘in accordance with the law’, pursue one of the listed legitimate aims, and are ‘necessary in a democratic society’). The chapter also considers the relationship between Article 8 and other Convention rights; in particular, the interplay between Article 8 and partially overlapping rights, such as Article 6, to some extent absorbed by the procedural aspect of Article 8 (eg, the right of a parent to a fair trial in a custody dispute), and Article 1 of Protocol 1 to the ECHR, which blurs the distinction between property rights and the enjoyment of the home. It further recalls the relationship between Article 8 and provisions in competition with it, such as the Article 10 right to freedom of expression (for instance, in situations opposing freedom of the press and the privacy of public figures).

Chapter 2 is dedicated to the protection of private life. It starts from the scope of this notion and it aptly organizes the Court’s prolific jurisprudence in this area around several key themes: physical and psychological integrity, self-determination (including protection against involuntary medical treatment), honour and reputation, the collection and use of personal information, personal identity and origins, sexual orientation, social relationships, decisions regarding procreation and the recourse to medically assisted procreation, environmental risks (including noise pollution). The analysis of the right to the protection of physical and psychological integrity extends to safeguards against sexual abuse, acts of violence, arbitrary searches of a person’s body or personal belongings by police officers, etc. The area of personal information covers an equally broad range of issues, such as the use of electronic surveillance and telephone tapping as investigative methods, the use of surveillance cameras in university theatres, the publication of photographs of an individual taken in a public place, the search of a person’s domicile and the seizure of material, the disclosure of a person’s medical records without consent, etc. The jurisprudence regarding personal identity touches upon further topical issues, such as the ability of transgender persons to register their acquired gender, the registration of surrogacy-born children, the right to establish one’s origins through paternity proceedings, or indeed a person’s right to make decisions about their appearance (eg, the choice to grow a beard). Social relationships are defined as covering the part of an individual’s social life falling outside the scope of ‘family life’ and they are shown to include professional or commercial activities.

In relation to each of these areas, the chapter proceeds to examine the Court’s approach to the parameters for permissible interferences outlined in Article 8(2) ECHR: the legality of interferences (which presupposes a legal basis, understood in a qualitative sense), the existence of a legitimate aim (a criterion which, as the authors note, is almost invariably satisfied, by reference to either public safety, national security, prevention of disorder or crime, the economic well-being of the country, the protection of health or morals, or of the rights and freedoms of others), and the most challenging criterion, namely necessity in a democratic society. The latter unsurprisingly occupies the largest portion of this chapter. The book considers the balance between Article 8 rights and other private and public interests in connection with many contentious issues, such as defamation claims (including the social media context, defences such as satirical speech, etc), data protection issues, discrimination and sexual orientation, biological origins and time bars on paternity actions, the withdrawal of nationality or residence permits, decisions regarding the start and end of life (the prohibition of abortion, involuntary abortion, contraception, assisted reproduction, suicide and euthanasia).

Chapter 3 focuses on the ‘family life’ limb of Article 8. The first subchapter is dedicated to the scope of this notion, including de facto families, same-sex couples, surrogacy- and adoption-based families, and purely religious marriages not recognizable under the relevant domestic law. It also discusses notable exclusions, such as the family ties between adult children and their parents or siblings (which only attract protection in situations of dependency) and marriages of convenience. Borderline situations are also considered; for example, the Court’s approach to merely planned families: in particular, the book highlights the successful reliance on Article 8 where the parents’ relationship had broken down before the birth of a natural child, but also the absence of family life with an orphan not yet adopted or in the case of engagement without cohabitation. The subchapter also dwells on the relevance of the biological relationship between parents and children for the purposes of establishing ‘family life’ within the meaning of the Convention, as well as on the relationship with other relatives.

Following the same structure noted in the chapter on ‘private life’, the second subchapter of Chapter 3 examines the parameters for justifiable interferences with family life. It first looks at the requirement for the interference to have a legal basis, which again includes certain qualitative exigencies (foreseeability, protection against arbitrariness, sufficient precision, etc). It then briefly outlines the requirement for the interference to pursue a legitimate aim from amongst those enumerated in Article 8(2); for example, ‘protection of health and morals’ and ‘protection of the rights of others’ in cases involving the removal of a child into State care, or ‘prevention of disorder or crime’ in cases concerning the expulsion of aliens. Most of this subchapter focuses on the requirement for the measure to be ‘necessary in a democratic society’, which is typically the one that respondent States are unable to demonstrate. The authors identify a number of key principles and themes in the examination of this criterion in cases relating to ‘family life’: the ‘best interests of the child’ principle, the mutual enjoyment by parent and child of each other’s company, procedural protection in public care cases, the interpretation of the ECHR in line with the Hague Convention on Child Abduction 1980 and the UN Convention on the Rights of the Child 1989, principles governing adoption (including consent and eligibility to adopt aspects), the limits of the protection available against expulsion affecting family life or to support family reunion with a spouse or child living abroad, the more difficult expulsion of second-generation or integrated foreign criminals, prisoners’ family life.

There is a useful final section in Chapter 3 outlining positive obligations arising in relation to the right to respect for family life. In particular, the case law has focused on positive obligations to adopt the necessary legislative and administrative measures to ensure effective respect for family life (eg, the recognition of legal ties since birth between a child born out of wedlock and her mother, an accessible procedure for judicial separation, the protection of the family life of same-sex couples through an adequate legal regime) and the obligation to protect against non-State interferences (eg, the enforcement of visitation rights for the non-residential parent).

Chapter 4 examines the development of Strasbourg case law in relation to the protection of the home. It starts by analysing the remarkable breadth of the notion of ‘home’, which applies even in the absence of continued residency or legal ties to the property, accommodates minority (nomadic) lifestyle, and extends to premises used for professional purposes (eg, an attorney’s office). In terms of interferences addressed in Strasbourg litigation, the chapter aptly differentiates between physical interferences (confiscation, eviction, activities causing damage to the property, compulsory purchase orders, law-enforcement measures such as entering a person’s home and conducting a search, telephone tapping) and emissions (noise/smell) diminishing the comfort of living.

This chapter further considers the balance between the protection of the home and the pursuit of legitimate aims, such as national security, searching for evidence in criminal cases, protection of the economic well-being of the country, safeguarding the rights and freedoms of others, etc. The largest portion of Chapter 4 is dedicated, as with the preceding chapters, to the criterion of ‘necessity in a democratic society’. The chapter highlights the peculiar assessment of necessity in a democratic society in cases involving interferences with the protection of the home, given the relevance of local factors and planning policies, which widens the State’s margin of appreciation significantly, without, however, precluding the Court from finding a manifest error of appreciation or procedural deficiencies. The chapter further examines the differences in the analysis of eviction issues between public housing and privately owned housing cases, as well as issues raised by minorities’ ways of life (Roma and Travellers’ traditional lifestyle and measures impacting the stationing of caravans). In relation to interferences stemming from the search of the domicile, it considers the adequacy and proportionality of search warrants from the perspective of guarantees against abuse, as well as the counter-intuitive inclusion of business premises, lawyers’ offices, and journalists’ professional spaces in the notion of home. Searches by State officials other than the police (eg, customs authorities) are also discussed here. Additionally, the authors examine the links between the protection of the home and the right to choose one’s residence freely under Article 2 of Protocol 4 to the ECHR (eg, a ban on witnesses leaving the country during a trial).

The subchapter on the ‘necessity’ criterion focuses in some detail on the stream of case law developed under the ‘home’ limb of Article 8 that addresses environmental emissions (noise, smells, pollution), whether they arise out of public activities, the allegedly inadequate State regulation of the private sector of reference (airports, nightclubs, etc), or the failure to protect against private nuisance from neighbours. This section discusses the assessment of the level of severity of the interference with the right to enjoy the amenities of one’s home, the duty to inform residents of environmental hazards, and procedural guarantees (eg, the existence of opportunities to participate in decision-making processes, judicial oversight in eviction cases, etc).

There is an insightful final section in Chapter 4 allocated to the discussion of positive obligations in relation to the home, which may herald a right to a peaceful and healthy environment. This section considers the obligation to strike a fair balance between competing interests in the regulation of night-time flights and hence noise pollution, the enforcement of decisions to close down factories causing dust and noise emissions, the obligation to respond to, and investigate, vandalism complaints, the obligation to enforce eviction orders allowing the owner to regain possession, to take action to protect against incursions on private land, etc.

Finally, Chapter 5 focuses on the protection of correspondence. It starts by exploring the scope of protection of correspondence, from traditional correspondence by letters to electronic communications (eg, emails), whether in a private or professional context. An interesting discussion in this chapter is dedicated to the burden of proving victim status in connection with an alleged violation of the ‘correspondence’ limb of Article 8. This may be problematic in cases concerning mass surveillance or legislation allowing for the storage of data of mobile phone or Internet users without targeting the applicant specifically. This is an area where the Strasbourg Court’s jurisprudence appears to go against the traditional understanding of locus standi criteria; in fact, it permits legal challenges in abstracto, to the extent that every such user of telecommunications services could be a potential subject of intelligence measures unbeknownst to them.

In its examination of the legitimacy of interferences with the right to the protection of one’s correspondence, the chapter considers thought-provoking issues, such as permissible restrictions upon prisoners’ correspondence necessitated by drug trafficking control, preventing crime, ensuring the proper conduct of an ongoing trial, maintaining prison security, and safeguarding the safety of others (with heightened standards of protection in respect of confidential correspondence between a prisoner and his or her lawyer or doctor); the monitoring of employees’ usage of telephones or Internet at the workplace; the monitoring of companies’ correspondence in the context of commercial bankruptcy, etc. Interestingly, the authors note that the Court has adopted a zero-tolerance approach towards interferences with prisoners’ correspondence with the Court itself, not only as a matter of Article 8 but also because they raise issues under Article 34, in that they constitute a hindrance on the effective exercise of the right of individual petition under the Convention system (eg, interception by prison authorities of letters to/from the Court, intimidatory or punitive measures in relation to initiating correspondence with the Court, obstacles to prisoners’ contact with their counsel in connection with an application, etc). The chapter aptly devotes a section to the issue of professional secrecy under Article 8, in particular to the Strasbourg approach to lawyer–client confidentiality. The book highlights the necessary connection in this context between the Article 8 right to the protection of correspondence and the right to a fair trial under Article 6. In fact, the search of a lawyer’s office, the interception of written files, the tapping of the law firm’s telephone lines, etc can jeopardize a person’s right not to incriminate themself and to adequately prepare their defence. In the section on surveillance case law, the book focuses on procedural safeguards against abuse (in particular, the requirement of sufficient clarity in the laws permitting surveillance measures, including the conditions in which they are authorized and carried out, the supervision of implementation to prevent abuse, etc).

Chapter 5 concludes with a general overview of States’ positive obligations in relation to correspondence – significantly rarer than the negative obligations arising in this context, as detailed above. They include the obligation to pay for destitute prisoners’ stamps to enable them to communicate with the outside world, to inform prisoners about returned letters in case of wrong address, or to prevent the disclosure into the public domain of private conversations in the workplace.

The book is written in an accessible, albeit technical, style. Key operative notions in Strasbourg case law (eg, positive obligation, evolutive interpretation) are explained so as to facilitate the understanding of the jurisprudence of the Court by less expert readers. As the title suggests, this practical guide is a reference book; it does not purport to contribute a critical evaluation of the judicial development of Article 8 rights. Also, the main focus of the book is on the legal tenets extrapolated from the case law rather than on the rationale of decisions. To that extent, it is not primarily addressed to audiences with an interest in doctrinal debates, the Court’s techniques of interpretation, or the balance it seeks to achieve between what is legally tenable and what is politically palatable. At the same time, this is an excellent research tool for scholarly work. The principles outlined in the book are supported by a wealth of case law references in footnotes, with pinpointed paragraphs. The final bibliography also offers a fairly extensive list of journal articles and a short list of books (albeit mainly textbooks). While the work does not engage with scholarly opinion as such, relevant readings are helpfully indicated in footnotes. The impressively vast table of cases, which allows the reader to locate the case discussion in the pages of the book, further contributes to making this volume an extremely valuable resource for those professing an interest in Article 8 jurisprudence, but also more broadly for audiences attentive to the development of the Convention by means of interpretation.