A more recent version of these Article 8 notes – written by Oxford students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our European Human Rights Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Article 8 ECHR Overlap with other Convention rights (3, 14, 10) ECHR Article 8: 1 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. Points to note about Art 8 A Residual Guarantee
'respect' for the right EC has interpreted it in broad fashion. Art 8 imposes clearly a negative duty.
"Article 8 refers directly to no particular protected action. Rather it speaks of a right to 'respect for...private and family life." (Janis, Kay and Bradley p.225)
Positive and negative obligations
Marckx v Begium: First real statement of positive obligation. Means also that they may to regulate relations between private parties. "the object of the Article is 'essentially' that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, 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 family life." (para 31)
M.C. v Bulgaria (2005) : Held that bulgarian law did not provide effective protection against rape. Would only prosecute if the victim actively resisted.
So positive obligation will protect the minorities, like children and minorities. Boundary between negative and positive obligation is not clear cut. And maybe doesn't matter, court seems to apply the same approach to both? Court says that it must have regard to a fair balance, between general interests of community and of the individual.
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