EU Convention: Protecting Private and Family Life - Prof. 2279, Apuntes de Administración de Empresas

¡Descarga EU Convention: Protecting Private and Family Life - Prof. 2279 y más Apuntes en PDF de Administración de Empresas solo en Docsity! EUROPEAN CONVENTION OF HUMAN RIGHTS AND FUNDAMENTAL RIGHTS OF THE UE APLICATED TO FAMILY LAW Guillermo Martín Correa EUROPEAN CONVENTION OF HUMAN RIGHTS Article 8: Right to a private and family life 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. Article 8 is a broad-ranging right that is often closely connected with other rights such as freedom of religion, freedom of expression, freedom of association and the right to respect for property. The obligation on the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures, for example, to criminalise extreme breaches of the right to a private life by private individuals. Private life The concept of a right to a private life encompasses the importance of personal dignity and autonomy and the interaction a person has with others, both in private or in public. Respect for one’s private life includes: • respect for individual sexuality (so, for example, investigations into the sexuality of members of the armed forces engages the right to respect for a private life). • the right to personal autonomy and physical and psychological integrity. • respect for private and confidential information, particularly the storing and sharing of such information. • the right not to be subject to unlawful state surveillance. • respect for privacy when one has a reasonable expectation of privacy. • the right to control the dissemination of information about one’s private life, including photographs taken covertly. Family Life Article 8 also provides the right to respect for one’s established family life. This includes close family ties, although there is no pre-determined model of a family or family life. It includes any stable relationship, be it married, engaged, or de facto; between parents and children; siblings; grandparents and grandchildren etc. This right is often engaged, for example, when measures are taken by the State to separate family members (by removing children into care, or deporting one member of a family group). Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right Since 1986, the ECtHR has repeatedly and explicitly asserted an interpretation of Article 12 that has excluded same-sex couples from the enjoyment of the right to marry. In Rees v the United Kingdom, the ECtHR stated that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family . Since advancing this interpretation of Article 12, the ECtHR has gone on to determine that founding a family is not a condition of the right to marry and that the inability of any couple to conceive or parent a child cannot be regarded as removing their enjoyment of the right to marry. Moreover, the ECtHR has held that the reference to ‘men and women’ in Article 12 can no longer be taken to refer to a determination of gender by purely biological criteria. However, when the ECtHR evolved its interpretation of Article 12 in this way in Christine Goodwin v the United Kingdom ( in order to recognise the right of a post-operative transsexual to marry an opposite-sex partner) it was careful to reiterate that Article 12 ‘refers in express terms to the right of a man and woman to marry’ . In Schalk and Kopf v Austria the applicants, a same-sex couple who complained that the refusal by Austrian authorities to allow them to contract marriage violated their Article 12 rights, directly challenged the ECtHR’s interpretation of Article 12. The applicants argued that ‘the wording [of Article 12] did not necessarily imply that a man could only marry a woman and vice versa’ . The applicants explicitly contested the ECtHR’s assertion that the words ‘men and women’ limit the right to marry to relationships between a man and a woman and, in doing so, submitted that Article 12 was applicable to individuals of marriageable age who wished to contract marriage with a person of the same sex. In its assessment of the merits of the applicants’ Article 12 complaint the ECtHR made the following statement: Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter [of Fundamental Rights of the European Union], the Court has already noted that the latter has deliberately dropped the reference to “men and women” Article 9 is meant to be broader in scope than the corresponding Articles in other human rights instruments. At the same time, the reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriage to the States. The ECtHR has established that Article 12 is no longer applicable only to opposite-sex couples and, consequently, that the right to marry is applicable to same-sex couples. FUNDAMENTAL RIGHTS OF THE UE Art 7:Respect for private and family life Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right Article 7 of the Charter of Fundamental Rights corresponds to Article 8 of the European Convention on Human Rights (ECHR) and it focuses primarily on individual autonomy. It provides: ‘Everyone has the right to respect for his or her private and family life, home and communications’. The phrasing of the provision (Article 7 of the Charter) is, however, different. The notion ‘correspondence’, which is an element of private life, has been replaced with the expression ‘communications’. This indicates an intention to take into account the contemporary technological development. In other words, the right to respect for communications is now guaranteed regardless of the means of the communications employed. It is noteworthy that the right to protection of personal data in the context of the Charter of Fundamental Rights (Article 8) is distinct from the right to respect for private life. Various types of situations may involve the application of Article 7 of the Charter of Fundamental Rights. The rich case-law of the Strasbourg Court of Human Rights and until 1998 of the Commission, relating to the respect of the privacy of the individual as well as of family life (Article 8) may serve as examples to illustrate the scope of the provisions in question. The general expressions of private and family life, both containing a certain degree of contingency, seem to make a wide field of application possible. The provision embraces a wide variety of matters (comprising various spheres of life such as physical and mental integrity and the sphere of intimate relationships) ranging from the social and professional sphere to the protection of the environment. The notion of privacy could be defined as freedom from unwarranted and arbitrary interference ( i.e. contrary to established legal principles) from public authorities or private actors or bodies independent of the state, such as private electronic data banks, into activities that society recognizes as belonging to the realm of individual autonomy (the private sphere). On the other hand, it emerges quite clearly from the text of Article 8 that respect for private and family life does not simply imply ‘hands off’. The public order provision in Article 8(2) of the ECHR provides the reasons for which interference is legitimate and may become necessary in a democratic society, i.e., ‘in the interest of national security and public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others’. Furthermore, Article 8 of the ECHR also confers positive obligations on the State Parties (i.e., a duty to act in order to comply with the Convention) in protecting the rights of individuals. Taking into account the Court’s view, Article 8 ‘does not merely compel the state to abstain from interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life’. In other words, this provision imposes positive obligations on the state to facilitate the normal development of family and private life. In the Marckx case the Court ruled that the Government of Belgium failed in its positive obligations under the ECHR by neglecting to legislate in a manner, which would allow the child born outside marriage to integrate into his family from the moment of birth. Although family life is mentioned together with private life and home, so as to suggest mainly a protection of the physical framework of personal life against, for example, separation of the family, the vast jurisprudence where Article 8 of the ECHR has been invoked makes it possible to discern that the protection extends to a person’s inner life as well, e.g., philosophical, religious or moral beliefs, emotional life, etc. The expression ‘private life’ covers a wide range of issues. Respect for private life requires among other things non-interference with an individual’s decisions (i.e., personal life choices) on ways to live his or her own life. The disclosure or improper discovery by third persons of facts relating to physical condition, health or personality may undoubtedly interfere with one’s privacy and private life. The question of privacy may also arise in the context of the working place, e.g., not to be monitored by computer programs tracking performance levels or by cameras. In addition, some forms of identification such as DNA profiling of employees, finger print identification, etc., can, depending on the circumstances, constitute a violation of the right of privacy/personal integrity. In a few cases the European Court has decided that surveillance did not constitute a violation of Article 8. In Leander v. Sweden the applicant had been denied employment on the basis of information held in the secret files of the security police to the effect that he was a threat to the national security. Notwithstanding the conclusions that the requirements of Article 8(2) had been fulfilled, the Court ruled that both the storage and the passing on of information about private circumstances of the complainant amounted to an interference with his private life. The wide application of the principle of privacy necessitates protection of personal data used, for example, for social security purposes, in the police sector, etc. The European Court of Justice (ECJ) has recognized that the right to respect for private life secured under Article 8 of the ECHR includes a person’s right to keep his state of health secret. Individuals have a right to private life, which includes protection of the most intimate areas, i.e., sexuality. Domestic regulations of sexual behavior that takes place in private may, under certain circumstances, be regarded as an interference with privacy. The European Court acknowledged that sexual life is part and parcel of private life, i.e., the Court considered the homosexual acts between two consenting males over the age of 21 ‘a most intimate aspect of private life’. Making these acts criminal offences, thus, constituted unjustified While the Directive simplifies the procedure on family reunification for refugees, persons with subsidiary protection status are exempted from the possibility of family reunification under this instrument. Art 9: right to marry The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Article 9 of the Charter contains particularly dynamic and variable concepts. Different societies have dissimilar views regarding marriage, the family and its functions. The European Court of Human Rights stated in F. v. Switzerland that matrimony is so closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about the family unit. Nevertheless, since the European Convention on Human Rights (ECHR) is a ‘living instrument’, it is interpreted in the light of present-day conditions, it may be inferred that the family as an institution is in a state of transition in structure, functions and values. Article 9 provides that the right to marry ‘shall be guaranteed in accordance with the national laws’ governing its exercise. This provision is modeled on the corresponding Article 12 of the ECHR, but the reference to men and women has been sidelined. In other words, Article 9 of the Charter is formulated in a gender neutral manner, which is a contribution of the Charter to the relevant legal area since it provides more extensive protection than other human rights instruments. The scope of Article 9 may thus be extended to comprise other forms of marriage than the traditional, if these are established by national legislation. Domestic laws have consequently a crucial role under Article 9 and the national legislature is offered broad latitude in the elaboration of the domestic rules on marriage in accordance with the respective social and cultural concepts. On the other hand, the fact that the right to marry is included in the central human rights instruments supports the idea that the exercise of the right cannot be wholly governed by national law. The relevant international provisions, thus, guarantee a certain minimum of human rights standard irrespective of the domestic regulations. The European Court of Human Rights established that, notwithstanding the reference to national law in Article 12 of the ECHR, a state may not restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired. The Court has, furthermore, indicated that restrictions on marriage within European societies relate only to the aspects of marriage, which deal with procedures, the legal capacity or consent to marry. Article 9 of the Charter does not enumerate any permissible restrictions on the right to marry. This does not suggest that the right as such is absolute in the sense that every couple, when they wish, may claim the right from the authorities responsible for the celebration of marriage to be married immediately without fulfilling any legal requirements at all. It is generally agreed that if states establish restrictions on the right to marry, they should be based only on rational, reasonable, and non-arbitrary grounds. Some restrictions are universal, others are atypical. Legal restrictions in domestic laws that have been considered generally accepted in international law relate, among other things, to the marriageable age and the requirement to uphold monogamy. Furthermore, according to international law, domestic laws must not prohibit or discriminate against marriages across racial, religious or national borders, there should be no restrictions on inter-religious marriages, inter-racial marriages or marriages between a national of a country and a foreigner. Marriage impediments that are absolute and permanent could be considered as violations of the right to marry. Furthermore, a change has been brought about in the jurisprudence of the European Court through an alteration in the understanding of who can marry, i.e., post-operative transsexuals have a right to marry in their new sex. The Court acknowledged that the rights of transsexuals ought to be viewed in the light of medical progress and social changes in the attitudes towards transsexual persons. According to the Court ‘the stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognize the change of gender, cannot be regarded as a minor inconvenience arising from a formality. In other words, a conflict between social reality and law arises which places the transsexual in an anomalous position, in which he/she may experience feelings of vulnerability, humiliation and anxiety’. The majority of the relevant provisions in universal and regional human rights instruments establishing the right to marry are formulated in terms of ‘men’ and ‘women’ (e.g. Article 16 of the UDHR, Article 23(2) of the ICCPR and Article 12 of the ECHR). Only Article 10(1) of the ICESCR makes use of the expression ‘intending spouses’, that is, a term not related to the biological sex. On the other hand, in the same provision, the traditional family, ‘the natural and fundamental group unit of society’, is subject to state protection. Apparently, the drafters of those international instruments meant the concept ‘marriage’ to imply a heterosexual character to the relationship. Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few states still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same- sex is legally recognized. Others, like the Nordic countries have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e., its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognizing personal relationships. This new institution is, consequently, as a rule only accessible to couples, who cannot marry, and the same-sex partnership does not have the same status and the same benefits as marriage. It should be mentioned that Article 21 of the Charter, which prohibits discrimination on grounds of sexual orientation, is of special importance with respect to the interpretation of Article 9, and it may be invoked in relation to the exercise of the right to marry. It can be argued that the exclusion of same-sex couples from marriage would constitute discrimination on the basis of sexual orientation in violation of Article 21. Article 9 of the Charter approaches the rights at stake, i.e. the right to found a family and the right to marry as two different and separate rights, suggesting that the former is not necessarily connected with the latter. Apparently, it seems from the wording, i.e., the usage of the plural form ‘these rights’, that a disconnection between the right to marry and to found a family has been envisaged. In other words, a marriage does not necessarily imply procreation. This in itself signals a broader approach to Article 9 compared to e.g. Article 16 of the UDHR, Article 12 of the ECHR and Article 23 of the ICCPR. One of the characteristics of a family, besides affective bonds, is life in common. The Council Directive 2003/86/EC on the right to family reunification of 22 September 2003 is based on a contemporary conceptualization of the family, i.e., family members eligible under it covers the applicant’s spouse or cohabitant, including same-sex cohabitants). In other words, the tie between same-sex persons is considered family entity, which is legally protected regardless of the celebration of marriage. Art 24 :Rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests One of the major characteristics of the UN Convention on the Rights of the Child is that it upholds the universally accepted principle that all human rights, civil, political, economic, social and cultural are inherent to the human dignity of every child. They are indivisible, interdependent, interrelated and equally essential to the harmonious development of the child. The multi-disciplinary approach implies that all areas that are of relevance to children’s lives, should be considered.