Article 8 Echr Essay Scholarships - Essay for you

Essay for you

Article 8 Echr Essay Scholarships

Rating: 4.7/5.0 (34 Votes)

Category: Essay

Description

Article 8 echr essay scholarships

Tag Archives: 8ECHR Introduction

There is no express provision guaranteeing the right to reputation in the European Convention on Human Rights (ECHR). If there was such a right, at first sight, it would be protected by Article 8, which enshrines the right to respect of private and family life. The Universal Declaration of Human Rights (UDHR), from which the ECHR draws its inspiration, contains an express provision protecting the right to reputation. Article 12 states “ No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation”. Article 8 ECHR is almost a direct replica of Article 12 UDHR save for the mention of reputation. The key question is therefore whether a right to reputation derives from the general right to privacy under Article 8 ECHR.

Reputation under Article 8 ECHR

A false allegation based on the “revelation” of purported information about a person will typically be a breach of that person’s general right to privacy. In privacy cases, the Court will (a) ask whether the information revealed about someone was damaging enough to constitute an interference with their rights protected under Article 8,

(b) weigh that damaging interference against whether it is in the public interest to reveal the information.

If the allegation contained in the purported information is false (as in a case of false allegations causing reputational damage), then the test of public interest is certain to be failed because no public benefit can result from false information. However, it remains debated whether there is a right not to have your reputation damaged even where that damage would not sufficiently affect any other aspect of your private life as to constitute a breach of your general right to privacy in the absence of a sufficient public interest defence.

Reputation vs Freedom of expression

Furthermore, reputation is also unsurprisingly covered by Article 10(2) ECHR, not as a right, but as an express limitation of the freedom of expression. A literal reading of this article leads to understand that the state could be justified in taking measures to prevent defamatory statements, as there would be no violation of Article 10. However, individuals could not bring a claim for violation of their right to reputation. Therefore, the issue at stake is to strike a balance between these two rights. In the original drafting of the ECHR, the balance was struck in favour of freedom of expression. Since the 1950s, the huge increase of media power and accessibility of information has been reflected in the case law of the Court and has resulted in reputation being afforded more and more protection under the Convention. The Court first tried to address this conflict of rights rather passively in the case of Lingens v Austria. 1 where it was ruled that “there is … no need in this instance to read Article 10 in the light of Article 8.” In other words, the interaction between the two fundamental rights was denied. Nonetheless, the case of Lindon v France (2007) 2 constituted a strong shift towards the protection of the right to reputation, Judge Loucaides stating that the right to reputation had “ the same legal status as freedom of speech” and subsequently demanded effective protection, as “the right to reputation should always have been considered as safeguarded by Article 8 of the Convention, as part and parcel of the right to respect for one’s private life”.

The case of Pfiefer v Austria (2009) 3 emphatically gave it the status of a right, considering that reputation formed part of one’s “personal identity and psychological integrity”. Therefore, it held that “a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”. As a whole, it seems that the word “ defamatory” implies damage to the person in question’s “activities of a professional or business nature” or their “personal identity and psychological integrity” 4 – these being established facets of the right to private life. Consistently, in A v Norway, 5 the Court held t hat “for Article 8 to come into play…the attack on reputation must…prejudice…personal enjoyment of the right to respect for private life”.

Yet, these decisions triggered a great deal of criticism, Article 10 being considered to be marginalised by the protection of reputation. Therefore, in Karakó v. Hungary (2009) , 6 the Court weakened the right to reputation under the Convention, by holding that “reputation has only been deemed to be an independent right sporadically and mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant’s private life.” The Court held that “in the instant case, the applicant has not shown that the publication in question affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity”. It therefore concludes that it was “the applicant’s reputation alone which was at stake in the context of an expression made to his alleged detriment”. While no violation of Article 8 was found, it seems that the damage to reputation alone could be considered as an interference with article 8. 7

This rather radical judgment gave rise to a new wave of criticism, but was reaffirmed in 2010 through Polanco Torres and Movilla Polanco v. Spain . 8 The Court,while confirming Karako. emphatically stated that the right to reputation was protected by Article 8. For the right to reputation be engaged, the defamation must be subject to a “threshold of seriousness”. Article 8 only prevails if the expression constitutes a direct attack on a person’s private life of such a gravity as to compromise his or her personal integrity. The precise definition of this threshold remains to be established. However, This judgment shows at least that, although the right to reputation is not expressly contained in the ECHR, it is derived from its Article 8.

Question of hierarchy?

At this point, another debate arises: if the right to reputation is not technically part of the ECHR, does it have a lesser importance compared to Convention rights? David Kennedy claims that every right is important in its own way and should never be disrespected, even where it conflicts with a right that has a more primary status, as all legal principles are a derivation of a ground principle – human dignity. 9 Therefore, as the ECHR has its roots in the concept of human dignity and the right to reputation is derived from the Convention, the right to reputation is practically encompassed in the Convention, even as just a derivation from it.

Conclusion

D espite there clearly being no right to reputation in the express terms of the ECHR, the Court has adapted to the evolution of the contemporary society and established this right. T he test of whether there is a specific right to reputation under the ECHR is whether a claim that your rights have been breached will be successful when there were false allegations of fact made about you 10 and: (a) the allegations were damaging enough to constitute an interference with your right to a private life, (b) there were insufficient attempts to validate the allegations 11. and (c) it is the effect on your reputation alone, rather than any other effect of the allegations on any other aspect of your private life that creates the breach.

The law’s current stance is that the right to reputation falls under the scope of Article 8, so long as the defamatory statement is of a “seriously offensive nature”. In order to establish an effective, specific right to reputation, the ECtHR will need to go beyond establishing that damage to reputation is itself an interference with privacy. It will need to establish that a false allegation can have a serious effect on reputation violating the rights protected by Article 8 ECHR, even where the allegation does not have significant other effects on the subject’s private life. This, the Court has not yet done. However, the right to reputation is not given a less important legal status, as it was created as a human right, even if only indirectly, based on a fundamental principle – human dignity.

Matthiew Foster, Helin Laufer Gencaga (President of KCL Amnesty International) Jeremy Letwin, KCL LL.B. students

1 Lingens v Austria (ECHR, 8 July 1986, Application no. 9815/82)

2 Lindon v France (2008) 46 EHRR 35 at [O-18]

3 Pfeifer v Austria (ECHR, 15 November 2007, Application no. 12556/03) see also, already in 2004, Chauvy and others v France (ECHR, 29 June 2004, Application no. 64915/01)

4 Peck v UK (2003) 36 EHRR 719 at [57]

5 A v Norway (Judgment of 9 April 2009 Unreported) at [64]

6 Karakó v. Hungary (ECHR, 28 April 2009, Application no. 39311/05) at [23]

7 See particularly [24-25]. This was confirmed by Lord Rodger’s statements in Guardian News & Media [2010] 2 WLR 325 – at [41]

8 Polanco Torres and Movilla Polanco v. Spain (ECHR, 21 September 2010, Application no. 34147/06)

9 Kennedy D, One, Two, Three Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream, (2007), NYU Review of Law and Social Change, volume 3, pp 641-659.

10 Lindon v France (2008) 46 EHRR 35 at [H-13]

11 ECHR Press Release on Polanco Torres v Spain (34147/06) at p.3

Recent Comments

Other articles

Phone interceptions in light of article 8 ECHR

Phone interceptions in light of article 8 ECHR I) Introduction

Phone interceptions are used across Europe to fight crime and to avert dangers to state security. They take two forms: Individual monitoring targets a specific person or group of persons, or aims at intercepting communications from and to a specific set of premises or phones. Strategic monitoring is the process of intercepting a large number of communications and screening them for certain cue words or key phrases.

While many of the landmark judgments specifying rules and requirements for phone interceptions concerned individual monitoring, the European Court of Human Rights has underscored that the principles set out in its jurisdiction also apply to strategic monitoring.

Phone interceptions are not generally inconsistent with the ECHR. Some international treaties even impose a duty on contracting states to employ special investigative measures such as phone interceptions to combat certain forms of crime. The Council of Europe ‘Criminal Law Convention on Corruption ’ obliges signatory states to adopt ‘such legislative measures as may be necessary (…)including those permitting the use of special investigative techniques’ to facilitate the gathering of evidence and confiscation of proceeds ’ (para 23) in corruption cases. Theexplanatory report to this Convention clarifies that ‘this provision includes an obligation for the parties to introduce special investigative techniques’ such as ‘wire tapping, bugging, interception of telecommunications’ (para 114)

While the European Court of Human Rights acknowledges that phone interceptions are an important and sometimes necessary tool for fighting terrorism and other forms of grave crime, it has also pointed to the risk of arbitrariness involved in the use of measures which are usually employed without the affected person noticing it. As a consequence of the particularity that phone interceptions are undertaken in secret, the Court treats them differently from other interferences with Convention rights in two ways:

  • The requirements for justifications of phone interceptions pursuant to article 8 para 2 ECHR are particularly high
  • The threshold for applications based on alleged violations of the ECHR by phone interceptions is lower than in case of other purported infringements
II) Requirements for the justification of phone interceptions
1) Interference with article 8 para 1 ECHR

Phone interceptions interfere with the right to private life and the right to correspondence under article 8 para 1 ECHR; they may also interfere with the right to home (Klass v German y, para 41. In many cases, the European Court of Human Rights does not elaborate on the distinction between the limbs of article 8 ECHR but confines itself to stating that rights under article 8 ECHR are interfered with (see for example Kennedy v UK, para 129)

As the Court has held in Malone v UK. it also amounts to an interference with article 8 paragraph 1 when authorities do not take note of the content of phone conversations, but only record which phone numbers are called from a certain phone and how long the conversations last (so called ‘metering’).

Recording phone conversations still constitutes an interference with the right to correspondence under article 8 ECHR if one of the participants of the conversation agrees to the recording. In A v France. an informer had approached the police and claimed that Mrs A had tried to hire him as a contract killer. The informer agreed to call Mrs A in presence of a police officer and to involve her in a discussion about the envisaged murder. The conversation, which was led from a phone in the office of the police officer, was recorded as had been agreed with the informer beforehand. The ECtHR held that there had been an interference with the right to correspondence. The police officer, who formed part of the ‘public authorities’ had been crucial in conceiving and carrying out the plan; the conversation did not lose its private character because one of the participants agreed to the recording.

2) Safeguards
2.1. Overview

As said above, the ECtHR has held that the risk of arbitrariness involved in the use of measures which are applied in secret calls for measures which ensure an effective protection of the rights to private life and correspondence. The Court has therefore developed a number of safeguards which have to be put in place to curb the risk of abuse of phone interceptions. These measures can be divided into requirements regarding the legal basis for authorising wire-tapping and safeguards applying the phase in which the interception of communications is carried out.

They may be summarised as follows:

LEGAL BASIS FOR AUTHORISING PHONE INTERCEPTIONS
  • There has to be a legal basis for the interception of communications
  • this legal basis has to be publicly accessible
  • it has to specify:
  • the nature of offences that give rise to an inception order
  • the category of persons liable to have their phone tapped
  • a limit on the duration of phone tapping
  • the procedure to be followed for examining, using and storing the data obtained
  • precautions to be taken when communicating the data to other parties
  • the circumstance under which the recordings or tapes may or must be erase
  • precautions have to be taken to protect privileged communication between attorney and client
  • SAFEGUARDS REGARDING THE WAY THE PHONE INTERCEPTION IS CARRIED OUT
    • There have to be effective control mechanisms to ensure that the law is complied with
    • the oversight has to be in line with generally accepted democratic principles
    • the oversight has to be carried out by an authority independent from the one which carries out the measure
    2.2 Legal basis for authorising phone interceptions
    IN ACCORDANCE WITH THE LAW

    In line with the general requirements for the justification of interferences with interests protected by article 8 ECHR, phone interceptions must be based on a law. The ECtHR interprets the notion ‘law’ substantively rather than formally (Kruslin v France. para 29). Thus, the term law encompasses also by-laws, regulations or other provisions which rank lower than statutes. Case law by courts of the respondent state or a settled interpretation of a certain provision has to be taken into account when scrutinizing whether there was a legal basis for wire tapping. In Kruslin v France, an Investigative Judge had ordered that a phone be tapped. Conversations which the applicant had been involved in had been recorded and the recordings had played an important role in the applicant’s conviction. The French criminal procedure code in force that the time had not expressly provided for phone interceptions. However, it contained a provision according to which the investigative judge could undertake (or order to undertake) ‘any investigative measure he considers necessary’. It was settled case law of French courts that this provision empowered a judge to order phone tapping.

    The ECtHR underscored that it was primarily the task national authorities, in particular the courts, to interpret domestic law. Since a settled juris-diction existed in France, it was not for the ECtHR to decide that the interpretation of French law by French courts was wrong. The Court therefore held that there had been a legal basis for the phone tapping (yet it found a violation of article 8 ECHR, since the law had not been sufficiently precise and had not provided effective safeguards against abuse).

    ACCESSIBLE

    The law justifying the phone interception has to be accessible. i.e. citizens must be able to obtain information on the circumstances in which communications may be intercepted. In Liberty v UK. the ECtHR has dealt with the requirement of accessibility in a case concerning the (alleged) interception of phone conversations. The applicants were British and Irish civil liberties organisations, who communicated regularly on certain legal questions. They complained that conversations they had had over the phone had been intercepted regularly over an extended period of time using technical devices which were able to intercept a large number of communications at the same time and screen them for certain key-words. According to the applicants, there was no sufficient legal basis for these interceptions.

    British law in force at the material time foresaw two forms of phone interceptions. On the one hand, communications by certain persons or from a certain set of premises could be intercepted. On the other hand, the tapping of external communication was provided for. Warrants authorizing the phone interceptions had to be issued by the Secretary of State or an authorized delegate of high rank. In the case of external communication, the Secretary of State was under a duty to issue a ‘certificate’ describing the material which he considered necessary to be intercepted. The law also stipulated that the Secretary of State make arrangements to secure that only the material described in the warrant be read, listened to or looked at and to make arrangements regarding the storage, deletion, copying of material. Neither the warrant nor the certificate or the arrangements to ensure compliance with the warrant were made public.

    The applicants complained that this set of rules did not provide a clear and accessible legal basis as required by the jurisdiction of the ECtHR. The British Government argued that there were internal guidelines, practice codes and rules governing the handling of the intercepted material etc.

    The Court pointed out that the laws and rules regarding the interception of communications have to be publicly accessible for the sake of public scrutiny. It was not convinced by the Government’s argument that publishing these arrangements might impede the efficacy of the measures. It pointed to its decision in Weber and Saravia v Germany and to the German legal framework, in which these arrangements were detailed in a publicly available form

    FORESEEABLE AND NECESSARY IN A DEMOCRATIC SOCIETY

    The law on which the phone interception is based has to set out clearly in which circumstances and subject to which conditions communications may be intercepted. The European Court of Human Rights has established criteria a law has to satisfy so as to be sufficiently precise and to provide safeguards against arbitrary use. While this is chiefly a consequence of the general requirement that laws prescribe the conditions for interferences in a foreseeable manner, the Court has sometimes examined the question of sufficient safeguards against arbitrariness under the heading ‘necessary in a democratic society’ or merged the question of foreseeability and necessity (e.g. Kennedy v UK, para 155)

    CATEGORY OF CRIME

    The law providing the legal basis for phone interceptions has to specify the categories of crimes which may give rise to a phone interception. This can be done in (at least) two forms:

    • The relevant crimes are defined according to specific criteria
    • A catalogue of specific crimes which may prompt a phone interception is included in the law

    In Kennedy v UK. the European Court of Human Rights has scrutinized the (strategic) monitoring of phone conversations by British authorities. The British legal framework foresees that phone interceptions may inter alia be authorized ‘for the purpose of preventing or detecting serious crime’. Serious crime is defined as an offence for which a person who has reached the age of 21 and who has no prior convictions could reasonably be expected to be sentence to three years of imprisonment or more. The Court refuted the applicant’s argument that this provision was not sufficiently precise. It asserted that foreseeability did not require an exhaustive list of offences which are apt to justify phone interceptions and held that the interpretation of the term serious contained in the law gave citizens sufficient information as to the circumstances in which phone interceptions could be authorized (para 160).

    As may be inferred from the above judgment, foreseeability of phone interceptions may also be ensured by listing all offences for the investigation of which the interception of communication may be ordered.

    Specifying the crimes – not matter in which way – only satisfies the requirement that sufficient safeguards be built in the law if it curbs the number of potential phone interceptions effectively. In Iordachi v Moldava. the Court dealt with the Moldovan ‘Operational Investigative Activities Act’ of 1994. This act provided that phone interceptions could be undertaken for the investigation of serious, very serious and exceptionally serious offences and the Criminal Code contained a definition of these terms. While the category of crimes liable to give rise to an interception was thus clearly defined, the Court criticized that ‘more than half of the offences provided for in the Criminal Code fall within the category of offences eligible for interception warrants’ (para 44)

    CATEGORIE OF PERSONS

    The law has also to define the category of persons liable to be targeted by phone interceptions. This question is partly overlapping with the definition of the category of crimes. In Iordachi v Moldova. the European Court of Human Rights noted that the language of the law, which prescribed that ‘suspects, defendants or other persons involved in a crime’ not indicate with sufficient clarity, which category of persons might be affected by phone interceptions. In particular, the Court pointed out that there was no definition of the term ‘other persons involved in a criminal offence’ (para 44)

    By way of contrast, the Court found the German G 10, the law which governs phone interceptions by German intelligence agencies, to be compliant with the requirements of article 8 ECHR (Klass v German y, para 51 read with para 17). Pursuant to this law, persons who could be targeted by interceptions were "the suspect or such other persons who are, on the basis of clear facts (bestimmter Tatsachen), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use"

    DURATION

    Protection against arbitrary or excessive use of phone interceptions requires that the law, on which the phone tapping is based, limits the duration of the measure. The European Court of Human Rights has not established a general maximum duration for phone interceptions. InAssociation for European Integration and Ekhimdziev v Bulgaria. it held a maximum duration of two months with a possibility of extension to up to six month on the basis of a fresh application and warrant to be in accordance with the Convention (however, the Court found for other reasons that the Bulgarian ‘Special Surveillane Means Act of 1997 infringed the right to private life under article 8 ECHR).

    In Weber and Saravia v Germany. it found an interception of up to three months with the possibility of renewal for another three months to be in compliance with article 8 ECHR. (para 98)

    In Kennedy v UK. it ruled that the British ‘Regulation of Investigatory Powers Act, which foresees interceptions for a period of six months with the possibility of renewal satisfied the requirements for necessary safeguards. On the other hand, the Court criticized in Iordachi v Moldova that the relevant provisions of Moldovan law limited the duration of phone interceptions to six month, but allowed for renewals (para 45). This appears to indicate that the Court undertakes an overall assessment of the relevant provisions rather than just checking the requirements it has established in its jurisdiction.

    PROTECTION OF LAWYER-CLIENT PRIVILEGE

    The legal basis for phone interceptions has to provide rules ensuring that information falling under the lawyer-client privilege is not intercepted. The right to legal assistance by a lawyer is a cornerstone of democratic societies. Anybody interested in consulting a lawyer should have the possibility to do so under conditions which allow for a free exchange of information (Campbell v UK. para 46). This right would lose value if persons conferring with their lawyers would have to fear that the conversation might be intercepted.

    Therefore, measures have to be taken to secure the protection of privileged conversations. Including in the law a rule to the effect that conversations between lawyers and their clients is not tapped is not a sufficient means to safeguard the confidentiality of conversations between lawyers and their clients It also has to become clear which steps are taken to ensure that this rule is respected in practice (Iordachi v Moldova, para 50). In Kopp v Switzerland. the European Court of Human Rights found the respondent state in violation of article 8 ECHR, because the law and practice of phone tapping did not ensure that the exchange of information falling under the lawyer-client privilege was protected. While Swiss law provided that phones of lawyers were not to be tapped, conversations between lawyers and clients were intercepted. The Swiss government argued that according to Swiss law certain pieces of information exchanged between lawyers and their clients were not protected by lawyer-client confidentiality (this concerned for example information regarding the handling of funds). Therefore, the Swiss authorities tried to distinguish between privileged information, which did not become part of the case file, and not privileged information, which could be added to the case file and considered in court. The person tasked to sort between these two types of information was a lawyer working with the post department, which was state-owned and in charge of telecommunications at the material time. The Court criticized this arrangement as generally not sufficiently clear with regard to procedure to distinguish privileged information from non-privileged information and stated that ‘in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.’. As an example to the contrary, the ECtHR approved of the precautions taken in Dutch law in Aalmoes v The Netherlands. Dutch law distinguished whether the lawyer was a suspect or a third-party. In the instance the lawyer was a suspect, his phone could be tapped, but material protected by the lawyer client privilege had to be sorted out. A representative of the bar association was involved in the decision which material was protected. In case the lawyer was not a suspect, his phone could not be intercepted. Communications falling within the ambit of the lawyer-client privilege, which were intercepted (for example because the suspect in a case called a lawyer) had to be screened by a prosecutor. The prosecutor ordered that privileged information be destroyed. Only information which was not privileged could be taken to the file upon approval by a judge.

    Limits of the Negative Dimension of Article 12 of the European

    Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights

    3 What Role for Consensus?

    4 Concluding Remarks

    1 Introduction

    In 2011, Malta was the last EU member state nation to allow divorce [1] as a result of a referendum. [2] The longstanding opposition to divorce was closely linked to the predominant faith of many Maltese citizens. For the Catholic church, marriage is not merely a civil institution - “a worldly thing” [3] to use the terminology employed by Martin Luther - but a sacrament. [4] This also means that “[a] marriage which is ratified[, i.e. a sacramental marriage between baptized Christians, [5] ] and consummated cannot be dissolved by any human power or by any cause other than death.” [6] To be precise, the separation [7] and potentially even - civil - divorce of partners are permitted [8] - but not the remarriage because the sacramental marriage continues to exist regardless of the civil status of the couple. [9] An annulment of a marriage is not the Catholic equivalent to a divorce but - as the precise term, “declaration of nullity” [10] indicates [11] - only the confirmation that the requirements for a valid marriage had not been met in the first place. [12] The exception in Matthew 5:32 is understood as not opening the door to justifying divorce based on one partner’s infidelity but as referring to the validity of marriage [13] - thus also explaining the concept of annulments.

    The same can be said of Matthew 19:9. Both Matthew 19:8 and Matthew 5:31 show that the Christian approach to divorce outlined by Jesus differed from the earlier rules under the Old Testament under which divorce required the issuing of a divorce certificate. [14] It has to be noted, though, that already in the Old Testament, the. The biblical prohibition of divorce also had the best interest of the wife in mind, in particular given the social situation of the time which - despite some women working outside the house [15] - was marked by a much greater level of economic dependency on the part of women than Europeans are used to today, thousands of years later. Against this background, the prohibition of divorce has to be seen not only in a religious / political but also in a social / historical context. The latter might not have been as important anymore in the last decades, the religious / political motivation remained relevant in Malta for a long time.

    But there was also a lot of pressure on Malta in so far as divorce is now permitted almost universally. As a member of the European Union and the Council of Europe, Malta has certain human rights obligations and many today consider the legality of divorce such a fundamental human rights issue that it is simply taken for granted. It will be shown in this text, that this is not the case. Indeed, it will be shown that Malta was not obliged under the European Convention on Human Rights to allow divorce in its domestic laws. This is not a political, moral or religious question but a matter of law. Therefore the question has to be answered purely from the perspective of the European Convention on Human Rights.

    2 A negative Dimension to the Right to Marry under Article 12 ECHR?

    The wording [16] of Article 12 ECHR only refers to the rights to get married and found a family. This has led Strasbourg to conclude in Johnston and others v. Ireland [17] and in F. v. Switzerland [18] that this norm does not provide for a right to divorce. [19] The wording of Article 12 ECHR refers explicitly to marriage, from which the conclusion is drawn by the Court [20] and academia [21] that there is no negative dimension to Article 12 ECHR in the form of divorce - even though other norms such as Article 10 ECHR provide examples of the use of the right. The crucial difference between Article 12 ECHR and e.g. Article 10 ECHR is that the former norm’s reference to marriage is not merely an example but the only form in which Article 12 ECHR foresees the right to marriage to be used. Hence Article 12 ECHR does not provide for a right to have a divorce. [22] Therefore it did not come as a surprise that the European Court of Human Rights did not find a right to same sex-marriage in the Convention. [23]

    Under the Convention there is a right not to get married, but this protection against forced marriages is based on the right to private life under Article 8 para. 1 ECHR and potentially also on Article 3 ECHR rather than on Article 12 ECHR. From a legal perspective, though, this right not to get married in the first place, however, is different from the right to have a divorce, even though the result - not being married - looks similar from the outside (although of course there can be follow up-obligations after a divorce). Therefore“allow[ing] divorce […] is not a requirement of the Convention”. [24]

    But if a state allows divorce, the procedure - be it administrative in nature or requiring a procedure in court - has to comply with the Convention and that can lead to a violation of Article 12 ECHR if the length of the divorce proceedings makes it impossible to remarry. [25]

    Also Article 5 of Protocol 7 [26] to the European Convention on Human Rights, which protects “equality of rights and responsibilities” [27] between the spouses, only makes sense if one assumes that there is a right to divorce under national law. [28] That protocol has not been ratified by Germany, the Netherlands, Turkey and the United Kingdom. [29] Under the European Convention on Human Rights, the right to marry also extends to formerly married persons. [30] Protocol 7 itself, though, does not provide for a right to divorce. [31]

    Also the right to family life under Article 8 ECHR can be employed to gain an understanding of what marriage means in the context of the European Convention on Human Rights: while family life between divorced partners might be over but the family life under Article 8 ECHR between either parent and the child or children would continue to exist, [32] marriage and childbirth lead to a presumption of family life [33] while the same presumption is not made in cases in which the parents have not been married at the time of the birth of a child. [34]

    Against this background, the wording of Article 12 ECHR opposes the interpretation that the norm provides for a right to divorce. [35] In addition, a right to divorce also does not follow from the positive dimension of Article 8 ECHR. [36] Article 5 of Protocol 7 to the ECHR presumes the legality of divorce [37] but Protocol 7 does not have to be ratified by all parties to the ECHR.

    [1] No author named, Malta votes 'Yes' in divorce referendum, BBC News Europe, 29 May 2011, http://www.bbc.co.uk/news/world-europe-13588834. [All websites referred to have last been visited on 10 February 2015.]

    [2] Kurt Sansone / Lawrence Vella, Historic vote ushers in divorce Amendments breeze through vote, in: Times of Malta, 26 July 2011, http://www.timesofmalta.com/articles/view/20110726/local/Historic-vote-ushers-in-divorce.377401.

    [3] The full passage reads as follows: “Es kan ia niemand leucken das die ehe ein eusserlich weltlich ding ist / wie kleider vnd speise / haus vnd hoff / weltlicher oberkeit unterworffen / wie das beweisen / so viel keiserliche rechte daruber gestellet” (Martin Luther, in: Hanns-Ulrich Delius (ed.), Martin Luther, Studienausgabe, Band IV, Evangelische Verlagsanstalt, Berlin (1986), p. 262) which translates as follows: “Nobody can deny that marriage is an outwardly worldly thing / like clothing and food / house and farm / subjected to worldly authority / as is evidenced by / so many imperial laws made about it [literally: placed above it]”. Luther ’s view is therefore not based on religious reasons but on the existence of the regulation of family life by the authorities, which appears to be circular reasoning: the state [in the widest sense of the term, keeping in mind the situation in early 16th century Europe] regulates it, hence it can be regulated by the state. This reasoning fits in with Luther ’s positive understanding of state authority which appears to go far beyond the guidance provided by Jesus Christ in Marc 12:17.

    [4] Leonard Foley, Believing in Jesus, 6th ed. St. Anthony Messenger Press, Cincinnati (2009), p. 165.

    [5] Javier Hervada, Titulus VII De matrimonio, in: Ernest Caparros / Michel Thériault / Jean Thorn / Hélène Aubé (eds.), Code of Canon Law Annotated, 2nd ed. revised and update of the 6th Spanish language edition, Midwest Theological Forum, Woodridge (2004), pp. 806-905, at p. 888.

    [6] Codex Iuris Canonici (1983), http://www.vatican.va/archive/cod-iuris-canonici/cic_index_lt.html, Can. 1141 CIC/83; Codex Iuris Canonici (1917), http://www.jgray.org/codes/cic17lat.html, Can. 1118 CIC/17.

    [7] Foley, supra. note 5, p. 210; Catechism of the Catholic Church (CCC), http://www.vatican.va/archive/ENG0015/_INDEX.HTM, # 1649.

    [8] Anthony Wilhelm, Christ Among Us - A Modern Presentation of the Catholic Faith for Adults, 6th ed. Harper One, New York (1996), p. 386; Foley, supra. note 5, p. 210.

    [9] Foley, supra. note 5, p. 210.

    [10] CCC, supra. note 8, #1629.

    [11] Foley, supra. note 5, p. 210.

    [12] CCC, supra, note 8, #1629, sentence 1.

    [13] Foley, supra. note 5, p. 209.

    [14] Deuteronomy 24:1-4. It has to be noted, though, that already this old testament passage, did not imply divorce and remarriage was seen as something positive, rather it is accepted even outside the Catholic church that it was implied already in the Old Testament that it was wrong, albeit not punished (Richard M. Davidson, Divorce and Remarriage in the Old Testament: A Fresh Look at Deuteronomy 24:1–4, in: Journal of the Adventist Theological Society, 10/1-2 (1999), pp. 2–22, at pp. 4 et seq. and at p. 12, who also puts emphasis on the fact that this passage “is not placed in the section of the Deuteronomic law dealing with adultery, but in the section dealing with theft[, a] fact [which] must be kept in mind as [one] seek[s] to understand the underlying purpose of th[is partiucular Deuternomic] legislation.”, ibid. pp. 3 et seq. at p. 16, where he also explains that “Raymond Westbrook contends that this legislation is about property. In the first divorce [Deut 24:1] since there were moral grounds the wife received no financial settlement, whereas in the second divorce [Deut 24:3] there were no moral grounds so the wife received financial remuneration. The legislation is to keep the first husband from profiting twice, once to divorce her (and give her nothing) and once to remarry her (and get her financial settlement from her second husband). Westbrook notes how this interpretation fits nicely with the structural placement of this law in the section of Deuteronomic legislation dealing with theft.”, ibid. p. 16, reference omitted, but see also ibid. p. 19).

    [15] Cf. Proverbs 31.

    [16] On the importance of the wording of a treaty for its interpretation and the “ordinary meaning” of the terms used see Article 31 para. 1 of the Vienna Convention on the Law of Treaties, 23 May 1969, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

    [17] European Court of Human Rights, Johnston and others v. Ireland. Application No. 9697/82, Judgment of 18 December 1986, on Johnston and others v. Ireland see Mark W. Janis / Richard S. Kay / Anthony W. Bradley, European Human Rights Law - Text and Materials, 3rd ed. Oxford University Press, Oxford (2008), p. 476.

    [18] European Court of Human Rights, F. v. Switzerland. Application No. 11329/85, Judgment of 18 December 1987, on F. v. Switzerland see Janis et al.. supra. note 18, p. 445.

    [19] F. v. Switzerland. supra. note 19, para. 38; Johnston and others v. Ireland. supra. note 18, para. 52.

    [20] Johnston and others v. Ireland. supra. note 18, para. 52.

    [21] Christoph Grabenwarter, European Convention on Human Rights - Commentary, 1st ed. C.H. Beck, Munich (2014), p. 321.

    [22] Ibid. ; Johnston and others v. Ireland. supra. note 18, paras. 51 et seq.; F. v. Switzerland. supra. note 19, paras. 33 and 38.

    [23] Cf. European Court of Human Rights, Hämäläinen v. Finland. Application No. 37359/09, Judgment of 16 July 2014, paras. 110-113.

    [24] F. v. Switzerland. supra. note 19, para. 38; cf. European Court of Human Rights, Aresti Charalambous v. Cyprus. Application No. 43151/04, Judgment of 19 July 2007, para. 56.

    [25] European Court of Human Rights, V. K. v. Croatia. Application No. 38380/08, Judgment of 27 November 2012, paras. 100-107; Bernadette Rainey / Elizabeth Wicks / Clare Ovey, The European Convention on Human Rights, 6th ed. Oxford University Press, Oxford (2014), p. 359.

    [26] Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, 22 November 1984, European Treaty Series No. 117, http://conventions.coe.int/Treaty/en/Treaties/Html/117.htm.

    [27] Article 5 of Protocol 7 to the European Convention on Human Rights, supra. note 27.

    [28] Grabenwarter, supra. note 22, p. 321.

    [29] Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 117, Status as of: 10/2/2015, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=117&CM=&DF=&CL=ENG.

    [30] Grabenwarter, supra. note 22, p. 321; Aresti Charalambous v. Cyprus. supra, note 25, para. 56.

    [31] Pieter van Dijk / Fried van Hoof / Arjen van Rijn / Leo Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed. Intersentia, Antwerp (2006), p. 852.

    [32] Christoph Grabenwarter, Europäische Menschenrechtskonvention, 3rd ed. C.H. Beck, Munich (2008), p. 198.

    [33] David Harris / Michael O’Boyle / Ed Bates / Carla Buckley / Paul Harvey / Michelle Lafferty / Peter Cumper / Yutaka Arai / Heather Green, Law of the European Convention on Human Rights, 3rd ed. Oxford University Press, Oxford (2014), p. 527.

    [35] Grabenwarter, supra. note 33, p. 227.

    [36] Rainey et al.. supra. note 26, p. 359.

    [37] Grabenwarter, supra. note 33, p. 227

    Excerpt out of 11 pages - scroll top

    Details Title Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights Author
    • Dr. Stefan Kirchner
    Year 2015 Pages 11 Archive No. V306441 ISBN (eBook) 9783668049475 ISBN (Book) 9783668049482 File size 384 KB Language English Tags limits negative dimension article european convention human rights Price (Book) 13.99 € Price (eBook) 12.99 € Quote paper
    • Dr. Stefan Kirchner
    , 2015, Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights, Munich, GRIN Verlag, http://www.grin.com/en/e-book/306441/limits-of-the-negative-dimension-of-article-12-of-the-european-convention Similar texts

    Way out of the labyrinth