Human rights Human rights files No

Human rights files No. 15

The exceptions

to Articles 8 to 11

of the European Convention

on Human Rights

Human rights files No. 15

The exceptions

to Articles 8 to 11

of the European Convention

on Human Rights

by Steven Greer

Reader in Law

University of Bristol

Council of Europe Publishing

French edition:

Les exceptions aux articles 8 à 11 de la Convention européenne des

Droits de l’Homme

ISBN 92-871-••••-•

The opinions expressed in this publication are those of the author and do

not engage the responsibility of the Council of Europe. They should not be

regarded as placing on the legal instruments mentioned in it any official

interpretation capable of binding the governments of member states, the

Council of Europe’s statutory organs or any organ set up by virtue of the

European Convention on Human Rights.

Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. The importance of legality and democracy . . . . . . . . . . . . . . . . . . . . . . 9

A. The rule of law test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Does the domestic legal system sanction the infraction? . . . . . . . . . 10

Is the legal provision accessible to the citizen? . . . . . . . . . . . . . . . . 10

Is the legal provision sufficiently precise to enable the citizen

reasonably to foresee the consequences which a given action may

entail? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Does the law provide effective safeguards against arbitrary

interference with the respective substantive rights? . . . . . . . . . . . . . 12

B. The democratic necessity test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The nature of democratic necessity . . . . . . . . . . . . . . . . . . . . . . . . 14

Burden of proof and proportionality . . . . . . . . . . . . . . . . . . . . . . . . 15

The margin of appreciation and European supervision . . . . . . . . . . . 15

III. The exceptions to Articles 8 to 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Public interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

National security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The protection of the economic well-being of the country . . . . . . . . 23

The protection of health or morals . . . . . . . . . . . . . . . . . . . . . . . . . 24

The prevention of disorder or crime . . . . . . . . . . . . . . . . . . . . . . . . 29

B. Private interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Maintaining the authority and impartiality of the judiciary . . . . . . . . 33

The protection of the rights, freedoms and reputations of others . . . 35

Preventing the disclosure of information received in confidence . . . . 40

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

V. Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Appendix A: Relevant articles of the Convention . . . . . . . . . . . . . . . . . 55

Appendix B: Table of cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

3

I. Introduction

While the scope and applicability of any right may be limited by the man-

ner in which it is interpreted, most of the rights enshrined in the European

Convention on Human Rights are also subject to more explicit restrictions

which could be said to fall into four main categories.1First, “express defin-

itional exclusions” attached to specific articles attempt to set out in rela-

tively precise terms what a given right means. For example, Article 4,

paragraph 3, lists various kinds of obligatory work, such as compulsory mil-

itary service, which are excluded from the definition of “forced or compul-

sory labour”. Secondly, some provisions include statements of the relatively

limited circumstances in which a given right does not apply. For example,

the right to liberty under Article 5 is not infringed by, amongst other things,

“the lawful detention of a person after conviction by a competent court”.

Thirdly, certain classes of person with “special legal status” may be express-

ly denied full entitlement to certain rights. For example, Article 16 autho-

rises states to impose restrictions on the political activities of aliens,

Article 10, paragraph 1, entitles states to require the licensing of broad-

casting, television and cinema enterprises, and Article 11, paragraph 2, per-

mits the imposition of lawful restrictions upon freedom of association and

freedom of peaceful assembly in the armed forces, the police and the civil

service.

Fourthly, various kinds of public and private interest provide states with

defences against interferences with certain rights. Three distinctions can be

drawn within this category. First, Article 15 enables all but the absolute

rights in the Convention to be suspended in “time of war or other public

emergency threatening the life of the nation” provided this is “strictly

required by the exigencies of the situation”.2However, although the under-

lying justification is clearly the “public” or “national” interest, the text does

not make this explicit. Secondly, the “public interest” provides an explicit

justification for interference by the state both with the right to peaceful

5

enjoyment of possessions – as long as “the conditions provided for by law

and by the general principles of international law” are observed (Article 1

of Protocol No. 1) – and with the right of everyone lawfully within a terri-

tory to liberty of movement and freedom to choose residence (Article 2,

paragraph 4, of Protocol No. 4). Article 1 of Protocol No. 1 also states that

“the preceding provisions” shall not “in any way impair the right of a state

to enforce such laws as it deems necessary to control the use of property in

accordance with the general interest . . .”.

Thirdly, a wide range of specific restrictions, or “legitimate purposes”, of a

public and private interest kind are attached to Articles 8 to 11 of the

Convention.3It is these which this study will examine.4There is a complex

relationship between Convention rights, types of interference, and the

exceptions under discussion. Some of the limitations apply to each of the

rights at issue, but others adhere only to a single provision. Even similar

exceptions do not always appear in precisely the same form in different arti-

cles of the Convention and while some of these differences are incidental,

others are subtle but significant.

Public safety, the protection of the rights and freedoms (or reputations) of

others, and the protection of health, morals or public order/ordre public (or

the prevention of disorder) can justify infringements of the right to respect

for private and family life, home and correspondence (Article 8, para-

graph 2), the right to freedom of thought, conscience and religion

(Article 9, paragraph 2), the right to freedom of expression (Article 10,

paragraph 2), and the right to freedom of peaceful assembly and associa-

tion (Article 11, paragraph 2). The interests of “national security” and the

“prevention of crime” also limit each of these rights except for the right to

freedom of thought, conscience and religion. The right to freedom of

expression may be restricted for the sake of the “reputation or rights of

others”, whereas the phrase “the rights and freedoms of others” is the

clause which appears in each of the other relevant provisions. The “eco-

nomic well-being of the country” limits only the right to respect for private

and family life, home and correspondence, while “territorial integrity”,

“preventing the disclosure of information received in confidence”, and the

maintenance of the “authority and impartiality of the judiciary” apply only

to the right to freedom of expression.

6

Other features of some of the rights under discussion should be noted.

Speculation concerning whether Article 8, paragraph 1, creates a right to

respect for private and family life, home and correspondence only from

public authorities, has been generated by the second paragraph which

states that “there shall be no interference by a public authority with the

exercise of this right except” in pursuit of the legitimate purposes listed.5

Article 10, paragraph 1, also makes reference to “interference by a public

authority” with the right to freedom of expression, and permits the licenc-

ing of broadcasting, television and the cinema. Although the second para-

graph refers to the “formalities, conditions, restrictions or penalties” which

may be imposed, in practice the important issue is usually whether one of

the stated exceptions can be successfully pleaded.6Article 10, paragraph 2,

also refers to the “duties and responsibilities” associated with the right to

freedom of expression which vary according to the circumstances and may

be related to the means of expression and to the profession of the person

seeking to exercise it.7

The successful invocation of any of the legitimate purposes attaching to the

second paragraphs of Articles 8 to 11 is contingent upon compliance with

two vital conditions: that the interference, or limitation, is prescribed by, or

is in accordance with, law (the “rule of law test”); and that it is necessary

in a democratic society in pursuit of one or more of the second paragraph

objectives (the “democratic necessity test”). Typically, therefore, the

Strasbourg organs will address four key questions in cases where an excep-

tion is pleaded. First, was there an interference with the right in question?

Secondly, if so, was it in accordance with, or prescribed by, law? Thirdly,

was it genuinely in pursuit of one or more of the legitimate purposes at

issue? Finally, taking all the relevant circumstances into account, was it nec-

essary in a democratic society for these ends? However, although a largely

effective interpretive framework for the “rule of law” criterion has been

developed at Strasbourg, the content of the “democratic necessity” test

remains highly fluid and indeterminate. This is largely due to the absence of

a clear understanding of the relative importance of rights and exceptions in

the case-law on Articles 8 to 11, in its turn a consequence of the variable

“margin of appreciation” accorded to states in restricting the exercise of

the rights in question. As Gearty suggests, Strasbourg judges tend to be

more comfortable with textual interpretation and the requirements of pro-

cedural fairness than with the tangled issues of political philosophy which

7

the exceptions under discussion are capable of raising.8Although there is

much in the jurisprudence of Court and Commission to commend, it can be

argued that a more coherent approach based upon a strict presumption in

favour of the exercise of any given right and a narrower interpretation of

the exceptions, is desirable.

8

II. The importance of legality and democracy

The purpose of the “prescribed by” or “in accordance with the law”

clauses in the second paragraph of Articles 8 to 11 is to ensure that the

scope for arbitrary tampering with rights by the executive is limited by

domestic legislative or judicial authority. The concept of “law” in this con-

text is not, however, confined to domestic legal processes and includes

more abstract or general assumptions about the requirements of the “rule

of law”, a basic Council of Europe ideal. The purpose of the “democratic

necessity test” is to ensure that any specific interference with rights is

judged against the “true”, rather than the alleged, needs of a democratic

society.

A. The rule of law test

The phrase prévues par la loi appears in the French text of the Convention

in the second paragraph of Articles 8 to 11. However, the English text

translates this as “in accordance with the law” in Article 8, and “prescribed

by law” in Articles 9, 10 and 11. In the Sunday Times case the Court held

that since both versions of the Convention are equally authentic, these dif-

ferent expressions must be interpreted in a way which “reconciles them as

far as possible and is most appropriate in order to realise the aim and

achieve the object of the treaty”.9

In Huvig10 and Kruslin11 the Court identified four questions from earlier

cases12 which provide a test for deciding if any given interference with a

specific right, or rights, has been “legal”: Does the domestic legal system

sanction the infraction? Is the relevant legal provision accessible to the cit-

izen? Is the legal provision sufficiently precise to enable the citizen reason-

ably to foresee the consequences which a given action may entail? Does

the law provide adequate safeguards against arbitrary interference with the

respective substantive rights? The last of these is particularly important

since the ultimate purpose of the “legality” requirement is to enable the

9

Strasbourg organs to ensure that all legitimate interferences with the rele-

vant rights are grounded, not merely in national law, but in standards which

conform with the legal culture of the Council of Europe.

Although it may be possible to disagree with the way in which the

Strasbourg institutions have applied this test in some cases, the develop–

ment of an approach which goes beyond a mere attempt to discover if rel-

evant domestic legal provisions exist should be welcomed. Diligent scrutiny

of the adequacy of the safeguards provided by domestic law should also be

encouraged.

Does the domestic legal system sanction the infraction?

Domestic legal provisions include, for this purpose, not only legislation but

also judge-made law typical of common law jurisdictions,13 international

legal obligations applicable to the state in question,14 and a variety of “sec-

ondary” sources, for example royal decrees, emergency decrees, and cer-

tain internal regulations based on law.15 The appropriateness of both

“broad” and “narrow” definitions of “law” for this purpose has been the

subject of some academic debate.16 However, the important question is not

what elements of a given national decision-making system should be

deemed strictly “legal”, but the effectiveness of the domestic restraints

upon abuses of executive power. On the grounds that they are best placed

to judge, the Court and Commission permit national authorities a broad

margin of appreciation in interpreting domestic law and in determining

whether or not national law-making procedures have been followed.17

Is the legal provision accessible to the citizen?

In the Sunday Times case the Court held that accessibility means that the

citizen “must be able to have an indication that is adequate in the circum-

stances of the legal rules applicable to a given case”.18 For example, in

Silver the Court held that the Standing Orders and Circular Instructions

which the British Home Secretary issues to prison governors failed the

accessibility test since they were not published, were not available to pris-

oners, nor were their contents explained in cell cards.19 They were, there-

fore, not “law” for the purpose of Article 8, paragraph 2.

10

Is the legal provision sufficiently precise to enable the citizen

reasonably to foresee the consequences which a given action may

entail?

The Court has consistently recognised that many laws are framed in gen-

eral terms the interpretation and application of which are matters of prac-

tice.20 In a number of cases it has been held that the level of precision

required of domestic legislation depends to a considerable degree on the

content of the instrument in question, the field it is designed to cover, and

the number and status of those to whom it is addressed.21 In Groppera, the

Court confirmed that the predictability of consequences may require expert

advice.22 Laws which confer discretion must indicate the scope of the dis-

cretion although this need not be found in the legal text itself.23 Although

not “law” themselves, administrative guidelines or instructions may be con-

sulted in order to clarify the meaning and modus operandi of the strictly

legal sources. For example, the Standing Orders and Circular Instructions

deemed “non-legal” in Silver were nonetheless taken into consideration by

the Court in respect of the foreseeability issue since they established guide-

lines to official practice and thus made the application of the Prison Rules,

which had strict legal status, more determinate.24 In the Observer and

Guardian and the second Sunday Times cases the Commission stated that

a rule which authorises prior restraint of a publication must specify the cri-

teria with “sufficient precision” for such restraint to be compatible with the

foreseeability criterion and,25 according to Huvig and Kruslin, laws permit-

ting tapping, and other forms of official interference with telephone con-

versations, must be particularly precise especially since the technology

available is rapidly becoming more sophisticated.26

The Malone and Leander cases provide good illustrations of the application

of the foreseeability criterion. In Malone27 the Court began by observing

that although the exact legal basis for executive interception of communi-

cations in England and Wales was the subject of some dispute, it was com-

mon ground that the settled practice at the time was lawful. But, having

reviewed the relevant legal materials, it was held that it could not be said

“with any reasonable certainty” which elements of the power to intercept

were incorporated in legal rules and which were within the discretion of the

executive. Therefore, the Court concluded that “the law of England and

Wales does not indicate with reasonable clarity the scope and manner of

11

exercise of the relevant discretion conferred on the public authorities” and,

hence, with respect to the fourth element of the test, “the minimum degree

of legal protection to which citizens are entitled under the rule of law in a

democratic society is lacking.”28 Therefore, although the practice in ques-

tion was lawful by the national legal standard, the interference complained

of lacked foreseeability and was, consequently, not “in accordance with the

law”. The practice of “metering”, whereby all numbers dialled from a par-

ticular telephone were automatically recorded by the Post Office for the

police, also failed the “legality” test since no legal rules effectively gov-

erned the scope and manner of the discretion available to the executive

authorities.29

In Leander30 the Court had to decide if a secret process involving the col-

lection of information by the Swedish police, subsequently used to bar the

applicant from employment in a national security related post, was “in

accordance with the law”. This raised both the accessibility and foresee-

ability issues. The accessibility requirement was fulfilled by the fact that the

system operated under published law, the Personnel Control Ordinance.

But the Court held, referring to the Malone judgment, that the foresee-