Vladislava Stoyanova, The Right to Private Family Life, Instructions for the Lecture and the Seminars, Human Rights
Law course, Fall 2014
The Right to Private and Family Life, Lecture, 18 Nov 2014, 13.00 – 15.00
This lecture will address the right to private and family life as developed in the case law of the European
Court of Human Rights [hereinafter the ECtHR or the Court]. The right to private and family life is protected
by Article 8 of the European Convention on Human Rights [hereinafter the ECHR]:
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.
As Article 8(2) points out, there could be circumstances when interferences with private/family life can be
justified and, thus, not contrary to the states’ obligations under the ECHR. In many situations, the assessment
whether interference with private/family life is justified, involves a proportionality analysis (balancing
between different relevant interests and in particular, the interests of the individual applicant versus larger
interests of the society). The judgment of Yordanova and Others v. Bulgaria provides an excellent example of
how the Court makes this balancing exercise. Yordanova and Others v. Bulgaria is a case about a decision of the
national authority to remove a Roma community from its place of residence which they have occupied
illegally for a prolonged period of time. The Roma people argued that their removal will be contrary to Article
8 of the ECHR. The ECtHR, after making a comprehensive proportionality analysis, agreed with the
applicants. During the lecture, we will carefully look into how the Court balanced between different
conflicting interests.
As I will show you during the lecture, the material scope of Article 8 is virtually unlimited. Many
issues (change of gender as recorded in official documents, providing information about environmental and
health hazards, establishment of paternity, assistance of suicide, access to legal abortion, choosing the
circumstances of becoming a parent, adoption proceedings …. ) can come under the parameters of private
and family life. In the second half of the lecture, I have chosen to focus on how the right to private/family
life can be violated when states decide to deport immigrants. I will discuss the clash between, on the one
hand, the host states’ interests to exercise immigration control which presupposes removal of immigrants,
and on the other hand, the migrants’ interests protected by Article 8. For the purposes of this discussion, I
ask you to read Nunez v. Norway and Üner v. the Netherlands judgments.
Nunez v. Norway is a case about a woman from the Dominican Republic who entered Norway. She
committed a series of breaches of the Norwegian immigration legislation (she resided and worked illegally in
Norway, mislead the immigration authorities on various occasions, including about her real identity). She gave
birth to two children in Norway. Since she was unlawfully present in Norway, the immigration authorities
wanted to deport her. She argued before the ECtHR that her deportation would separate her from her small
children which separation would be contrary to Article 8 of the ECHR. The ECtHR agreed with her. The
Court found that the national authorities did not struck a fair balance between the public interest of ensuring
effective immigration control, on the one hand, and the applicant’s need to be able to remain in Norway in
order to maintain her contact with her children, on the other hand. When reading the judgment, I would like
to ask you to pay particular attention to the role of the ‘best interest of the child’ principle.
The ECtHR has often been confronted with immigrants who are to be deported back to their home
countries following a criminal conviction in the host state. Üner v. the Netherlands is such a case. The applicant
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Vladislava Stoyanova, The Right to Private Family Life, Instructions for the Lecture and the Seminars, Human Rights
Law course, Fall 2014
who was originally from Turkey went to the Netherlands when he was 12 years old. Later, he had two
children, both of Dutch nationality. When he was 24 years old he committed manslaughter and was convicted
for this crime. The Dutch authorities ordered his expulsion since he was regarded as a threat to the public
order. The applicant argued before the ECtHR that if he were to be deported this would constitute a
violation of Article 8. The ECtHR has developed some general criteria to be followed in such kind of cases
(see para.57 of Üner v. the Netherlands). We will discuss their application in Üner v. the Netherlands.
Compulsory readings:
1. Yordanova and Others v. Bulgaria, Application No. 35446/06, Judgment 24 April 2012, available in the
HUDOC database.
2. Nunez v. Norway, Application No. 55597/09, Judgment 24 April 2012 (including Joint Dissenting Opinion
of Judges Mijovic and De Gaetano)
3. Üner v. the Netherlands, [GC] Application No. 46410/99, Judgment, 18 October 2006 (including the Joint
Dissenting Opinion of Judges Costa, Zupancic and Turmen)
The Right to Private and Family Life, Seminars
Group 1 (this covers Subgroups 1A, 1B, 1C, 1D, 1E, 1F), 19 Nov 2014, 10.00 – 12.00
Group 2, (this covers Subgroups 2A, 2B, 2C, 2D, 2E, 2F), 19 Nov 2014, 13.00 – 15.00
Each group will be divided into 6 subgroups consisting of 3 or 4 students. Each subgroup will be
assigned a ECtHR judgment (see the list below). The criterion for the below selection of judgments is their
significance in terms of legal principles and/or their application to the particular factual circumstances. If the
subgroup wants to choose a judgment which is not in the list and/or which was delivered by another human
rights body (The Inter-American Court, The Human Rights Committee etc.), the subgroup is free to do so.
However, a representative of the subgroup has to duly inform me well in advance of the new choice. The
chosen judgment has to be about the right to private/family life.
Each subgroup will prepare a power point presentation discussing the judgment selected. The
subgroup will chose a member who will do the presentation in front of the class. The subgroup might choose
two members to do the presentation. The length of the presentation cannot be longer than 12 min plus 3 min
for questions by the class. The time constraint is very important because it ensures that all subgroups will
have time to present their work. Within these 12 min, the presentation has to cover some of the following
issues:
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Brief description of the factual circumstances.
Clear identification of the legal issues dealt with in the judgment.
The findings (whether there was or there was not a violation of the right to life) and the
reasoning (the arguments which substantiate the findings).
Are the members of subgroup in agreement with the findings and/or the reasoning? Do they see
any weak points in the reasoning? Could the reasoning be different? Could the conclusions be
different?
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Vladislava Stoyanova, The Right to Private Family Life, Instructions for the Lecture and the Seminars, Human Rights
Law course, Fall 2014
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The specific judgment has to be placed in context. The latter implies that it has to be compared
with others judgments touching upon the same issues. Does the adjudicating body rely on certain
principles which were established in previous judgments? How is the present judgment similar
and/or how is it different from other judgments? For the purposes of making this analysis the so
called Factsheets available on the web site of the ECtHR are very useful
(http://www.echr.coe.int/Pages/home.aspx?p=press/factsheets&c= ).
Has the judgment been an object of discussion in academic articles? Check, for example, Human
Rights Law Review, European Journal of International Law, European Human Rights Law
Review, Netherlands Quarterly of Human Rights and any other relevant academic journals. It
might be also useful to check the following two blogs, which provide in-depth analysis of
ECtHR’s judgments: http://echrblog.blogspot.se/ and http://strasbourgobservers.com/
Has the Court’s jurisprudence evolved since that particular judgment (this will be a relevant
question if the judgment is relatively old)
If you have any questions as to the organization of the seminars and what to include in your power
point presentations, do not hesitate to send me an e mail vladislava.stoyanova@jur.lu.se or
vladislava.stoyanova@gmail.com . Save your power points presentations on an USB stick so that we
can launch them in class.
Subgroups 1A and 2A - S.H. and Others v. Austria [GC], ECtHR Application No. 57813/00,
Judgment 3 Nov 2011
Subgroups 1B and 2B – Odievre v France [GC], ECtHR App No. 42326/98, Judgment 13 Feb 2003
Subgroups 1C and 2C – Antwi and Others v. Norway, Application No 26940/10, Judgment 14 Feb
2012
Subgroups 1D and 2D – De Souza Ribeiro v. France [GC], Application No. 22689/07, Judgment 13
Dec 2012
Subgroups 1E and 2E – Schalk v. Austria, Application No 30141/04, Judgment 24 June 2010
Subgroups 1F and 2F – Dickson v. The UK, [GC] Application No 44362/04, Judgment 4 Dec 2007
These
judgments
are
available
in
the
HUDOC
database
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"documentcollectionid2":["GRANDCHA
MBER","CHAMBER"]} If you have problems finding a judgment, do not hesitate to contact me.
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