The first pronouncement on the right to respect for privacy and family is set out in the Universal Declaration stipulating that ‘no-one shall be subjected to arbitrary interference with his privacy, family, home or correspondence’ and that ‘the family is the fundamental group unit of society entitled to protection by society and the state’. Today the right to respect for private and family life has come to encompass a wide range of areas. Privacy applies to a wide spectrum ranging from phone tapping to sexual orientation, while prominent issues regarding the right to respect for family include the rights of parents to contact with their children, remarriage and adoptions. This chapter examines a) the right to respect for private and family life, and b) the right to marry and found a family.
A. The right to respect for private and family life
The right to respect for privacy mirrors the liberal concept of the individual’s freedom as a self-governing being as long as his/her actions do not interfere with the rights and freedoms of others. The right to privacy is the right to individual autonomy that is violated when states interfere with, penalise, or prohibit actions that essentially only concern the individual, such as not wearing safety equipment at work or committing suicide. States justify such interferences with the social costs of the actions prohibited, for instance to the health care system. The right to privacy encompasses the right to protect a person’s intimacy, identity, name, gender, honour, dignity, appearance, feelings and sexual orientation. The right to privacy may be limited in the interests of others, under specific conditions, provided that the interference is not arbitrary or unlawful. People cannot be forced to change their appearance or name, for instance, nor can they be prohibited from changing their name or sex; however, in the interests of the rights of others they may, for example, be compelled to give biological samples for the determination of paternity. Another exception could be lawful counter-terrorism surveillance that necessarily operates in breach of privacy rights. Such a breach is acceptable as long as it accords with judicial and parliamentary oversight. The right to privacy extends to the home, the family and correspondence. The term family relates, for example, to blood ties, economic ties, marriage and adoption. The right to the respect for privacy of the home has been interpreted to include place of business. A common interference with the privacy of correspondence has to do with secret surveillance and censorship of the correspondence of prisoners.
Finally, with the propagation of computer technology and automated data processing, states are obliged to ensure effective data protection as public authorities and commercial organisations are in a position to exploit personal data threatening the privacy of individuals.
Article 12 UDHR and Article 17 ICCPR stipulate that ‘no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation’ and that ‘everyone has the right to protection of the law against such interference or attacks.’ Very similar wording is used in Article 14 CMW protecting migrant workers and their families from arbitrary interference with their family life and privacy. Article 16 CRC and Article 22 CRPD also specifically guarantee privacy rights for children and disabled persons.
Article 8 ECHR sets out the right to respect for private and family life, home and correspondence, as well as a number of possible limitations. Authorities may not interfere with this right except as is ‘in accordance with law and is necessary in the interests of 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 and morals, or for the protection of the rights and freedoms of others.’
Article 11 ACHR sets out the right to privacy, honour and dignity, and prohibits arbitrary interference with the right to privacy and stipulates that everyone has the right to protection of the law against attacks or interferences with the right.
The ACHPR does not explicitly set out the right to privacy, but Article 18 attaches particular importance to the state’s duty to protect the family.
The Human Rights Committee has dealt with many complaints regarding violations of the right to respect for private and family life. The Committee has found, for instance, that the right to privacy was violated when people were not allowed to change their names for religious purposes (Coeriel and Aurik v. The Netherlands), that a general prohibition of homosexuality is a violation of the right to privacy (Toonen v. Australia) and that dispossession by the state of the ancestral burial territory of members of an indigenous population was arbitrary interference with their right to privacy and family (Hopu and Bessert v. France). A territorial expulsion separating an individual from other family members can also give rise to a violation. A state must weigh the significance of the reason for expulsion with the hardship on the family entitled to stay (Madafferi v. Australia). If the individual has committed a serious criminal offence the state possesses a wider margin of appreciation (Byahuranga v. Denmark). The right to privacy may be restricted, but the Committee has also stated that measures of control or censorship of correspondence shall be subject to satisfactory legal safeguards against arbitrary application. Excessive restriction or censorship of the correspondence of prisoners is a violation of the right to privacy (see, e.g., Estrella v. Uruguay). The Committee decided, however, that there was no violation of Article 17 in a case where taped conversations between the complainant and his lawyer were used as evidence in criminal proceedings. The interference with correspondence was deemed to have adequate safeguards because the state made a distinction between conversations involving legal advice (protected), and other, more general conversations evidencing his criminal liability (Van Hulst v. The Netherlands). The issue of safeguards came up in the context of family life in N. T. v. Canada. Here the unilateral decision of a social service authority to end a mother’s visitation rights to her daughter in foster care violated Article 17 because the matter should have been determined judicially. The Committee has also stipulated in General Comment 16 that states are under the obligation to ensure effective protection of personal data and that the right to respect for the home extends to commercial or business space.
The European Court has made it clear that a state has a duty not to interfere with its subjects’ privacy, except under the strictly limited circumstances proscribed in Article 8 ECHR; i.e., only if prescribed by law, in the public interest and necessary in a democratic society. The Court has ruled that a person’s private life extends to moral and physical integrity, including sex life, and it has found that in certain circumstances a state has a duty to act to ensure that the right to privacy can be enjoyed. The Court’s decisions are diverse. Phone-tapping operations, not in ‘accordance with the law’, violate the right to respect for private and family life (Huvig v. France). Monitoring of an employee’s email and telephone records by the deputy principal of a public college has been equated to unlawful surveillance (Copland v. The United Kingdom). Unnecessary interference with the correspondence of prisoners (Campbell and Fell v. The United Kingdom) or the prevention of family visits to pre-trial detainees (Ferla v. Poland) constitute breaches of privacy and family life. Search of journalists’ homes and workplaces and seizure of documents constitutes a violation of Article 8 (Ernst and others v. Belgium). The prohibition of homosexual acts of consenting adults (Norris v. Ireland) violates the Convention. So too will a higher age of sexual consent for homosexuals when compared with the age for heterosexuals (see H. G. &.G. B. v. Austria) and the dismissal of homosexual men from the armed forces following investigation into their private lives constituted a violation (Smith and Grady v. The United Kingdom). In Tysiąc v. Poland the Court found the state’s refusal to perform a therapeutic abortion despite risks of serious deterioration of the mother’s eyesight a violation of her right to privacy but the requirement of the father’s consent for the continued storage and implantation of fertilised eggs did not constitute a violation of Article 8 (Evans v. The United Kingdom). The Court has come down against the placing or keeping of children in public care in circumstances where parents have not fully participated in the proceedings relating to these decisions, or in proceedings where parents have been refused the right of access to their children (see, e.g., Olsson v. Sweden and O., H., W., B. and R. v. The United Kingdom, Moser v. Austria and C. v. Finland). Removal of children on the basis of inadequacy of their parents’ housing is also incompatible with the Convention (Wallová and Walla v. The Czech Republic). Where a parent has abducted a child from one state to another to avoid an adverse custody decision, both states concerned are obligated to act with ‘swiftness’ in returning the child to the other parent (see, e.g., Bajarami v. Albania,Iosub Caras v. Romania, H. N. v. Poland and Monory v. Hungary & Romania). In some circumstances the expulsion of foreigners can amount to the violation of the right to family life (Moustaquim v. Belgium). Recently it has been held that the expulsion of a long-term immigrant entailed a breach of family life because of the applicant’s length of residence as well as his social, family and linguistic ties to the respondent state. Significant weight was also placed on the fact that the criminal offences, justifying the expulsion, occurred when the applicant was a juvenile (Maslov v. Bulgaria; see Grand Chamber decision Üner v. The Netherlands for a comprehensive discussion on expulsion and the rights of long-term immigrants who have committed criminal offences). The Court has interpreted the right to the respect for the privacy of the home to include certain professional or business activities or premises (Niemitz v. Germany). Further on ‘the home’, Article 8 requires that housing evictions by state authorities be accompanied by adequate procedural safeguards (Connors v. The United Kingdom). Addressing the competing demands of the right to privacy with freedom of expression, the Court, in a case concerning the publication of photos of Princess Caroline of Monaco, has held the test to be whether or not the pictures contribute to ‘a debate in a democratic society’ (Van Hanover v. Germany). On the other hand, journalists must be adequately protected by the state from unjustified defamation suits (Pfeifer v. Austria). Emerging in the doctrine of the Court is the expansion of the currently limited rights of transsexuals. The Court has, for instance, ruled that in barring transsexuals from obtain ing legal recognition of their gender re-assignment the state demonstrates a failure to respect the right to private life (Goodwin (Christine) v. The United Kingdom). The Court came to a similar conclusion in a case against Lithuania where a legislative gap prevented the applicant from undergoing the final procedures of full gender reassignment surgery (L. v. Lithuania). Finally, concerning search warrants, the Court has observed that authorities must take basic steps to verify the connection between the address to be searched and the offence being investigated to avoid violating the privacy and family life of the occupants of an erroneously targeted premise (Keegan v. The United Kingdom).
The Inter-American system has not dealt with many cases regarding the right to privacy. The Commission has found that forcible recruitment of a soldier violated his right to dignity (Piché v. Guatemala (Case 10.975)), and that rape implies, among other things, a deliberate outrage to a person’s dignity and becomes in this respect a question that is included in the concept of ‘private life’ (Rivas Quintanilla v. El Salvador (Case 11.625)). In relation to prison inmates, states must take steps to facilitate contact and correspondence between prisoners and their families (Oscar Elías Biscet et al. v. Cuba (Case 12.476)). In an Uruguayan case, the removal of rank and benefits from a general who had raised concerns about human rights abuses committed by the armed services constituted a violation of his ‘honour and dignity’ (Tomás Eduardo Cirio v. Uruguay (Case 11.500)). In regard to interferences for investigative purposes, the Commission has set out that any search must be justified by a ‘well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized’ (Robles Espinoza e Hijos v. Peru (Case 11.006)). The Inter-American Court has recently emphasised the importance of the home under Article 11 ACHR (Case of the Ituango Massacres v. Colombia). It noted in particular that ‘an individual’s home and private life are intrinsically connected, because the home is the space in which private life can evolve freely.’ The particular violation in the case concerned the destruction of several homes by a state-sponsored paramilitary group. Lastly, the Court has found that rights to reputation and dignity were breached after two brothers were murdered by the Peruvian authorities and then labelled and condemned as ‘terrorists’ in justification (Case of the Gómez-Paquiyauri Brothers v. Peru).
The African Commission has not explicitly dealt with the right to privacy.
B. The right to marry and found a family
Marriage and family are ancient institutions, recognised for centuries as the foundation of society. Like other aspects of society, family life and even the concept of ‘family’ has undergone rapid changes and evolution in recent times, resulting in varied regulations aiming at, for instance, guaranteeing equal rights of both spouses or partners in a relationship, when it comes to children and regulating adoptions. The state has an obligation to establish marriage and family as institutions under law, but at the same time to respect a person’s freedom to enter into marriage and the equal rights of both partners. For instance, an absolute ban on divorce based on religion violates the right to marry and prisoners cannot be prohibited to marry.
The family is entitled to special protection under a number of international standards. Article 16 UDHR establishes that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Article 23 ICCPR sets out protection for the family, for example, the right of men and women to found a family, as well as protection for children in the case of dissolution of marriage. Article 10 ICESCR, Article 17 ACHR, Article 15 Protocol of San Salvador, Article 12 ECHR, as well as Articles 16, 17 and 19 ESC deal with rights of the family. Article 18 ACHPR attaches particular importance to the state’s duty to protect the family as the ‘natural unit and basis of society [?] a custodian of morals and traditional values’.
The right to marry is also protected under international standards. The UDHR sets out in Article 16 that men and women of full age have the right to marry without limitations; that they are entitled to equal rights regarding marriage; and that the marriage shall be consensual. Article 23 ICCPR, Article 16 CEDAW, Article 12 ECHR and Article 6 Optional Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa set out the right to marry in similar terms. The Parliamentary Assembly of the Council of Europe has also passed a resolution calling for an end to both forced and child marriages (Resolution 1468 (2005) and Recommendation 1723 (2005)). Specific international Conventions also deal with the right to marriage, for instance, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962) and the Convention on the Nationality of Married Women (1957).
Rights of children are naturally paramount in the context of the family; Article 24 ICCPR, Article 19 ACHR, the European Social Charter and the CRC set out the special protection for children. Other important standards include, inter alia, the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986), the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors (1984) and the European Convention on the Adoption of Children (1967).
In this context, obligations of states include registering children after birth, ensuring that they enjoy the right to a name and nationality, and that they are not subject to discrimination (for instance, those born out of wedlock). Children are to be protected against physical and moral dangers, social and family benefits shall be provided and mothers and children shall be guaranteed special protection. Migrant workers and their families also merit special protection.
The Human Rights Committee has dealt with the right to family in a number of cases. The Committee has observed that that the term ‘family’ should be given a broad interpretation, so as to include all those comprising the family as understood in the society in question (Hopu and Bessert v. France). The Committee has taken the view that the common residence of husband and wife has to be considered as the normal behaviour of a family and therefore the exclusion of a person from a country where close members of his family are living can amount to interference with family life. A recent case on this is Farag El Dernawi v. Libyan Arab Jamahiriya where the respondent state effectively stopped a family from leaving Libya to reunite with the applicant – living in Switzerland as a refugee. The Committee has stated that the legal protection, or other measures, a society can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions, but that restrictions solely based on sex are not allowed (Aumeeruddy Cziffra and 19 other Mauritanian women v. Mauritius).
The Committee on the Elimination of all Forms of Discrimination Against Women has adjudicated on two relevant communications concerning Article 16 CEDAW. In the first, Hungary failed its obligations under the Convention because of the complainant’s inability to obtain a restraining order or any other form of suitable protection from her abusive common law husband (A. T. v. Hungary). In the second communication a Roma woman’s capacity to found a family was breached after she was sterilized without her fully informed consent (Szjjarto v. Hungary). In effect it infringed on her right ‘to decide on the number and spacing of [her] children.’
In regard to the state’s duty to protect the family, the African Commission has found that the forcible exile of political activists and expulsion of foreigners was in violation of the duties to protect and assist the family, as it forcibly broke up the family unit (Amnesty International v. Zambia plus Angola, Communication 212/98). Harassment, detention and torture of parents and families of detainees violates the right to protection of family: ‘the family is central to African society and the rights of the family are a necessary corollary to the protection of the individual, being an integral part of this unit’ (Comité Culturel pour la Democratie au Benin, Badjogoume Hilaire, El Hadj Bobacar Diawara v. Benin, Communications 16/88, 17/88 and 18/88). The Commission has also found that it is a violation to prevent detainees from communicating with their families (Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Communication 227/1999 and Article 19 v. Eritrea, Communication 275/2003).
The Inter-American Court has hardly dealt with the right to family life, except in the context of reparations where it has expanded the traditional notion of the family to include the extended family according to the culture and traditions of the society in question. Furthermore, the Court has granted provisional measures to protect migrant workers from expulsion in violation of their right to family and that of special protection of children within a family. Similarly, the Inter-American Commission has dealt with the right to respect for the family only to a limited extent; dealing, for instance, with discriminatory practices in respect of the role of each partner within marriage and gender discrimination violating the right to protection of the family. The Commission found discriminatory legislation stating, inter alia, that engaging in a profession or having a job, in the case of women, should be conditioned to situations in which it would not impair their role as mothers and housewives (Morales de Sierra v. Guatemala (Case 11.625)).
It is within the European system that the right to the protection of family is the most developed. The European Court has dealt with many cases dealing with the right to family. The Court has found, inter alia, that the ‘family’ is not confined to blood or marriage and can include de facto relationships (X. Y. Z. v. The United Kingdom); it has established that certain factors come into play when determining whether the relationship of individuals constitutes a family, e.g., the length of the relationship, if the couple lives together and whether they have demonstrated a commitment to each other in one form or another, but it stated that protecting the family does not necessarily oblige the state to ensure that non-married couples are to enjoy the same rights as married couples. The right to marry does not guarantee the right to divorce,
but the Court has found that the temporary prohibition on remarriage of a man who had already divorced three times constituted a violation of the right to marry (F. v. Switzerland). Finally, a law prohibiting the marriage between a father-in-law and daughter-in-law was declared incompatible with Article 12 ECHR (B. and L. v. The United Kingdom). The government’s submission that a waiver to the law could be granted after a parliamentary investigation into the proposed marriage was dismissed by the Court for being a cumbersome invasion of privacy.