In Botta v. Italy (Application No. 21439/93, Judgement of 24 February 1998) the European Court established that private life encompasses the physical, moral and psychological integrity of a person. This is further confirmed in Bensaid v. The United Kingdom (Application No. 44599/98, Judgement of 6 February 2001) where the applicant, undergoing treatment for schizophrenia, complained that his proposed expulsion to Algeria would leave him without adequate medical treatment, threatening his physical and moral integrity. The Court elaborated that ‘‘private life’ is a broad term not susceptible to exhaustive definition’ and ‘that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8’. In addition it established that:
Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. [?] The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.
The Court found no violation, as it was not sufficiently established that the moral integrity of the applicant would be affected to the degree that Article 8 would be applicable; the interference was deemed ‘in accordance with the law’ and ‘necessary in a democratic society’.
The Inter-American system has rarely dealt with complaints alleging violations of the right to privacy, but in the case of Rivas Quintanilla v. El Salvador (Case 10.772, Decision of 1 February 1994, Report No.6/94), the Commission found that the rape of a seven-year-old girl by a soldier violated her right to ‘have one’s physical, psychological and moral integrity respected’ under Article 11 American Convention. In another case, X. and Y. v. Argentina (Case 10.506, Decision of 15 October 1996, Report No. 38/96) the Commission found that the practice of performing vaginal inspections on all female visitors who desired to have personal contact with inmates in a prison violated the right to privacy. Ms. X, whose husband was in prison and their thirteen year old daughter Y were submitted to such searches each time they visited the prison. The Commission concluded ‘that by imposing an unlawful condition for the fulfilment of their prison visits without judicial and appropriate medical guarantees and performing these searches and inspections under these conditions, the State of Argentina violated the rights of Ms. X and her daughter Y guaranteed, inter alia, in Article 11.’ In a case before the Inter-American Court, Cesti Hurtado v. Peru (Series C No. 56, Judgment of 29 September 1999), it was contended that the state had violated the victim’s honour under Article 11 American Convention by presenting him as a criminal and accepting his guilt as a fact, even when he was not convicted under a due and proper proceeding. The Court found no violation as:
The Court considers that a judicial proceeding does not constitute, in itself, an unlawful attack on the honor or dignity of a person. The proceeding serves to resolve a dispute, even though it may indirectly cause annoyance to those who are subject to the prosecution. Moreover, it is almost inevitable that this should be so; to the contrary, the practice of contested lawsuits would be totally excluded. Furthermore, the punishment applied at the end of such a proceeding is not designed to harm those personal values, in other words, it does not attempt to discredit the person convicted, as occurs in the case of infamous punishment, which specifically suspends this intention. Accordingly, the Court considers that, in the instant case, it has not been proved that the Peruvian State violated, per se, Article 11.