310 / 532
294
ALLA TYMOFEYEVA
CYIL 5 ȍ2014Ȏ
Scientology of Paris v. France
,
15
the Commission pointed out that, unlike Article 9,
Article 8 of the Convention has more an individual than a collective character. The
objective of this provision is to protect the individual, not legal persons, against
arbitrary action by the public authorities.
The initial approach of the Convention bodies was also confirmed in the case
of
Scientology Kirche Deutschland v. Germany.
16
In the present case the applicant
association complained that a strong anti-Scientology campaign conducted in
Germany had predictable and serious effects on the private life of its members.
According to it, these effects were grossly disproportionate and destructive for the
private and family lives of the persons affected and, therefore, violated Article 8
of the Convention. The Commission in the present case noted that the applicant
association as such
clearly cannot be a victim of the alleged violations of the rights
guaranteed by Article 8 of the Convention
. It added that solely the members of the
applicant association, as individuals, could claim to be victims of a violation of these
rights, which by their nature are not susceptible of being exercised by an association.
Moreover, even if one assumes that the applicant association represented interests of
its members as alleged victims of a violation of Article 8 of the Convention, it had
not identified these individuals and in any event has not shown that it has received
specific instructions from each of them. Consequently, this part of the application
was declared incompatible
ratione personae
with the provisions of the Convention.
The above examples show that at the end of the nineties the old Commission still
refused to recognise the rights of legal persons under Article 8 of the Convention.
However, in the new millennium this approach has changed.
3. Development in the case-law after 2002
Turning back to the four dimensions of the rights safeguarded by this provision
(private life, family life, home and correspondence), we see that later on the Court
adopted a judgment extending the scope of some of them to legal persons. On
16 April 2002, in the case of
Société Colas Est and Others v. France
, referring to the
“living instrument” principle and the dynamic interpretation of the Convention, the
Court concluded that “
the time has come to hold that in certain circumstances
the
rights guaranteed by Article 8 of the Convention may be construed as including
the right to respect for a company’s registered office, branches or other business
premises
.”
17
This case was groundbreaking for legal persons seeking to protect their
rights under Article 8. This development could be predicted in advance thanks to the
number of judgments in respect of natural persons concerning the right to protection
of one’s office from arbitrary interference by the authorities.
18
For example, in the case
15
Church of Scientology of Paris v. France (dec.), no.
19509/92, 9 January 1995.
16
Scientology Kirche Deutschland v. Germany
(dec.), no. 34614/97, Commission decision of 7 April 1997,
unreported.
17
Société Colas Est and Others v. France
, no. 37971/97, § 41, ECHR 2002-III.
18
Niemietz v. Germany
, 16 December 1992, § 30, Series A no. 251-B.