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sufficiently close link to infringement of the Convention and did not pursue personal

interest in the case.

This was an exceptional situation, where the legal person acted

on behalf of an individual. The case concerned the interests of a mentally ill person

who at the time of his death had no next-of-kin and the failure to appoint a guardian

when he was alive could be attributable to the State. Taking into account the

principle that the Convention rights must be practical and effective and persons of

unsound mind must also have access to court, the Court dismissed the objections of

the Romanian government concerning

locus standi

of the organisation representing

the mentally disabled applicant. In this case the Centre for Legal Resources actually

acted as an agent of Mr Câmpeanu; therefore, the “direct link” was not required.

4. The five-steps test of the Court

Before starting the analysis of the case-law under Article 8 of the Convention in

respect of legal persons, let us have a look at a special approach used by the Court

to examine a complaint under this provision. Article 8 contains two paragraphs and

the approach is actually based on this structure. The first paragraph defines the right,

and the second paragraph sets forth the permissible restrictions. The Court found on

many occasions that, in view of the fundamental nature of the Convention rights, the

first paragraph should be widely interpreted or can be “stretched”, and the second one

should be interpreted narrowly, which means that the restrictions must be limited.

In the course of examination of a complaint under Article 8, the Court poses

a number of questions relating to the existence of the “interference”, its “lawful

basis”, its “legitimate aim”, “necessity in a democratic society” and “proportionality”

in a certain order, so that, if the answer to the first question is negative, there is no

need to conduct a further assessment. The exact formulation of the questions may

be different from case to case. Nevertheless, a list of the following questions could be

considered as a basic standard.

It shows a line of consideration of the Court.

The list of the standard questions used to examine a complaint under Articles 8

of the Convention is as follows:

1. Does the issue fall within the scope of Article 8 of the Convention?

2. Was there an “interference” with the right?

3. Was the interference prescribed by “law”?

4. Did the interference pursue a “legitimate aim”?

5. Was the interference “necessary in a democratic society” to achieve the legitimate

aim in question in the particular case and “proportionate” to that aim, taking

Ibid,

§ 107.

KMEC, J., KOSAŘ, D., KRATOCHVÍL, J., BOBEK, M

Evropská úmluva o lidských právech.

Komentář. 1. vydání. Praha: C.H. Beck, 2012, p. 865.

ROAGNA, I.

Protecting the right to respect for private and family life under the European Convention on

Human Rights

. Council of Europe human rights handbooks. Strasbourg: Council of Europe, 2012, p. 11.