CYIL 2014

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DO LEGAL PERSONS HAVE THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE?

into account the “margin of appreciation” accorded to the state in question?

Are there appropriate and effective procedural guarantees against abuse?

If the answer to the first question from the list is negative, there is no issue

under the Convention, and such a complaint should be declared inadmissible. If the

answer is positive, the Court moves to the second question. The negative answer to this

question leads to a finding that there has been no violation of the Convention. If the

answer is positive, it continues with the third question. If the interference was not

based on “law” for the purposes of the Convention, the Court finds an infringement

of the Article of the Convention in issue. A positive answer to the third question

leads to examination of the fourth question. There is no violation of the Convention

if the State pursued a “legitimate aim”. Nonetheless, in such a situation the Court

is obliged to analyze the fifth question and to find out whether the interference was

“necessary in a democratic society”. Depending on the answer to this final question,

the Court decides either that the interference was necessary and adequate procedural

safeguards against abuse existed, or that the interference was not necessary and there

were insufficient guarantees against abuse. Of course, this scheme is oversimplified

and the real analysis of the Court is deeper; nevertheless it may serve as a starting

point for those who would study the case-law in subject. It also has to be noted that,

under some circumstances, the Court does not give a final answer to the question in

order and prefers to move to another question which it considers to be of importance,

thus giving answer to the examined issue in general.

Having described the basic test used by the Court in the course of the examination

of the rights under Article 8 of the Convention, we will now move to specific examples

of the Court’s practice dealing with the applications lodged by legal persons.

5. Issues raised under Article 8 of the Convention

In comparison to some other provisions of the Convention, the number of cases

with legal entities invoking Article 8 of the Convention is very limited. As stated

before, the case-law of the Court does not contain any judgment where it would have

found an infringement of rights relating to private or family life in respect of legal

entities. All the cases concern the dimensions of “home” and correspondence. In many

cases it is difficult to distinguish between the respect for “home” and correspondence

of legal persons. Karen Reid says that notions “home” and “private life” may overlap

with business and professional activities.

For that reason the author decided not to

divide the case-law into two separate groups, dealing with the right to “home” and

the right to correspondence. The cases will be arranged in accordance with issues

raised by the applicants.

KORFF, D.

The Standard Approach under Articles 8 – 11 ECHR and Article 2 ECHR

. URL: http://

ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF_Douwe_a.pdf.

REID, K.

A practitioner’s guide to the European Convention on Human Rights

, 4th ed., London:

Thomson/Sweet & Maxwell, 2012, p. 531.