The right to respect for private and family life, home and correspondence

This right is not protected by our Constitution by a separate provision, as with the other rights discussed so far in this human rights column. It does, however, figure in Chapter IV, entitled 'Fundamental Rights and Freedoms of the Individual', in the first, general, declaratory provision, Article 32.

Nonetheless, it is still a directly enforceable right in Malta by virtue of the European Convention Act, which, as has been explained in the first articles of this column, forms part of the Laws of Malta by virtue of Act XIV of 1987.

In fact, the European Convention on Human Rights (ECHR) in its eighth Article states:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

"(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in 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 or morals, or for the protection of the rights and freedoms of others."

It is noticeable that the right protected under this article is respect for private and family life, home and correspondence, but not the right to private and family life, home and correspondence.

Moreover, it is not absolute, and exceptions to it are permitted in accordance with paragraph 2, quoted above. One will also immediately realise that Article 8 of the ECHR places on states the obligation to respect a wide range of personal interests. These embrace a variety of matters, some of which either overlap or are inextricably linked and occasionally interconnected.

It is first necessary to determine what is the content of each of the interests set out in Article 8 (1).

The European Court of Human Rights (ECtHR) has so far been quite unwilling to attempt an exhaustive definition of the vague term "private life", or even to isolate the values it protects. Nonetheless, the ECtHR did provide some guidance as to the meaning or ambit of "private life" for the purposes of Article 8.

In fact, in Niemetz vs Germany [1992] the ECtHR held that "...it would be too restrictive to limit the notion of private life to an inner circle in which the individual may live his own personal life as he chooses, and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."

Here the ECtHR also contemplated considering that some personal relations in the business context might fall within the purview of "private life". In another decision, [X and Y vs The Netherlands 1985], the ECtHR stated that private life also covers "the physical and moral integrity of the person, including his or her sexual life".

Within the sphere of private life, the most important interest the ECHR strives to safeguard is the individual's capacity to determine his identity or, in other words, to decide and then to be what he wants to be.

Within the individual's power are matters like his choice of name, his mode of dress and his sexual identity. The individual does not merely enjoy a right to an identity which distinguishes him from others.

He must also be free to choose how he is to be regarded by the state, and how to present himself to others. Such issues surface in cases of transsexuals who claim that a state has an obligation to respect their identity as chosen by themselves.

The general trend is that the ECtHR accepts that such matters fall within the concept of "private life", and furthermore that the protection extends not just to the choice itself, but also to the identity by which transsexuals make themselves known to others, as has been stated in B vs France [1992]. A great deal of domestic courts throughout Europe are following the ECtHR's views.

In another important case, Gaskin vs UK [1989], the ECtHR acknowledged that Gaskin's claim that the records of his upbringing in public foster-care were significant to him as part of what he was, and as a substitute for the parental memory of children brought up within their own family.

Therefore, determining whether a putative parent (usually the father) actually is the parent of a child or whether a child is actually the progeny of a particular adult (as may sometimes occur if a child has been adopted) is also a matter of private life, although, strictly speaking, it can have various public consequences and repercussions including registration of the child before the competent authorities.

Private life has also been interpreted to include moral or physical integrity and "private space". In Rayner vs UK [1986], Rayner argued that the intensity and persistence of aircraft noise interfered with his rights to respect for his private life and home.

The European Commission on Human Rights decided that "considerable noise and nuisance can undoubtedly affect the physical well-being of a person, and thus interfere with his private life".

This opens the prospect for environmental claims to be brought within Article 8, with the hope that such action will lead our governments to act, and not only speak, when the Maghtab landfill and Portomaso's construction phase cause irreparable damage to society in general and to individuals in particular.

As to private space, mention must be made of a few cases where the Strasbourg authorities decided that where the intrusion is slight and foreseeable, such as being photographed in the street against one's wishes, there is generally no infringement of private life, as was held in Costello-Roberts vs UK [1993] and Friedl vs Austria [1994].

However, the creation of hurdles aimed to destroy or reduce the effective enjoyment of a social life and the collection of information by state officials about an individual without his consent interferes with his right to respect for his private life.

In Dudgeon vs UK the activities were consensual homosexual ones between adult men in private, and the ECtHR described sexual life as "a most intimate aspect of private life".

The European Commission of Human Rights in Bruggeman & Scheuten vs Germany, way back in 1977, acknowledged the importance of untroubled sexual relations as a part of private life, in a case dealing with the right of a woman to an abortion in the event of an unwanted conception.

The Strasbourg authorities have therefore contributed to a process which has seen the toleration of private, adult, consensual, homosexual and transsexual relationships.

Family life extends beyond formal relationships and legitimate arrangements, obviously because the changing nuclear unit affects the idea and concept of the family throughout Europe.

This is a classical example of how the law and the courts adapt to social changes within society, and how the courts face a contemporary reality where the rise in de facto unions, cohabitation and illegitimate children is rapidly increasing.

In Kroon vs The Netherlands [1994] it was not even necessary for the couple to live together to avail themselves of the right to family life. If a relationship established in accordance with the forms recognised by the national law, should ordinarily fall within Article 8, then so should marriages celebrated abroad but recognised by the national law, such as polygamous unions.

Family life extends to cover not only the husband-wife, parent-child relationship but also relationships between siblings and between grandparents and grandchildren.

Recent technological innovation and scientific progress in methods of procreation are causing the ECtHR to consider whether and to what extent the ECHR protects "artificial family life".

An important point is that the state has an obligation to respect family life, but no right exists in relation to the establishment of family life, thus making it difficult for homosexuals to adopt children and form a family, especially if the national court determines that such family would not have been formed in the best interests of the adopted child.

A right to family life does not lead to a right to a formal termination of family life, such as the right to divorce. Although most might disagree, no fundamental human right to divorce exists. Divorce is not even a human right, let alone a fundamental human right.

With the influx of many foreigners in our country, many times, at least when crimes are committed by foreigners who have or are about to have a child from a Maltese woman, our courts are faced with a dilemma of whether to deport the convicted foreigner or not.

In general, the prosecuting officer, the Immigration Department representatives and the victim's lawyer (parte civile) argue before a court in favour of deportation, while the defence lawyer on behalf of his client (the accused) claims that such deportation would be tantamount to a violation of the right of the accused to a family life and is thus unconstitutional.

Consequently, the deportation (removal) of the accused would never be ordered by the domestic court since the issue of a removal order of a court would, in itself, actually bring about a breach of the human rights of the accused.

Similar issues arose in Berrehab vs the Netherlands [1988], where the refusal to grant a Moroccan, Berrehab, a new residence permit after the divorce and the resulting expulsion, according to the ECtHR, amounted to interferences with the right to respect for their family life.

The measures undertaken by the Dutch competent authorities "in practice prevented the applicants from maintaining regular contacts with each other, although such contacts were essential as the child was very young".