ARTICLE 8 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 8 of the European convention on human rights

Article 8 of the European convention on human rights

Chapter One: Introduction

The European Convention on Human Rights and the Supreme Court in matters relating to its jurisdiction, the European Court of Human Rights, are no longer a matter of external control, following their incorporation into domestic law via the Human Rights Act 1998. The European Convention on Human Rights provides that the judgement of ECHR shall be final and that parties to it will abide by the Court's decisions. The institution resides in Strasbourg and is responsible for all matters relating to the interpretation and application of the Convention. In relation to the 'necessary in a democratic society' provision, five of the Convention's Articles specify the phrase in their text, although it is assumed that the Convention as a whole upholds its importance. This essay examines the European Court of Human Rights (hereinafter ECHR) and its interpretation, and relative importance, of the phrase, 'necessary in a democratic society' in relation to the Convention. Due to limitations in word count, the contents of this essay are not exhaustive.

The inception of communications has seemingly created an increase in challenges relating to Article 8 of the Convention. In Malone v UK, the ECHR found a breach of Article 8 of the Convention, relating to the right of privacy. More specifically, it was found that telephone tapping by the police and authorised by the UK Government and condoned by the High Court was in breach of right to privacy, contained in Article 8 of the Convention. This Article provides:

There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of national security.

It was held by the ECHR that tapping was against the Convention because it was not in accordance with law but governed by an unregulated decision. The reason why it could not be necessary in a democratic society was that there were no constitutional safeguards against misuse of the power. The Court concluded that the law was unclear and stated that, 'the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.' This case thus initiated new Government legislation to control telephone tapping by the police. The legislation comes in way of the Interception of Communications Act 1985 which limits telephone tapping to cases where the Home Secretary has issued a warrant and, to safeguard against arbitrary use, the warrant can only be issued in three distinct circumstances, one being serious crime. Furthermore, a tribunal and Commissioner will review how the Home Secretary has exercised his powers on an annual basis. The main findings of this case were reiterated in Kruslin v France and Huvig v France, where it was decided that there were insufficient safeguards in the law and that, accordingly, the Convention ...