Right to respect for private and family life

Article 8 of the ECHR protects an individual against arbitrary interference with his/her private and family life by public authorities. Besides, a State has a positive obligation, inherent in an effective respect for private or family life, to provide positive protection to an individual. The positive obligation on the State to provide protection may involve the adoption of measures to secure respect for private and family life where endangered by third persons. The boundaries between the positive and negative obligations under Article 8 of the ECHR are not always precisely defined.¹⁴⁷¹ Vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives.¹⁴⁷² Thus, a victim of crime may claim a violation of the right to private and family life in a case where the State has failed to effectively prosecute the perpetrators of a crime and where the victim in the renewed criminal proceedings is placed in a position to risk repeated encounters with the defendants, who could threaten, insult, and assault both his/her person and moral integrity.¹⁴⁷³

In answering the question as to what is the best protection of certain aspects of the right to private and family life to be afforded, the State enjoys a certain margin of appreciation.¹⁴⁷⁴ However, the use of available procedures and legal remedies must ensure the effective and efficient protection of the rights safeguarded by Article 8 of the ECHR. Thus, in certain cases, the protection afforded by the standard civil law is insufficient. In such cases, the criminal law provisions are necessary as an effective prevention mechanism; indeed, it is by such provisions that the matter is normally regulated. Other criminal law measures are necessary so that sanctions have a preventive effect on individuals. In cases where the State fails to secure to an individual or to the courts efficient mechanisms under domestic law for protection of the rights safeguarded by Article 8 of the ECHR, then there is a lack of fair balance which has to be struck between the interests of the individual and the State, and restrictions on an individual’s rights are not proportionate within the meaning of this Article.¹⁴⁷⁵

In one particular case, the courts confirmed their inefficiency given that, for six years, the judicial authorities were unable to conclude the criminal proceedings against a doctor, who, at the same time, was a delegate to the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, and his accomplices for the crime of kidnapping and forcible abortion. The courts let the accused use delaying tactics in the criminal proceedings. In addition, the application of the provisions of criminal procedure, which were already unclear, was to the advantage of the accused, while the legitimate interests of the victim to have the criminal proceedings completed within a reasonable time were disregarded. Despite the fact that the accused performed a forcible abortion upon a woman with whom he had shared an intimate relationship, the accused continued carrying out his duties as a physician and a delegate to Parliament, and was not deprived of liberty (detention) for a single day. The Human Rights Chamber found that those legislative and judicial failures of the Republika Srpska constituted a violation of Articles 3 and 8 of the ECHR.¹⁴⁷⁶

The right to respect for family life encompasses the right of access to information about the fate of close family members. In cases where an injured party may present sufficient evidence to show that state institutions and bodies held control over his/her close relatives, or were in possession of the body (for example, based on evidence that a person was deprived of liberty but apparently never released, or testimonies given by witnesses or information given by relevant institutions such as the International Committee of the Red Cross), the State is in breach of its positive obligation to protect the constitutional rights of the family members of “missing persons” under Article 8 of the ECHR if the State “with no justified reason” or “arbitrarily” refuses to release information on the fate and whereabouts of close relatives or information on the location of the mortal remains.¹⁴⁷⁷ This positive obligation to search for missing persons and to share with the families all relevant information concerning their relatives after the end of the armed conflict also arises from Article 32 in conjunction with Article 33(1) of Additional Protocol No. 1 to the Geneva Conventions, which, on the basis of Annex I to the Constitution of Bosnia and Herzegovina, constitutes substantive constitutional law.¹⁴⁷⁸ The objection that information and evidence pertaining to the fate of a missing person was lost or destroyed does not relieve the competent authorities of their positive obligation to release information or to give clarification.¹⁴⁷⁹ On the other hand, there is no violation of the right to respect for family life under Article 8 of the ECHR¹⁴⁸⁰ in cases where there are unjustified delays in investigation proceedings conducted against the persons responsible for the disappearance or murder of the applicant’s close relatives but the information is eventually disclosed to the applicant.

In the event that the exhumation of a body is ordered and the close relatives have very strong emotional and traditional bonds with the grave of the deceased, there is an interference with the right to respect for private and family life of the close relatives of the deceased.¹⁴⁸¹ Besides, the interpretation of the notion “family and close relative” depends on the society in question and social relationships as well as cultural traditions prevailing in the society to which the injured party belongs. Accordingly, in particular cases evidence of direct kinship connection is not essential to grant the protection of Article 8 of the ECHR.¹⁴⁸²

A sentence of imprisonment by its very nature imposes certain restrictions on the rights protected under Article 8 of the ECHR. Such restrictions are justified under the reasons provided by paragraph 2 of Article 8 of the ECHR only in cases where prisoners are not completely isolated as it is an essential part of both private and family life and the rehabilitation of prisoners that their contact with the outside world be maintained as far as is practicable, with a view to facilitating their rehabilitation. Given that going to jail implies that a prisoner is unable to make contact with close family members, such a punishment amounts to an interference with the rights safeguarded by Article 8 of the ECHR. Therefore, it is necessary to examine whether it is justified within the meaning of paragraph 2 of this Article, i.e., whether it is “covered” by one of the exceptions foreseen in the said paragraph. Article 8 of the ECHR, only in exceptional cases, provides that a prisoner may be transferred to an alternative detention facility closer to his family.¹⁴⁸³

Construction of a power plant that may interfere with the protected natural heritage assets and, thereby, with the well-being and the right to home of inhabitants living in that area, may constitute an interference with the right to respect for private and family life and home.¹⁴⁸⁴

In addition, proceedings to establish paternity also fall within the protection afforded by Article 8 of the ECHR. In this regard, the term family life in Article 8 of the ECHR is not confined solely to marriage-based relationships and may encompass other de facto “family ties” where parties are living together outside marriage and where there is sufficient constancy in their relationship.¹⁴⁸⁵

However, if there is not a personal relationship between (a presumed) father and a child, it is not the right to family life which applies, but the right to private life. The concept of private life covers the physical and psychological integrity of a person and it may sometimes imply the physical and psychological identity of a person. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.¹⁴⁸⁶ Respect for private life requires that everyone should be able to establish details of their identity as individual human beings and it implies that the right of an individual to such information is essential with regard to the formation of one’s personality.¹⁴⁸⁷ Consequently, it is in accordance with the Constitution of BiH that the court orders that a certain person be subject to relevant medical tests, which do not, necessarily, include DNA testing, in order to obtain information on one’s identity.¹⁴⁸⁸

Article 8 of the ECHR does not contain any specific rule concerning the question of which parent should be awarded the custody of children if the family unit is disrupted by divorce. In principle, this is left to the competent authorities, which have a discretionary power to decide on the basis of the relevant national law and in accordance with the established facts. Nevertheless, disputes over child custody fall within the scope of protection of Article 8 of the ECHR so that the authorities, while taking the decision, must observe the standards of the right to family life within the meaning of Article 8 of the ECHR. Based on the established facts and assessment of all available evidence, the court must take account of a child’s well being while taking its decision.¹⁴⁸⁹ In proceedings concerning custody and access to children in divorce cases, the right to a decision within a reasonable time and efficient proceedings is essential.¹⁴⁹⁰ Accordingly, when it concerns the right to family life, it is wholly unacceptable that institutions and courts fail to comply with the reasonable time requirement in deciding which parent should be awarded the custody of the children. The reasons for this are that there is uncertainty as to which administrative authorities are competent to conduct proceedings and which law should be applied in the relevant case.¹⁴⁹¹ However, if one parent gets the custody of a child, the other parent indisputably has the right to have contacts with the child.¹⁴⁹²

Reunion, i.e., the stay of aliens who are close relatives. The scope of the State’s positive obligation to admit to its territory relatives of its own native citizens and to grant them a stay in Bosnia and Herzegovina will vary according to the particular circumstances of the persons involved. In essence, it must involve true family relationships or partner relationships in a legal sense. If this element is missing and, in particular, if this is a manner to circumvent the regulations on the entry and stay of aliens in Bosnia and Herzegovina, Article 8 is not applicable.¹⁴⁹³

A State has the right to control and to regulate by law the entry of non- nationals into its territory. In principle, pursuant to Article 8 of the ECHR, the State has no obligation to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in Bosnia and Herzegovina.¹⁴⁹⁴ In cases where the State denies an alien his/her stay with the respective partner in Bosnia and Herzegovina, such a measure amounts to an interference with the right to respect for family life.¹⁴⁹⁵ Consequently, such a measure must be in accordance with law;¹⁴⁹⁶ it must pursue a legitimate aim, such as the protection of public order and national security;¹⁴⁹⁷ and it must be necessary in a democratic society. In addition, such a measure must be justified by a pressing social need and interest and it must be proportionate to the individual’s interest; the State enjoys a certain margin of appreciation in this field as to whether the aforementioned requirements are met in the relevant case.¹⁴⁹⁸ In this regard, it is necessary to observe the ties which an injured party has established in Bosnia and Herzegovina as well as the ties retained with the country of origin (citizenship, age of the members of his/ her family and whether they are sufficiently grown up to care for themselves, the current relationships and ties with other countries, the funds for self- sustenance, the existence of other citizenship, etc.).¹⁴⁹⁹ As to the protection of public security, the registration of an injured party in the Interpol register is substantial even if that person has never been criminally convicted.¹⁵⁰⁰ The existence or maintenance of ties with another country, the citizenship of which an injured party possesses, is sufficient under Article 8 of the ECHR to assume that that person may establish or maintain his/her family life in that country. This applies also in cases where it may be assumed that the other spouse must leave his/her country of origin.¹⁵⁰¹ Even in cases where Bosnian citizenship, obtained by a person, is unlawfully revoked, it does not constitute an obstacle to expel the person from the country if that person has retained his/her ties with the native country or if the period of his/her stay in Bosnia and Herzegovina is relatively short and the person has the possibility to live with his/her family in the native country.¹⁵⁰²

The right to protection of a private sphere of life under Article 8 of the ECHR is restricted by the right to freedom of the media. State authorities and private media must observe the standards of Article 8 of the ECHR if publishing certain kinds of information about a person, which fall within the scope of private sphere.¹⁵⁰³