RESPECT OF THE ARTICLE 8 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN THE RECENT CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

: Private life, family life, home and correspondence represent some of the most intimate and significant aspects of human life. The focus of this paper is an analysis of the right to respect for private life, family life, home and correspondence, as the elements of the protection of the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis was primarily conducted through research and interpretation of the European Court of Human Rights recent case law, whereby, some of the cases of the highest importance as well as the case of the Republic of Serbia as a respondent state, were specially observed.


THE INTRODUCTION
The main topic of this paper is a research of the concepts of private life, family life, home and correspondence in recent case law of the European Court of Human Rights (in further text "the Court"), with special review on the need for more efficient protection of the mentioned rights by the signatory states to the European Convention for the Protection of Human Rights and Fundamental Freedoms (in further text "the Convention"). The reason for choosing this subject lies in the fact that rights protected by the Article 8 occupy extremely important positions in the Convention, thus we can say they are in its protection focus. The first part of the first chapter of this paper refers to the explanation of the concepts of private life, family life, home and correspondence. The second part of the first chapter deals with limitations of the Article 8 rights, set out in Paragraph two of the mentioned Article. The second chapter is the main area of this paper, and its aim is to research Court's new provisions in the means of usage range of the Article 8 of the Convention. The first part of the second chapter represents the statistical review of all the cases of violation establishments of the Article 8 by the Court during the year of 2019, while the second part contains short overview of certain cases specified as "key cases." Furthermore, the third part describes the sole case in which the Republic of Serbia was the respondent case. At the end, conclusions were drawn.

The main principals of the application of the Article 8 of the Convention
The Article 8 of the Convention 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 is 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. 1 The Court's judgments have repeatedly stated that the essential object of the Article 8 is to protect the individual against arbitrary interference by public authorities. 2 The wording suggests a profoundly negative 'right to be left alone,' and yet most of the case law has focused on the positive dimension of the right. 3 However, it should be mentioned that the State must not only abstain from interference with right to private and family life, but it must also protect individuals from infringements of the right that are attributable to others. 4 Despite the dis-tinction being made between positive and negative obligations under the Article 8, it is not always evident whether an interference results from a denial of the right or a failure of a state to provide an adequate regulatory framework. 5 The Article 8 is considered to be one of the most flexible provisions of the Convention, since it has shown very adaptable to changes and applicable to a great range of situations. 6 The rights protected under the Article 8 are among Convention's broadest rights in means of the usage domain. They demand special balancing between the need for the protection of human rights of the individuals and the protection of national interests of member states. 7 Because of beforementioned, the Court allows member states a wide margin of appreciation reflected in two notions. Firstly, the notion of "respect" of the right to respect private and family life is not clear-cut, and its requirements will vary considerably from case to case. Furthermore, the Paragraph 2 of the Article 8 provides that the right to private and family life may be subject to restrictions. 8

The concept of private life
The Court has explained that 'private life' is a broad term encompassing the sphere of personal autonomy, for which is impossible to give the unique definition. 9 The concept of private life implies that everyone can freely pursue the development of their personality and establish relationships with the outside world, 10 simply said -to live life with minimum od interference. 11 The Court has determined that the protection of private life entails, inter alia, the protection of physical, psychological and moral integrity of an individual 12 (including the protection of health 13 and medical care 14 ); the protection of the social identity of an individual (including the right of free choice of professional orientation and professional activities, 15 name, 16 nationality, 17 freedom of religious choice, 18 sexual identity and sexual orientation 19 ); the protection of right to terminate one's own life; 20 the protection of right to choose of place of living; 21 personal data protection; 22 the protection of 10 Jehovah's Witnesses of Moscow v. Russia,app.no. 302/02, judgment of 10 th of June 2010, para. 117; Gillberg v. Sweden, app.no. 41723/06, judgment of 3 rd of April 2012, para. 66;S. and Marper v. United Kingdom, app.no. 30562/04 and 30566/04, judgment of 4 th of December 2008, para. 66;Haas v. Switzerland, app.no. 31322/07, judgment of 20 th of January 2011, para. 50;Niemietz v. Germany, app.no. 13710/88, judgment of 16 th of December 1992, p. 29;Sargsyan v. Azerbaijan, app.no. 40167/06, judgment of 16 June 2015, p. 255;Denisov v. Ukraine, app.no. 76639/11, judgment of 25 September 2018, para. 100. 11 W. A. Schabas, 369. 12 E.S. v. Sweden, app.no [69][70]Khelili v. Switzerland, honor and reputation; 23 the protection from arbitrary interference by public authorities and seizure of property; 24 the protection from noise. 25 Although certain issues related to marital and parental status of citizens (such as entering into a marriage, marriage annulment, paternity proceedings, adoption proceedings) belong with the concept of family life, they also fall within the scope of protection of private life. 26

The concept of family life
The protection of family life presupposes the existence of a family. 27 The Court has stated that the concept of family does not only include relations by marriage. On the contrary, family exists whenever there are certain number of people between whom constant and close family relations can be determined. 28 The Court has recognized the existence of family life between parents and children, spouses, 29 extramarital cohabitation partners, 30 siblings, 31 and grandparents and grandchildren. 32 Relationship between parents and children is considered to be a fundamental element of family life. 33 Others v. Russia, app. no. 6033/13, 8927/13, 10549/13, 12275/13, 23890/13, 26309/13, 27161/13, 29197/13, 32224/13, 32331/13, 32351/13, 32368/13, 37173/13, 38490/13, 42340/13, 42403/13, judgment  be supported by sufficiently sound 34 and weighty considerations in the best interests of the child, 35 having in mind that the potential separation of children from their parents could cause serious, even unrepairable consequences for their relationship. 36 Family life entails both relations between biological parents and their biological (legitimate or illegitimate) children 37 and relations between adoptive parents and adopted children. 38 The right to family life implies not only the right of family members to live together, but also to develop interpersonal relationships, 39 thus it can be established among family members who do not live in the same household. 40 Furthermore, family life is not limited to social, cultural and moral relations, but also encompasses interests of the material kind (such as subsistence). 41

The concept of home and correspondence
The Court's case-law is very extensive in respect of alleged breaches of private or family life, as opposed to a much smaller number of cases of alleged violation of home and correspondence. 42 The notion of home is closely related to the concepts of private and family life, since term home usually suggests a physical space in which private and family life takes place. 43 When determining whether something is considered a home within the meaning of the Article 8 of the Convention, it is observed whether there are circumstances that indicate a sufficient and continuous connection of a person with a particular space. 44 However, the Article 8 protects not only physical space but also the unhindered enjoyment of a certain quality of life. 45 Besides written and electronic form of correspond-ence, 46 the concept of correspondence also entails other ways of communication, such as telephone conversations. 47

Restrictions of the Article 8 of the Convention
As beforementioned, the rights protected under the Article 8 of the Convention are not absolute but suffer certain limitations. Therefore, not every interference in enjoyment of the mentioned rights is considered a violation of the Article 8. 48 When in doubt whether there was a violation of the Article 8, it should firstly be established whether the situation in question relates to one of the objects protected by the Article 8, that is, whether it can be established the existence of private life, family life, home or correspondence. 49 If the Court answers this question in the affirmative, the second stage is to determine whether there was an interference with the right to their undisturbed enjoyment, and whether that interference was justified -whether it was in accordance with the law, had a legitimate aim and was necessary in a democratic society. 50 With regard to the exceptions foreseen in the Paragraph 2 of the Article 8 of the Convention, the Court enforces restrictive approach, 51 taking into account that the exceptions apply only for those purposes for which there were envisioned. 52

'The accordance with the law' restriction
Limitations of the Article 8 are allowed solely by means which have fundament in the basis of domestic legal system, that is, they have to be based on effective provisions of national regulations. 53 Accordingly, in each specific case it is necessary to determine the existence of a certain regulation, but also, if that regulation meats certain criteria established by the Court's case law. The Court has concluded that a provision considered to be a basis for the interference does not have to be in writing, but could be in an unwritten form, 54 whereby the way in which that provision is interpreted and applied by national courts is taken into account. 55 There is also a qualitative requirement a provision considered to be a basis for the interference should fulfil. Namely, provision should be accessible and foreseeable, 56 precise in formulation, as well as predictable in terms of the consequences it envisages. 57 Therefore, the regulation should be available in such a way that a citizen has an indication that the regulation is applied in the given circumstances and is aware of the consequences of not obliging to it, 58 so that one can adjust its behavior. 59 The regulation must be such to provide at least a minimum degree of legal protection against arbitrariness of interference by public authorities with the rights protected by the Article 8. 60

The legitimate purpose of an interference with the Article 8 of the Convention
If the Court concludes that an interference was in the accordance with the law, it shall continue to determine whether the interference was consistent with any of the legitimate aims enumerated in the Paragraph 2 of the Article 8. Namely, the Court determines whether the interference was in the interest of national security, public safety or the economic well-being of the country, or whether its cause was to prevent a disorder or a crime, to protect health or morals, or to protect the rights and freedoms of others. 61 Although, unlike other restrictive clauses contained in the Convention, Paragraph 2 of the Article 8 does not provide for public order as a legitimate aim, the grounds for legitimate interference are still set quite broadly. 62 For this reason, the condition of legitimacy is not considered to be of undue importance for determining a potential violation of the Article 8. 63 Moreover, Court analyzes the existence of legitimate aims rather concisely 64 and generally takes the view that the State acted to achieve them. 65

The necessity of the interference with the Article 8 of the Convention in a democratic society
The last element the Court examines when determining the justification of state interference with the Article 8 of the Convention is the necessity of that interference in a democratic society. This element is considered to "the most subjective" one. 66 An interference shall be considered necessary in a democratic society if it is a consequence of a pressing social need, 67 in proportion to a legitimate aim, and if the reasons justifying it are "relevant and sufficient." 68 The Court takes into account the margin of appreciation given to the member states, since it is primarily their obligation to ensure a fair balance between the interests of the individual and the community as a whole. 69 If it finds that the same legitimate aim could have been achieved by a less severe and restrictive measure, the Court shall conclude that the member state did not ensure a fair balance between competing interests, that the interference was disproportionate, and that it was, therefore, not necessary in a democratic society. 70

ANALYSIS OF THE COURT'S 2019 CASE LAW IN RESPECT OF THE ARTICLE 8 OF THE CONVENTION
In the year of 2019, the Court rendered one hundred and one judgment establishing the existence of the violations of the Article 8 of the Convention, which judgments shall be statistically presented below. Furthermore, the "key cases" shall be analyzed separately, since they are considered to be the cases in which the Court has made the decisions of the utmost importance. In the end, the sole case in which the Court rendered judgment in 2019 in connection with the Article 8 of the Convention, and in which the respondent state was the Republic of Serbia, shall be summarized.  Тekı̇n v. Тurkey, app.no. 19302/09, 49089/12, judgment  When it comes to respondent states, the greatest number of applications -24 in total -were filed against Russia, in time period from the year of 2006 to the year of 2017. 74 After Russia comes Turkey with total of 12 applications filed before the Court. 75 Ukraine is next, with 11 cases determining the existence of its violation of respect to private and family life. 76 Then come Romania with seven applications 74 Simões Balbino v. Portugal, app.no T. v. Ukraine,app.no. 950/17,judgment  Polyakh and Others v. Ukraine, app.no. 58812/15, 53217/16, 59099/16, 23231/18, 47749/18, judgment of 17 th of October 2019; Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, app.no. 75734/12, 2695/15, 55325/15, judgment Romania, app.no. 289/14, judgment of 25. June 2019;Stroea v. Romania, app.no. 76969/11, judgment of 22. October 2019;E.B. v. Romania, app.no applicants claimed that their right to private life was violated, 98 in total of two cases applicants claimed that their right to correspondence was violated 99 and in only one case an applicant claimed that their right to home was violated. 100 In certain cases multiple violations of rights were observed at the same time. Hence, the Court was determining the violation of rights to private and family life in 14 cases, 101 the violation of rights to private life, family life and home in three cases, 102 the violation of rights to private life and home in three cases, 103 the violation of rights to private life and correspondence in two cases, 104 the violation of rights to family life and correspondence in one case, 105 and the violation of rights to correspondence and home in one case. 106 It is important to state that the Court did not find a violation of the Article 8 in 21 cases, 107 whereby one of those was specific -the violation was not determined only in relation to one applicant, while in relation to the rest of the applicants the application was declared inadmissible. 108 Moreover, one case was considered wholly inadmissible on the basis of Article 35 of the Convention. 109 In all the other cases, the Court found that there had been a violation of Article 8. However, in certain cases, violation was determined in respect of only one respondent state (while several states were respondents), 110 in regards to only one applicant (while several persons submitted applications), 111 in regards to only one object of protection (and the violation of several objects was being determined), 112 or in relation to only one part of the described factual situation. 113 From the total of hundred and one case in which it was being determined whether there was violation of Article 8 of the Convention and which were terminated by Court's judgments in the year of 2019, seven cases were declared as the Court's "key cases." 114 The Grand Chamber of the Court ruled in three of those seven cases. 115 The Grand Chamber exclusively decides cases concerning matters important for interpretations and application of the Convention and cases concerning serious questions of general matter.

The short review of "key cases"
Five of seven "key cases" relate to the allegations of violations of the right to private life, while two relate to the violations of right to family life. In four cases the Court found the violation has occurred, in two cases no violation was found, while in one it was concluded that the Article 8 of the Convention was inapplicable ratione materiae.

Misfud v. Malta 116
The applicant claimed there was a violation of his right to private life, as in paternity proceedings he had to provide a genetic sample contrary to his will. The Court concluded there was an interference in applicant's private life and thus began determining whether that interference was in accordance with the law, had a legitimate purpose and was necessary in a democratic society. After the Court confirmed that the interference was in accordance with the law, it approached the analysis of whether it had a legitimate purpose. It was concluded that the legitimate purpose existed -the protection of rights of others, specifically the protection of right of applicant's alleged daughter to collect information needed for the confirmation of her personal identity as a part of her private life. Moreover, the Court determined that the interference was necessary in a democratic society, as the domestic courts set a fair balance between the protection of the rights of the applicant's alleged daughter and the interest of the applicant not to provide the DNA sample. The violation of private life of the applicant was not determined.

Beghal v. the United Kingdom 117
The applicant was stopped, questioned and searched at the United Kingdom airport under provisions of Schedule 7, which empowered police and immigration officers to stop, examine and search passengers without authorization or access to a lawyer -if there was a reasonable doubt of their involvement in terroristic activities. The applicant refused to answer most of the questions asked, for which reason she was subsequently convicted of intentionally failing to perform the duties provided for in Schedule 7. The applicant considered that her right to private life was violated and she filed an application to the Court. After determining that there was, indeed, interference in applicant's private life, the Court concluded this interference was not in accordance with law, since the provisions of the Article 8 were not sufficiently clear and predictable, and did not protect individuals against arbitrary interference by public authorities. Therefore, the Court found a violation of the Article 8 of the Convention.

Altay v. Turkey (no. 2) 118
The applicant, a prisoner serving a life sentence, had received a package from his lawyer containing items such as a book and a newspaper. Concluding that the package did not contain materials related to the applicant's defense, the prison administration decided not to hand it over to the applicant. Furthermore, administration filed a request to the public prosecutor to initiate proceedings for an official to be present during consultations between the applicant and his lawyer. The domestic court granted the application, in an examination carried out solely on the basis of the case file, without holding a hearing and without seeking submissions from the applicant or his lawyer. The applicant claimed that his right to personal life was violated. The Court pointed out that a person's communication with his lawyer in the context of legal advice falls under notion of private life. Namely, due to the fact that the information exchanged is personal, intimate and sensitive in nature, the communication between an individual and his lawyer is reasonably expected to be private and confidential. Although the provisions of the applicable law were sufficiently precise, the domestic court did not interpret them in a right manner nor apply them correctly to the specific case. The applicable law clearly stated conditions under which the measure of supervising meetings between prisoner and his lawyer could be determined. However, sending a package not related to the defense was not listed among them. Consequently, the law was not foreseeable and the violation of the Article 8 occurred due to non-fulfillment of the conditions of legality.

Nicolae Virgiliu Tănase v. Romania 119
The applicant was one of the four participants in the traffic accident, as a result of which he became disabled. The domestic authorities conducted an investigation which was eventually suspended, inter alia because there was a suspicion as to the existence of a causal link between the actions of one of the drivers and the injuries suffered by the applicant. The applicant lodged an application with the Court claiming that his rights under Articles 3, 6 and 13 of the Convention had been violated, but the Grand Chamber of the Court decided to examine the possible violation of the Articles 2 and 8 as well. Despite finding that the applicant had suffered severe physical injuries during the accident (and emphasizing that his body and physical integrity are both aspects of his private life protected by the Article 8 of the Convention), the Grand Chamber concluded that Article 8 was not applicable ratione materiae in the present case. The Grand Chamber based its decision on the findings that the injuries suffered by the applicant were due to the applicant's voluntary activities (driving a motor vehicle on a public road) and that they were not a result of an act aimed at violating the applicant's physical integrity. Thus, it was found that there was no human contact or interaction that could justify the application of the Article 8 of the Convention.

Lopez Ribalda and Others v Spain 120
The applicants worked in a supermarket that had been sustaining economic losses. In order to investigate these losses, the employer of the applicants decided to install surveillance cameras. Some of the cameras were in plain sight while others were hidden. The applicants were notified of the presence of the cameras that were visible, but not of those that were hidden. As the hidden camera footage proved they were stealing, the applicants were dismissed. Following the proceedings before the domestic courts, the applicants filled an application to the Court claiming that their right to respect for private life had been violated by secret video recording at their workplace. The Grand Chamber of the Court found that there had been no violation of the Article 8 of the Convention, concluding that the domestic courts had complied with their positive obligation under the Article 8, without going beyond their margin of appreciation. The domestic courts correctly found that the video surveillance measures were justifiably taken to meet a legitimate aim -protection of the employer's right to secure their property -and that they were appropriate and proportionate to that aim, which could not be achieved by less harmful measures.

Strand Lobben and Others v. Norway 121
After the second applicant was born, the first applicant (the mother of the second applicant), voluntarily went to family center to receive help and guidance which she considered as needed at the time. Three weeks later, she withdrew her consent and wanted to leave the center together with her child. However, the child-protection services rejected her request, and decided to place the second applicant temporarily, and then permanently, in a foster family. After a certain period of time, the first applicant was deprived of her parental rights, and the second applicant was adopted by his previous guardians. Following domestic proceedings, the first applicant filled an application to the Court, holding that her and the second applicant's rights to family life had been violated. The Grand Chamber of the Court concluded that the decision-making process of the national authorities had not been carried out properly, as the severity of the interference with the applicants' family life was not proportionate to the applicants' interests, which were not adequately taken into account. The Grand Chamber emphasized that the procedure of determining parental capacities of the first applicant was not done thoroughly, especially in view of the fact that she had in the meantime got married and given birth to a second child. A violation of the right to respect for family life was established.

Guimon v France 122
The applicant was serving a prison sentence for terrorist activities when she asked to temporarily leave the prison to attend her father's funeral. The domestic authorities determined that the death of her father was a reason that could justify permission for applicant to temporarily leave the prison, but they nevertheless rejected the request for logistical reasons. Namely, the applicant had submitted her request for prison leave promptly, leaving the authorities six days to make a decision and organize the escort. Once the final permission had been granted, there was no sufficient time to arrange specially trained escort and to organize the prior inspection of premises. The applicant filed the application to the Court claiming that her right to family life was violated by not allowing her to attend her father's funeral. The Court found that there was an interference in applicant's family life, but that this interference was in accordance with the law, was aimed at fulfilling legitimate goals -preservation of public safety and prevention of disorder or crimes -and was necessary in a democratic society. Therefore, there was no violation of the Article 8 of the Convention, since the state did not exceed its margin of appreciation, but has struck an appropriate balance between the applicant's right to respect for family life and the legitimate aims pursued.

The Republic of Serbia as the respondent state
Milovanović v. Serbia 123 is the sole case in which the Court rendered judgment in 2019 in connection with the Article 8 of the Convention, and in which the respondent state was the Republic of Serbia. Although in a judgment of October 2005 the national court entrusted the applicant, as a mother, with the care and upbringing of her children and requested the immediate removal of the children from their father, this judgment was never enforced. The applicant filed an application to the Court stating that her right to family life was violated due to the omission of the domestic authorities to enforce appropriate measures, which resulted in depriving her of contact with her children and preventing her from exercising parental rights effectively. The Court pointed out that the Article 8 included the right of parents to be reunited with their children and the obligation of national authorities to carry out such reunification, bearing in mind the irreparable consequences that their relationship might otherwise suffer. The Court determined that the domestic authorities made numerous omissions to implement efficient measures, including coercive ones, to reunite the applicant and her children. Over time, the factual situation has changed to such an extent that the possibility of their reunification has been gradually destroyed. The Court concluded that there had been a violation of the applicant's right to family life.

Conclusion remarks regarding the analyzed case law
The analyzed case law suggests that the cases of allegations of violations of private life, family life, home and correspondence are quite heterogenous in terms of facts. The number of claims regarding the breach of respect to private and family life is almost equal, while claims regarding the violations of home and correspondence occur significantly less frequently. Violations of the rights protected under the Article 8 of the Convention have been found in four times the number in relation to the judgements in which it was decided that the violation did not occur. For that reason, it can be concluded that the respect of the Article 8 of the Convention is in a sort of a crisis. Nevertheless, it seems that the Court has so far managed to respond to the challenge posed, and to provide the necessary protection of private and family life as a last resort.

THE CONCLUSION
Bearing in mind that the Article 8 of the Convention protects the most intimate aspects of human life, the State should restrict the rights protected under the Article 8 exclusively in the manner by which the capacity of their enjoyment does not get severely affected. However, the analyzed case law suggests that the majority of the state members do not provide high threshold of the protection of the mentioned rights. Having in thought the current era of contemporary communication and digitalization, there is fear that the rights protected under the Article 8 of the Convention are becoming more endangered every day. The Court's 2019 "key cases" do not relate to the questions of the protection of private and family life, home and correspondence in the conditions of global technological progress, new means of communication, social networks and the Internet. Nevertheless, it is expected that precisely these questions will very soon give the new perspective of the rights under the Article 8, as well as provide the Court with new ways of determining the domain of their preservation.