ARTICLE 8
Right to respect for private and home life.
NIEMIETZ V GERMANY => a test of whether Article 8 has been violated.
Step 1: Was there interference by a public authority that falls under the scope of
Article 8(1)? That is home, correspondence, private and family life.
Step 2: Can the interference be justified under Article 8(2)?
-> Is it in accordance with law?
-> Is it necessary in a democratic society?
-> Is it pursued with a legitimate aim?
KHAN V UK => in combination with Article 6(1), evidence obtained in violation of
Article 8 does not necessarily mean violation of Article 6(1).
-> Is it in accordance with law?
-> Is it necessary in a democratic society?
-> Is it pursued with a legitimate aim?
-> Is it accessible?
-> Is it foreseeable for evidence to be used in court?
1
, ARTICLE 3 AND 6
Prohibition of Torture & Right to a Fair Trial
JALLOH V GERMANY => developed a 3 step test to see whether Article 6 is in
violation.
Step 1: What was the nature and degree of compulsion that was used to obtain the
evidence?
Step 2: Were there relevant safeguards? (presence of a lawyer, being able to
challenge the evidence, etc).
Step 3: Was the material obtained decisive?
Article 3 relevance: evidence that is obtained by means of Article 3 violation should
never be used as proof of guilt. Using evidence that exists dependent upon the will
of the accused and is retrieved by means of torture = violation.
Ill Treatment depends on the minimum standards of: duration, physical and mental
effects, sex and age of the victim.
GAFGEN V GERMANY => Article 3 is an absolute right. Confession / use of real
evidence obtained in breach of Article 3 = violation.
ECHR did not have specifics regarding inhumane and degrading treatment, this was
addressed by GAFGEN.
2
Right to respect for private and home life.
NIEMIETZ V GERMANY => a test of whether Article 8 has been violated.
Step 1: Was there interference by a public authority that falls under the scope of
Article 8(1)? That is home, correspondence, private and family life.
Step 2: Can the interference be justified under Article 8(2)?
-> Is it in accordance with law?
-> Is it necessary in a democratic society?
-> Is it pursued with a legitimate aim?
KHAN V UK => in combination with Article 6(1), evidence obtained in violation of
Article 8 does not necessarily mean violation of Article 6(1).
-> Is it in accordance with law?
-> Is it necessary in a democratic society?
-> Is it pursued with a legitimate aim?
-> Is it accessible?
-> Is it foreseeable for evidence to be used in court?
1
, ARTICLE 3 AND 6
Prohibition of Torture & Right to a Fair Trial
JALLOH V GERMANY => developed a 3 step test to see whether Article 6 is in
violation.
Step 1: What was the nature and degree of compulsion that was used to obtain the
evidence?
Step 2: Were there relevant safeguards? (presence of a lawyer, being able to
challenge the evidence, etc).
Step 3: Was the material obtained decisive?
Article 3 relevance: evidence that is obtained by means of Article 3 violation should
never be used as proof of guilt. Using evidence that exists dependent upon the will
of the accused and is retrieved by means of torture = violation.
Ill Treatment depends on the minimum standards of: duration, physical and mental
effects, sex and age of the victim.
GAFGEN V GERMANY => Article 3 is an absolute right. Confession / use of real
evidence obtained in breach of Article 3 = violation.
ECHR did not have specifics regarding inhumane and degrading treatment, this was
addressed by GAFGEN.
2
