Evers v Germany
This case concerned the application of Articles 8 and 6 in the context of a private (sexual) relationship between a man (the applicant) and the adult daughter of his partner. The background facts are of great importance.
The daughter, referred to as V, had a moderate learning disability: "She was highly restricted in her ability to comprehend, concentrate and memorise things, as well as in her sense of orientation. Her ability to communicate was limited to word fragments, which rendered impossible any meaningful communication. She had no ability to make judgments, as her intellectual development corresponded to that of a four-year-old child."
V's mother, the man's partner, had been appointed V's guardian. Criminal proceedings were instigated against the applicant in 2009, when he was around 70 years old and V was 22 years old. His partner had reported sexual contact between them and that the applicant had admitted the same and "attributed the incident to the fact that [his partner] had refused the applicant sexual intercourse in the past." V became pregnant by the applicant. His partner subsequently withdrew the allegations, and said she consented to the planned marriage of her partner and her daughter.
The criminal proceedings were discontinued on the basis that V's GP said she was 'perfectly capable of physical resistance' if she had not consented to sexual relations with the applicant. V was later placed in a residential home for people with disabilities, and a professional guardian appointed in place of her mother, on the basis that her mother had failed to prevent her from suffering sexual abuse by the applicant. These decisions were made by a district civil court which obtained expert evidence as to V's mental functioning and found that she had no comprehension of sex, marriage or pregnancy, and was susceptible to "every seemingly friendly suggestion." In light of their decisions, criminal proceedings were re-instigated against the applicant. By this time, V had given birth to a son who had been placed with a foster family. The applicant and V had separate contact with the son every 4-6 weeks. The criminal proceedings were eventually discontinued on the basis that the applicant and V's mother both paid fines to non-profit organisations.
Subsequently, the applicant and his partner visited V at the care home, and V became so distressed she required medication. The guardian decided to prohibit contact between V and the applicant, who had continued to say that he wanted to pursue an intimate relationship with V, and between V and her mother. The applicant said that the reason for V's distress was that she wanted to come him and live with them, and he objected to her having been fitted with a contraceptive coil. He and his partner set up a website about their fight for a common family life. The district court was asked to determine whether the contact ban should remain. V had a guardian ad litem appointed and the judge met V with her guardian and guardian at litem at the care home. The contact ban was upheld. The European Court summarised the court's reasons as follows: "[t]he applicant's and V.'s child was the result of a severe, massive and illegal violation of V.'s personality rights - not to say the criminal sexual abuse of a person incapable of resistance. V. had been fully incapable of forming the will to resist seemingly friendly suggestions. Her mental disorder had precluded the ability even to grasp the substance, consequences and risks of sexual acts and pregnancy; her blindly confident and obedient personality had meant that convincing her to engage in sexual relations had not required significant effort." The Court also noted that V had never asked after the applicant or given any indication she wanted to see him, or that she had any grasp of who he was other than a friend of her mother's.
The applicant alleged that his rights under Article 8 and Article 6 had been breached. The ECtHR found that his Article 8 rights were not even engaged, but that there had been an Article 6 breach. Interesting dissenting opinions found instead that Article 8 was engaged but not breached, and that Article 6 was not breached either.
The majority held that:
- there was no issue of the applicant having a family life under Article 8. "The mere fact that the applicant had been living in a common household with [his partner] and V and that he is the biological father of V's child does not, in the circumstances of the present case, constitute a family link which would fall under the protection of Article 8 of the Convention under its 'family life' head;
- nor could the applicant rely on a right to private life under Article 8. It did not guarantee a right to establish a relationship with a particular person, and in any event 'private life does not as a rule come into play in situations where a complainant does not enjoy "family life" within the meaning of Article 8 in relation to that person and where the latter does not share the wish for contact. This is all the more so if the person with whom it is wished to maintain contact has been the victim of behaviour which has been deemed detrimental by the domestic courts."
- However, the District Court's decision to uphold the contact ban breached Article 6 because even though they had sufficient evidence for their conclusion, and had been justified in disclosing only parts of the guardianship case file to the applicant, there should have been an oral hearing at which the applicant was heard, not only V. This was because of the far-reaching nature of the contact ban and the need for the court to "form their own impression of the applicant and [V] to explain his personal situation."
The dissenting judgments took a completely different approach, finding that Article 8 was engaged, though it had not been breached, and pointing out the inconsistency between finding that there was a relevant civil right for Article 6 purposes, but no engagement of Article 8. The question that should have been asked was 'whether the ban affected an aspect of the applicant's own social identity with the result that his right to a private life under Article 8 of the Convention could have been said to be engaged to this limited extent'. This would, in the view of the minority, have ensured that the court considered both aspects of the applicant's case from the right perspective:
In short, viewing the decision-making process through the lens of Article 8 of the Convention would have ensured that the rights of the absent "party" â V. â remained centre stage. Shifting the focus to Article 6 of the Convention meant, in contrast, that the applicant risked becoming the central if not sole focus of the Court's assessment. In addition, when assessing the balance struck by the national courts via Article 8 of the Convention, the Court could have emphasised the very limited nature of the private life interest on which he could rely thereunder - namely his own social identity - and the fact that he had no unilateral right to insist on contact with a person like V. The State's positive duty to protect V. as a vulnerable person from acts of abuse would also have come fully into play."
On Article 6, the dissenting judges considered that there was no underlying civil right for the applicant to have contact with V. There was no such right in statutory law as V was not a child. The minority considered that there was no material difference between not having a civil right to contact and the existence of an order prohibiting contact. One judge, who found that that neither A6 nor A8 was engaged, quoted Milan Kundera:
...the more the fight for human rights gains in popularity, the more it loses any concrete content, becoming a kind of universal stance of everyone toward everything, the world has become man's rights and everything in it has become a right: the desire for love the right to love, the desire for rest the right to rest, the desire for friendship the right to friendship, the desire to exceed the speed limit the right to exceed the speed limit, the desire for happiness the right to happiness, the desire to publish a book the right to publish a book, the desire to shout in the street in the middle of the night the right to shout in the street.
Another concluded, more prosaically, that "[i]t is difficult not to avoid the impression in the circumstances of the present case that the wrong conclusion has been reached in the wrong case involving the wrong applicant."
This decision of ECtHR is of considerable interest. The pragmatic reasons for the majority's refusal to say that Article 8 was engaged are clear, even if the legal basis is less obvious. They are careful to tie their reasoning to the particular circumstances of the case - obviously horrified by the relationship between the applicant and his partner's daughter. It may be that the case can therefore be distinguished when looking at other private and family relationships concerning a person with a mental disability, or family law cases where the parent of a child has been accused or convicted of assault against that person. The case is, at the very least, a reminder that it should not be automatically assumed that Article 8 protects every relationship, and that in particular it does not generate a right to have contact with a specific person. The minority's reasoning, however, is perhaps more convincing.