CYIL 2014

DO LEGAL PERSONS HAVE THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE? into account the “margin of appreciation” accorded to the state in question? Are there appropriate and effective procedural guarantees against abuse? 31 If the answer to the first question from the list is negative, there is no issue under the Convention, and such a complaint should be declared inadmissible. If the answer is positive, the Court moves to the second question. The negative answer to this question leads to a finding that there has been no violation of the Convention. If the answer is positive, it continues with the third question. If the interference was not based on “law” for the purposes of the Convention, the Court finds an infringement of the Article of the Convention in issue. A positive answer to the third question leads to examination of the fourth question. There is no violation of the Convention if the State pursued a “legitimate aim”. Nonetheless, in such a situation the Court is obliged to analyze the fifth question and to find out whether the interference was “necessary in a democratic society”. Depending on the answer to this final question, the Court decides either that the interference was necessary and adequate procedural safeguards against abuse existed, or that the interference was not necessary and there were insufficient guarantees against abuse. Of course, this scheme is oversimplified and the real analysis of the Court is deeper; nevertheless it may serve as a starting point for those who would study the case-law in subject. It also has to be noted that, under some circumstances, the Court does not give a final answer to the question in order and prefers to move to another question which it considers to be of importance, thus giving answer to the examined issue in general. Having described the basic test used by the Court in the course of the examination of the rights under Article 8 of the Convention, we will now move to specific examples of the Court’s practice dealing with the applications lodged by legal persons. 5. Issues raised under Article 8 of the Convention In comparison to some other provisions of the Convention, the number of cases with legal entities invoking Article 8 of the Convention is very limited. As stated before, the case-law of the Court does not contain any judgment where it would have found an infringement of rights relating to private or family life in respect of legal entities. All the cases concern the dimensions of “home” and correspondence. In many cases it is difficult to distinguish between the respect for “home” and correspondence of legal persons. Karen Reid says that notions “home” and “private life” may overlap with business and professional activities. 32 For that reason the author decided not to divide the case-law into two separate groups, dealing with the right to “home” and the right to correspondence. The cases will be arranged in accordance with issues raised by the applicants.

31 KORFF, D. The Standard Approach under Articles 8 – 11 ECHR and Article 2 ECHR . URL: http:// ec.europa.eu/justice/news/events/conference_dp_2009/presentations_speeches/KORFF_Douwe_a.pdf. 32 REID, K. A practitioner’s guide to the European Convention on Human Rights , 4th ed., London: Thomson/Sweet & Maxwell, 2012, p. 531.

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