NGOs under European Convention on Human Rights / Tymofeyeva

1. Does the issue fall within the scope of one of the substantive articles of the Convention? 2. Was there an ‘interference’ with the right? 3. Was the interference based on (authorised or prescribed by) ‘law’? 4. Did the interference pursue a ‘legitimate aim’? 5. Was the interference ‘necessary in a democratic society’ to achieve the legitimate aim in question in the particular case and ‘proportionate’ to that aim, taking into account the ‘margin of appreciation’ accorded to the State in question? Are there appropriate and effective procedural guarantees against abuse? 706 If the answer to the first question from the list is negative, there is no issue under the Convention, and such an application 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 of the Court 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. 707 A positive answer to the third question leads to an 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 analyse 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 although there was an interference, it was necessary and adequate procedural safeguards against abuse existed, or that the interference was not necessary and there were insufficient guarantees against abuse. 708 Of course, this scheme is very simplified 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 on the subject. 2.4.2 Respect for ‘home’ and correspondence Primarily, the Court took the approach that legal persons may not directly invoke the rights envisaged by Article 8 of the Convention. In the case of Open Door and Dublin Well Woman v. Ireland 709 the former Commission held that a company, namely Open Door Counselling Ltd., had no personal right to respect for private life within the meaning of Article 8 of the Convention . 710 Similarly, in the case of Church of Scientology of Paris v. France , the Commission pointed out that, unlike Article 9, Article 8 of the Convention has more of an individual than a collective character. 711 706 KORFF, D. The Standard Approach under Articles 8 – 11 ECHR and Article 2 ECHR. URL: accessed 20 July 2015. 707 Article 8: The right to respect for private and family life, home and correspondence. Human Rights Review , 2012, p. 280. 708 Yuditskaya and Others v. Russia , no. 5678/06, § 32, 12 February 2015. 709 Open Door and Dublin Well Woman, cited above. 710 Ibid ., § 37. 711 Church of Scientology of Paris v. France (dec.), no. 19509/92, 9 January 1995.

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