PROTECTION OF BUSINESS PREMISES UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Abstract
Article 8 of the European Convention on Human Rights (hereinafter ECHR) provides for protection of home in its English text, whereas the French version of the text, being equally official, uses the word domicile to express the same meaning and notion. This is worth noting at the very beginning of this essay because of the fact that it was the French text of the ECHR, rather than the English one, which enabled the emergence of the protection of business premises in the European Law of Human Rights.
Article 8(1) ECHR reads in the English version: “Everyone has the right to respect for his private and family life, his home and his correspondence.”
The French version reads: “Toute personne a droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance.”
The structure of Article 8 basically corresponds with those of the following three articles of the ECHR. What they have in common is to be found in the same line of proceeding and reasoning when applying the provisions.
The main issue in that respect is whether there had been an interference with a right guaranteed by the ECHR. If so, the questions to follow are whether such interference was based on law, and had a legitimate aim, and finally whether it was necessary in a democratic society, or in other words, whether the interference was proportional to the aim pursued (Leach, 281-4). In practice however, it is mostly the last one of the issues, which has been mentioned here, that the European Court of Human Rights (hereinafter Court) uses as a prerequisite for its verdicts. The proportionality is by far preponderant if compared to the other two.
The earliest case in which the Court had to deal with the problem of interfering with business premises was an English one, in which the Court gave judgment in 1989. In the judgment the Court drew a line between its own competence and the one of a member-state, being a Contracting Party to the ECHR, i.e. the Court ruled on the margin of appreciation left to the member-states in respect of Article 8 ECHR.
