Personal Identity and the European Court of Human Rights

Jill Marshall, Jill Marshall

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000582802
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In this new and burgeoning field in legal and human rights thought, this edited collection explores, by reference to applied philosophy and case law, how the European Court of Human Rights (ECtHR) has developed and presented a right to personal identity, largely through interpretation of Article 8 of the European Convention on Human Rights. Divided into three parts, the collection interrogates: firstly, the construction of personal identity rights at the ECtHR; secondly, whose identity rights are protected; and thirdly, the limits of identity rights. The collection is the first in the Routledge Studies in Law and Humanity series. Contributions from nine leading and emerging legal scholars from the UK, Ireland and continental Europe explore how the right has developed, rights to identity and marriage, LGBTI+, persons with disabilities, religious and cultural issues and critical perspectives on the social construction and framing of the right. The collection is primarily aimed at scholars and advanced students, particularly of human rights law and its theory, Jurisprudence and Philosophy of Law, and those interested in ECtHR jurisprudence, and those interested in the connection between theories of inclusion, belonging and rights, including human rights lawyers.

Part I

Constructing Personal Identity Rights at the European Court of Human Rights

DOI: 10.4324/9781003154556-2

1 An Overview of the Development of the Right to Personal Identity at the European Court of Human Rights

Jill Marshall

DOI: 10.4324/9781003154556-3

Introduction

A right to a personality, and especially to ‘fulfil one’s personality,’ is a complex notion. Does this legal right protect a pre-existing identity, that has always existed within the biological human being protected? Alternatively, does it mean the law needs to ensure we have the requisite conditions to be able to survive, to flourish and to develop our personalities from a blank slate? Perhaps it means some combination of both? If so, then in what ways ought the law be interpreted for all personalities to thrive in plural, liberal democracies framed to enable each of us to live according to our own conception of the good life?

In the context of European human rights law, I have explored the development of identity rights in law, largely as they have emerged through interpretation of explicitly stated rights to respect for one’s private life and to freedom of expression.¹I highlighted how the right to respect one’s private life in Article 8, and to a certain extent Articles 9 to 11, with Article 3, of the European Convention on Human Rights (ECHR) have been interpreted to provide a right to personal autonomy, identity and integrity. Article 3’s right to be free from torture, inhuman, and degrading treatment is absolute, but it requires a high threshold for violations of personal integrity to be established. Articles 8 to 11 rights are qualified: we have these rights but there can be exceptions, including when considering the rights and freedoms of others, as this pluralism is essential to life in a democratic society. As well as respect for one’s private life, these rights include home, family, and correspondence (also in Article 8), an absolute right to freedom of religion and its qualified right to expression (Article 9), of expression in general (Article 10), and of assembly (Article 11). As it has emerged, any right to personal identity can be interfered with, if the interference is provided by law, serves a legitimate purpose and is necessary in a democratic society as set out in the text of paragraph 2 of Article 8.

1 J Marshall Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff Brill 2009). J Marshall Human Rights Law and Personal Identity (Routledge 2014); J Marshall ‘A Right to Personal Autonomy at the European Court of Human Rights’ (2008) European Human Rights Law Review 337–356.

It is often unclear how the European Court of Human Rights (ECtHR or the Court) is distinguishing identity from the related concepts of autonomy and integrity. Some of the case law is compatible with a view of the importance of building and retaining an ability and capacity that is each person’s domain to enable them to think reflectively without interference; to be in control of their own faculties. Yet the Court compartmentalises identities in different ways, often restrictive, and reflects notions of identity that are recognisable and unrecognisable as worthy of protection.²I argue that human rights law can play an important role in protecting existing choices. However, it can also play a vital part in allowing identity formation, through creating the social conditions to enable, or restrict, people to develop their personality and identity as they wish.

Beyond the Right to be Left Alone

Article 8’s respect for private life protects against unwanted intrusions into people’s lives in a traditional sense of guarding a person’s private space. The starting point for understanding ‘private life’ is a ‘room of one’s own’ involving voluntary and temporary withdrawal of a person from society physically and psychologically.³This space of being let or left alone to be the person we are is alluded to in the language of relevant ECtHR’s decisions when it is stated that Article 8’s object ‘is essentially that of protecting the individual against arbitrary interference by the public authorities.’⁴This invokes the more usual interpretation of privacy as freedom from unwanted intrusion by the state, the ‘rat-a-tat-tat’ at the house door in the middle of the night.⁵In explaining this meaning of the ECHR’s text, the Council of Europe stated as far back as 1970:

The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection from disclosure of information given or received by the individual confidentially.⁶

This is a traditional view of an ‘inner citadel,’ an underlying negative freedom.⁷On this view, we will be free to be our own person, with our own personality and identity, if left alone with no external obstacles put in our way. This negative right fits with a notion of a pre-existing nature and identity to be protected. However, a communal, even intersubjective, notion of private life is, and has been, evident in the Commission’s, as it then was, and in the ECtHR’s, case law since the 1970s. For example, the Commission stated that ‘the concept of privacy in Article 8 also includes, to a certain extent, the right to establish and maintain relations with other human beings for the fulfilment of one’s personality.’⁸Similarly, the Court interpreted respect for one’s private life to include this right to establish and to develop relationships with other human beings, ‘especially in the emotional field, for the development and fulfillment of one’s own personality …’⁹Therefore a view of private life as an ‘inner circle,’ where the individual may live his own personal life as he chooses and exclude entirely the outside world not encompassed within that circle is too restrictive, insular and isolating to represent the version of identity we see in the Court’s jurisprudence, even in its early days. The interpretation of a right to personal identity is intertwined with rights to personal autonomy and integrity that have emerged in the Court’s case law. Engagement of Article 8, and often violations of it, and related notions of autonomy, identity and integrity all interpreted by the Court, have been said to occur when countries: ban homosexuality; prevent those who are transgender living with dignity; restrict reproductive rights, unfairly discriminate as to who is entitled to rights to adopt, to marry and to have capacity to make decisions; make it impossible for offspring to find out about their biological parentage, or birth-giver; ban religious clothing (usually women’s) and prevent other certain cultural or religious forms of expression, and restrict ways one wishes to die.¹⁰It is often unclear in the Court judgments though why some ways to pursue the development and fulfilment of one’s personality will be protected and others not.

2 See further J Marshall 2009 as above.

3 A Westin, ‘Privacy and Freedom’ (London: Bodley Head 1967).

4 This is repeated in many judgments – see for example Tysiac v Poland [2003] Application No. 5410/03.

5 See Judge Fitzmaurice in Marckx v Belgium Application No. 6833/74.

6 Resolution 428(1970) of the Consultative Assembly (now Parliamentary Assembly) of the Council of Europe the Declaration concerning the Mass Media and Human Rights Council of Europe, Conc. Ass., Twenty-first Ordinary Session (Third Part), Texts Adopted (1970).

7 See I Berlin ‘Two Concepts of Liberty’ in Four Essays on Liberty (Oxford: OUP 1969). See also J S Mill, On Liberty and Other Essays (Oxford: Oxford University Press 1991).

8 Application No. 8962/80 X and Y v Belgium, D&R 28 (1982) p 112 (124).

9 Bruggemann and Scheuten v Germany Yearbook XIX [1976] at p 382; (1981) EHRR 244. See also X v Iceland Application No. 6825/74, Decisions and Reports of the European Commission Vol 5 p 86; Niemietz v Germany (1992) 16 EHRR 244. Burghurtz [1994] Application No. 16213/90; Anonymous v Austria 31 Jan 1995 Series A no. 305 B Commission.

10 See, for example, Dudgeon v the UK (1982) 4 EHRR 149; Goodwin v the UK (2002) 35 EHRR 18; Tysiac in Poland Application No. 5410/03, Judgment 20 March 2007; Glass v the UK Application No. 61827/00; Odievre v France Application No. 42326/98, Judgment 13 February 2003; Sahin v Turkey Application No. 44774/98, Judgment 10 Nov 2005. SAS v France Application No. 43835/11, Judgment 1 July 2014. Pretty v the UK (2002) 35 EHRR.

Some of the Court’s jurisprudence is compatible with a view of identity that reflects the importance of building and retaining an ability and capacity that is each person’s domain, to enable them to think reflectively without interference, to be in control of their own faculties, to decide their own plan of life. In earlier work, I explain this reflects a self-determined and fluid version of identity and personal freedom rather than a pre-determined, core internal essence within each person waiting to be discovered.¹¹Such case law can be seen in earlier ECtHR jurisprudence on sexuality,¹²but is less evident in other jurisprudence from the Court where identity can be interpreted as a reductive fixed essence, equating to biology and blood, of uncovering or discovering ‘the truth’ of the ‘real’ core of who we are.¹³In many ways, this is constraining because it justifies state coercion, effectively forcing people to behave in a certain way with state justification for its laws resting on some notion of paternalistically being for our own good, to realise or bring to fruition and liberate some inner core according to...