EHRM, 04-12-2007, nr. 44362/04

Article 10(3) of the International Covenant on Civil and Political Rights (‘ICCPR’) provides that the ‘penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation’. The General Comment of the Human Rights Committee on Article 10 further states that ‘no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner’.

The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles:

The European Prison Rules are recommendations of the Committee of Ministers to Member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.

The 1987 version of the European Prison Rules (‘the 1987 Rules’) notes, as its third basic principle, that:

The latest version of those Rules adopted in 2006 (‘the 2006 Rules’), replaces this above-cited principle with three principles:

The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems —‘CDPC’) noted that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights so that restrictions should be as few as possible. Rule 5, the commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 ‘recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind’.

The first section of Part VII of the 2006 Rules is entitled ‘the objective of the regime for sentenced prisoners’ and provides, inter alia:

In these respects, the CDPC commentary explains that Rule 102:

Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners' overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community.

The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences.

The preamble to Recommendation (2003)23 on the Management by Prison Administrations of Life Sentence and other Long-term Prisoners provides that:

The aims of the management of long-term prisoners in paragraph 2 of the recommendation included the following:

The recommendation also outlined five linked principles (paragraphs 3–8) for the management of long-term prisoners:

The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system ‘from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community’. There should also be participation in prison activities that ‘increase the chances of a successful resettlement after release’ and conditions and supervision measures that are ‘conducive to a law-abiding life and adjustment in the community after conditional release’.

The second relevant Committee of Ministers' recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that ‘research has shown that detention often has adverse effects and fails to rehabilitate offenders’. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as:

The applicants disputed the reasoning and conclusions of the Chamber, relying rather on the dissenting opinions of Judges Casadevall, Garlicki and Borrego Borrego. The jurisprudence cited by the Government was mainly that of the former Commission which was neither indicative of current trends nor directly on point. Since the matter was free of precedent, the Grand Chamber was free to rule.

They noted that the Government had, before the Chamber and initially before the Grand Chamber, maintained that the aim of the restriction was punishment. If that was indeed the aim, it did not make sense to admit of any exceptions to the Policy: logically the Policy should not have any application to, for example, post-tariff prisoners detained on the basis of future risk but it did; the Policy thereby discriminated between a life sentence prisoner admitted to open conditions and those who were not so admitted; and there was no link between the offence and the punishment — while the refusal of facilities for artificial insemination to a person convicted of offences against children could be coherent, the broad refusal except in exceptional cases was arbitrary.

However, before the Grand Chamber, the Government mainly emphasised that the Policy was a necessary consequence of imprisonment: apart from being a highly subjective view, refusing artificial insemination facilities was not consequential on detention as there were simply no security or other physical or financial barriers. The Chamber's failure to deal with both of those issues undermined its judgment.

This punitive aim, implying as it did that prisoners' fundamental rights were the exception rather than the norm, was not compatible with the Convention. Only the right to liberty was automatically removed by a sentence of imprisonment. A State had to justify the limitation of any other rights. The starting point of the Policy was therefore wrong and should be reversed: the Policy should be that prisoners had a right to procreate unless there were compelling reasons against. This inversed structure prevented any real assessment of each individual case: it was necessary to show that, but for artificial insemination, conception would be impossible and, thereafter, exceptional circumstances had to be demonstrated. The odds were thereby so stacked against the grant of facilities that there was no real individual assessment and the result was a foregone conclusion so that the Policy amounted to a blanket ban.

The applicants maintained that the burden placed on the State by the requested facilities was so minimal (allowing something to take place with minimal regulation) that the distinction between positive and negative obligations had no useful application. If one had to choose, they argued that a refusal of artificial insemination facilities constituted an interference with a right to beget children (negative obligation). The suggestion that it had to be analysed as a positive obligation presupposed that the aim of imprisonment and of the Policy was punishment so that, as noted above, one lost one's fundamental rights (including the right to beget children) on imprisonment as part of that punishment. Once it was accepted that a prisoner retained his Convention rights on imprisonment and was simply requesting a procedure to facilitate one of those rights, that request had to be analysed in the negative obligation context. Even if an onerous burden on the State could be analysed in the positive obligation context, there was evidently none and the Government did not argue that there was: the applicants would have discharged any costs and there was no burden on security or facilities except for access to the prison by an approved visitor to take away the sample.

As to the margin of appreciation to be applied and the trend towards conjugal visits, the applicants pointed out that they were asking for something less onerous and, if there was no consensus about artificial insemination facilities, this was because such facilities were not necessary in those countries where conjugal visits were granted. The Court could not hide behind the margin it felt should be accorded in the present case. On the contrary, the refusal was based on a Policy which had never been subjected to parliamentary consideration and which allowed for no real proportionality examination domestically: the margin of appreciation had no role to play in such circumstances. Rather this Court had to step into the shoes of the domestic decision-makers and make its own determination of where the balance of interests lay.

As to the considerable justification necessary for the refusal of artificial insemination facilities, the applicants maintained that neither the Policy, nor its application in their case, was adequate.

The punitive aim was, for reasons noted above, not coherent or logical. As regards the argument that the inability to beget children was a direct consequence of imprisonment, the applicants argued above that the burden on the State would be minimal.

The social factors (interests of the putative child and of society) said to underlie the Policy were not contemplated by the second paragraph of Article 8. The concept of the wider public interest was vague, ill-defined and there was, in any event, no evidence that providing the requested facilities would undermine public confidence in the penal system. The suggestion that the best interests of the child were relevant to the grant of facilities was offensive, inappropriate, paternalistic and unconvincing: it was the thin edge of the wedge as regards judging who should be come parents and who should be born (Codd, ‘Regulating Reproduction: Prisoners' Families, Artificial Insemination and Human Rights’[2006] EHRLR 1); it was inconsistent with the principle of rehabilitation; it was unconvincing and injurious to assume that being raised by a single parent was necessarily not in the child's best interests; and the interests of the child as a justification was specious as it suggested that the only way to protect that child's interest was to ensure it was never born. These arguments were also insulting to single parents and, indeed, against domestic legal developments which minimised this factor in its jurisprudence in other non-prisoner artificial insemination cases (R v. Blood[1997] 2 WLR 806 and the Human Fertilisation and Embryology (Deceased Fathers) Act 2003). This effectively put the burden on the parent to prove that he or she could be a good parent (including financially). In any event, the domestic body competent to make decisions regarding human fertilisation was the Human Fertilisation and Embryology Authority which body should have been competent to determine if the applicants were suitable candidates for artificial insemination.

As to the application of the Policy to them, the applicants underlined that a refusal of artificial insemination facilities would extinguish their right to found a family (given the first applicant's sentence and the second applicant's age). They disputed the Secretary of State's conclusion that there was insufficient financial provision for any child conceived: the second applicant would not be dependent on State benefits (she owned a property worth 200,000 pounds sterling, she was following a course in counselling and, on qualification, she would be able to command an hourly rate of 30 pounds sterling). It was unfair to state that their relationship had not been tested: the strength of any relationship (prisoner or other) was uncertain, there was no link between imprisonment and dissolution of relationships and, indeed, the first applicant's imprisonment had not weakened their relationship. In any event, this latter argument was circuitous as it could automatically negate any request for artificial insemination facilities from such long-term prisoners. It was equally unjust and circular to argue that the first applicant would be initially absent: long-term absence was a necessary starting point to apply for the requested facilities (artificial insemination being the only means of conception) but at the same time it meant artificial insemination could not be granted (given the consequent separation from any child conceived). It did not make sense that their marriage was accepted as rehabilitative and to be supported by the system but that the right to procreate was not.

Finally, even if the Policy had some application, in the present case unjustifiably, to the first applicant, the same could not be said of the second applicant who was not in prison, a point with which the Court of Appeal, the Government and the Chamber had failed to grapple. She initially maintained that, since she was not a prisoner, the Policy could have no application to her so there were no competing rights which could override hers. However, before the Grand Chamber she accepted that her position could not be considered entirely independently of the first applicant's and that her rights could not trump all others: however, she maintained that she should have the right to beget a child with her husband unless there were exceptional reasons against (if, for example, the father was a convicted child murderer). However, she was prevented from doing so by a blanket and unconvincing Policy, which had even less relevance to her as a non-prisoner. The extinguishment of her Article 8 rights required a particularly robust justification.

Whereas the applicants had accepted before the Chamber that a conclusion of no violation under Article 8 would lead to the same conclusion under Article 12 of the Convention, they maintained before the Grand Chamber that the complaints under Articles 8 and 12 were separate and had to be so examined.

The Government relied on the Chamber's judgment and, argued, for the reasons given in that judgment and by the Court of Appeal, that there had been no violation of Article 8 of the Convention.

While the Chamber recognised the ‘well established’ principle that, liberty apart, prisoners continued to enjoy all Convention rights including the right to respect for private and family life (Hirst v. the United Kingdom (no. 2)[GC], no. 74025/01, ECHR 2005-…), it had also accepted that imprisonment inevitably and necessarily involved some limitation on an individual's rights. The Chamber had also accepted that the case concerned the fulfilment of a positive obligation to which a wide margin of appreciation applied and that, in the overall balancing of individual and public interests required, the public legitimate aims were the maintenance of public confidence in the penal system and the interests of any child conceived and, thus, those of society as a whole. The Policy, and its application in the applicants' case, was not disproportionate to those aims.

The Chamber judgment was consistent with the Court's case-law (notably Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 45) and with that of the Commission (referred to by the Court of Appeal in the above-cited Mellor case, paragraph 24 above). The Chamber judgment and that of the Court of Appeal in the above-cited Mellor case were also consistent. Finally, the Chamber judgment mirrored the justification given by the Court of Appeal for the Policy and its application in the present case.

The Government further maintained that the Policy was consistent with the Convention.

It was not a blanket Policy but one that enabled the examination of the merits of each case taking into account Convention principles. The statistics demonstrated that the individual assessment was genuine: 28 applications for artificial insemination facilities had been made since 1996, 12 were not pursued, 1 was withdrawn as the relationship broke down, 1 applicant was released on parole and 2 were pending. Of the remaining 12 applications, 3 were granted and 9 were refused.

The Policy's justification was to be found in three principles: losing the opportunity to beget children was part and parcel of the deprivation of liberty and an ordinary consequence of imprisonment; public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners to conceive children (in that latter context, the nature and gravity of the crime was relevant); and the inevitable absence of one parent, including that parents financial and other support, for a long period would have negative consequences for the child and for society as a whole. This latter point was indeed a complex and controversial one underlining why the State authorities were best placed to make this assessment. It was legitimate that the State considered implications for any children conceived so that one of the aims of the Policy was to limit the grant of artificial insemination facilities to those who could reasonably be expected to be released into a stable family setting and play a parental role. Indeed, the State had an obligation to ensure effective protection and the moral and material welfare of children.

Accordingly, the starting point was that artificial insemination facilities would be granted in exceptional circumstances namely, when its refusal would prevent the founding of a family altogether and, thereafter, the authorities would take into account other factors determinative of exceptionality. That starting point was, in the Government's view, a reasonable one. It would be frequently the case that the refusal of artificial insemination facilities would not affect rights guaranteed by Article 8. This would be the case, for example, where a child was conceived in whose life the father would, as a consequence of his imprisonment, have no real involvement, the mere right to procreate not being a Convention right. It would only be in unusual circumstances that the duration of imprisonment would, without artificial insemination, prevent a prisoner from having children after his release. While the Government recognised that rehabilitation was a fundamental and important aspect of imprisonment, the Policy took account of all relevant elements.

Moreover, the Policy was correctly applied in the present case, the authorities identifying the relevant factors and striking a fair balance. That the applicants would not otherwise be able to conceive was outweighed by the reasons relied upon by the Secretary of State: the lack of an established relationship; the first applicant's long absence from the life of any child; insufficient material provision foreseen for the child and little by way of a support network for the second applicant; and legitimate public concern that the punitive and deterrent elements of a sentence would be circumvented if the first applicant (convicted of a violent murder) was allowed to father a child. The interests taken into account included those of the second applicant including her wish to have a child with the first applicant: however, the fact was that her position was linked to that of the first applicant and, if her interests were to be the decisive factor, the State would be left with no discretion whatsoever.

Finally, the Government maintained that they should be afforded a wide margin of appreciation, the case involving as it did a claim that the State should take positive steps to circumvent the otherwise inevitable consequences of imprisonment to assist the parties to conceive in an area of social policy where difficult choices had to be made between the rights of an individual and the needs of society. As explained above, this was not a blanket policy and there did not appear to be any European consensus in favour of the provision of facilities for artificial insemination of prisoners.

The Government relied on the Chamber judgment and maintained that there was no violation of Article 8 so that there could equally be no violation of Article 12 of the Convention.

The restriction at issue in the present case concerned the refusal to the applicants of facilities for artificial insemination. The parties did not dispute the applicability of Article 8, although before the Grand Chamber the Government appeared to suggest that Article 8 might not apply in certain circumstances: where, for example, a prisoner's sentence was so long that there was no expectation of ever ‘taking part’ in the life of any child conceived and Article 8 did not guarantee a right to procreate.

The Court considers that Article 8 is applicable to the applicants' complaints in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents (the above-cited cases of E.L.H. and P.B.H. v. the United Kingdom, Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI; Aliev v. Ukraine, no. 41220/98, § 187–189, 29 April 2003; and Evans v. the United Kingdom[GC], no. 6339/05, § 71–72, 10 April 2007).

The Court recalls the above-cited Hirst judgment, which concerned a legislative restriction on prisoners' right to vote:

Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment (§ 27 of the Chamber judgment) or (as accepted by the applicants before the Grand Chamber) from an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion.

The parties disagreed as to whether the refusal of the requested facilities constituted an interference with the applicants' existing right to beget a child (to be analysed in the context of the State's negative obligations) or a failure by the State to grant a right which did not previously exist (an alleged positive obligation). The Chamber considered that the applicants' complaints fell to be analysed as a positive obligation.

The Court recalls that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests (Odièvre c. France[GC], n^o 42326/98, § 40, CEDH 2003-III, and Evans, cited above, § 75).

The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case (see paragraphs 77–85 below) is precisely whether a fair balance was struck between the competing public and private interests involved.

As to the applicants' interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants, a couple since 1999 and married since 2001, of having a child together given the second applicant's age and the first applicant's release date. The Court considers it evident that the matter was of vital importance to the applicants.

The Government have cited three justifications for the Policy.

Before the Grand Chamber they first relied on the suggestion that losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment.

Whilst the inability to beget a child might be a consequence of imprisonment, it is not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the State.

Secondly, before the Grand Chamber the Government appeared to maintain, although did not emphasise, another justification for the Policy namely, that public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners guilty of certain serious offences to conceive children.

The Court, as the Chamber, reiterates that there is no place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion (Hirst, cited above § 70). However, the Court could accept, as did the Chamber, that the maintaining of public confidence in the penal system has a role to play in the development of penal policy. The Government also appeared to maintain that the restriction, of itself, contributed to the overall punitive objective of imprisonment. However, and while accepting that punishment remains one of the aims of imprisonment, the Court would also underline the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence (see paragraphs 28–36 above).

Thirdly, the Government argued that the absence of a parent for a long period would have a negative impact on any child conceived and, consequently, on society as a whole.

The Court is prepared to accept as legitimate, for the purposes of the second paragraph of Article 8, that the authorities, when developing and applying the Policy, should concern themselves, as a matter of principle, with the welfare of any child: conception of a child was the very object of the exercise. Moreover, the State has a positive obligations to ensure the effective protection of children (L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, § 36; Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 115–116; and Z and Others v. the United Kingdom[GC], no. 29392/95, § 73, ECHR 2001-V). However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released.

Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded by this Court to those authorities as regards that assessment. The breadth of this margin varies and depends on a number of factors including the nature of the activities restricted and the aims pursued by the restrictions (Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 88, ECHR 1999-VI).

Accordingly, where a particularly important facet of an individual's existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to a State will in general be restricted.

Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy: the authorities' direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. In such a case, the Court would generally respect the legislature's policy choice unless it is ‘manifestly without reasonable foundation’. There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights (Evans, cited above, § 77).

Importantly, in its Hirst judgment , the Court commented that, while there was no European consensus on the point so that a wide margin of appreciation applied, it was not all-embracing. It found that neither the legislature nor the judiciary had sought to weigh the competing interests or assess the proportionality of the relevant restriction on prisoners. That restriction was considered to be ‘a blunt instrument’ which indiscriminately stripped a significant category of prisoners of their Convention rights and it imposed a blanket and automatic restriction on all convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence or of their individual circumstances. The Court continued (Hirst, § 82):

In the present case, the parties disputed the breadth of the margin of appreciation to be accorded to the authorities. The applicants suggested that the margin had no role to play since the Policy had never been subjected to parliamentary scrutiny and allowed for no real proportionality examination. The Government maintained that a wide margin of appreciation applied given the positive obligation context, since the Policy was not a blanket one and since there was no European consensus on the subject.

The Court notes, as to the European consensus argument, that the Chamber established that more than half of the Contracting States allow for conjugal visits for prisoners (subject to a variety of different restrictions), a measure which could be seen as obviating the need for the authorities to provide additional facilities for artificial insemination. However, while the Court has expressed its approval for the evolution in several European countries towards conjugal visits, it has not yet interpreted the Convention as requiring Contracting States to make provision for such visits (see the above-cited Aliev judgment, at § 188). Accordingly, this is an area in which the Contracting States could enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.

However, and even assuming that the judgment of the Court of Appeal in the Mellor case amounted to judicial consideration of the Policy under Article 8 (despite its pre-incorporation and judicial review context, see paragraphs 23–26 above), the Court considers that the Policy as structured effectively excluded any real weighing of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction, in any individual case.

In particular, and having regard to the judgment of Lord PhillipsMR in the Mellor case and of Auld LJ in the present case, the Policy placed an inordinately high ‘exceptionality’ burden on the applicants when requesting artificial insemination facilities (see paragraphs 13, 15–17 and 23–26 above). They had to demonstrate, in the first place, as a condition precedent to the application of the Policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the ‘starting point’). Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were ‘exceptional’ within the meaning of the remaining criteria of the Policy (‘the finishing point’). The Court considers that even if the applicants' Article 8 complaint was before the Secretary of State and the Court of Appeal, the Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention (see, mutatis mutandis, Smith and Grady, cited above § 138).

In addition, there is no evidence that, when fixing the Policy the Secretary of State sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction. Further, since the Policy was not embodied in primary legislation, the various competing interests were never weighed, nor were issues of proportionality ever assessed, by Parliament (see the above-cited judgments in Hirst, § 79, and Evans, §§ 86–89). Indeed, the Policy was adopted, as noted in the judgment of the Court of Appeal in the Mellor case (see paragraph 23 above), prior to the incorporation of the Convention into domestic law.

The Policy may not amount to a blanket ban such as was at issue in the Hirst case since in principle any prisoner could apply and, as demonstrated by the statistics submitted by the Government, three couples did so successfully. Whatever the precise reason for the dearth of applications for such facilities and the refusal of the majority of the few requests maintained, the Court does not consider that the statistics provided by the Government undermine the above finding that the Policy did not permit the required proportionality assessment in an individual case. Neither was it persuasive to argue, as the Government did, that the starting point of exceptionality was reasonable since only a few persons would be affected, implying as it did the possibility of justifying the restriction of the applicants' Convention rights by the minimal number of persons adversely affected.

The Court therefore finds that the absence of such an assessment as regards a matter of significant importance for the applicants (see paragraph 72 above) must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved. There has, accordingly, been a violation of Article 8 of the Convention.