Résumé

En mars 2020, la Slovénie a introduit des mesures visant à réduire la propagation du COVID-19. La pandémie de COVID-19 a eu des répercussions immédiates et profondes sur tous les domaines de notre vie (par exemple l’économie, la mobilité humaine, l’éducation et la santé). Il ne fait aucun doute que le COVID-19 a également eu une incidence sur les relations familiales. Cet article analyse les mesures législatives et les décisions judiciaires adoptées pendant la pandémie de COVID-19 en Slovénie. Une attention toute particulière est accordée aux relations parents-enfants, à l’adoption et au mariage.

INTRODUCTION

Infectious diseases and related epidemics or pandemics have left an indelible mark on history. They have caused widespread fear, suffering and death. All of these have impacted individuals, countries and, of course, family life. The current COVID-19 pandemic, which appeared in Europe in early 2020, has also had an immediate and profound impact on our established lives. The consequences immediately spread to almost all areas of our lives (for example, the economy, human mobility, education and health care). There is no doubt that COVID-19 has also impacted family relationships in all respects. As a particularly social and vulnerable group, children were or are still exposed to the impact and consequences of COVID-19. They faced the extinction of public life, the loss of friends and the death of relatives, schooling moved online, sports and cultural clubs did not function, etc. Restrictions on movement and curfews limited the dynamics of their lives mainly to the family environment, which did have its advantages. On the other hand, children became even more exposed to domestic violence and increased distress and fear, as many did not understand the new situation, which thus affected family relationships. Despite the multifaceted nature of the issues raised by the COVID-19 pandemic, this chapter focuses only on the impact and consequences in the area of family relations.

Résumé

Cet article est un extrait de la recherche menée pour le Comité des droits de l’enfant de Hong Kong (HKCCR) qui examine la mise en œuvre à Hong Kong du droit des enfants d’être entendus dans les procédures les concernant, garanti par l’article 12 de la CIDE. Alors que les recherches commandées par le HKCCR s’é tendent à de multiples domaines, de l’éducation et la santé à l’élaboration de politiques constitutionnelles, ainsi qu’aux loisirs et à la culture notamment, cet article propose une analyse critique de la manière dont la voix des enfants est entendue dans le cadre juridique existant à Hong Kong. Les résultats de la recherche laissent penser que, bien que la législation relative au droit de l’enfant d’être entendu en vigueur à Hong Kong soit à bien des égards meilleure que dans d’autres États dont la législation a été examinée dans l’étude de la HKCCR, l’avis de des enfants est au mieux consultatif et, au pire, n’existe que dans les textes et non dans la pratique. Après avoir identifié les éléments qui font obstacle à une meilleure participation des enfants, cet article propose des recommandations afin d’améliorer la situation.

INTRODUCTION

This chapter will present the findings of research into how Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) has been implemented in Hong Kong’s legal sector. This research is part of a wider project commissioned by the Hong Kong Committee on Children’s Rights (HKCCR), a non-governmental organisation originally formed in 1992 to promote, advance and ensure the rights of the child in Hong Kong. The aim of the wider project was to establish an independent baseline study of the implementation of Article 12 across all relevant sectors in Hong Kong, from constitutional and high-level policy-making to health and education to matters of leisure, culture and built environment, amongst others.

The legal analysis in cases of protection of home under Article 8 of the Convention takes place in the same manner as under the other aspects of Article 8. First, one must decide whether the matter falls within the scope of home protected by Article 8. If this question is answered in the affirmative, the analysis under negative obligation continues with the question whether there has been an interference with the right to respect for home. Thereafter, the analysis continues with the following questions:

• – was the interference “in accordance with the law” ?;

• – did the interference pursue a legitimate aim?; and

• – was the interference “necessary in a democratic society ” ?

SCOPE OF PROTECTION OF HOME

According to the Court’s interpretation, a home is usually a place, a physically defined area, where private and family life develops. The definition of a home is not dependent on how a home has been defined in the domestic law but the Court’s interpretation of the concept of a home is autonomous. The existence of a home is dependent on the concrete circumstances of the case, requiring both sufficient and continuous links to a certain place. Furthermore, the word “home” appearing in the English version of Article 8 is a term that is not to be strictly construed as the equivalent French term, “domicile”, has a broader connotation.

NOTION OF HOME

All places where people reside are not necessarily considered to be their homes. For example, holiday residences or hotel rooms are not generally considered to be homes. However, it is not always possible to make a clear distinction between one’s permanent home and a leisure home since a person may divide his or her time between two different residences or he or she may otherwise have strong emotional ties to the secondary residence that he or she may consider to be a home. Similarly, if a homeless person lives in a hotel, he or she may claim a right to respect for home at least to the extent that the legality of his or her removal from the hotel premises can be examined under Article 8.

The concept of private life is very widely understood in the Court’s case-law and it can be said that it covers all aspects of life. Private life is thus a broad concept that has no exhaustive definition, and it may “embrace multiple aspects of the person’s physical and social identity”. The Court’s case-law, however, provides guidance as to the meaning and scope of private life for the purposes of Article 8.

Often private life is connected to and overlapping other rights protected by Article 8, namely with the protection of family life, home and correspondence. In many cases the Court has not considered it necessary to make a distinction between the scope of each of these concepts. The concept of private life has not been limited to cover only protection of private life at home, but it also covers the right to create and develop relationships with people outside of one’s home sphere, for example in working life. On the other hand, the private life limb of Article 8 does not guarantee a right to be in contact with a particular person in respect of whom the person seeking contact is not leading a family life and where the person to be contacted does not wish to have contact with that person.

In order to be examined as a possible violation under Article 8, the matter needs to reach certain de minimis level of seriousness. Article 8 does not protect every conceivable personal choice. The level of seriousness was not reached, for example, in Gough v. the United Kingdom where a person had been convicted for walking naked in public and he appeared naked in the court room. The Court found that, although the applicant had voluntarily chosen such a way of living, his choice was not supported in any known democratic society in the world.

The level of severity was not reached in Vučina v. Croatia either, where a picture of the applicant among a concert audience had been published in a magazine and the caption had mistakenly identifi ed her as the mayor’s wife.

FOUR PROTECTED RIGHTS

Article 8 of the Convention protects the right to respect for four different rights: private life, family life, home and correspondence. Several of these rights are closely connected to each other and are partially overlapping. It is not always possible to distinguish them from each other, nor is it even necessary.

The dynamic and evolutive character of the Court’s case-law is especially apparent in the context of Article 8. According to the Court, the Convention is a living instrument that needs to adapt to changing circumstances and new issues. Article 8 has been applied in a flexible manner to new areas and therefore its scope of application has become considerably wider over the years. The evolutive nature of the Convention has been most visible in cases that have reflected changes in the European moral standards and that the Court has examined in the light of the present-day concepts.

The dynamic and evolutive character of the Court’s case-law is especially apparent in the context of Article 8. According to the Court, the Convention is a living instrument that needs to adapt to changing circumstances and new issues. Article 8 has been applied in a flexible manner to new areas and therefore its scope of application has become considerably wider over the years. The evolutive nature of the Convention has been most visible in cases that have reflected changes in the European moral standards and that the Court has examined in the light of the present-day concepts.

Currently Article 8 extensively covers most aspects of life, such as the legality of the police investigation measures, custody of children, rights of sexual minorities, immigration, paternity, artificial insemination, abortion and protection of environment, to mention just a few. It does not guarantee any special rights for children, but children are largely protected in the same way as adults.

NEGATIVE AND POSITIVE OBLIGATION

The primary aim of Article 8 is to protect individuals’ private and family life from arbitrary interference by the authorities.

SCOPE OF PROTECTION OF CORRESPONDENCE

The right to respect for correspondence guarantees a right to communicate with others without an interference by third parties or any censorship . The right to respect for correspondence guaranteed in Article 8 protects the manner of communication rather than its content. The protection of correspondence covers both traditional correspondence by letters and communication by telephone or via other electronic means of communication. International prevention of terrorist crimes and mass electronic surveillance of communication both within a State and between the States have put domestic legislations in front of new challenges.

The right to respect for correspondence often coincides with the right to respect for private life, family life and/or home and in such cases the matters are examined under all of these provisions.

TRADITIONAL CORRESPONDENCE AND EMAIL

The ultimate goal of Article 8 of the Convention is to protect individuals against the authorities ‘arbitrary interference with their right to respect for correspondence. The protection of correspondence covers first of all traditional correspondence by letters, whether of a private or professional nature, sent via ordinary mail, including where the sender or recipient is a prisoner. It also includes packages seized by customs officers. The concept of correspondence also includes communication via electronic means, such as telephone, electronic messages (emails) the use of the Internet as well as data stored on computer servers, including hard drives and floppy disks. Older forms of electronic communication are also covered, such as telex es, pager messages and private radio broadcasting, but not broadcasts on a public wavelength that are accessible to others.

The concept of correspondence also covers traditional telephone conversations between people. It thus covers telephone conversations between family members, telephone calls from private or business premises and from a prison. The concept also covers the “interception ” of information relating to such conversations, such as date, duration and numbers dialled.