Author – Tamar Avaliani
Understanding the importance of private and family life
The right to privacy is a right that protects a person’s private life from the state. The right to privacy implies the ability of a person, at their own discretion, to independently create and develop a personal space. Therefore, the state is obliged to protect and provide a person’s private space from being intruded on by the state or another person. The right to privacy is a mechanism against illegitimate interference of any person or the state.
Article 8 of the European Convention on Human Rights (Right to protection of private and family life) protects the personal space of each person, including the right to determine his or her identity as an individual.1
An important aspect of privacy is the sex life. During the case – Dudgeon vs. United Kingdom2, The European Court of Justice considered sex to be the most intimate area of personal life. In the Dudgeon case, the European Court of Justice ruled that Northern Irish law banning homosexuality was contrary to Article 8 of the European Convention on Human Rights.
With the right to privacy, people have the opportunity to determine the preferred form in which to publicly position and express their identity.3
The European Court of Human Rights in the case – Oliari and Others v. Italy, considered the existence of a specific definition in Italian law that couldn’t guarantee the recognition and protection of same-sex partners as inconsistent with Article 8 of the Convention.
The Venice Commission concludes that the rules governing the right to marriage should not leave same-sex couples without legal recognition and security.4 The right to protection of private and family life obliges the state to recognize the same-sex marriage or other alternative forms of family life at the legislative level. The Committee of Ministers of the Council of Europe obliges member states to extend the rights and obligations of heterosexuals in registered marriages to those of the same sex.
The communicative aspect of the right to privacy
The communicative nature of privacy, in a number of respects, also implies the ability to relate and make connections with other people.6 In daily life, every person has certain activities, relationships with family members, friends, other members of society, which is also protected by the right to privacy.7
The European Court of Human Rights in the case of Niemeitz v. Germany, explained that “simplifying the concept of private life to just the “inner circle” in which an individual’s personal life is viewed as a just a personal choice that completely excludes the outside world would be a narrow definition of this concept. There is no legitimate reason to exclude actions that relate to an activity or profession from the notion of personal life, as individuals make meaningful connections in the work environment and have the opportunity to develop relationships with the outside world.
Collection of data concerning private lives, covert surveillance and eavesdropping
According to the European Court, the systematic collection and storage of personal data by the authorities is a restriction on the right to respect for private life, which must be properly justified and substantiated by the authorities.8
The European Court of Human Rights in the case of Malone v. The United Kingdom clarified that national law must provide a legal mechanism to protect against interference with the privacy of individuals.9 According to the European Court, interception of telephone conversations is a serious form of intrusion into private life, which must be carried out through a detailed, exceptional and foreseeable legal procedure in order to minimize the risk of unjustified interference with private life. According to the European Court, especially when such measures are held in secret, there is a high risk of illegal action.10
According to the European Court of Human Rights, measures related to covert surveillance should be thoroughly and deliberately provided for in the law.11
According to the European Court of Human Rights, it is especially important to protect the right to privacy of photos and videos of a person. According to the European Court of Human Rights12, the publication of a photograph or video image should be considered a substantial and profound interference with one’s privacy.
Minimum legal requirements for wiretapping and surveillance (European Court of Justice standards):
The law should regulate the types of crimes for which a covert surveillance or wiretapping order may be issued;
The law should define the circle of persons whose communication is allowed to be controlled in certain circumstances;
The law should strictly and exhaustively define the terms and duration of communication control or covert surveillance;
The law should thoroughly define the procedures for the investigation, use and storage of information obtained through covert surveillance, as well as the transfer of information obtained through covert surveillance to third parties13;
National law should provide for adequate safeguards against abuse of power or arbitrary conduct by authorities14.
The European Court of Human Rights, when assessing safeguards, also pays close attention to the remedies provided by national law for persons subject to covert surveillance (Communication control), or of those who are appealing against a potential surveillance under national law15.
National law should include adequate safeguards and redress mechanisms, as well as
rapid, in-depth and comprehensive review of the case by the judiciary.
Irregularities in Georgian legislation and practice.
In Georgia, the LGBTQ community has been deprived of the right to privacy, which is reflected in the policy of legal non-recognition of same-sex relationships. The ability of the LGBTQ community to realize the protection of private and family life is defined in a moral and externally imposed order.
The 2018 constitutional amendments defined marriage in the constitution as “the union of a man and a woman.” It is an openly homophobic article that excludes same-sex marriage. The homophobic article also has a negative effect on transgender people. It excludes all transgender people who have a partner of the same sex as their sex given at birth, and reiterates the importance of biological sex in the granting of fundamental civil rights.16
The law establishes non-discriminatory and discriminatory procedures for legal recognition of gender, creating artificial barriers for people on the basis of sexual orientation and gender identity. Transgender individuals face particular problems with making changes to the civil record. According to the Law on Civil Acts, one of the grounds for making changes in the record of civil acts is gender reassignment. The law does not define what is meant by gender reassignment, it does not specify the procedure for changing the gender record, which makes the law even more vague and unpredictable. The absence of such a rule deprives transgender people of the opportunity to change the gender record in official documents in a quick and accessible way.
Legal recognition of gender in Georgia is related to medical procedures. There is no legal document in reality that regulates this issue in detail and creates adequate legal opportunities for transgender people who want to change the gender record in their identification documents.
In addition to personal stress, the contradiction between sex in official documents and a person’s gender expression often leads to discrimination against transgender people in employment, in public and in private institutions, where personal identification documents are required17. In 2014, the Committee on the Elimination of Discrimination against Women (CEDAW) discussed the issue and called on the state to “lift restrictions on transgender people obtaining identification documents18.
The Law on Personal Data Protection19 considers the data related to health and sexual life as special data, which should be under special protection from interference by the state.
In Georgia, along with other people, the covert listening and listening of LGBTQ people is a systemic problem that is the result of flawed legislation and practice. Georgian law does not provide sufficient mechanisms and safeguards against government’s abuse of power. Georgian legislation neither meets the principle of foreseeability nor guarantees protection against mechanisms of abuse of power.
1. Christine Goodwin v. the United Kingdom, ECHR 2002-VI.
2. Dudgeon v. the United Kingdom), § 52, 22 october 1981, Series A no. 45,
3. Dr. Hannes Tretter, Artikel 8 EMRK als Grundlage eines individuellen Rechts auf zweisprachige Ortstafeln ?, p. 2.
4. CDL-AD(2017)013-e Georgia – Opinion on the draft revised Constitution;
5. CM/Rec(2010)5.
6. Niemietz v. Germany), 16 December 1992, § 29
7. 57 Perry v. the United Kingdom, № 63737/00, § 36, ECHR 2003-IX; Peck v. the United Kingdom, № 44647/98, §57, ECHR 2003-I.
8. Peck v. the United Kingdom, № 44647/98, § 56, ECHR 2003-Paragraph 1
9. Malone v. the United Kingdom), 2 August, 1984 y., Series A no. 82,
10. Groppera Radio AG and Others v. Switzerland, 28 მარტი, 1990, § 68, Series A no. 173; Slivenko v. Latvia; № 48321/99, § 104-109, ECHR 2003-X ;
11. Kruslin, p. 23, § 33; Huvig, p. 55, § 32; Amann, § 56 in fine; Weber and Saravia, § 93,
12. Eerikainen and others v. Finland
13. Weber and Saravia v. Germany, № 54934/00, § 95, ECHR 2006-XI.
14. Klass and Others v. Germany, year 1978, September 6; 54-56 paragraphs, Series A no. 28.
15. Klass and Others v. Germany, year 1978, September 6, 50th paragraph, Series A no. 28.
16. Survey of the Needs of Transgender People in Georgia, 2019, Equality Movement
17. Georgia, Coalition Report on Women’s Rights, UN Human Rights Council Universal Periodic Review (Cycle 2, Session 23, 2015); Coalition of NGOs: Union Cover, International Society for Fair Elections and Democracy (ISFED), Center for Human Rights Education and Monitoring (EMC), Women’s Initiative Support Group (WISG), Alternative Georgia.
18. CEDAW/C/GEO/CO/4-5, concluding observations on the combined fourth and fifth periodic report of Georgia, paragraph 34(e), 35(e)
19. https://matsne.gov.ge/ka/document/view/1561437?publication=22
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