DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I disagree with the approach adopted by the majority in the instant case. In my view the cases raises serious issues under Article 3 of the Convention. Ethnic discrimination is a matter of utmost concern and the treatment suffered by the applicant can be considered degrading. Therefore, the grievances formulated by the applicant under Article 3 should not have been considered manifestly ill-founded but examined on the merits.

2. At the same time, I cannot adhere to the way Article 8 was applied in the instant case. In particular, the majority repeat the view, expressed in numerous judgments of the Court, that “the notion of ‘ private life ’ within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition.” This approach may raise certain methodological objections. The meaning of the phrase used is not clear. The assessment of definitions in terms of exhaustiveness/non-exhaustiveness fits definitions that are enumerated. Such definitions constitute, however, only one of among many categories of definition. The question is not whether an exhaustive definition by enumeration is possible for “private life” but how to define this notion correctly by devising a definition which satisfies the requirement of adequacy between the definiens and the definiendum and avoids possible logical mistakes, such as – for instance – ignotum per ignotum .

3. The international rule of law is founded on legal certainty. It is based, in particular, on the assumption that international treaties establish legal rules which are binding on their parties. The clearer and more precise the legal rules enshrined in international agreements, the easier for contracting parties to foresee the consequences of their actions and omissions and to comply with their international obligations.

Obviously, international treaties may vary considerably and the application of a bilateral treaty raises different issues from the application of a multilateral law-making treaty. The former may more easily be clarified or modified by subsequent concordant practice of the two parties. The latter can perform its normative function only if the scope of contracting parties ’ obligations is sufficiently precise and clear. Therefore, the international bodies empowered with their implementation should promote clarity and precision rather than enhance the open texture of legal concepts. If a notion used in a human-rights treaty seems vague and broad, it is the task of the competent body to explain its meaning with sufficient precision. States cannot reasonably be blamed for not complying with rules whose indeterminacy has been enhanced by the treaty bodies.

4. It is true that many academics point to the difficulty of defining private life, especially in the context of rapid societal evolutions around the world. In this context the statement that private life is not susceptible to exhaustive definition, in paragraph 78 of the reasoning, may convey the idea that a definition of the term “private life” in the Convention is impossible. I disagree with this view. In principle, even a broad and vague legal concept used in an international treaty has a certain meaning and is susceptible to definition. If the term “private life” used in the Convention cannot be defined, then the content of the legal rule enshrined in Article 8 of the Convention becomes uncertain and the normative force of this treaty provision is put into question. Even assuming that “private life” is undefinable, the Court should provide as precise guidelines as possible concerning the content and scope of legal obligations imposed on the High Contracting Parties.

There is no valid reason not to explain the precise meaning of “private life” in the Convention by defining this concept and there are compelling reasons for doing so. As long as the Court continues to entertain uncertainty about the notion of “private life”, the scope of obligations under Article 8 remains undetermined. Even if in some areas belonging to the scope of “private life” there is sufficient case-law to predict future judgments of the Court, it remains a broad domain subject to uncertainty. The High Contracting Parties are aware that they have to protect some values connected with the private sphere but they have only a limited knowledge of the exact content of their obligations and cannot foresee exactly where their obligations end. They cannot reasonably be blamed for not always observing a treaty provision whose precise meaning remains – to a large extent – unknown to them. Finding violations of Article 8 in such a specific context entails a fragmentation of the international law regime of State responsibility for treaty violations.

5. Some scholars have expressed the view that private life, as understood by different courts, is a bundle of disparate entitlements (see, for instance, M.-T. Meulders-Klein, “Vie privée, vie familale et droits de l ’ homme”, Revue internationale de droit comparé , 1992 no. 4, p. 771). This remark is especially valid for the judicial application of Article 8, which has become a legal basis for extremely heterogeneous entitlements lacking cohesion and devoid of logical connections. The conceptual confusion reflects the vicissitudes of the case-law. The provision is used by the Court to fill the lacunae in the Convention and to broaden its scope to protect highly varying individual interests which were not previously covered by this treaty. The lack of a precise definition of the notion in question leaves the Court very broad freedom of action. Such a situation is difficult to accept, however, because it undermines legal certainty and, more generally, the international rule of law. Moreover, the Court ’ s case-law goes beyond the limits of permissible evolutionary treaty interpretation and turns the judicial application of the Convention into primary rule-making without sufficient democratic legitimacy. One of the consequences of such an approach is also that it limits the scope of the right to political participation by way of parliamentary elections, protected by Article 3 of Protocol No 1. Matters which should be decided either by way of new treaties, ratified with the consent of democratically elected national parliaments, or by way of national legislation, enacted by national parliaments, are decided by the international judge (see my dissenting opinion to the judgment of 12 August 2014 in the case of Firth v. the United Kingdom ( nos. 47784/09, 47806/09, 47812/09, 47818/09, 47829/09, 49001/09, 49007/09, 49018/09, 49033/09 and 49036/09) ).

6. In my view, the concept of “respect for private life” in the Convention was used to designate a coherent whole which does lend itself to a definition and which reflects a clear and consistent vision of the right in issue. Taking account of the case-law of the Court and national courts and without entering into a detailed legal analysis, it suffices to say here – briefly – that “respect for private life” may be understood as protection of autonomy and secrecy in personal matters. The notion under consideration does not encompass ethnic identity, which is a different matter. Ethnic identity is protected – to some extent – by certain other provisions of the Convention, in particular Article 3 and Article 14, but enjoys much stronger and more efficient protection under other international treaties.

7. The Court has insisted many times that the Convention is “a living instrument”. In my understanding, this phrase means that legal questions which arise under Convention always remain open and may be revisited. The determinacy of legal rules enshrined in the Convention not only justifies but also requires that the Court revisit the definition of private life under this international instrument.