Art. 7 concerns the respect for private and family life. The relation between these two dimensions is complex and sometimes ambivalent. On the one side, there are cases in which private life has been kept distinct from family life
22
See, e.g., ECtHR, Abdolkhani and Karimnia v. Turkey, 2009 (appli- cation no. 30471/08).
23
See, e.g., ECtHR, Conka v. Belgium, 2002 (application no. 51564/99).
24 See, e.g., ECtHR, M.S.S. v. Belgium and Greece, 2011 (application
no. 30696/09).
25 See, e.g., ECtHR, Singh and Others v. Belgium, 2012 (application
no. 33210/11).
26
See, e.g., ECtHR, Hirsi Jamaa and Others v. Italy, 2012 (applica- tion no. 27765/09).
(although respect for the former «must also comprise, to a certain degree, the right to establish and develop relation- ships with other human beings» 27). For instance, the right to private life is the main reference in relation to the issue of the treatment of personal data, which are also protected in art. 8. Furthermore, reproductive and sexual life are often dealt with in the light of private life. For instance, the EC- tHR has found a violation of private life in making gender reassignment surgery conditional on the proof that the per- son concerned is no longer able to procreate 28, whereas it has affirmed that the right to private life could not be inter- preted as conferring a right to abortion 29. On its side, the CJEU has stated that requiring asylum seekers on the ground of sexual orientation to go into details about their sexual life constitutes a violation not only of their dignity (see par. 3.1 above) but also of their right to private life 30.
By contrast, in many other cases, private and family life are treated as strictly interconnected and can hardly be dis- tinguished. In this respect, art. 7 may partially overlap with the right to marry and the right to found a family affirmed in art. 9. About this, it must be underlined that neither the Char-
27
ECtHR, Niemietz v. Germany, 1992 (application no. 13710/88), par. 29. See also ECtHR, Omojudi v. UK, 2009 (application no. 1820/08).
28
ECtHR, Y.Y. c. Turkey, 2015 (application no. 1820/08).
29
ECtHR, A, B and C v. Ireland, 2010 (application no. 25579/05). Af- firming that the right to private life does not imply a right to abortion, the ECtHR came to an opposite conclusion from that of the US Supreme Court in the landmark case Roe v. Wade, 1973, which affirmed the right of women to choose an abortion, grounding it precisely on the right to privacy.
ter and the ECHR, nor the case law of the CJEU and ECtHR, contain a definition of family, while an empirical approach is usually adopted in order to evaluate whether a concrete situation may fall into that notion 31. However, not every claimed expression of family life is protected, even when it is allegedly based on marriage.
In this regard, restrictions on the rights enshrined in arti- cles 7 and 9 may interact with the issue of respect for the cultural traditions of migrants, asylum seekers, and refu- gees. For instance, the ECtHR has established that the re- moval of an Afghan man under the Dublin Regulation fol- lowing the refusal to recognise his marriage to his 14-year- old bride did not constitute a violation of his right to family life, thus indicating that child-marriages are not protected 32. Analogously, forced marriages (of both children and adults) are expressly prohibited by the Istanbul Convention (art.
37). That is not surprising, since it is undisputed that the right to marry includes the right to choose one’s own spouse and, also, the negative right not to marry. Furthermore, there is no obligation for the States to recognise religious-only marriages 33, while it is held to be legitimate the refusal to recognise the effects of a polygamous marriage 34, or to grant a residence permit to a polygamous spouse 35. It must also be remembered that respect for family life does not
31 See, e.g., ECtHR, X,Y and Z v. UK, 1997 (application no. 21830/93). 32 ECtHR, Z.H. and R.H. v. Switzerland, 2015 (application no.
60119/12).
33
ECtHR, Şerife Yiğit v. Turkey, 2010 (application no. 3976/05).
34 Ibidem.
prevent State interference when the rights of a member of the family are violated, as for the case of domestic and gen- der-based violence. On the contrary, in these cases the State has a positive duty to protect the victims (see par. 3.1 above).
In the CJEU case law, family life issues are often dealt with in connection with the right to freedom of movement and, in particular, with the concession (or denial) of resi- dence permits. In this perspective, the unity of the family and the consideration of the best interest of the child have been given particular importance in some cases. For instan- ce, on the one side, the CJEU has stated that «the removal of a person from the country where close members of his fami- ly are living may amount to an infringement of the right to respect for family life» 36, and that the family reunion should be permitted even if a third-country national entered the ter- ritory of the State irregularly and married her/his EU spouse during the period of irregular permanence 37. On the other side, the CJEU has affirmed that a third-country national whose dependent minor children are EU citizens has to be granted a residence and work permit, in order to live with and sup- port them 38.
More in general, the right of the children not to be sepa- rated from their parents is held in great consideration also by the ECtHR, both for granting children the admission to
36
CJEU, Orfanopoulos and Oliveri, 2004 (joined cases C-482/01 and C-493/01), par. 98. See also CJEU, Carpenter, 2002 (C-60/00).
37
CJEU, Metock and Others, 2008 (C-127/08).
38
CJEU, Ruiz Zambrano, 2011 (C-34/09), which, however, refers to art. 20 TFEU rather than to art. 7 of the Charter.
enter in a European country for family reunification 39 and for preventing the expulsion of one of the parents following a relationship breakdown 40. In this perspective, it must also be stressed that art. 24,3 of the Charter states that «Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests». This does not mean that articles 7 and 24 of the Charter deprive States of their discretionary power in the examination of ap- plications for family reunification 41; however, it does mean that States have a duty to examine such applications in the light of those articles 42.