MARCKX v. BELGIUM JUDGMENT DISSENTING OPINION OF JUDGE SIR GERALD FITZMAURICE 38 II. The question of the applicability of article 8 (art. 8) of the Convention 6. This is the key question in the case, for not only do most of the others depend upon it in one way or another, but it is safe to say that without the expectation of an affirmative answer to it, the others would scarcely have been raised, or been susceptible of successful prosecution. The relevant parts of this provision read as follows: "Article 8 (art. 8) 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such ..." [and here follows a list of exceptions that are not material to the present case3.] The Court took the view that the second paragraph of this Article (art. 8) was not material to the case, since it was not alleged that any Belgian authority had taken any positive or concrete step by way of "interference" with the applicants’ private and family life, etc. The indictment was really against Belgian law as such, which was said to be wanting in respect for these things as regards the applicants, because it created the situation that has been described in footnote 2 above, - q.v.4. In consequence of this, the Court based itself exclusively on paragraph 1 of Article 8 (art. 8-1). In my opinion, however, paragraph 2 (art. 8-2) is also material - not because there was any concrete interference with the applicants’ lives on the part of the Belgian authorities, but because the reference to such (possible) interference in paragraph 2 (art. 8-2) helps to elucidate paragraph 1 (art. 8-1) by suggesting the limits within which the Article as a whole was intended to operate - i.e., to be applicable. I shall revert to this point later - see footnote 5 to paragraph 7. 7. It is abundantly clear (at least it is to me) - and the nature of the whole background against which the idea of the European Convention on Human Rights was conceived bears out this view - that the main, if not indeed the sole object and intended sphere of application of Article 8 (art. 8), was that of what I will call the "domiciliary protection" of the individual. He and his family were no longer to be subjected to the four o’clock in the morning rata-tat on the door; to domestic intrusions, searches and questionings; to These exceptions are such as are to be found in several of the provisions of the Convention, in favour of e.g., national security, public safety, order, health or morals, economic well-being, etc. None of them was invoked by the defendant Government. 4 In that footnote the situation has been described in relation to the applicants' claim of having suffered "degrading treatment"; but it was exactly the same situation that gave rise to their claim of a lack of respect for their family life in Belgian law. 3