Guide on Article 8 of the Convention – Right to respect for private and family life
5. Correspondence between prisoners and their lawyer 67 551. Article 8 applies indiscriminately to correspondence with a lawyer who has already been instructed by a client and a potential lawyer (Schönenberger and Durmaz v. Switzerland, § 29). 552. Correspondence between prisoners and their lawyer is “privileged” under Article 8 of the Convention” (Campbell v. the United Kingdom, § 48; Piechowicz v. Poland, § 239). It may constitute a preliminary step to the exercise of the right of appeal, for example in respect of treatment during detention (Ekinci and Akalın v. Turkey, § 47), and may have a bearing on the preparation of a defence, in other words the exercise of another Convention right set forth in Article 6 (Golder v. the United Kingdom, § 45 in fine; S. v. Switzerland, § 48; Beuze v. Belgium [GC], § 193). 553. The Court considers observance of the principle of lawyer-client confidentiality to be fundamental (Helander v. Finland (dec.), § 53). See also the Recommendation of the Committee of Ministers to Membet States of the Council of Europe on the European Prison Rules Rec(2006)2. Systematic monitoring of such correspondence sits ill with this principle (Petrov v. Bulgaria, § 43). 554. The Court accepts, however, that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read (Campbell v. the United Kingdom, § 48; Erdem v. Germany, § 61). The protection of the prisoner’s correspondence with the lawyer requires the Member States to provide suitable guarantees preventing the reading of the letter such as opening the letter in the presence of the prisoner (Campbell v. the United Kingdom, § 48). 555. The reading of a prisoner’s mail to and from a lawyer should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the “privilege is being abused” in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as “reasonable cause” will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication is being abused (Campbell v. the United Kingdom, § 48; Petrov v. Bulgaria, § 43; Boris Popov v. Russia, § 111). Any exceptions to this privilege must be accompanied by adequate and sufficient safeguards against abuse (Erdem v. Germany, § 65). 556. The prevention of terrorism is an exceptional context and involves pursuing the legitimate aims of protecting “national security” and preventing “disorder or crime” (Erdem v. Germany, §§ 60 and 66-69). In the case cited, the context of the ongoing trial, the terrorist threat, security requirements, the procedural safeguards in place and the existence of another channel of communication between the accused and his lawyer led the Court to find no violation of Article 8. 557. The interception of letters complaining of prison conditions and certain actions by the prison authorities was found not to comply with Article 8 § 2 (Ekinci and Akalın v. Turkey, § 47). 558. The withholding by the public prosecutor of a letter from a lawyer informing an arrested person of his rights was held to breach Article 8 § 2 (Schönenberger and Durmaz v. Switzerland, §§ 2829).
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See also Article 34 (individual applications) and the Guide on Prisoners’ Rights; and above/below.
European Court of Human Rights
122/161
Last update: 31.08.2021
