Guide on Article 8 of the Convention – Right to respect for private and family life
559. Article 34 of the Convention (see below Correspondence with the Court) may also be applicable in the case of a restriction of correspondence between a prisoner and a lawyer concerning an application to the Court and participation in proceedings before it (Shtukaturov v. Russia, § 140, concerning in particular a ban on telephone calls and correspondence 68). For instance, the Court examined a case under Article 34 which dealt with the interception of letters sent to prisoners by their lawyers concerning applications before the Court (Mehmet Ali Ayhan and Others v. Turkey, §§ 39-45). 560. The Court has nevertheless specified that the State retains a certain margin of appreciation in determining the means of correspondence to which prisoners must have access. Thus, the refusal by the prison authorities to forward to a prisoner an email sent by his lawyer to the prison email address is justified where other effective and sufficient means of transmitting correspondence exist (Helander v. Finland (dec.), § 54, where domestic law provided that contact between prisoners and their lawyers had to take place by post, telephone or visits). The Court has also accepted that compliance by a representative with certain formal requirements might be necessary before obtaining access to a detainee, for instance for security reasons or in order to prevent collusion or perversion of the course of the investigation or justice (Melnikov v. Russia, § 96). 561. There is no reason to distinguish between the different categories of correspondence with lawyers. Whatever their purpose, they concerned matters of a private and confidential character. In the case of Altay v. Turkey (no. 2), the Court ruled for the first time that, in principle, oral, face-toface communication with a lawyer in the context of legal assistance falls within the scope of “private life” (§ 49 and § 51). 69
6. Correspondence with the Court 70 562. A prisoner’s correspondence with the Convention institutions falls within the scope of Article 8. The Court has found that there was interference with the right to respect for correspondence where letters sent to prisoners by the Convention institutions had been opened (Peers v. Greece, § 81; Valašinas v. Lithuania, §§ 128-129; Idalov v. Russia [GC], §§ 197-201). As in other cases, such interference will breach Article 8 unless it is “in accordance with the law”, pursued one of the legitimate aims set forth in Article 8 § 2 and was “necessary in a democratic society” in order to achieve that aim (Petra v. Romania, § 36). 563. In a specific case where only one of a significant number of letters had been “opened by mistake” at a facility to which the applicant had just been transferred, the Court found that there was no evidence of any deliberate intention on the authorities’ part to undermine respect for the applicant’s correspondence with the Convention institutions such as to constitute interference with his right to respect for his correspondence within the meaning of Article 8 § 1 (Touroude v. France (dec.); Sayoud v. France (dec.)). 564. On the other hand, where monitoring of correspondence is automatic, unconditional, independent of any decision by a judicial authority and unappealable, it is not “in accordance with the law” (Petra v. Romania, § 37; Kornakovs v. Latvia, § 159).
See the Guide on the Admissibility criteria. See also Privacy during detention and imprisonment and below. 70 See also Article 34 (individual applications) and the Guide on Prisoners’ Rights; and above. 68 69
European Court of Human Rights
123/161
Last update: 31.08.2021
