Guide on Article 8 of the Convention – Right to respect for private and family life
11. Privacy during detention and imprisonment 40 236. Since any detention which is lawful and justified inevitably entails some limitations on Article 8 rights, the assessment of compliance with that Article in the case of detainees is somewhat particular. Thus, for example, with respect to a detainees contacts with the outside world, regard must be had to the ordinary and reasonable requirements of imprisonment since some restrictions on those contacts, such as limitations on the number and duration of visits, are not of themselves incompatible with Article 8 (Khoroshenko v. Russia [GC], §§ 106, 109, 116-149; see also Lebois v. Bulgaria, §§ 61-64, as regards restrictions on visits and telephone calls, Bădulescu v. Portugal, §§ 35 and 36). 237. In the context of persons deprived of their liberty, the Court emphasized for the first time the confidentiality of lawyer-client communication in the case of Altay v. Turkey (no. 2). It ruled that an individual’s oral communications with his or her lawyer in the context of legal assistance falls within the scope of “private life” since the purpose of such interaction is to allow that individual to make informed decisions about his or her life (§§ 49-50). In principle, oral, face-to-face communication and correspondence between a lawyer and his or her client are privileged under Article 8 (§ 51). The Court also noted that a prisoner’s right to communicate with counsel out of earshot of the prison authorities would be relevant in the context of Article 6 § 3 (c) of the Convention vis-à-vis a person’s rights of defence. Prisoners may feel inhibited in discussing with their lawyers in the presence of an official not only matters relating to pending litigation but also in reporting abuses they may be suffering through fear of retaliation. In addition, the privilege of lawyer-client relationship and the national authorities’ obligation to ensure the privacy of communications between a prisoner and his or her chosen representative are among recognised international norms (§ 50). 238. This case concerns the mandatory presence of an official during consultations between a prisoner and his lawyer. The right to confidential communication between a detainee and his/her lawyer is not absolute but might be subject to restrictions. The margin of appreciation of the State in the assessment of the permissible limits of interference with the privacy of consultation and communication with a lawyer is narrow in that only exceptional circumstances, such as to prevent the commission of serious crime or major breaches of prison safety and security, might justify the necessity of limitation of these rights (§ 52). 239. In the case at hand, the domestic courts had ordered the presence of an official during the applicant’s consultations with his lawyer in prison because they had found that the lawyer’s behaviour had been incompatible with the profession of a lawyer in so far as she had sent books and periodicals to the applicant which had not been defence-related. The Court found that the measure in question constituted an interference with the applicant’s right to respect for his private life. The Court reiterated in this context that the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. That is the case in particular where credible evidence had been found of the participation of a lawyer in an offence, or in connection with efforts to combat certain practices. On that account, however, it is vital to provide a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law (§ 56). 240. In contrast, the Court found a complaint about the monitoring of communications between a remand prisoner and his family members in a visiting area, for the purposes of the ongoing criminal 40
See also Prisoners’ correspondence.
European Court of Human Rights
59/161
Last update: 31.08.2021
