6. Correspondence with the Court

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 correspondence68). 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 Court70

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).

68 See the Guide on the Admissibility criteria. 69 See also Privacy during detention and imprisonment and below. 70 See also Article 34 (individual applications) and the Guide on Prisoners’ Rights; and above.

565. Disputes concerning correspondence between prisoners and the Court may also raise an issue under Article 34 of the Convention where there is hindrance of the “effective exercise” of the right of individual petition (Shekhov v. Russia, § 53 and the references cited therein; Yefimenko v. Russia, § 16471; Mehmet Ali Ayhan and Others v. Turkey, §§ 39-45). 566. The Contracting Parties to the Convention have undertaken to ensure that their authorities do not hinder “in any way” the effective exercise of the right to apply to the Court. It is therefore of the utmost importance that applicants or potential applicants are able to communicate freely with the Court without being dissuaded or discouraged by the authorities from pursuing a Convention remedy and without being subjected to any form of pressure to withdraw or modify their complaints (Ilaşcu and Others v. Moldova and Russia [GC], § 480; Cotleţ v. Romania, § 69). See also the The European Agreement relating to Persons Participating in Proceedings of the European Court of Human Rights, the The Resolution CM/Res(2010)25 on Member States’ duty to respect and protect the right of individual application to the European Court of Human Rights and the Recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules Rec(2006)2. 567. Refusing to forward correspondence from an applicant that serves in principle to determine the issue of compliance with the six-month rule for the purposes of Article 35 § 1 of the Convention is a typical example of hindrance of the effective exercise of the right of application to the Court (Kornakovs v. Latvia, § 166). Situations falling under Article 34 of the Convention include the following (contrast with, for instance, Dimcho Dimov v. Bulgaria, §§ 94-102):  interception by the prison authorities of letters from or to the Court (Maksym v. Poland, §§ 31-33 and the references cited therein), even simple acknowledgments of receipt (Yefimenko v. Russia, § 163);  measures limiting an applicant’s contacts with her/his representative (Shtukaturov v. Russia, § 140; Mehmet Ali Ayhan and Others v. Turkey, §§ 39-4572)  punishment of a prisoner for sending a letter to the Court (Kornakovs v. Latvia, §§ 168169);  acts constituting pressure or intimidation (Ilaşcu and Others v. Moldova and Russia [GC], § 481);  refusal by the prison authorities to supply photocopies needing to be appended to the application form, or unjustified delays in doing so (Igors Dmitrijevs v. Latvia, §§ 91 and 100; Gagiu v. Romania, §§ 95-96; Moisejevs v. Latvia, § 184);  in general, the lack of effective access to documents required for an application to the Court (Vasiliy Ivashchenko v. Ukraine, §§ 123 and 125). 568. It should be borne in mind that since they are confined within an enclosed space, have little contact with their relatives or the outside world and are constantly subject to the authority of the prison management, prisoners are undoubtedly in a position of vulnerability and dependence (Cotleţ v. Romania, § 71; Kornakovs v. Latvia, § 164). Accordingly, as well as the undertaking to refrain from hindering the exercise of the right of petition, the authorities may in certain circumstances have an obligation to furnish the necessary facilities to a prisoner who is in a position of particular vulnerability and dependence vis-à-vis the prison management (Naydyon v. Ukraine, § 64) and is unable to

71 See the Guide on the Admissibility criteria. 72 See also Correspondence between prisoners and their lawyer.