European Court of Human Rights

The Commission’s request referred to the declaration whereby Switzerland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46) and to Articles 44 and 48 (art. 44, art. 48); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). Both sought a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 (art. 8). The Commission also sought a decision under Article 10 (art. 10).

There appeared before the Court:

- for the Government

       Mr. O. Jacot-Guillarmod, Head

               of the Department of International Affairs, Federal Department of    

               Justice,                                                                                      Agent,

       Mr. R. Levi, former federal judge,

       Mr. B. Münger, Federal Department of Justice,                       Counsel;

- for the Commission

       Mr. S. Trechsel, Delegate;

- for Mr. Schönenberger

       Mr. E. Schönenberger, Rechtsanwalt,                              Applicant;

       Ms. B. Hug, Rechtsanwältin,                                                      Assistant;

- for Mr. Durmaz, applicant

       Mr. J.-P. Garbade, avocat,                                                       Counsel.

The Court heard addresses by Mr. Jacot-Guillarmod and Mr. Levi for the Government, Mr. Trechsel for the Commission and Mr. Schönenberger, Ms. Hug and Mr. Garbade for the applicants, as well as their replies to its questions.

At the hearing, the Commission, the Government and the applicants lodged with the registry various documents, either at the President’s request or on their own initiative.

AS TO THE FACTS

I.   THE CIRCUMSTANCES OF THE CASE

The second applicant, Mehmet Durmaz, who is a Turkish national born in 1950, lives at Onex, in Switzerland. He is a taxi-driver.

A. Stopping of a letter and enclosure from Mr. Schönenberger to Mr. Durmaz

The applicant was arrested on the same day by the Geneva police and taken to Zürich the following day, where he was questioned for the first time by officials from the prosecutor’s office. He was further questioned and also confronted with other suspects on 23 and 24 February, and on each occasion he cooperated by answering all the questions put to him.

The first applicant immediately called the district prosecutor to advise him and to say that he would be sending authorisation forms and a letter. Also, on 24 February, he sent a letter and enclosure to the district prosecutor’s office, as required by the relevant legislation, requesting the district prosecutor to forward them to the addressee.

The enclosure comprised a copy of the covering letter to the district prosecutor, two forms giving authority to act and a letter to Mr. Durmaz, which read as follows (translation from the German):

"Sir,

I am instructed by your wife to undertake your defence. You will find enclosed two forms giving me authority to act for you. If you wish to authorise me to represent you, please send one of the forms to the district prosecutor and return the other one to me (duly signed).

It is my duty to point out to you that you are entitled to refuse to make any statement. Anything you say may be used in evidence against you. If you choose to remain silent, the district prosecutor will have to prove your guilt by other means (witnesses, etc.). He will usually then try to influence you by arguing that in that case you will remain in custody on remand until such time as he has questioned witnesses, other suspects, etc. If this does not worry you (i.e. a possible prolongation of your detention on remand), it will be to your advantage to exercise your right not to make any statement.

Once I have received your authority to act, I shall apply for permission to visit you and will come and see you. At all events, be patient: you will have to be released at some stage!

Yours faithfully ..."

"As long as Edmund Schönenberger is not the suspect’s authorised legal representative, the general provisions of the Prisons Ordinance [see paragraph 18 below] apply to him. Section 53(3) prohibits the forwarding of letters concerning the preparation of a case for trial. In the present letter, Edmund Schönenberger has recommended to the suspect a particular course of conduct for the preparation of the case. In virtue of the aforementioned provision, his letter will therefore not be forwarded."

The prosecutor’s office returned to Mr. Schönenberger the said documents together with the copy of the covering letter.

B. The appeals against the Pfäffikon district prosecutor’s order of 1 March 1984

It noted in the first place that Mr. Schönenberger could not rely on the privileges conferred on prisoners’ defence lawyers under section 53(3) of the Prisons Ordinance. The Federal Court added that the prosecutor’s office had not infringed either the Constitution or the Convention by intercepting Mr. Schönenberger’s letter to Mr. Durmaz, since it related to pending criminal proceedings and gave the addressee advice on the behaviour to adopt during the investigation.

On the other hand, the Federal Court held that the decision to withhold the two authorisation forms and the copy of the covering letter to the prosecutor’s office was contrary to the Constitution: since these documents did not relate to pending criminal proceedings, section 53(3) could not be relied on in respect of them. The Federal Court also pointed out that a person who has been charged with a criminal offence is at all times entitled to ask for a lawyer and to receive a form for giving authority to act. It concluded that the disputed measure was a disproportionate restriction on freedom of correspondence and on the rights of the defence. It consequently set aside the Department of Justice’s decision and awarded the applicants costs of 500 CHF.

II.   NATIONAL LEGISLATION AND CASE-LAW

Section 53(3) reads as follows (translation from German):

"No correspondence with co-prisoners and former co-prisoners (except for close relatives) shall be allowed. Letters jeopardising the purpose of detention or prison security shall not be forwarded; letters relating to pending criminal proceedings shall be forwarded only if they form part of correspondence with a defence lawyer. A prisoner shall be informed if a letter is not forwarded."

"Section 53 lays down in particular that letters ‘whose content is improper’ or which relate to pending criminal proceedings shall not be forwarded. Correspondence with co-prisoners or former co-prisoners is likewise prohibited. On the other hand, communications addressed to supervising authorities or to a defence lawyer are not subject to any restrictions.

The applicant alleges that prohibiting communications ‘whose content is improper’ goes much too far and leaves too great a discretion to the officials responsible for monitoring correspondence. In his submission, the prohibition should apply only to communications whose content is ‘illicit’. This change of wording would make no appreciable difference, since the second concept is likewise very imprecise in the present context. The applicant does not dispute the need to prohibit the dispatch of letters with a particular type of content, and that is the very purpose of the monitoring. It is clear, therefore, that any correspondence which might assist in the preparation of escape plans or the commission of fresh criminal offences, or which could have an impermissible influence on criminal proceedings (danger of collusion) must be prohibited. Even assuming that it is in principle desirable to maintain contacts with the outside world, these contacts must not compromise the purpose of detention. Moreover, the supervising authorities must also be given the right to hold back any communications which might jeopardise order in the prison. Conversely, the authorities cannot refuse to forward communications which do not jeopardise either the purpose of detention or order in the prison and which are permissible in their quantity (s. 52). It is accordingly of little consequence whether or not the supervising authority approves the content of such communications (cf., on the legal situation in Germany, the Federal Constitutional Court’s decision of 14 March 1972, vol. 33, no. 1). It is not possible to make an accurate general statement of where the line should be drawn, since it depends on the particular circumstances of each case. The general principle laid down in the disputed ordinance accordingly cannot be criticised as being unconstitutional, at least not if regard is had to the fact that correspondence with the supervising authorities and defence lawyers is not subject to any marked degree of control." (Judgments of the Swiss Federal Court, vol. 99, part I a), pp. 288-289)

PROCEEDINGS BEFORE THE COMMISSION

CONCLUDING SUBMISSIONS BY THE GOVERNMENT

"to conclude that in the present case the non-forwarding of the letter in issue addressed by the first applicant to the second applicant, who was detained on remand and did not know the sender of the letter, did not constitute a violation of Article 8 (art. 8) of the Convention or of any other provision of that instrument".

AS TO THE LAW

I.   THE ALLEGED BREACH OF ARTICLE 8 (art. 8)

"1. Everyone has the right to respect for ... his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Government refute this argument whilst the Commission agrees with it.

The Court is not convinced by this argument. Mr. Schönenberger sought to inform the second applicant of his right "to refuse to make any statement", advising him that to exercise it would be to his "advantage" (see paragraph 9 above). In that way, he was recommending that Mr. Durmaz adopt a certain tactic, lawful in itself since, under the Swiss Federal Court’s case-law - whose equivalent may be found in other Contracting States - it is open to an accused person to remain silent (see paragraph 17 above). Mr. Schönenberger could also properly regard it as his duty, pending a meeting with Mr. Durmaz, to advise him of his right and of the possible consequences of exercising it. In the Court’s view, advice given in these terms was not capable of creating a danger of connivance between the sender of the letter and its recipient and did not pose a threat to the normal conduct of the prosecution.

The Court attaches little importance to this fact, having regard to the circumstances, which were that Mr. Schönenberger was acting on the instructions of Mrs. Durmaz and had moreover so apprised the Pfaffikon district prosecutor by telephone on 24 February 1984 (see paragraph 9 above). These various contacts amounted to preliminary steps intended to enable the second applicant to have the benefit of the assistance of a defence lawyer of his choice and, thereby, to exercise a right enshrined in another fundamental provision of the Convention, namely Article 6 (art. 6) (see, mutatis mutandis, the aforementioned Golder judgment, Series A no. 18, p. 22, § 45). In the circumstances of the case, the fact that Mr. Schönenberger had not been formally appointed is therefore of little consequence.

II.   THE ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

In its report, the Commission gave as its opinion that no separate issue arose on this point. The Court agrees with this opinion which is in line with its own case-law (see the Silver and Others judgment of 25 March 1983, Series A no. 61, p. 41, § 107). Neither the persons concerned nor the Government sought to challenge this opinion in argument before it.

III.  THE APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Pecuniary damage

As regards Mr. Durmaz, the Court construes his claim as a request for reimbursement of the expenses he incurred in travelling to Strasbourg: it will deal with these below (see paragraphs 37 and 38).

B. Non-pecuniary damage

C. Costs and expenses

For his part, Mr. Durmaz seeks 3,450 CHF in respect of lawyers’ fees relating to the proceedings before the Court, calculated on the basis of twenty-three hours at 150 CHF per hour, plus 450 CHF in connection with his appearance in Strasbourg in February 1988 (see paragraph 34 above). On this last point the Court recalls that, under the terms of Rules 30 and 33 § 3 (d) of the Rules of Court, the individual applicants may take part in the proceedings under certain conditions which were met in this case. Furthermore, their presence in the court-room offers the undeniable advantage of enabling the Court to ascertain on the spot their view on issues affecting them (see, as the most recent precedent, the Lingens judgment of 8 July 1986, Series A no. 103, p. 30, § 54).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 8 (art. 8) of the Convention;

2. Holds that no separate issue arises under Article 10 (art. 10);

3. Holds that the defendant State shall pay to Mr. Schönenberger and Mr. Durmaz the amounts of 6,320 (six thousand three hundred and twenty) Swiss francs and 2,750 (two thousand seven hundred and fifty) Swiss francs respectively.

4. Dismisses the remainder of the claims for just satisfaction.

Done in English and in French and delivered at a public hearing in the Human Rights Building, in Strasbourg, on 20 June 1988.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar