(Application no. 36936/05)
2 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Szuluk v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lech Garlicki, President,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 12 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The applicant's brain haemorrhage and initial confidentiality of his medical correspondence
2. Subsequent monitoring of the applicant's correspondence
3. Judicial review proceedings
4. The proceedings before the Court of Appeal
5. Petition to the House of Lords
6. The applicant's current conditions of imprisonment
II. RELEVANT DOMESTIC LAW AND PRACTICE
“(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed—
(a) does not interfere with the convention rights of any person; or
(b) (i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are—
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any person.
... (8) In this rule – ...
(c) references to convention rights are to the convention rights within the meaning of the Human Rights Act 1998.”
“Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners' rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service's duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners:
(i) plan escapes or disturbances,
(ii) jeopardise the security and good order of the prison;
(iii) engage in offences against criminal law or prison discipline;
(iv) jeopardise national security;
(v) infringe the rights and freedoms of others.”
“All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases:
(i) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.”
“Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.”
III. RELEVANT INTERNATIONAL MATERIAL
“While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay.
Prisoners should be able to approach the health care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor.”
“Medical secrecy should be observed in prisons in the same way as in the community.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and 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 parties' arguments
44. It further observes that it is accepted by the parties that the reading of the applicant's correspondence was governed by law and that it was directed to the prevention of crime and the protection of the rights and freedoms of others (see paragraph 17 above). The issue that falls to be examined is whether the interference with the applicant's correspondence was “necessary in a democratic society”.
“correspondence with lawyers ... is in principle privileged under Article 8 of the Convention and its routine scrutiny is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client (see Campbell, cited above, §§ 47 and 48). The prison authorities may open a letter from a lawyer to a prisoner solely 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. Suitable guarantees preventing the reading of the letter should be provided, such as opening the letter in the presence of the prisoner. The reading of a prisoner's mail to and from a lawyer, on the other hand, 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 (see Campbell, cited above, § 48).”
“the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.
Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health...”
48. Moreover, as the Court has recognised in its case-law under Article 3 of the Convention, notwithstanding the practical demands of imprisonment, detainees' health and well-being must be adequately served by, amongst other things, providing them with the requisite medical assistance (see in this regard, Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, § 79 and Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX). In this context, the Court refers also to the CPT's standards as regards the importance of medical confidentiality in the prison context (see paragraphs 34 and 35 above).
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 6,000 (six thousand euros) for costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into pounds sterling at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 2 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President