The contact of the lawyer with his detained client is privilegedly protected by the ECHR and must be unobstructed.
JUDGMENT
Altay v. Turkey 09.04.2019 (no. 2) (n. 11236/09)
SUMMARY
Lawyer and prisoner. Confidentiality of meetings. The meetings and communications of the lawyer with his client are dealt with privilege by the ECHR and must be free of obstructions. Request of the prison authorities to attend the meetings between the lawyer and his client. Acceptance of the request by the national court without an oral hearing of the prisoner required by law. According to the European Court of Human Rights, the interpretation and enforcement of the law by the national courts in relation to that restriction was manifestly unreasonable and unforeseeable within the meaning of Article 8. Moreover, because of the controversial nature of the procedure and the severity of the measure imposed, the absence of a hearing before both the enforcement court and the Criminal Court meant that the applicant’s allegations were not heard in accordance with the requirements of Article 6 § 1 of the Convention. Infringement of the right to protection of privacy and fair trial.
PROVISIONS
Article 8
Article 6
PRINCIPAL FACTS
The applicant, Mehmet Aytunç Altay, is a Turkish national who was born in 1956. He is serving his
sentence of life imprisonment in the Edirne F-type prison (Turkey).
The case concerned a decision by the prison authorities and the courts to have an official present
when he consulted his lawyer.
In August 2005 the prison authorities decided to prohibit Mr Altay, who had been sentenced to life
imprisonment for attempting to undermine the constitutional order, from receiving a parcel from his
lawyer which contained a book called Globalisation and Imperialism (Küreselleş me ve Emperyalizm),
a magazine with the title Rootless Anational Publication (Köxüz Anasyonal Neş riyat), and a
newspaper, Express International Sha la la (Express Enternasyonal Ş alala).
The Edirne Enforcement Court upheld the prison’s decision as the material had nothing to do with
the rights of the defence. Mr Altay objected, but his appeal was unsuccessful.
In September of the same year the prison asked for authorisation to have an official present during
Mr Altay’s meetings with his lawyer, arguing that her actions in sending the material had been
incompatible with her duties as a legal representative. The Edirne Enforcement Court allowed the
request. Mr Altay challenged the restriction in 2008, 2010 and 2013 but was unsuccessful each time.
In 2006 the Strasbourg Court rejected an application by Mr Altay over the prohibition on him
receiving the book and periodicals, holding that he had to first use the domestic remedy of applying
to the Compensation Commission. The Commission held in 2016 that the refusal to hand over the
reading material had violated his rights under Article 10 (freedom of expression).
In the current application he relied on Article 8 (right to respect for private and family life, the home
and the correspondence) to complain that the September 2005 decision to order the presence of an
official during his lawyer’s visits had violated his right to confidential consultations with his lawyer.
Under Article 6 § 1 (right to a fair trial), he complained that neither he nor his lawyer had been able
to take part effectively in the proceedings on the restrictions on his meetings with his lawyer as
there had been no hearings and they had not been able to present any arguments against the prison
administration’s application or the public prosecutor’s request.
THE DECISION OF THE COURT
Violation of article 8
As regards the content of the communication and the privilege accorded to the lawyer-client relationship in the context of persons deprived of their liberty, in Campbell, the Court found no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. It noted in that connection that the borderline between correspondence concerning contemplated litigation and that of a general nature was especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. The Court considers that this principle applies a fortiori to oral, face-to-face communication with a lawyer. It therefore follows that in principle oral communication as well as correspondence between a lawyer and his or her client is privileged under Article 8 of the Convention.
The Court however recognises that, in spite of its importance, the right to confidential communication with a lawyer is not absolute but may be subject to restrictions. In order to ensure that the restrictions that are imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim or aims under paragraph 2 of Article 8, and are “necessary in a democratic society”, in the sense that they are proportionate to the aims sought to be achieved. The Court further notes that the margin of appreciation of the respondent 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. For instance, in the context of persons deprived of their liberty for terrorist activities, the Court has held that they cannot be excluded from the scope of the provisions of the Convention and the essence of their rights and freedoms recognised by the latter must not be infringed, the national authorities can impose “legitimate restrictions” on them inasmuch as those restrictions are strictly necessary to protect society against violence.
Turning to the circumstances of the present case, the Court observes that the domestic courts referred to section 59 of Law no. 5275 as the legal basis for their interference with the confidentiality of the applicant’s meetings with his lawyer. They ruled in that connection 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 however observes that section 59 of Law no. 5275 is an exceptional measure which contains an exhaustive list of circumstances in which the confidentiality of lawyer-client communication may be restricted. According to that provision, only when it is apparent from documents or other material that the privilege enjoyed by a prisoner and his or her lawyer is being used as a means for communication with a terrorist organisation, or for the commission of a crime or otherwise jeopardises the security of the institution, may the presence of a prison official during lawyer-client meetings be ordered.
The interception of correspondence solely because it does not relate to the rights of defence is not provided in that section as grounds for restricting the confidentiality of consultation with a lawyer. To conclude otherwise would run counter to the plain meaning of the text of the provision and would mean that any correspondence from a lawyer which is not defence-related could result in such a serious measure being imposed, without a limitation in duration. Having regard to the present circumstances of the case, the Court concludes that although the letter and spirit of the domestic provision in force at the time of the events were sufficiently precise – save for the lack of temporal limits to the restriction – , its interpretation and application by the Edirne Enforcement Court to the circumstances of the applicant’s case was manifestly unreasonable and thus not foreseeable within the meaning of Article 8 § 2 of the Convention. It follows that such an extensive interpretation of the domestic provision in the present case did not comply with the Convention requirements of lawfulness.
Accordingly, there has been a violation of Article 8 § 1 of the Convention on account of the lack of foreseeability of the domestic courts’ interpretation and application of the law to the facts of the applicant’s case.
Having regard to the foregoing conclusion, the Court is not required to examine whether the interference pursued one or more legitimate aims and was necessary in a democratic society.
Violation of article 6 par. 1-due to the fact that no hearing was held
Turning to the circumstances of the present case, the Court observes at the outset that no oral hearing was held at any stage of the domestic proceedings. Under domestic legislation the proceedings before enforcement courts and subsequently before the assize courts were carried out on the basis of the case file and neither the applicant nor his chosen representative could attend their sittings. It is therefore of little importance that the applicant did not explicitly request a hearing, as the relevant procedural rules did not require one except in the case of disciplinary sanctions. Although the Government argued that the applicant could have requested that the Edirne Assize Court hold a hearing, the Court is not persuaded that any such application would have had any prospects of success. In that connection, the Government have not submitted an example in a similar context where an assize court held a hearing in its examination against the decision of an enforcement court. Secondly, the relevant rules concerning the procedure before assize courts in these types of disputes indicate that the question of holding a hearing is a matter decided by the assize courts on their own motion. In other words it was not up to the applicant to request a hearing . The Court therefore finds that he cannot reasonably be considered to have waived his right to an oral hearing before the Edirne Assize Court.
Having regard to the above considerations, the Court will now examine whether there were any exceptional circumstances which justified dispensing with an oral hearing in the proceedings concerning the restriction on the applicant’s right to confidential communication with his lawyer.
In this connection the Court finds it significant that the applicant was not given an opportunity to make submissions in respect of the prison administration’s application in the proceedings before the Edirne Enforcement Court. In that connection the decision of 23 September 2005 to restrict the applicant’s right to confidential meetings with his lawyer was taken by the Edirne Enforcement Court in a non-adversarial manner without obtaining the applicant’s defence submissions. Lastly, the applicant’s objections to that decision before the Edirne Assize Court were also determined on the basis of the case file alone without holding a hearing, even though the applicant’s objections concerned factual and legal issues. The Court refers in particular to the submissions made by the applicant before the Edirne Assize Court concerning the nature of the publications sent by his lawyer and the alleged practice of the authorities of allowing representatives to bring in non-prohibited items to convicts for the sake of convenience. The Court further notes that the Assize Court had full jurisdiction to assess the facts and the law of the case and render a final decision by annulling the decision of the Edirne Enforcement Court had it allowed the applicant’s objection. In the Court’s view, the holding of a hearing would therefore have allowed the assize court to form its own impression of the sufficient factual basis for the consideration of the case as well as the legal issues raised by the applicant.
In view of the above, the Court concludes that in the circumstances of the present case, namely the combined effect of the non-adversarial nature of the proceedings before the enforcement court, the seriousness of the measure imposed on the applicant at the end of those proceedings and the lack of a hearing either before the Enforcement Court or at the objection stage before the Assize Court meant that the applicant’s case was not heard in accordance with the requirements of Article 6 § 1 of the Convention.
In view of the foregoing considerations, the Court finds that there has been a violation of Article 6 § 1 of the Convention
Just satisfaction: EUR 2,000 (non-pecuniary damage)(echrcaselaw.com editing).
