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FOURTH
SECTION
CASE OF SZULUK v. THE UNITED KINGDOM
(Application
no. 36936/05)
JUDGMENT
STRASBOURG
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,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
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:
PROCEDURE
- The
case originated in an application (no. 36936/05) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Edward Szuluk (“the applicant”), on 14
October 2005.
- The
applicant, who had been granted legal aid, was represented by Mr J.
Scott, a lawyer practising at Langleys Solicitors in York. The United
Kingdom Government (“the Government”) were represented by
their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office,
London.
- The
applicant alleged that the monitoring of his medical correspondence
whilst he was in prison breached his right to respect for his
correspondence and private life under Article 8 of the Convention.
- On
7 February 2008 the President of the Chamber decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and is currently in prison in
Staffordshire.
1.
The applicant's brain haemorrhage and initial confidentiality of his
medical correspondence
- On
30 November 2001 the applicant was sentenced by a Crown Court to a
total of fourteen years' imprisonment for conspiracy to supply Class
A drugs and two offences of possession of a Class A drug with intent
to supply.
- On
6 April 2001, while on bail pending trial, the applicant suffered a
brain haemorrhage for which he underwent surgery. On 5 July 2002 he
underwent further surgery. Following his discharge back to prison, he
required monitoring and was required to go to hospital every six
months for a specialist check-up by a neuro-radiologist.
- In
2002 the applicant was held in a high security prison which held
category A (high risk) prisoners as well as category B prisoners such
as himself. As a result, he fell within the provisions of a general
order, Prison Service Order (PSO) 1000 which applied to all prisoners
of whatever security category who were being “held in a unit
which held category A prisoners” (see paragraph 28 below).
- The
applicant wished to correspond confidentially with his specialist to
ensure that he would receive the necessary medical treatment and
supervision in prison. He expressed his concerns about his medical
correspondence with his external specialist being read and applied to
the prison governor for a direction that such correspondence should
be accorded confidentiality.
- On
18 September 2002 the governor of the prison in which the applicant
was being detained agreed to the applicant's request. It was decided
that the applicant's medical correspondence would not be read
provided certain conditions were met. All outgoing and incoming mail
was to be marked “medical in confidence.” Outgoing
correspondence would be checked to ensure that it was being sent to a
nominated address and incoming mail was to be marked with a
distinctive stamp of the relevant health authority.
2.
Subsequent monitoring of the applicant's correspondence
- The
prison governor subsequently reconsidered his decision after seeking
advice from HM Prison Service Headquarters. On 28 November 2002
the prison governor informed the applicant that he had been advised
that it was necessary to examine his medical correspondence for
illicit enclosures. All correspondence between the applicant and his
external medical specialist would be directed, unopened, to the
prison medical officer. The latter would examine the content of the
envelope in order to ascertain its medical status and then reseal it.
Incoming and outgoing correspondence would then be sent to the
applicant and his medical specialist respectively.
- The
applicant contested the decision to monitor his medical
correspondence. He was concerned that his attempts to confirm that he
was receiving adequate treatment in hospital might be regarded by the
prison medical officer as criticism and that this might inhibit his
relationship with his external medical specialist.
3.
Judicial review proceedings
- On
4 August 2003 the applicant applied for leave to apply for judicial
review of the prison governor's decision of 28 November 2002. On 20
February 2004 the presiding High Court judge, Mr Justice Collins,
allowed the applicant's claim for judicial review.
- The
Prison Service had submitted, inter alia, that it would be
difficult to make the necessary arrangements to permit medical
correspondence to remain confidential. They argued that there were a
large number of health bodies with which a prisoner might wish to
correspond and that some health bodies might lack franking machines
that would enable prisons to identify the authenticity of the sender.
- Mr
Justice Collins concluded that there were exceptional circumstances
in the applicant's case. The exceptional circumstances were said to
be the life-threatening nature of the applicant's condition and his
desire to ensure that his treatment in prison did not affect him
adversely. The applicant, understandably, wanted to obtain
reassurance from the medical specialist who was involved in treating
him and from whom he required continual medical care, in the form of
biennial specialist observations. Mr Justice Collins also found that
the initial decision of the prison governor to enable the applicant
to correspond on a confidential basis with his specialist indicated
that it was reasonable to permit such confidential correspondence.
The evidence of the Prison Service as to the practical problems
involved in making arrangements to enable confidential medical
correspondence were not directly material in an exceptional case such
as the present one.
- In
the circumstances, and emphasising that this was a case which turned
on its own exceptional facts, Mr Justice Collins considered it
appropriate to quash the prison governor's decision of 28 November
2002. He granted the applicant a declaration that “the governor
of whatever prison the [applicant] resides [in] should make a
decision in accordance with the principles made in light of this
judgment.”
4.
The proceedings before the Court of Appeal
- On
29 October 2004 the Court of Appeal allowed the appeal by the
Secretary of State and the prison governor. Lord Justice Sedley gave
the judgment of the Court. It was noted that there was no dispute
that the reading of prisoners' 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. The issue to be
decided was whether, in the language of Article 8 § 2 of the
Convention, the reading of the applicant's correspondence was
proportionate. While the prison governor's initial decision to allow
confidentiality to the applicant's medical correspondence with his
external specialist strongly suggested that its exemption from
Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the
onus still remained on the applicant to establish that anything more
invasive would constitute a disproportionate interference with his
Article 8 rights.
- The
Court of Appeal concluded that though the procedure set out in the
prison governor's letter of 28 November 2002 amounted to an
interference with the applicant's right to respect for his
correspondence, the interference was justified and proportionate
under Article 8 § 2 of the Convention. It considered that though
it was of course possible to verify the existence, address and
qualifications of the applicant's medical specialist (whose bona
fides was not in question), there was no way of ensuring that the
latter would not be intimidated or tricked into transmitting illicit
messages. While the same was true of, for example, the secretarial
staff of MPs (Members of Parliament), the importance of unimpeded
correspondence with MPs outweighed the risk. By contrast, as regards
correspondence with doctors, the prisoner's health was the concern
and the immediate responsibility of the Prison Medical Service.
Though it may well be the case that allowing the prison medical
officer to read the prisoner's correspondence with an outside medical
practitioner might lead the former to “encounter criticism of
his own performance”, it was inherently unlikely that this
would carry the same degree of risk that might attend the reading by
a discipline officer of a letter of complaint to the Prisons
Ombudsman. Moreover, if it related to the prisoner's well-being it
was probable that the prison medical officer ought in any event to
know about it.
- The
Court of Appeal concluded that the monitoring of the applicant's
medical correspondence was a proportionate interference with his
Article 8 rights, although it did not exclude the possibility that in
another case it might be disproportionate to refuse confidentiality
to medical correspondence in the prison context. The Court of Appeal
based its conclusion on the following factors. First, the monitoring
of the applicant's medical correspondence answered legitimate and
pressing policy objectives which were clearly stated in Chapter 36.1
of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing
all scrutiny, they considered that there was no less invasive measure
available to the prison service. Thirdly, the reading of the
applicant's medical correspondence which was limited to the prison
medical officer was not in their view excessive. Fourthly, the
process by which the measure had been decided upon was not found to
be arbitrary. In particular, it had not been the result of the rigid
application of a policy. The withdrawal of monitoring had not only
been considered but had been implemented until, upon reconsideration,
monitoring had been resumed. The interference in question had not
denied the essence of the applicant's Article 8 rights as it related
to one correspondent only (the external medical specialist) and
it confined the interference to a medically qualified reader (the
prison medical officer). It was recognised that there was an
inescapable risk of abuse, for example, if the applicant's prison
life or treatment was made more difficult because of what he was
observed to be writing. However, the risk, having been minimised by
virtue of confining surveillance to the prison medical officer, was
outweighed by the aforementioned factors.
5.
Petition to the House of Lords
- On
18 April 2005 the applicant's petition for leave to appeal was
refused by the House of Lords on the ground that the petition did not
raise an arguable point of law of general public importance.
6.
The applicant's current conditions of imprisonment
- Since
22 May 2007 the applicant has been located in a Category B prison in
Staffordshire.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Secretary of State is responsible for the management of the prison
system in England and Wales (Prison Act 1952, sections 1 and 4).
- Until
November 2007 each prison was required to appoint a medical officer
(Prison Act 1952, section 7(1)). The medical officer was a prison
officer who had to be a registered medical practitioner (Prison Act
1952, section 4). This requirement was removed by section 25(1) of
the Offender Management Act 2007 which came into force on 1 November
2007. Prison healthcare is now generally integrated with, and
commissioned by, the National Health Service (NHS).
- Section 47(1) of the Prison Act 1952 authorises the
Secretary of State to make rules for the regulation and management of
prisons and for the classification, treatment, employment, discipline
and control of persons required to be detained therein. Such rules
are made by statutory instrument, laid before Parliament, and are
subject to annulment in pursuance of a resolution of either House of
Parliament (Prison Act 1952, section 52(1) and the Criminal Justice
Act 1967, section 66(4)).
- Prisoners
are classified in accordance with directions of the Secretary of
State (Prison Rules SI 1999/728 rule 7(1)). Prisoners are classified
in accordance with Prison Service Order (PSO) 0900. Paragraph 1.1.1
of PSO 0900 contains the definitions of the four categories of
prisoner (A, B, C and D). Category A is applied to prisoners whose
escape would be highly dangerous to the public or the police or the
security of the State, no matter how unlikely that escape might be,
and for whom the aim must be to make escape impossible. Category B is
applied to prisoners for whom the very highest conditions of security
are not necessary, but for whom escape must be made very difficult.
-
Rule 34 of the Prison Rules is headed “Communications
Generally” It provides as relevant:
“(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.”
- Rule
39 of the Prison Rules deals with correspondence with legal advisers
and courts and provides that such correspondence may only be opened,
read or stopped by the governor in accordance with the provision of
that rule, namely when the governor has cause to believe either that
the correspondence contains an illicit enclosure or that its contents
endanger prison security or the safety of others or are otherwise of
a criminal nature.
- Chapter
36.1 of PSO 1000, which was applicable at the relevant time and which
dealt with prisoner communications in connection with those who were
in Category A, or who were in prisons which held Category A
prisoners, provided as follows:
“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.”
- Chapter
36.21 of PSO 1000 read:
“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.”
- Chapter
36.22 continued as follows:
“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.”
- Prison
Service Order 4411 (“PSO 4411”) is entitled “Prisoner
Communications: Correspondence”. It came into operation on 5
September 2007. So far as is material to the present case it reflects
the practice and procedure in operation between 2002 to 2004.
- Special
treatment was at the relevant time and still is given to various
forms of correspondence apart from that with legal advisers,
specifically covered by rule 39 of the Prison Rules and that with the
Samaritans, specifically mentioned in chapter 36.21 of PSO 1000.
Correspondence with, inter alia, the courts, the Bar Council,
the Law Society, the Criminal Cases Review Commission, the Office for
the Supervision of Solicitors, the Office of the Parliamentary
Commissioner, the Office of the Legal Services Ombudsman, the
Probation Ombudsman, the Commission for Racial Equality and with
Members of Parliament are generally treated as confidential.
- PSO
4411 introduced a new category of correspondence subject to
confidential handling arrangements. Chapter 5.1 includes the
Healthcare Commission as one of the bodies with which a prisoner is
entitled to correspond confidentially. The Healthcare Commission is
the independent watchdog for healthcare in England. It assesses and
reports on the quality of services provided by the NHS and the
independent health care sector.
III. RELEVANT
INTERNATIONAL MATERIAL
-
Chapter III, paragraph 34 of the CPT's (European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment) Standards published in October 2006 states the following:
“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.”
- Paragraph
50 of the CPT Standards provides:
“Medical secrecy should be observed in prisons in
the same way as in the community.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the prison authorities had intercepted and
monitored his medical correspondence in breach of Article 8 of the
Convention, which reads as follows:
“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
Government contested that argument.
A. Admissibility
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
The parties'
arguments
- The
Government accepted that the checking of the applicant's
correspondence with his external medical specialist amounted to an
interference with his right to respect for his correspondence under
Article 8 § 1 of the Convention.
- Relying
on the judgment of the Court of Appeal (particularly its findings set
out in paragraph 19 above), the Government submitted that the
interference was justified and proportionate under Article 8 § 2
of the Convention. They argued that the applicable legal framework
provided clear and structured guidance on the matter, which paid full
regard to the requirements of the Convention. They asserted that the
procedure devised was tailored to the circumstances of the
applicant's case. Moreover, the disclosure of the applicant's medical
correspondence was limited to the prison medical officer who was
himself bound by duties of medical confidentiality. They
distinguished the present case, which involved a circumscribed
reading of a single category of a prisoner's correspondence by the
prison medical officer, from cases which involved a blanket reading
of prisoners' correspondence (such as Petra v. Romania, 23
September 1998, § 37, Reports of Judgments and Decisions
1998 VII and Jankauskas v. Lithuania, no. 59304/00, §§
21-22, 24 February 2005) which had been held to be in breach of
Article 8 of the Convention.
- The
applicant argued that the monitoring of his correspondence was
disproportionate. There was no suggestion in the Government's
observations of any specific ground to suggest that he was likely to
abuse correspondence with his doctor. PSO 4411, to which the
Government referred as being the policy governing correspondence,
recognised that prisoners could correspond on a confidential basis
with a number of bodies including the Healthcare Commission (which
considered complaints concerning medical treatment) and the
Samaritans (who provided counselling for the suicidal). According to
PSO 4411, such correspondence could only be opened where there were
reasonable grounds to believe that it contained an illicit enclosure.
- The
applicant further contended that there was an obvious risk that
monitoring of medical correspondence would inhibit what a prisoner
conveyed, thereby harming the quality of advice received. It was such
concerns that had led to legal correspondence being accorded
confidentiality. PSO 4411 demonstrated that prison security was not
undermined by enabling prisoners to write on a confidential basis to
lawyers and other professionals such as the Healthcare Commission. It
was difficult to see why the risk of abuse of correspondence with
doctors should be any higher than the risk of abuse involved in
correspondence with lawyers.
- The
Court's assessment
- The
Court notes that it is clear, and indeed not contested, that there
was an “interference by a public authority” with the
exercise of the applicant's right to respect for his correspondence
guaranteed by Article 8 § 1. Such an interference
will contravene Article 8 unless it is “in accordance with the
law”, pursues one or more of the legitimate aims referred to in
paragraph 2 and is “necessary in a democratic society” in
order to achieve them (see, among other authorities, Silver and
Others v. the United Kingdom, 25 March 1983, Series A
no. 61, § 84, Campbell v. the United Kingdom,
25 March 1992, Series A no. 233, § 34, Petrov v. Bulgaria,
no. 15197/02, § 40, 22 May 2008 and Savenkovas v. Lithuania,
no. 871/02, § 95, 18 November 2008).
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”.
- The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued. In determining whether
an interference is “necessary in a democratic society”
regard may be had to the State's margin of appreciation (see, amongst
other authorities, Campbell, cited above, § 44,
Petrov v. Bulgaria § 44 cited above and
Dickson v. the United Kingdom [GC], no. 44362/04, § 77,
ECHR 2007 ). While it is for the national authorities to make
the initial assessment of necessity, the final evaluation as to
whether the reasons cited for the interference are relevant and
sufficient remains subject to review by the Court for conformity with
the requirements of the Convention.
- In
assessing whether an interference with the exercise of the right of a
convicted prisoner to respect for his correspondence was “necessary”
for one of the aims set out in Article 8 § 2, regard has to
be paid to the ordinary and reasonable requirements of imprisonment.
Some measure of control over prisoners' correspondence is called for
and is not of itself incompatible with the Convention (see Silver
and Others, cited above, § 98, Kwiek v. Poland,
no. 51895/99, § 39, 30 May 2006 and Ostrovar v. Moldova,
no. 35207/03, § 105, 13 September 2005, among other
authorities). However, the Court has developed quite stringent
standards as regards the confidentiality of prisoners' legal
correspondence. In paragraph 43 of its judgment in the case of Petrov
v. Bulgaria (cited above), the Court enunciated its
principles as regards legal correspondence in the prison context as
follows:
“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).”
- In
the present case, the interference took the form of the monitoring of
the applicant's correspondence with his external specialist doctor,
which concerned his life-threatening medical condition. The Court
recalls the case of Z. v. Finland, judgment of 25 January
1997, Reports of Judgments and Decisions
1997–I, in which it
emphasised that:
“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).
- Turning
to the facts of the case, the Court considers it significant that the
applicant is suffering from a life-threatening condition for which he
has required continuous specialist medical supervision by a
neuro radiologist since 2002. In this connection, it takes note
of the Court of Appeal's recognition that the monitoring of the
applicant's medical correspondence with his specialist, albeit
limited to the prison medical officer, involved an “inescapable
risk of abuse”. It further notes that the Court of Appeal was
careful not to exclude the possibility that in another case it might
be disproportionate to refuse confidentiality to a prisoner's medical
correspondence (see paragraph 19 above) and its acceptance that
allowing the prison medical officer to read such correspondence might
lead him to encounter criticism of his own performance, which in turn
could create difficulties in respect of the applicant's prison life
and treatment. It should not be overlooked that the prison medical
officer, although a registered medical practitioner was, until the
coming into force of section 25 (1) of the Offender Management Act
2007, a prison officer. This has now changed as all prison
health-care is now provided by an external NHS general practitioner
(GP) (see paragraph 23 above).
- This
being so, the Court notes the applicant's submission before the
domestic courts and before this Court that the monitoring by the
prison medical officer of his correspondence with his medical
specialist inhibited their communication and prejudiced reassurance
that he was receiving adequate medical treatment whilst in prison.
Given the severity of the applicant's medical condition, the Court,
like Mr Justice Collins upon hearing the applicant's claim for
judicial review, finds the applicant's concerns and wish to check the
quality of the treatment he was receiving in prison to be
understandable.
- On
that account, the Court notes the observations of both Mr Justice
Collins and the Court of Appeal that the prison governor's initial
decision to grant the applicant's medical correspondence
confidentiality indicated, or in the exact words of the Court of
Appeal, “strongly suggested” that it “would be a
perfectly reasonable course” (see paragraphs 15 and 17 above).
It further takes into consideration the procedure that had been
first established by the prison governor on 18 September 2002,
whereby the applicant's medical correspondence would not be read
provided that certain conditions were met (see paragraph 10 above).
It is accepted that there were never any grounds to suggest that the
applicant had ever abused the confidentiality afforded to his medical
correspondence in the past or that he had any intention of doing so
in the future. Furthermore, the Court considers it relevant that,
although the applicant was detained in a high security prison which
also held Category A (high risk prisoners), he was himself always
defined as Category B (prisoners for whom the highest security
conditions are not considered necessary, see paragraph 25 above).
- Furthermore,
the Court does not consider the Prison Service's arguments as to the
general difficulties involved in facilitating confidential medical
correspondence for prisoners (see paragraph 14 above) to be of
particular relevance to this case. In the present case, the applicant
only wished to correspond confidentially with one named medical
specialist and the Court of Appeal accepted that her address and
qualifications were easily verifiable. Moreover, the specialist in
question appeared to have been willing and able to mark all
correspondence with the applicant with a distinctive stamp, and had
demonstrably done so prior to the prison governor's revision of his
decision on 28 November 2002. The Court does not share the Court of
Appeal's view that the risk that the applicant's medical specialist,
whose bona fides was never challenged, might be “intimidated
or tricked” into transmitting illicit messages was sufficient
to justify the interference with the applicant's Article 8 rights in
the exceptional circumstances of the present case. This is
particularly so since the Court of Appeal further acknowledged that
though the same risk was inherent in the case of secretarial staff of
MPs (see paragraph 18 above), the importance of unimpeded
correspondence with MPs outweighed that risk.
- In
light of the severity of the applicant's medical condition, the Court
considers that uninhibited correspondence with a medical specialist
in the context of a prisoner suffering from a life-threatening
condition should be afforded no less protection than the
correspondence between a prisoner and an MP. In so finding, the Court
refers to the Court of Appeal's concession that it might, in some
cases, be disproportionate to refuse confidentiality to a prisoner's
medical correspondence and the changes that have since been enacted
to the relevant domestic law. The Court also has regard to the
submissions of the applicant on this point, namely that the
Government have failed to provide sufficient reasons why the risk of
abuse involved in correspondence with named doctors whose exact
address, qualifications and bona fides are not in question
should be perceived as greater than the risk involved in
correspondence with lawyers.
- In
view of the above, the Court finds that the monitoring of the
applicant's medical correspondence, limited as it was to the prison
medical officer, did not strike a fair balance with his right to
respect for his correspondence in the circumstances.
- There
has accordingly been a violation of Article 8 of the Convention.
- APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
A. Damage
- The
applicant claimed 10,000 pounds sterling (GBP) (approximately 11,450
euros (EUR)) in respect of non-pecuniary damage.
- The
Government submitted that the amount claimed was excessive. They
noted that in previous Article 8 cases, which involved interference
with a prisoner's correspondence, the finding of a violation was
considered sufficient to constitute just satisfaction for the
applicant and no damages were awarded.
- The
Court considers that in the particular circumstances of the case, the
finding of a violation would not constitute just satisfaction for
non pecuniary damage sustained by the applicant. Having regard
to the violation found and ruling on an equitable basis, the Court
awards the applicant [EUR 1,000] in respect of non-pecuniary damage
(see Čiapas v. Lithuania, no. 4902/02, §
30, 16 November 2006 and Zborowski v. Poland (no. 2), no.
45133/06, § 48, 15 January 2008).
B. Costs and expenses
- The
applicant also claimed GBP 6,253.25 (approximately EUR 7,162)
for the costs and expenses incurred before the Court.
- The
Government contended that the applicant's claims for legal costs
incurred seemed excessive for this type of case, particularly since
his solicitors were not based in London. They suggested that the sum
of GBP 4,500 (approximately 5,062 EUR) for legal costs would be
a more reasonable figure.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 6,000 for the
proceedings before this Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(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
