The ECHR has found a violation of the requirements of Article 8 and of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR has found a violation of the requirements of Article 8 and of Article 6 § 1 of the Convention for t Сведения: 2020-01-26 09:47:48

The ECHR judgment of April 9, 2019 in the case of Altay v. Turkey (No. 2) (application No. 11236/09).

In 2009, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.

In the case, the application regarding the presence of an official during the consultations of the applicant who is serving a sentence of life imprisonment with his lawyer was successfully considered. The case has violated the requirements of Article 8, paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Circumstances of the case

The applicant, who was serving a sentence of life imprisonment, received a parcel from his lawyer, which contained a book and paper, which, according to the Turkish courts, did not extend to the protection rights and which therefore should not have been transferred to the applicant. Subsequently, the administration of the correctional institution sent a request to the prosecutor's office, demanding that Article 5 of Law No. 5351 be applied to the applicant’s case, according to which an official could be present during consultations of the prisoner with a lawyer. The Turkish court granted the request, having examined only the case file, without conducting an oral hearing and without requesting an explanation from the applicant and his lawyer.


Regarding compliance with article 8 of the Convention. Article 8 of the Convention provides for the right of everyone to communicate with other people in order to establish and develop relations with them and with the outside world, that is, the right to "private social life", and may include professional activities or actions in a public context. Therefore, there is a sphere of interaction between a person and other people, even in a public context, which may relate to the concept of "private life". Communicating a person with a lawyer in the context of legal assistance refers to the sphere of private life, since the purpose of such communication is to provide the person with the opportunity to make informed decisions about his life. Most often, the information transmitted to the lawyer concerns intimate and personal or sensitive issues. Thus, regardless of whether it involves civil or criminal proceedings or the provision of general legal assistance, persons who communicate with a lawyer can reasonably expect that their meetings will be held privately and their content will be kept confidential.

As regards the content of the conversation and the privilege of the relationship between the lawyer and the client in the context of the deprivation of their last liberty, there was no reason to distinguish between different types of correspondence with lawyers, which, whatever their purpose, concerned issues of a personal and confidential nature. It was especially difficult to draw a line between correspondence relating to the trial and general correspondence, and correspondence with a lawyer could relate to matters that had little or no relation to the trial. This principle was applied a fortiori to an oral conversation with a lawyer. Accordingly, in principle, oral negotiations and correspondence between the lawyer and his client were in a privileged position under Article 8 of the Convention.

Despite its significance, the right to confidential conversation with a lawyer is not absolute and may be limited. The freedom of the state’s discretion in assessing the permissible limits of interference with the private nature of consultations and communication between the client and the lawyer will be insignificant, since only exceptional circumstances, such as the prevention of a serious crime or massive breaches of security and protection in places of deprivation of liberty, can justify the restriction of this right. The Convention does not prohibit certain restrictions on lawyers that are likely to affect their relationship with clients. Such cases are permissible, in particular, if there is reliable evidence of a lawyer's involvement in the commission of a crime, as well as in the fight against certain negative systemic phenomena. In this regard, however, it is essential to establish a clear system of norms for the application of such measures, since lawyers occupy a key position in the administration of justice, and they can be called because of their role as mediator between the disputing parties and the court, law enforcement officers.

In the applicant’s case, the Turkish courts relied on Article 59 of Law No. 5275 as a legal basis for interfering with the secrecy of the consultations of the lawyer with the applicant. The Turkish courts indicated in this connection that the lawyer's conduct was incompatible with his profession, as she had sent the applicant books and periodicals that were not related to the discussion of defense issues in court.

Nevertheless, Article 59 of Law No. 5275 was an exceptional measure containing a closed list of circumstances in which the secret of communication between a lawyer and a client could be violated. According to this provision, only when documents or other materials indicated that the privilege granted to a prisoner and his lawyer was used to communicate with terrorist organizations or to commit a crime or otherwise threatened the administration of justice, an order could be issued for the presence of an official correctional officer institutions at the meeting of the lawyer with the client.

The interception of correspondence only on the grounds that it did not concern the rights of the defense, was not provided for by this provision of the law as a basis for violating the secrecy of communication between the lawyer and the client. A different conclusion would contradict the letter of the said article and would mean that any correspondence from a lawyer that was not related to the construction of the client’s defense line in court could lead to the application of such a serious measure without restrictions on the duration of its action.

In the applicant's case, although the letter and spirit of the law in force at the relevant time were sufficiently accurate, with the exception of the lack of a time frame for applying the restrictions, the interpretation and application of the law by the Turkish courts to the circumstances of the applicant's case was manifestly unfounded and thus unforeseen Article 8 § 2 of the Convention. Consequently, this broad interpretation of Turkish law in the applicant's case did not comply with the Convention requirement of legality.


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).

Regarding compliance with article 6 of the Convention. (a) Admissibility. It is clear that Article 6 of the Convention could not be applied to this proceedings in its criminal law aspect, since the applicant was not charged with a criminal charge. The question was whether Article 6 of the Convention was applicable in its civil case in the present case.

The current legislation of Turkey gave prisoners the right to confidential communication with lawyers in accordance with the European Prison Rules. Consequently, it can be said that there was a “dispute about law” for the purposes of Article 6 § 1 of the Convention. As regards the question of whether the law in question was of a civilian nature, the Court has developed extensive practice according to which the “civil law aspect” of Article 6 of the Convention extends to cases that at first glance were not civil law, but could have a direct and substantial influence on a private property or non-property right of a person. With this approach, the civil law aspect of Article 6 of the Convention was applied to a variety of disputes that could be classified as public law disputes in domestic law.

Given the procedures initiated in the context of serving a sentence, some restrictions on the rights of prisoners belonged to the sphere of “civil rights”. The essence of the law in question, which concerned the applicant’s ability to consult privately with his lawyer, was of a prevailing private and individual nature, a factor that brought the present dispute closer to the civil law sphere. Since the restriction of the right of either party to communicate with each other in full confidentiality would significantly violate the benefits of exercising this right, the Court concludes that the private law aspects of the dispute prevailed over the public law ones. Consequently, Article 6 § 1 of the Convention in its civil law aspect was applicable in the present case.

(b) Merits. In proceedings relating to the detention of persons in prisons, there may be practical and political reasons for the introduction of simplified procedures for the resolution of various issues by the competent authorities. The Court did not rule out that the simplified procedure could have been carried out in writing if it was in accordance with the principles of a fair trial guaranteed by Article 6 § 1 of the Convention. However, even in the framework of such a procedure, the parties should at least be able to demand an open trial, even if the court can refuse this motion and hold a closed trial.

As for the applicant, no oral hearings were held at any stage of the consideration of his case at the domestic level. According to Turkish law, the proceedings were carried out on the basis of the case file, and neither the applicant nor his representative could attend the relevant court hearings. In this regard, it does not matter that the applicant did not explicitly require a hearing, since the current procedural rules did not require it, except in cases involving the application of disciplinary sanctions. The relevant rules governing the production of assisitions in courts for this category of disputes provided that the question of holding a hearing was left to the discretion of the court. In other words, the applicant could not demand a hearing, and it cannot be reasonably assumed that he had waived the right to have his case examined in court.

The decision to limit the applicant’s right to confidential communication with a lawyer was made by a Turkish court in a process that was not adversarial and without hearing the arguments of the defense. The applicant’s objections to such a decision were also examined in the Assiz court only on the basis of the materials of the case for any hearings, although his objections concerned issues of fact and law. The Assizi court had all the powers to assess the facts of the case, the legal issues raised therein and make a final decision on the case by canceling the decision of the trial court if the applicant's complaint was satisfied. Thus, a hearing would allow the Assizi court to form its own opinion on a sufficient factual basis for the consideration of cases and on legal issues that were raised by the applicant.

In view of the circumstances of the present case, namely, with the cumulative effect of the failure to conduct an adversarial process in a court of first instance, the gravity of the measure applied and the absence of a hearing of the case both in the court of first instance and in the court of assisi, it should be concluded that the applicant’s case was not examined in accordance with the requirements provided for in paragraph 1 of Article 6 of the Convention.


In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).


In application of Article 41 of the Convention. The Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage.



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