1. As a more general point of interest, the Court acknowledges the approach adopted by the Commission, that there are ‘implied limitations’ in the articles of the Convention. In addition to the explicit limits and limitation clauses, there are limits not made explicit that do exist. It underlines: ‘Since the impediment to access to the courts, mentioned in paragraph 26 above, affected a right guaranteed by Article 6 para. 1 , it remains to determine whether it was nonetheless justifiable by virtue of some legitimate limitation on the enjoyment or exercise of that right. The Court considers, accepting the views of the Commission and the alternative submission of the Government, that the right of access to the courts is not absolute. As this is a right which the Convention sets forth (see Articles 13, 14, 17 and 25) without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limitations permitted by implication.’
2. The Government argues, in line with early jurisprudence of the Commission, that a limitation of freedom is intrinsic to a prison sentence, so that curtailing prisoners’ correspondence should not be regarded an interference with the right to privacy. The Court, however, referring inter alia to its earlier Vagrancy case, denies such an interpretation.
3. Importantly, it finds that the government has not put forward sufficient reason to conclude that the interference was necessary. ‘In order to show why the interference complained of by Golder was “necessary”, the Government advanced the prevention of disorder or crime and, up to a certain point, the interests of public safety and the protection of the rights and freedoms of others. Even having regard to the power of appreciation left to the Contracting States, the Court cannot discern how these considerations, as they are understood “in a democratic society”, could oblige the Home Secretary to prevent Golder from corresponding with a solicitor with a view to suing Laird for libel. The Court again lays stress on the fact that Golder was seeking to exculpate himself of a charge made against him by that prison officer acting in the course of his duties and relating to an incident in prison. In these circumstances, Golder could justifiably wish to write to a solicitor. It was not for the Home Secretary himself to appraise – no more than it is for the Court today – the prospects of the action contemplated; it was for a solicitor to advise the applicant on his rights and then for a court to rule on any action that might be brought. The Home Secretary’s decision proves to be all the less “necessary in a democratic society” in that the applicant’s correspondence with a solicitor would have been a preparatory step to the institution of civil legal proceedings and, therefore, to the exercise of a right embodied in another Article of the Convention, that is, Article 6 (art. 6). The Court thus reaches the conclusion that there has been a violation of Article 8 (art. 8).’
4. Perhaps basic to many other judges, in a separate opinion, judge Fitzmaurice, explains that curtailing ones behaviour in order to avoid sanctions or because once believes such will be to no avail, can also be considered an interference. As such, the Court’s line of reasoning can be viewed as a predecessor of the ‘chilling effect’ doctrine. ‘There was no letter, so none was stopped. In that sense therefore there was no interference with his correspondence because, as between himself and the solicitor he would have consulted, there was no correspondence to interfere with, such as there was in the case of his attempts to write to his Member of Parliament3. But the reason for this was that, having enquired whether he would be allowed to consult a solicitor “with a view to taking civil action for libel” – which I think one must assume would have meant (at least initially) writing to him4 – he was informed that he would not be, – which meant, in effect, that any letter would be stopped – and so he did not write one. There was, accordingly, no literal or actual interference with his correspondence in this respect; – but in my view there was what amounted, in English terminology, to a “constructive” stoppage or interference; and I consider that it would be placing an undue and formalistic restriction on the concept of interference with correspondence not to regard it as covering the case of correspondence that has not taken place only because the competent authority, with power to enforce its ruling, has ruled that it will not be allowed. One must similarly I think reject the equally restrictive view that even if permission had been given, Golder might not in practice have availed himself of it, which is beside the real point.’
5. Fitzmaurice also points out, again perhaps superfluous, that ‘correspondence’ does not only cover private correspondence or correspondence concerning private matters.
6. Fitzmaurice also askes a question, which again seems rather far-fetched, namely that the limitation grounds in Article 8 paragraph 2 are grouped in two times three rationales “national security, public safety or the economic well-being of the country” and “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.” and he is unsure whether a limitation must satisfy both groups of three or only one of them. This is a unique interpretation of the Convention, which he leaves unresolved.
7. Perhaps more interesting, Fitzmaurice stresses that he believes that there are intrinsic limitations entailed in the right to privacy, namely when it concerns the rights of prisoners.
8. Also interesting is his discussion of whether it is the specific interference that must be necessary in light of a specific rationale, or the legal provision. The Court usually adopts the former approach, but Fitzmaurice argues, there are good reasons to accept the latter interpretation. Still, in the end, he acknowledges that it is the former interpretation that is most convincing.