Judgement 49535/18 10419/20

Applicant name ÇAYLI AND SERLİ 
Applicant type Natural person (prisoner)
Number of applicants 2
Country Turkey
Application no. 49535/18 10419/20
Date 09/05/2023
Judges Egidijus Kūris, President,
 Pauliine Koskelo,
 Frédéric Krenc,
Institution Court
Type Judgement
Outcome Art. 8 Violation
Necessary in a democratic society (prevention of disorder or crime, but not national security)
Type of privacy Informational privacy
Keywords Correspondence laywer-client; prison
Facts of the caseTwo applications by two applicants are merged in this case, because they are largely similar. In the first case, the letter of a lawyer to the applicant was intercepted and inspected by prion authorities. Upon complaint, he was informed that letters sent by lawyers did not fall within the scope of protection provided to the privacy of correspondence, but that only letters sent by prisoners to their lawyers were protected, because it was not possible to determine whether the former letters really had been sent by a detainee’s lawyer. In the other case, the annexes of a letter sent to the applicant by his lawyer containing a judgment were confiscated. The authorities explained that the annexes could not be considered a ‘letter’ and thus fell outside the scope of legal protection.
AnalysisQuite audaciously, the Turkish government argues that both claims should be dismissed because the harm inflicted on applicants, if any, was insufficient to meet the de minimis standard. The Court obviously rejects this point, stressing the importance of the privileged nature of the lawyer-client relationship and the importance to respect lawyer-client confidentiality. In addition, the Court did not buy the Turkish argument that the authorities did not know the letters came from the applicants lawyers nor that an attachment to a letter is not covered by the secrecy of correspondence. Thus, it establishes there had been an interference.
Interestingly, the Court uses an ‘even if’ reasoning, which the Court uses when wanting to circumvent difficult legal questions. It may say, for example, ‘even if’ there had been an adequate legal basis and/or ‘even if’ there was a legitimate interest, the interference was not necessary in a democratic society. Alternatively, when there is discussion over whether there had been interference, it may say ‘even if’ there was an interference, it is clear that such an interference would have been legitimate because all the standards under paragraph 2 of Article 8 ECHR had been met. Although this approach is understandable in terms of case law efficiency, obviously, it is highly problematic from a legal perspective, as the most difficult questions are left unanswered. This approach means that the ECtHR does not provide any legal clarity exactly on the most complex legal issues, and does not give guidance to others that struggle with the same or related questions. In this case, the Court does not want to discuss the question of lawfulness of the interferences, in particular the foreseeability requirement, going directly to the necessity requirement.
As to the necessity of the interference, the Court reiterates that the confidentiality of correspondence between detainees and their lawyers constitutes a fundamental right of the individuals and directly affects their right to mount a defence. ‘A limitation of this right is therefore permissible only in exceptional circumstances and must be surrounded by adequate and effective safeguards against abuse, such as entrusting any necessary control of correspondence to independent judges and not to the prison authorities themselves. (§25)’. The ECtHR is neither convinced that there were such exceptional circumstance nor that there were adequate safeguards against abuse, leading it to find a violation of Article 8 ECHR. This conclusion seems justified, but is still interesting for two points. First, the Court deals with the question of safeguards against abuse under the necessity requirement, instead under the prescribed for by law and the quality of law requirements, which it normally does. Second, one of the applicants was accused of being active for the ‘Fetullahist Terror Organisation/Parallel State Structure’. This, the Turkish state would argue, certainly gives rise to exceptional circumstances, given the 2016 coup attempt. The Court does not explain why it does not share this perspective, but had earlier in its judgement already indicated that it did not share the concerns of the government when it accepted as legitimate ground for the interferences the prevention of disorder and crime, but not the protection of national security.
Other Article violation?
Damage awarded (a) pay each applicant, within three months, EUR 300, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) 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;
Documents Judgment