-ECtHR: Slovakia Breaches Prisoner’s Correspondence Confidentiality-
On 12th December, the ECtHR ruled that the measures implemented to monitor the correspondence between a prisoner and his lawyer were contrary to Article 8 ECHR in Adamco v Slovakia (No.2). As to the facts of the case, the applicant has been serving his sentence in different prisons in Slovakia since 2006. The monitoring of his correspondence with his lawyer between January and March 2019 was one of the measures he was subject to in these prisons. The applicant complained that this measure breached his right to confidentiality of his correspondence under Article 8 ECHR. The Court reiterated that this measure constitutes interference with his rights under Article 8 ECHR and acknowledged that it had a legal basis in domestic law and pursued a legitimate aim, namely ‘prison security and the prevention of disorder in prisons’. Then it examined the necessity of the measure. It recalled the general principles which it had previously established on the lawfulness of measures which interfere with the right to confidentiality of prisoners’ correspondence: ‘some measure of control over prisoners’ correspondence is not of itself incompatible with the Convention. However, exchanges between a lawyer and his detained client enjoy privileged status under Article 8. In particular, this means that prison authorities may only open a letter from a lawyer to a prisoner if they have reasonable cause to believe that it contains an unlawful element undetected by the normal means of detection. Appropriate safeguards must be provided to prevent the authorities reading such correspondence – for example by opening the envelope 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 was being abused’. The Court noted that, in casu, the inspection of the documents exchanged between the prisoner and his lawyer also included the inspection of the content of the documents and no safeguards were implemented to prevent such an inspection. The Court further noted that such an inspection was not based on a ‘reasonable cause’ that the correspondence could have contained any ‘unlawful element’. This is especially bearing in mind the fact that the meetings between the lawyer and the applicant were subject to CCTV surveillance and the two were separated by bars. Finally, the Court was disturbed by the fact that the inspection was carried out by three officers, which made it difficult for the applicant to prevent the inspection of the content of the documents and that his attempts to make use of the available remedies were rejected. Thus, the Court concluded that the above interference with Article 8 ECHR was ‘not ‘necessary in a democratic society’’ and breached Article 8 ECHR. Editors’ Note: The above summary does not take into account certain other complaints under Article 8 ECHR (and Article 3 ECHR).
-ECtHR Rules on Distribution of Intimate Images-
On 3rd December, the ECtHR ruled in the case of M.Ș.D. v. Romania. In terms of the facts, the applicant had been in an intimate relationship with V.S.D, which had then ended. Following the end of the relationship, V.S.D. had circulated intimate images of the applicant to her family, and certain others, as well as uploading these to escort services websites. The applicant also alleged that V.S.D. had been aggressive, and had threatened further circulation of the images. The applicant then complained to the national authorities. The investigation, however, was conducted only very slowly, and the applicant suggests that it was conducted unprofessionally. Following publication of a newspaper article regarding the investigation, the case was transferred, and the applicant was successful in a complaint regarding the length of the investigation. The eventual result of the investigation, however, was that most charges were dropped, and the prosecutor found that light sanctions would be adequate – community service and a public apology. The applicant challenged this decision before a senior prosecutor and a court. Whilst the court accepted aspects of the applicant’s challenge, and allowed an investigation into the charge of computer-related forgery to be reopened, the prosecutor’s office once again closed the case – following which no further action was possible resulting owing to the expiry of the statute of limitations. In this regard, the applicant complained to the ECtHR, under Article 8, that ‘the national authorities had failed to effectively protect her right to respect for her private life and her right to intimacy in respect of V.C.A.’s acts consisting of (i) the publication of intimate photographs of her on escort service websites, along with her name, telephone number and home address, and (ii) the dissemination of those photographs both to her family and friends and publicly via the social media platform Facebook by maliciously impersonating some of the applicant’s friends or the applicant herself…even though…they had been obliged to do so. They had (i) misinterpreted and wrongly applied the national legislation designed to safeguard the rights and freedoms protected by Article 8…(ii) intentionally and maliciously conducted an inefficient investigation and (iii) disregarded the relevant domestic doctrine and practice’. The ECtHR decided there had been a violation. The Court highlighted the seriousness of the events described, and asserted the necessity for domestic law to provide criminal sanctions. The Court thus went on to consider the adequacy of the domestic legal framework. In this regard, the Court found that ‘at the relevant time the respondent State had not put in place an adequate criminal legal framework capable of providing the applicant with the requisite protection against the specific acts’. The Court further concluded that ‘the national authorities failed to mount an effective investigation into the applicant’s allegations related to the specific acts of her former intimate partner’ – indeed, even highlighting, at one point that there were ‘doubts on the ability of the national authorities’ legal machinery to produce sufficiently deterrent effects to protect victims, such as the applicant, from such acts allowing the perpetrators to escape accountability’.
In the past two weeks, the EDPB published the following significant documents:
- 6th December: ‘EDPB Letter to the European Commission on its review of its eleven adequacy decisions adopted under Directive 95/46/EC’;
- 3rd December: ‘Statement 6/2024 on the Second Report on the Application of the General Data Protection Regulation – Fostering Cross-Regulatory Consistency and Cooperation’;
- 3rd December: ‘Guidelines 02/2024 on Article 48 GDPR’.