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ECHR overturns Court of Appeal prisoner privacy ruling

No fair peeking at cons' medical correspondence

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Prisoners have the same right to privacy in medical correspondence as they do in relation to communication with their MPs, the European Court of Human Rights has said. The Court has overturned a ruling of the UK's Court of Appeal.

The Court said that fears that a prison inmate might send secret messages to the outside world via correspondence with his doctor were outweighed by his right to private communication with a doctor.

The UK's Court of Appeal had ruled in 2004 that medical correspondence did not attract the same privacy rights as communication with an MP, but the Court of Human Rights overturned that decision. The prisoner in question has been awarded €1,000 in damages and €6,000 in costs.

Edward Szuluk is serving a prison sentence for drugs offences. While on bail awaiting trial he had a brain haemorrhage which required ongoing treatment. He was sentenced to 14 years in prison in November 2001.

Szuluk asked that, contrary to the rules of his prison, his correspondence with his doctor not be opened and read by prison authorities. The prison at first agreed, then refused that permission, saying that the letters would be checked by the prison's doctor to ensure that it was genuine medical correspondence.

Szuluk took the prison authorities to a judicial review and won an initial ruling, but lost on appeal. His appeal to the Court of Human Rights has been successful.

The Court, which judges cases based on the European Convention on Human Rights (ECHR), heard that Szuluk claimed the opening of his letters interfered with the right to privacy granted by Article 8 of the ECHR.

That says: "Everyone has the right to respect for his private and family life, his home and his correspondence. 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 Court said that the question it would have to decide was whether the prison's behaviour came within the ECHR's exceptions.

"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," said its ruling. "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."

The Court said that the severity of Szuluk's condition and his concern for the quality of treatment he was receiving were major factors in the case.

"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," said the ruling. "Given the severity of the applicant's medical condition, the Court … finds the applicant's concerns and wish to check the quality of the treatment he was receiving in prison to be understandable."

The prison service argued that unmonitored communication with his doctor might allow Szuluk to pass messages to the outside world.

"While it is of course possible to verify the existence, address and qualifications of [Szuluk's doctor] (whose bona fides is not in question), there is no way of being sure that she herself is not being intimidated or tricked into transmitting illicit messages," said the Court of Appeal ruling. "While the same is true of, for example, the secretarial staff of MPs, the importance of unimpeded correspondence with MPs is accepted as outweighing the risk. In relation to doctors, by contrast, the prisoner's health is the concern and the immediate responsibility of the Prison Medical Service."

The prison service rules allow for communication with some groups to go unread. These include the Samaritans, Members of Parliament, the Ombudsman services, and the Bar Council and Office for the Supervision of Solicitors. The Court said that communication with a doctor over a life-threatening condition should be treated equally seriously.

"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," it said. "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."

See: The ruling

The Court of Appeal ruling of 2004

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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