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Af advokat Claus Bonnez, Landsforeningen KRIM
25. maj 2008 Om krænkelsen af artikel 14 (diskrimination) udtaler domstolen sig nærmere i §§ 50 til 56. EMD udtaler: |
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"50. Article 14 complements the other substantive
provisions of the Convention and its Protocols. It has no
independent existence, since it has effect solely in relation to the
“rights and freedoms” safeguarded by those provisions. Although the
application of Article 14 does not presuppose a breach of one or
more of such provisions, and to this extent it is autonomous, there
can be no room for its application unless the facts of the case fall
within the ambit of one or more of the latter (see, among many other
authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR
2003-VIII). 51. The Court must thus establish whether the matter of which the applicant complains falls within the purview of Article 8. On this point, it first observes that while any detention which is lawful under Article 5 of the Convention entails by its nature a limitation on private and family life, it is an essential part of an inmate's right to respect for family life that the prison authorities assist him in maintaining contact with his close family (see Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000-X; Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI (extracts); and Aliev v. Ukraine, no. 41220/98, § 187, 29 April 2003). The Court further notes that a couple who have lived together for many years constitute a “family” for the purposes of Article 8 § 1 of the Convention and are entitled to its protection notwithstanding the fact that their relationship exists outside marriage (see Velikova v. Bulgaria (dec.), no. 41488/98, ECHR 1999-V (extracts)). Finally, the Court observes that telephone conversations, whether they be made from a person's home or from other premises, are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see, mutatis mutandis, Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997-III, p. 1016, § 44). Seeing that the person with whom the applicant wished to converse by telephone, Ms S.P., had been his unmarried partner for a number of years and had had a child with him, the prohibition to contact her by telephone undoubtedly affected the enjoyment of his right to respect for his private and family life, and as such fell within the ambit of Article 8. It is also clear that this prohibition concerned the applicant's right to respect for his “correspondence” within the meaning of paragraph 1 of that Article. Article 14 is therefore applicable. 52. Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention. It safeguards persons who are in analogous or relevantly similar positions against discriminatory differences in treatment that have as their basis or reason a personal characteristic (“status”) by which persons or a group of persons are distinguishable from each other (see, as a recent authority, Kafkaris v. Cyprus [GC], no. 21906/04, § 160, ECHR 2008-...). The Court must therefore determine whether the applicant – who had an established long-term de facto relationship with Ms S.P. (see paragraph 16 above) – was in an analogous situation with married prisoners as regards the possibility to contact their partners by telephone. 53. It is true that the situations of unmarried and married couples are not fully analogous and that there still exist differences between them, in particular, differences in legal status and legal effects (see Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000, citing Lindsay v. the United Kingdom, no. 11089/84, Commission decision of 1 November 1986, Decisions and Reports 49, p. 181). The Court is also mindful that marriage remains an institution which is widely accepted as conferring a particular status on those who enter it and, indeed, is singled out for special treatment under Article 12 of the Convention (ibid.). However, it fails to see any difference between the situations of inmates who wish to have telephone conversations with their spouses and inmates who wish to have such conversations with their unmarried partners with whom – like the applicant – they have an established family life. It therefore concludes that their situations are substantially similar in this regard. 54. For the purposes of Article 14, a difference in treatment between persons in relevantly similar situations is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Sahin, cited above, § 93). No such justification has been advanced in the instant case, either by the competent domestic authorities or by the Government in the proceedings before the Court. The obtaining situation was the result of the wording of section 37a(2) of the Regulations for the application of the 1969 Execution of Punishments Act and its particularly strict application by the prison authorities vis-à-vis the applicant in late 2001 and early 2002 (see paragraphs 16 and 24 above). 55. While the Contracting States may be allowed a certain margin of appreciation to treat differently married and unmarried couples in the fields of, for instance, taxation, social security or social policy (see, for example, Shackell and Lindsay, both cited above; McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, pp. 58-59, § 98; and Sahin, cited above, § 94), it is not readily apparent why married and unmarried partners who have an established family life are to be given disparate treatment as regards the possibility to maintain contact by telephone while one of them is in custody. 56. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8." |
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| Om krænkelsen af EMRK artikel 8 (retten til privatliv) udtaler EMD i § 43 og § 44 følgende: | |||
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"43. It remains to be established whether the
systematic interception of prisoners' correspondence envisaged by
section 33(1)(c) of the 1969 Execution of Punishments Act was
“necessary in a democratic society”. On this point, the Court
observes that some measure of control over this correspondence is
called for and is not of itself incompatible with the Convention,
regard being had to the ordinary and reasonable requirements of
imprisonment (see Silver and Others v. the United Kingdom, judgment
of 25 March 1983, Series A no. 61, p. 38, § 98; and Campbell, cited
above, p. 18, § 45). However, correspondence with lawyers, whether
it concerns contemplated or pending proceedings or is of a general
nature, is in principle privileged under Article 8 of the Convention
and its routine scrutiny is not in keeping with the principles of
confidentiality and professional privilege attaching to relations
between a lawyer and his client (see Campbell, cited above, p. 19,
§§ 47 and 48). The prison authorities may open a letter from a
lawyer to a prisoner solely when they have reasonable cause to
believe that it contains an illicit enclosure which the normal means
of detection have failed to disclose. The letter should, however,
only be opened and should not be read. Suitable guarantees
preventing the reading of the letter should be provided, such as
opening the letter 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 is being abused (see Campbell, cited above, p. 19, §
48). 44. By contrast, section 33(1)(c) of the 1969 Execution of Punishments Act, as construed by the competent domestic authorities, calls for indiscriminate monitoring of the entirety of the prisoners' correspondence (see paragraphs 15 and 18 above). It does not draw any distinction between the different categories of persons with whom the prisoners correspond. Nor does it, or the regulations for its application, lay down any rules – for instance, concerning time-limits – governing the implementation of this monitoring. Moreover, the authorities are not bound to give any reasons in a particular case (see, mutatis mutandis, Calogero Diana, cited above, p. 1775, § 32; Domenichini v. Italy, judgment of 15 November 1996, Reports 1996-V, p. 1799, § 32; Petra, cited above, p. 2854, § 37; and Niedbała v. Poland, no. 27915/95, § 81, 4 July 2000). Even allowing for a certain margin of appreciation in this domain, the Court finds that the monitoring of the entirety of the applicant's correspondence addressed to and coming from the outside world – including the letters to and from his lawyer – cannot be considered as corresponding to a pressing social need or proportionate to the legitimate aim pursued. Neither the competent domestic authorities, nor the Government have sought to explain why such all-embracing monitoring was indispensable (see Jankauskas v. Lithuania, no. 59304/00, § 21, 24 February 2005). On the contrary, the Bulgarian Constitutional Court voiced serious concerns in this regard (see paragraph 21 above). 45. There has therefore been a violation Article 8 of the Convention." |
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