European Court of Human Rights - case of S. v. Switzerland (1991) (excerpts)
European Court of Human Rights - case of S. v. Switzerland (1991) (excerpts)
(...)
48. The Court notes that, unlike some national laws and unlike
Article 8 para. 2 (d) of the American Convention on Human Rights,
the European Convention does not expressly guarantee the right of
a person charged with a criminal offence to communicate with
defence counsel without hindrance. That right is set forth,
however, within the Council of Europe, in Article 93 of the
Standard Minimum Rules for the Treatment of Prisoners (annexed to
Resolution (73) 5 of the Committee of Ministers), which states
that:
"An untried prisoner shall be entitled, as soon as he is
imprisoned, to choose his legal representative, or shall be allowed
to apply for free legal aid where such aid is available, and to
receive visits from his legal adviser with a view to his defence
and to prepare and hand to him, and to receive, confidential
instructions. At his request he shall be given all necessary
facilities for this purpose. In particular, he shall be given the
free assistance of an interpreter for all essential contacts with
the administration and for his defence. Interviews between the
prisoner and his legal adviser may be within sight but not within
hearing, either direct or indirect, of a police or institution
official."
In another context, the European Agreement Relating to Persons
Participating in Proceedings of the European Commission and Court
of Human Rights, which is binding on no less than twenty member
States, including Switzerland from 1974, provides in
Article 3 para. 2:
"As regards persons under detention, the exercise of this right
[the right 'to correspond freely with the Commission and the Court'
- see paragraph 1 of the Article] shall in particular imply that:
...
c. such persons shall have the right to correspond, and consult out
of hearing of other persons, with a lawyer qualified to appear
before the courts of the country where they are detained in regard
to an application to the Commission, or any proceedings resulting
therefrom."
The Court considers that an accused's right to communicate with his
advocate out of hearing of a third person is part of the basic
requirements of a fair trial in a democratic society and follows
from Article 6 para. 3 (c) (art. 6-3-c) of the Convention. If a
lawyer were unable to confer with his client and receive
confidential instructions from him without such surveillance, his
assistance would lose much of its usefulness, whereas the
Convention is intended to guarantee rights that are practical and
effective (see inter alia the Artico judgment of 13 May 1980,
series A no. 37, p. 16, para. 33).