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).