Szuluk v. The United Kingdom

The applicant, an inmate in prison, appealed to the European Court of Human Rights because he wanted to correspond privately with an external medical specialist. In 2001, the applicant suffered a brain hemorrhage while he was on bail awaiting trial for a conspiracy to sell drugs. He underwent surgery twice before being discharged to prison. While in prison, he continued to need to visit the hospital every six months to meet with a neuro-radiologist. The applicant wanted to correspond privately with his “external medical specialist” to ensure that he received proper treatment in prison. The applicant was a Category B (lower-risk) prisoner. However, since the prison in which he was imprisoned contained Category A (higher-risk) prisoners, prison officials monitored all the mail sent and received by inmates.

In 2002, the prison governor agreed to establish a system that would allow the applicant to send medical correspondence privately. The applicant’s medical correspondence would be marked “medical in confidence.” A prison official would monitor the applicant’s envelopes to ensure that the applicant addressed his mail to the external medical specialist, and the external medical specialist would mark correspondence to the applicant with a “distinctive stamp.”

The prison governor informed the applicant that the medical specialist at the prison would read the applicant’s mail to check that it only contained medical information. The applicant contested the decision. The applicant feared that the prison would view his concerns about medical care as criticism of the prison and that the prison would subsequently limit his ability to contact his external medical specialist.

In 2004, the High Court held that the prison governor should allow the applicant’s medical correspondence to remain private. The judge emphasized that the applicant’s case involved “exceptional circumstances” due to the life-threatening nature of the hemorrhage. The applicant needed to maintain contact with the specialist and to check in with the specialist two times a year. The judge decided that the prison governor’s initial decision to allow the correspondence to remain private suggested that accepting the request was reasonable.

On appeal, the Court of Appeals reversed the lower court decision and held that monitoring the applicant’s medical correspondence was acceptable under Article 8 § 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”). First, the monitoring responded to public policy: the prison medical specialist needed to know about the applicant’s health, and the prison needed to prevent the applicant from sending illicit messages. Second, the only way to oversee the messages involved reading them. Third, only the prison medical specialist would read the messages. Fourth, the monitoring was not decided through an arbitrary process but followed a policy.

When the House of Lords refused to grant the applicant’s appeal, the applicant filed an application with the European Court of Human Rights, alleging that the monitoring of his medical correspondence while he was in prison breached his right to respect for his correspondence and private life under Article 8 of the Convention.

The court concluded that the applicant should be allowed privacy in his medical correspondence. The court held that three factors need to be considered to determine whether a public authority has intervened with an applicant’s right to private correspondence under Article 8 § 1 of the Convention. Interference violates the article if it: (1) is not “in accordance with the law;” (2) does not “pursue one or more of the legitimate aims referred to in paragraph 2” and (3) is not “‘necessary in a democratic society in order to achieve [the legitimate aims].”

The court found that the prison’s practice for monitoring the applicant’s medical correspondence complied with the first two factors. Laws controlled the prison’s monitoring practices, and the monitoring occurred in an attempt to prevent crime and protect others.

The court concluded that the prison’s practice of monitoring the applicant’s medical correspondence did not comply with the third factor and, accordingly, that the prison should allow the applicant to correspond privately with his external medical specialist. The court balanced the threatened “social need” with the “legitimate aim” that the practice served. The court had previously found an interest in protecting prisoners’ health and providing prisoners with medical assistance. The court emphasized that the applicant had a life-threatening condition and that he needed to maintain contact with the external medical specialist. The applicant had understandable reasons for wanting appropriate medical care, and the prison’s monitoring practices did not reassure the applicant that he would receive appropriate care. The prison governor’s initial decision to allow the applicant to correspond privately about his medical concerns suggested that allowing the applicant privacy in his correspondence would be reasonable. The applicant was a Category B prisoner, and the prison did not suggest that the applicant had misused his privilege to communicate privately with his doctor. The court had previously established “stringent standards” to allow correspondence between prisoners and lawyers. The court concluded that it did not see more risk in the applicant corresponding privately with a doctor who had a recognizable address and credentials than in prisoners corresponding privately with lawyers.

“In assessing whether an interference with the exercise of the right of a convicted prisoner to respect for his correspondence was ‘necessary’ for one of the aims set out in Article 8 § 2, regard has to be paid to the ordinary and reasonable requirements of imprisonment. Some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention.” Para. 46.

“Turning to the facts of the case, the Court considers it significant that the applicant is suffering from a life-threatening condition for which he has required continuous specialist medical supervisor by a neuro-radiologist since 2002. In this connection, it takes note of the Court of Appeal’s recognition that the monitoring of the applicant’s medical correspondence with his external medical specialist, albeit limited to the prison medical officer, involved an ‘inescapable risk of abuse’. It further notes that the Court of Appeal was careful not to exclude the possibility that in another case it might be disproportionate to refuse confidentiality to a prisoner’s medical correspondence . . . and its acceptance that allowing the prison medical officer to read such correspondence might lead him to encounter criticism of his own performance, which in turn could create difficulties in respect of the applicant’s prison life and treatment.” Para. 49.

“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. In so finding, the Court refers to the Court of Appeal’s concession that it might, in some cases, be disproportionate to refuse confidentiality to a prisoner’s medical correspondence and the changes that have since been enacted to the relevant domestic law. The Court also has regard to the submissions of the applicant on this point, namely that the Government have failed to provide sufficient reasons why the risk of abuse involved in correspondence with named doctors whose exact address, qualifications and bona fides are not in question should be perceived as greater than the risk involved in correspondence with lawyers.” Para. 53.