Resolution CM/ResDH(2013)88

Szuluk against United Kingdom

Execution of the judgment of the European Court of Human Rights

(Application No. 36936/05, judgment of 2 June 2009, final on 2 September 2009)

(Adopted by the Committee of Ministers on 7 May 2013 at the 1170th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)357E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

Szuluk v. United Kingdom (Application No. 36936/05; final judgment on 2 September 2009)

Information submitted by the United Kingdom Government on 25 March 2013

Case summary

- The applicant complained that the monitoring of a prisoner ’ s medical correspondence with his doctor was a breach of the Article 8 ECHR right to respect for correspondence. The Court found there had been a violation of Article 8. The Court held:

- In light of the severity of the applicant ’ s medical condition, 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 concluded that “the monitoring of the applicant ’ s medical correspondence ... did not strike a fair balance with his right to respect for his correspondence in the circumstances”.

- The Court awarded the applicant 1 000 euros in non-pecuniary damages plus 6 000 euros costs.

Individual measures

- The just satisfaction award was paid in November 2009; the evidence of this has previously been supplied.

- No further individual measures are required because Mr Szuluk has been released from prison.

General measures

4. General measures:

- A Prison Service Instruction on prisoner communications includes amended policy to comply with this judgment. This can be seen at www.justice.gov.uk/downloads/offenders/psipso/psi-49-2011-prisoner-comms-services.doc . Paragraph 14.15 is of particular relevance and sets out that: “Correspondence between a prisoner and a registered medical practitioner must be handled in confidence but only to the extent that the registered medical practitioner is acting in a professional capacity and the correspondence directly relates to the treatment of the prisoner”.

- In respect of England and Wales, a Statutory Instrument was laid before Parliament on 25 November 2009 and came into force on 1 January 2010 ( www.legislation.gov.uk/uks i /2009/3082 .) The SI amends, amongst other things, Rule 20 of the Prison Rules 1999 and Rule 27 of the Young Offender Institution Rules 2000 to provide that a prisoner may correspond confidentially with a registered medical practitioner who has treated the prisoner for a life threatening condition, and such correspondence may not be opened, read or stopped unless the Prison Governor has “reasonable cause” to believe that the contents do not relate to the treatment of that condition.

- The Scottish Prison Service has made provision (see http://www.sps.gov.uk/Publications/Publication-3598.a s px ) in Rule 58 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 which came into force on 1 November 2011 for the circumstances in which correspondence with medical practitioners may be opened or read, which is designed to be consistent with the decision in this case.

- The Northern Ireland Prison Service has given effect to the Szuluk ruling by issuing an Instruction to Governors on 17 August 2012, which has amended the Standing Orders of the Northern Ireland Prison Service. The revised Standing Order is attached. In due course it will be available at: http://w w w.dojni.gov.uk/index/ni-prison-service.htm (website currently being redesigned). All staff in the NIPS must comply with the Standing Orders. It should be noted that there are specific procedures for dealing with prisoners who may develop a life-threatening illness whilst in custody and that well developed medical-in-confidence procedures are in place. If a prisoner were to develop a life-threatening illness whilst in prison he/she would have no need to correspond with a consultant as he/she would receive care on-site from the healthcare professionals. There would be a duty of care on behalf of the prison healthcare team to make contact with the prisoner ’ s healthcare provider on the outside if applicable and any s uch contacts would be covered by the medical in-confidence procedures already in place. Finally, it is also intended to amend the NI Prison Rules in due course.

- The judgment was publicised in The Times Law Report on 17 June 2009 (Application No 36936/05) and in Butterworth ’ s Medico-Legal Reports at 108 BMLR 190 (2009). The judgment is also available on online legal databases including English databases Lexisnexis, Lawtel and Westlaw.

- The judgment has been disseminated to all UK prison jurisdictions (including Scotland and Northern Ireland) so that they can amend their policies and Rules, as above.

- The government considers that all necessary steps have been taken to implement the judgment, and that the case should be closed.

EXTRACT FROM NORTHERN IRELAND PRISON SERVICE STANDING ORDERS

5.3.5 LEGAL AND PRIVILEGED CORRESPONDENCE

Correspondence between a prisoner and his or her legal adviser, a Registered General Practitioner or any of the statutory bodies listed below is privileged and shall be treated as private and confidential provided the envelope is clearly marked ‘ S.O. 5.3.5 Legal Correspondence ’ where it contains correspondence between a prisoner and a legal adviser and ‘ S.O. 5.3.5 Privileged Correspondence ’ where it contains correspondence between a prisoner, their Registered General Practitioner/Specialist/Consultant and any of the statutory bodies.

The statutory bodies to which this order applies are:

( Staff and prisoners should be aware that privileged correspondence with a Registered General Practitioner/Specialist/Consultant may only be entered into if the prisoner was already corresponding with them in relation to a life-threatening illness prior to their committal to prison – see IG12/12)

Where a governor believes that any envelope marked either ‘ Legal Correspondence ’ or ‘ Privileged Correspondence ’ contains material to which legal or medical privilege does not attach or which does not relate to the function of one of the statutory bodies, he may direct that it be opened, in the presence of the prisoner where reasonably practicable and examined by staff to the extent necessary to ascertain whether it should properly be afforded confidentiality.

Where an envelope is opened in accordance with this order, the correspondence shall be withheld from the prisoner only on the direction of the Director of Operational Support at NIPS HQ or his authorised representative.