Information Note on the Court’s case-law 19

June 2000

Foxley v. the United Kingdom - 33274/96

Judgment 20.6.2000 [Section III]

Article 8

Article 8-1

Respect for correspondence

Opening and copying of bankrupt’s mail by the trustee in bankruptcy: violation

Facts : The applicant was convicted of corruption and sentenced to imprisonment. A confiscation order for over £1.5 million was made, with provision for a further three years’ imprisonment in the event of non-payment. A receiver was appointed to realise the applicant’s assets. The applicant was declared bankrupt and the same person was appointed the trustee in bankruptcy. She obtained an order that all postal packe ts addressed to the applicant should be re-directed to her so that she could identify his assets and sources of income. The order was valid for three months, during which over 70 letters were re-directed, including letters from his legal advisers concernin g proceedings before the European Commission of Human Rights and affidavits and drafts made for use in the receivership proceedings. Each of the letters was copied to file before being forwarded to the applicant. Two deliveries of mail occurred after expir y of the order but a number of the items were nevertheless copied to file.

Law : Article 8 - There was an interference by a public authority with the applicant’s right to respect for his correspondence. There was a legal basis for the interception of the co rrespondence up until the expiry of the order, as well as for the perusal and copying; the trustee’s discretion was not open-ended but was confined to particular items which might assist her in locating the applicant’s assets. However, the interference con tinued after expiry of the order and, regardless of the alleged breakdown in the administrative arrangements, the trustee opened mail and retained copies, although she must have known that there was no longer a legal basis for doing so. Her actions after e xpiry of the order were therefore not in accordance with the law.

As for the interference before expiry of the order, it pursued the legitimate aim of protecting the rights of others, namely the applicant’s creditors. The authorities may consider it necess ary to have recourse to the interception of a bankrupt’s correspondence in order to identify and trace the sources of his income, but there must be adequate and effective safeguards to ensure minimum impairment of the right to respect for correspondence, e specially when correspondence with legal advisers may be intercepted. It may be difficult to identify from an envelope whether the contents attract legal professional privilege, but the Government have not contested the applicant’s allegation that letters from his legal advisers were read and copied to file. There is no justification for this procedure, which was not in keeping with the principles of confidentiality and professional privilege. The Government did not argue that the privileged channel of comm unication was being abused or invoke any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation. The fact that the trustee was also the receiver made it even more compelling to forward, unread, the applicant’s correspondence from his legal adviser in connection with the receivership proceedings. Consequently, the interference was not necessary.

Conclusion : violation (unanimously).

Article 34: In view of the above conclusion, it is unneces sary to examine whether the applicant’s exercise of the right of petition has been hindered.

Conclusion : not necessary to examine (unanimously).

Article 6: Where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by this provision. However, the applicant has not provided any information on t he conduct and outcome of the receivership proceedings. In these circumstances, and having regard to the finding of a violation of Article 8, it is unnecessary to examine the applicant’s complaint under Article 6.

Conclusion : not necessary to examine (unan imous).

Article 41 - The Court considered that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damage. It made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Re gistry does not bind the Court.

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