SEPARATE OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

I am unable to accept paragraph 48 of the judgment as it stands, for, in my opinion, it offers no guarantee that letters will not be read.

What is meant by "suitable guarantees"?

Will the presence of the prisoner suffice?

I could have accepted the following wording: "It is necessary to provide suitable guarantees: in principle the letter should be opened in the presence of the prisoner or, when that is not possible, in the presence of the Chairman of the Bar Council ( bâtonnier du barreau ) or of a lawyer of his choice."

PARTLY DISSENTING OPINION OF JUDGE MORENILLA

1. The applicant ’ s complaints in the present case relate only to the prison authorities ’ examination of his correspondence with his solicitor and with the European Commission of Human Rights during the period dating from January 1985 to 21 March 1988 , while serving a term of life imprisonment for murder after his conviction on 10 October 1984 . On 21 March 1988 the new Prison Standing Order came into force following the friendly settlement in the case of McComb v. the United Kingdom (application no. 10621/83, report of the Commission of 15 May 1986 , DR 50, pp. 81-89).

2. I fully share the view of the majority that the opening of inmates ’ correspondence by prison authorities constitutes an interference with their rights under Article 8 (art. 8) of the Convention unless justified under the requirements of legality (the law being adequately accessible and foreseeable), necessity ("pressing social need") and proportionality to the legitimate aim pursued by the national authorities, as set forth in the case-law of this Court. In this respect the Court has consistently recognised a certain but not unlimited margin of appreciation to the States Parties in the imposition of the restrictions (see, inter alia, the Silver and Others judgment of 25 March 1983 , Series A no. 61, pp. 37-38, para. 97) under the supervision of this Court as to their compatibility with the Convention.

3. When assessing the necessity of the restrictions imposed on the applicant ’ s mail by the prison authorities "a proper balance must be found between the interests of the prisoners and their lawyers on the one hand and those of the prison administration (and through them of society in general) on the other", as the member of the Commission Mr H.G. Schermers recalls in his dissenting opinion. For this evaluation the national authorities, within the margin of appreciation allowed to them, are certainly better equipped than international judges.

4. In the present case, the Government state that this interference pursued the aim of "the prevention of disorder or crime". The situation in Scottish prisons is described by the applicant himself during the period of his imprisonment as having "been rocked by the number of demonstrations, escape attempts, roof-top protests, hostage taking and other violent incidents" (memorial of the applicant, Cour (91) 69, p. 124).

5. The applicant, in the words of the trial judge, "a ruthless man of violence" (paragraph 8 of the present judgment), was classified following his conviction of assault and murder for security purposes as a Category B prisoner, which comprises "inmates who do not require maximum security but who ought to be kept in very secure conditions". Nevertheless, in November 1985, following an escape attempt by other prisoners, he was re-classified as a Category A prisoner and charged with a number of offences later abandoned by the Crown. Category A comprises "the group of inmates requiring the highest degree of security who ought to be kept in very secure conditions". He remained in this category until 9 March 1988 when he was re-classified as a Category B prisoner (see memorial of the Government, pp. 4-5, para. 1.3, and of the applicant, ibid., p. 123, and paragraph 8 of this judgment).

6. In the instant case, the restrictions imposed on Mr Campbell ’ s correspondence arose from his behaviour in prison. Consequently, in order to examine the alleged violations of Article 8 (art. 8), like Mr Schermers , I also consider it necessary to depart from the methodological reasoning of the majority and to make a distinction between the applicant ’ s "incoming" and "outgoing" mail. I think that this approach highlights the question at issue, namely as to the necessity of opening the applicant ’ s correspondence in his presence in order to check whether it includes other material (as referred to in Standing Order Ma7) that could endanger the order of the prison or create the risk of crime.

7. Regarding the applicant ’ s incoming mail, while sharing the views of the majority as expressed in paragraph 48 and the first sub-paragraph of paragraph 62, I think that given the situation in Scottish prisons and the circumstances of the prisoner, the opening of the correspondence addressed to him bearing the return address either of his solicitor or the Commission in order to verify the origin and content in accordance with Standing Order Ma7 (see paragraph 22 of this judgment) was justified under Article 8 para. 2 (art. 8-2) of the Convention. In view of the applicant ’ s classification as a Category A prisoner and the exceptional situation to which I have already referred, it seems clear to me that, objectively, the prison authorities did have a reasonable suspicion which constituted sufficient justification for the measures taken by them and that accordingly the risk of forgery cannot be said to have been negligible. Furthermore, having regard to the prejudice that the applicant claims to have sustained, I do not feel that the fact that he was not present when his mail was opened constituted sufficient grounds for excluding the prison authorities ’ justification in acting as they did in this particular case. I cannot, therefore, agree with the majority that the interference with the applicant ’ s correspondence with the Commission gave rise to a violation of Article 8 (art. 8).

8. As regards the applicant ’ s outgoing correspondence, the risk of abuse was, obviously, less and the justification for the interference has to be more apparent. But the evidence before the Court in this case does not disclose any element supporting the applicant ’ s claim - denied by the United Kingdom Government - that letters sent by him to the Commission have been opened.

9. However, with respect to the opening of mail addressed by him to his solicitor, I share the reasoning of the majority and their conclusion that there is a violation of his right to respect for such correspondence as enshrined in Article 8 (art. 8). Such a measure does not satisfy the above-mentioned requirements of necessity and proportionality to the legitimate aims pursued since the prison authorities were aware that the addressee was Mr Campbell ’ s solicitor, and since the Government have failed to show any particular reason to justify the taking of measures which have impaired the applicant ’ s rights of defence and the principle of respect for an uninhibited and confidential channel of communication between a lawyer and his client.