SEPARATE OPINION OF JUDGE MATSCHER

(Translation)

I voted with the majority in respect of the violation of Article 6 para. 3 (b) (art. 6-3-b), but I wish to make the following points:

1. I acknowledge that, in principle, it must be possible for a defendant to communicate with his defence counsel freely and without surveillance.

2. However, this is not an absolute principle; there are exceptional situations where surveillance of the defendant ’ s communications with his counsel may be necessary and hence compatible with the principle stated above. That this may be a real necessity is shown by the not so infrequent cases of serious collusion between lawyers and persons in custody which have occurred in several countries in recent years.

My criticism of the reasoning of the present judgment is that it - correctly - sets out the principle but - wrongly - does not explicitly state the possibility of exceptions, which in my opinion is an essential corollary of the principle, both being necessary in the interests of the proper administration of justice.

I voted in favour of a violation in the present case, on the ground that, on the facts, the conditions for invoking the exception mentioned at point 2 above were not satisfied.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

I consider it advisable to emphasise that the freedom and inviolability of communications between a person charged with a criminal offence and his lawyer are among the fundamental requirements of a fair trial. They are inherent in the right to legal assistance and are essential for the effective exercise of that right [*] .

The same applies to communications between a lawyer and his colleagues. It is perfectly legitimate for him to act in concert with them. The fact that this may lead to a coordination of defence strategy cannot - even or especially in the case of serious offences - be used as a pretext for the restriction or surveillance of communications between a lawyer and his client.

I do not think that there can be any exceptions to these principle s [*]  .

[*]  The case is numbered 48/1990/239/309-310.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 220 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[*]  It is not enough to say that communications must take place "out of hearing of a third person", as there are too many other ways of violating their confidential nature for one to be content with formulae of this kind.

[*]   Security checks may be admissible, but only to the extent that they do not prejudice the freedom and inviolability of the communications in question.