Lawyer-client confidentiality at risk following Strasbourg’s decision in Öcalan v. Turkey

This guest post was written by Daniel Machover, Charles Kuhn and Christopher Honnery, respectively Head of the Civil Litigation Department, In-house Criminal and Regulatory Barrister, and Legal Researcher at Hickman and Rose.

The European Court of Human Rights’ (“ECtHR”) Chamber judgment in the case of Öcalan v. Turkey (No. 2) does nothing to further the debate on lawyer-client privilege. The ECtHR missed an important opportunity to confine the creeping interference with privilege that has characterised the post 9/11 world.

This decision was eagerly awaited in the UK because of the unsatisfactory framework left by the 2009 House of Lords decision in a Northern Irish case, In Re McE. In that instance an Irish solicitor, Manmohan Sandhu, had been convicted after security forces secretly recorded him inciting paramilitary clients to commit murder. A number of terrorist suspects subsequently sought assurances that their legal meetings were not subject to surveillance. The House of Lords ruled that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) permits the RIPA Code of Practice on Covert Surveillance to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. They rejected arguments that the express terms of the Police and Criminal Evidence Act 1984 (PACE), as well as the common law on privilege, prevented electronic surveillance of privileged conversations. Since then there has been an amendment to RIPA to clarify that such surveillance must be judge authorised, and an amendment to the Code of Practice to clarify that it is justified only to prevent threat to national security “or to life and limb” – a criterion so loose as to be nearly meaningless.

In reaching its decision the House of Lords reviewed European case law but omitting consideration of S and Marper v UK, where the ECtHR had elaborated the limits to the state’s margin of appreciation and defined very clearly the need for proportionality in Article 8 cases. A number of commentators have opined that the European Court was unlikely to overturn the principle set out In Re McE but that it could – and should – clarify the proportionality question which the House of Lords had left unanswered. The case of Öcalan v Turkey was an opportunity to do just that.

Facts

The applicant, Abdullah Öcalan, was the leader of the Kurdish separatist organisation, the Kurdistan Workers’ Party (PKK). In 1999 Mr Öcalan was found guilty of training and leading a “band of armed terrorists” in order to achieve the secession of part of the territory of Turkey. The Court found that as a result of Mr Öcalan’s orders and directives, the PKK had carried out several armed attacks, bombings, sabotage and armed robberies resulting in the deaths of thousands of civilians, military, police and officials. He was sentenced to death.   However in 2002 the Turkish state abolished the death penalty and his sentence commuted to life imprisonment. Mr Öcalan was then detained in a prison located on a remote island with poor transport and communication links. For many years he was kept in solitary confinement, and visits from family and lawyers were difficult.   However, between 1999 and 2007 he received 675 visits from his lawyers.

On 1 June 2005, new legislation came into force which empowered a judge to impose conditions on legal visits to a convicted prisoner. Such conditions may be imposed on the request of the prosecution if the judge is satisfied by evidence that the visits of lawyers to a person convicted of organized crime serve as means of communication within the organization concerned. Conditions might include the presence of an officer when the prisoner meets with his lawyers, control of documents exchanged between the prisoner and his lawyers during these visits and / or seizure of all or part of these documents by the judge.

Mr Öcalan appealed unsuccessfully against this order, and was subsequently disciplined on a number of occasions for breaching the conditions by passing instructions as to the structure and organisation of the PKK. Additionally, under further provisions within the same legislation, twelve of his lawyers were barred from contact with him for a year, and at one stage thirty six lawyers were arrested by police and their documents seized.

Despite ongoing negotiations between the PKK and the democratically elected Turkish government, Mr Öcalan is still currently classed as a major terrorist threat to Turkish integrity and to the safety of its people.

The judgment

Finally in March 2014 a decision was rendered at Strasbourg, most of it to do with the history of conditions of Mr Öcalan’s detention. On the lawyer issue, the judgment recites the facts very briefly and rules in the simplest possible terms

while people deprived of their liberty for terrorist activities cannot be excluded from the scope of the provisions of the Convention and cannot affect the substance of their rights and freedoms as recognized, national authorities may impose on them “lawful restrictions” to the extent that such restrictions are strictly necessary to protect society against violence.

Sadly, this decision fails to provide a clear legal framework to determine when a derogation of lawyer-client privilege is permissible. We know that in Mr Öcalan’s case, the Turkish law applies only to convicted prisoners, so it does not fall into the same category as the UK’s assumption of the right to monitor a legally privileged conversation at any stage.

Further, the interference with documents appears to have been conducted by a judge, possibly creating a level of protection for the individual against direct interference by the state in a case where the prisoner contemplates legal action regarding his conditions of detention.

Both of these points may have been useful and important ones with possible general application, but the opportunity was missed to spell this point out.

Judge Pinto de Albuquerque did deliver a strong dissenting opinion, stating that the right of access to a lawyer must include being able to speak in private. He argued that the legitimacy of a restriction upon a prisoner’s correspondence with their lawyer should not be determined by the type of offence of which he is suspected.

However, in the UK, we would be better off if the type of offences which could lead to intrusive surveillance of lawyer/client interaction was made clear. UK terrorism laws already have an extraordinarily wide scope and are regularly applied to those who inconvenience the state rather than threaten terror, including journalists such as David Miranda and protestors in a wide range of activities. The terms of both in Re McE and Öcalan v. Turkeyboth point the way to further and more extensive use of intrusive surveillance in a wide range of offences.