Постановление Европейского суда по правам человека от 28.10.2010 «Дело Борис Попов (Boris Popov) против России» [англ.]

the prison authorities were made aware of the legal relationship between the applicant and Misakyan before September 2009 (see paragraph 27 - 30 above). The Court observes, however, that the Government itself interpreted the notion of "defence counsel" with reference to Article 49 of the Code of Criminal Procedure, which had no application in the legal relationship between an applicant and his representative before this Court.
101. At the same time, in the Court's view, it cannot be ruled out that Ms Misakyan could be "another person providing legal advice on a lawful basis" mentioned in Article 91 of the CES. Indeed, it was the applicant's own submission that the correspondence in question fell within the scope of this heading of the exception to the rule. Thus, had Ms Misakyan submitted an authority form and/or provided a documentary proof of her advocate status, her correspondence with the applicant would have been treated, as a matter of law, as privileged.
102. Thus, concerning the monitoring of the letters, falling within the scope of the present application, the Court concludes that there is not sufficient evidence to consider that such correspondence fell within the ambit of the exception to the general rule under Article 91 of the CES.
103. The Court accepts that the general rule under Article 91 of the Code applied in the present case and served as the legal basis for monitoring of the correspondence. It is also noted that the parties did not submit that any other legislation regulated this matter at domestic level. Thus, the interference in the present case was in accordance with the "law".
104. At the same time, the Court cannot but note that the respondent Government did not refer to any legitimate aim within the meaning of Article 8 § 2 of the Convention. Nor did they put forward any argument to justify the routine monitoring of the correspondence or to show that sufficient safeguards were in place.
105. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is "necessary in a democratic society" regard may be had to the State's margin of appreciation (see, amongst other authorities, Dickson v. the United Kingdom [GC], No. 44362/04, § 77, ECHR 2007-...). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention.
106. In assessing whether an interference with the exercise of the right of a convicted prisoner to respect for his correspondence was "necessary" for one of the aims set out in Article 8 § 2, regard has to be paid to the ordinary and reasonable requirements of imprisonment. Some measure of control over prisoners' correspondence is called for and is not of itself incompatible with the Convention (see Szuluk v. the United Kingdom, No. 36936/05, § 46, ECHR 2009-..., with further references).
107. The monitoring measure under the rule of Article 91 of the CES was not limited as to its length or scope. This provision did not specify the manner of its exercise. No reasons were required to warrant its application. The CES made no provision for an independent review of the scope and duration of monitoring measures (see Enea v. Italy [GC], No. 74912/01, §§ 141 - 143, ECHR 2009-..., and Onoufriou v. Cyprus, No. 24407/04, §§ 109 - 113, 7 January 2010).
108. In so far as convicted detainees are concerned, the Court does not discern any justification for routinely inspecting the correspondence in the present case (see also paragraphs 42 and 43 above). Indeed, there was no question of security risks or collusion between the applicant and his correspon

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