Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The Court accepted that the aim of the withholding of this letter was “the prevention of disorder or crime” and relied in this respect on its case-law according to which “the pursuit of this objective may ‘justify wider measures of interference in the case of a ... [convicted] prisoner than in that of a person at liberty’”; in the view of the Court, “the same reasoning may be applied to a person, such as Mr. Durmaz, being held on remand and against whom inquiries with a view to bringing criminal charges are being made since in such a case there is often a risk of collusion”.51 However, the Court ultimately concluded that the contested interference was not justifiable as being “necessary in a democratic society”, rejecting the Government’s arguments that the letter gave Mr. Durmaz advice relating to pending criminal proceedings which was of such nature as to jeopardize their proper conduct and that the letter was not sent by a lawyer instructed by Mr. Durmaz. It noted in this respect that “Mr. Schönenberg sought to inform the second applicant of his right ‘to refuse to make any statement’, advising him that to exercise it would be to his ‘advantage’. ... In that way, he was recommending that Mr. Durmaz adopt a certain tactic, lawful in itself since, under the Swiss Federal Court’s case-law – whose equivalent may be found in other Contracting States – it is open to an accused person to remain silent. ... Mr. Schönenberg could also properly regard it as his duty, pending a meeting with Mr. Durmaz, to advise him of his right and of the possible consequences of exercising it. In the Court’s view, advice given in these terms was not capable of creating a danger of connivance between the sender of the letter and its recipient and did not pose a threat to the normal conduct of the prosecution.”52 The Court further attached “little importance” to the Government’s argument that the lawyer concerned had not been instructed by Mr. Durmaz, since he “was acting on the instructions of Mrs. Durmaz and had moreover so apprised the ... district prosecutor by telephone”. In the view of the Court, “these various contacts amounted to preliminary steps intended to enable the second applicant to have the benefit of the assistance of a defence lawyer of his choice and, thereby, to exercise a right enshrined in another fundamental provision of the Convention, namely article 6. ... In the circumstances, the fact that Mr. Schönenberger had not been formally appointed is therefore of little consequence.”53 There had consequently been a breach of article 8 in this case, which thus provides an important reminder that the relationship between a person suspected, accused or charged with a criminal offence and his legal counsel, albeit potential, is a privileged one, which the domestic authorities must carefully safeguard. However, this issue will be further dealt with in section 6.4 below. Under international human rights law, interferences with a person’s right to privacy in the course of criminal investigations must be lawful and serve a legitimate purpose in relation to which the measure concerned must be proportionate. 51 Ibid., p. 13, para. 25. 52 Ibid., pp. 13-14, para. 28. 53 Ibid., p. 14, para. 29. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 229