DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

In my opinion, the facts established in the judgment disclosed, both as regards the making of the disputed recording and as regards its use in court proceedings, a violation of the applicant ’ s right to the confidentiality of his telephone communications as well as a violation of his right to a fair hearing.

It is true that the application was declared inadmissible by the Commission in so far as it related to the making of the recording.

But the "case" [6] was referred to us and, by that very fact, so also were "all questions of fact and of law" which arose in the course of considering it [7] .

Furthermore, the making and use of the disputed recording were "directly re lated" [8] to each other: they formed a whole which could hardly be split up, both in law and in fact. The making of the recording was a necessary prerequisite of its use, just as its use was at the same time the purpose and "extension" [9] of the making of it. Both gave rise to complaints which were not only obviously connected [10] and "intimately linked" [11] but essentially the same.

There was accordingly no reason why we should not have looked at the process in issue as a whole. Everything pointed to the fact that in each of its two phases it had violated the two fundamental rights in question.

[*]  Note by the registry:  The case is numbered 8/1987/131/182. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] para. 46 of the judgment.

[2] para. 43 of the judgment.

[3] para. 48 of the judgment.

[4] para. 44 of the judgment.

[5] paras . 26 and 48 of the judgment.

[6] Article 45 (art. 45) of the Convention.

[7] De Wilde, Ooms and Versyp judgment of 18 June 1971 , Series A no. 12, p. 29, para. 49.  See also the Handyside judgment of 7 December 1976 , Series A no. 24, p. 20, para. 41, and the Klass and Others judgment of 6 September 1978 , Series A no. 28, p. 17, para. 32.

[8] See the Stögmüller judgment of 10 November 1969 , Series A no. 9, p. 41, para. 7, and the Matznetter judgment of the same date, Series A no. 10, p. 31, para. 5.

[9] See the Stögmüller judgment previously cited, loc. cit., and the Matznetter judgment previously cited, p. 32, para. 5, and also the Weeks judgment of 2 March 1987 , Series A no. 114, p. 21, para. 37, and the Olsson judgment of 24 March 1988 , Series A no. 130, pp. 28-29, para. 56.

[10] See the following judgments: Delcourt , 17 January 1970 , Series A no. 11, p. 20, para. 40; Winterwerp , 24 October 1979 , Series A no. 33, p. 28, para. 72; Bönisch , 6 May 1985 , Series A no. 92, p. 17, para. 37; and James and Others, 21 February 1986 , Series A no. 98, p. 46, para. 8.

[11] See the Delcourt judgment previously cited, loc. cit., and the Winterwerp judgment previously cited, loc. cit.