PARTIALLY DISSENTING OPINION OF JUDGES MATSCHER AND PINHEIRO FARINHA

(Translation)

We recognise that Article 13 (art. 13) constitutes one of the most obscure clauses in the Convention and that its application raises extremely difficult and complicated problems of interpretation. This is probably the reason why, for approximately two decades, the Convention institutions avoided analysing this provision, for the most part advancing barely convincing reasons.

It is only in the last few years that the Court, aware of its function of interpreting and ensuring the application of all the Articles of the Convention whenever called on to do so by the parties or the Commission has also embarked upon the interpretation of Article 13 (art. 13). We refer in particular to the judgments in the cases of Klass and Others (Series A no. 28, paras . 61 et seq.), Sporrong and Lönnroth (Series A no. 52, para. 88), Silver and Others (Series A no. 61, paras . 109 et seq.) and, most recently, Campbell and Fell (Series A no. 80, paras . 124 et seq.), where the Court has laid the foundation for a coherent interpretation of this provision.

Having regard to this welcome development, we cannot, to our regret, concur with the opinion of the majority of the Court who felt able to forego examining the allegation of a breach of Article 13 (art. 13). In so doing, the majority, without offering the slightest justification, have departed from the line taken inter alia in the Silver and Others judgment, which was concerned with legal issues very similar to those forming the object of the present case.

Indeed, applying the approach followed in the Silver and Others judgment, the Court ought in the present case, and to the same extent, to have arrived at a finding of a violation of Article 13 (art. 13).

CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I have voted with my colleagues for the violation of Article 8 (art. 8), but I believe that the European Court could have made its decision more explicit and not confined itself to ascertaining whether, in the words of Article 8 (art. 8), the interference was "in accordance with the law", an expression which in its French version (" prévue par la loi ") is used in Article 8 para. 2, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 (art. 8-2, P1-1, P4-2), the term "the law" being capable of being interpreted as covering both written law and unwritten law.

The European Court considered that the finding of a breach on this point made it unnecessary, in the Malone case, to examine the British system currently in force, which was held to have been at fault because of a lack of "law", and to determine whether or not adequate guarantees existed.

In my view, however, the facts as described in the Commission ’ s report and in the Court ’ s summary of facts also called for an assessment of the British measures and practices under Article 8 para. 2 (art. 8-2).

This appears necessary to me because of the major importance of the issue at stake, which I would summarise as follows.

The danger threatening democratic societies in the years 1980-1990 stems from the temptation facing public authorities to "see into" the life of the citizen. In order to answer the needs of planning and of social and tax policy, the State is obliged to amplify the scale of its interferences. In its administrative systems, the State is being led to proliferate and then to computerise its personal data-files. Already in several of the member States of the Council of Europe each citizen is entered on 200 to 400 data-files.

At a further stage, public authorities seek, for the purposes of their statistics and decision-making processes, to build up a "profile" of each citizen. Enquiries become more numerous; telephone tapping constitutes one of the favoured means of this permanent investigation.

Telephone tapping has during the last thirty years benefited from many "improvements" which have aggravated the dangers of interference in private life. The product of the interception can be stored on magnetic tapes and processed in postal or other centres equipped with the most sophisticated material. The amateurish tapping effected by police officers or post office employees now exists only as a memory of pre-war novels. The encoding of programmes and tapes, their decoding, and computer processing make it possible for interceptions to be multiplied a hundredfold and to be analysed in shorter and shorter time-spans, if need be by computer. Through use of the "mosaic" technique, a complete picture can be assembled of the life-style of even the "model" citizen.

It would be rash to believe that the number of telephone interceptions is only a few hundred per year in each country and that they are all known to the authorities.

Concurrently with developments in the techniques of interception, the aims pursued by the authorities have diversified. Police interception for the prevention of crime is only one of the practices employed; to this should be added political interceptions, interceptions of communications of journalists and leading figures, not to mention interceptions required by national defence and State security, which are included in the "top-secret" category and not dealt with in the Court ’ s judgment or the present opinion.

Most of the member States of the Council of Europe have felt the need to introduce legislation on the matter in order to bring to an end the abuses which were proliferating and making vulnerable even those in power.

The legislative technique most often employed is that of criminal procedure: the interception of communications is made subject to the decision and control of a judge within the framework of a criminal investigation by means of provisions similar to those governing searches carried out on the authority of a warrant.

The order by the judge must specify the circumstances justifying the measure, if need be subject to review by an appeal court. Variations exist according to the types of system and code of criminal procedure.

The governing principle of these laws is the separation of executive and judicial powers, that is to say, not to confer on the executive the initiative and the control of the interception, in line with the spirit of Article 8 (art. 8).

The British system analysed in the Malone judgment - and held by the Court not to be "in accordance with the law" - is a typical example of a practice that places interception of communications within the sole discretion and under the sole control of the Minister of the Interior, this being compounded by the fact that intercepted material is not disclosed to the judicial authorities (in the form of evidence), which therefore have no knowledge of the interception (see paragraph 51).

Even in the case of interception of communications required by the imperative necessities of counter-espionage and State security, most systems of law include strict rules providing for derogations from the ordinary law, the intervention and control of the Prime Minister or the Minister of Justice, and the recourse to boards or commissions composed of judges at the peak of the judicial hierarchy.

The European Court has, it is true, " considere [d] that it does not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 (art. 8-2) and whether the system complained of furnished those guarantees in the particular circumstances" (paragraph 82).

This reservation makes clear that in limiting itself to finding a violation because the governmental interference was not in accordance with the law, the Court did not intend, even implicitly, to mark approval of the British system and thus reserved any adjudication on a possible violation of Article 8 para. 2 (art. 8-2).

In my opinion, however, the Court could at this point have completed its reasoning and analysed the components of the system so as to assess their compatibility and draw the conclusion of a breach of Article 8 para. 2 (art. 8-2), there being no judicial control.

Even if a "law", within the meaning of Article 8 paras . 1 and 2 (art. 8-1, art. 8-2), contains detailed rules which do not merely legalise practices but define and delimit them, the lack of judicial control could still entail, in my view, a violation of Article 8 para. 2 (art. 8-2), subject of course to review by the Court.

It must also be borne in mind that the practice of police interception leads to the establishment of "prosecution" files which thereafter carry the risk of rendering inoperative the rules of a fair trial provided for under Article 6 (art. 6) by building up a presumption of guilt. The judicial authorities should therefore be left a full power of appreciation over the field of decision and control.

The object of the laws in Europe protecting private life is to prevent any clandestine disclosure of words uttered in a private context; certain laws have even made illegal any tapping of a telephone communication, any interception of a message without the consent of the parties. The link between laws on "private life" and laws on "interception of communications" is very close.

German law enumerates the offences for the detection of which measures of interception may be ordered. The list of offences set out in this law is entirely directed towards the preservation of democracy, the sole justification for the attendant interference.

In the Klass case and the accompanying comparative examination of the rules obtaining in the different signatory States of the Convention, the need for a system of protection in this sphere was emphasised. It admittedly falls to the State to operate such a system, but only within the bounds set by Article 8 (art. 8).

There were, in the Malone case, factors permitting the Court to draw a distinction between the dangers of a crisis situation caused by terrorism ( Klass case) and the dangers of ordinary criminality, and hence to consider that two different sets of rules could be adopted. In so far as the prevention of crime under the ordinary law is concerned, it is difficult to see the reason for ousting judicial control, at the very least such control as would secure at a later stage the right to the destruction of the product of unjustified interceptions.

Reasoning along these lines could have been adopted by the Court, even on an alterative basis. The interference caused by interception of communications is more serious than an ordinary interference since the "innocent" victim is incapable of discovering it.

If, as the British Government submitted, only the suspected criminal is placed under secret surveillance, there can be no ground for denying a measure involving judicial or equivalent control, or for refusing to have a neutral and impartial body situated between the authority deciding on the interception and the authority responsible for controlling the legality of the operation and its conformity with the legitimate aims pursued.

The requirement of judicial control over telephone interceptions does not flow solely from a concern rooted in a philosophy of power and institutions but also from the necessities of protecting private life.

In reality, even justified and properly controlled telephone interceptions call for counter-measures such as the right of access by the subject of the interception when the judicial phase has terminated in the discharge or acquittal of the accused, the right to erasure of the data obtained, the right of restitution of the tapes.

Other measures are necessary, such as regulations safeguarding the confidentiality of the investigation and legal professional privilege, when the interception has involved monitoring a conversation between lawyer and client or when the interception has disclosed facts other than those forming the subject of the criminal investigation and the accusation.

Provisions of criminal procedure alone are capable of satisfying such requirements which, moreover, are consistent with the Council of Europe Convention of 1981 (Private Life, Data Banks). It is in fact impossible to isolate the issue of interception of communications from the issue of data banks since interceptions give rise to the filing and storing of the information obtained. For States which have also ratified the 1981 Convention, their legislation must satisfy these double requirements.

The work of the Council of Europe (Orwell Colloquy in Strasbourg on 2 April 1984, and Data Bank Colloquy in Madrid on 13 June 1984) has been directed towards the same end, namely the protection of the individual threatened by methods of storing and transmission of information. The mission of the Council of Europe and of its organs is to prevent the establishment of systems and methods that would allow "Big Brother" to become master of the citizen ’ s private life. For it is just as serious to be made subject to measures of interception against one ’ s will as to be unable to stop such measures when they are illegal or unjustified, as was for example the case with Orwell ’ s character who, within his own home, was continually supervised by a television camera without being able to switch it off.

The distinction between administrative interceptions and interceptions authorised by a judicial authority must be clearly made in the law in order to comply with Article 8 (art. 8); it would appear preferable to lay down the lawfulness of certain interventions within an established legal framework rather than leaving a legal vacuum permitting arbitrariness. The designation of the collective institutions responsible for ensuring the ex post facto control of the manner of implementation of measures of interception; the determination of the dates of cancellation of the tapping and monitoring measures, the means of destruction of the product of interception; the inclusion in the code of criminal procedure of all measures applying to such matters in order to afford protection of words uttered in a private context or in a private place, verification that the measures do not constitute an unfair stratagem or a violation of the rights of the defence - all this panoply of requirements must be taken into consideration to judge whether or not the system satisfies the provisions of Article 8 (art. 8). The Malone case prompted queries of this kind since the State cannot enjoy an "unlimited discretion" in this respect (see the Klass judgment).

According to the spirit of the Council of Europe Convention of 1981 on private life and data banks, the right of access includes the right for the individual to establish the existence of the data, to establish the banks of which he is a "data subject", access properly speaking, the right to challenge the data, and the exceptions to and derogations from this right of access in the case notably of police or judicial investigations which must by nature remain secret during the initial phase so as not to alert the criminals or potential criminals.

Recommendation R (83) 10 of the Committee of Ministers of the Council of Europe states that respect for the privacy of individuals should be guaranteed "in any research project requiring the use of personal data".

The nature and implications of data processing are totally different as soon as computerisation enters the picture. The Karlsruhe Constitutional Court has rightly identified the concept of "informational self-determination", that is to say, the right of the individual to decide within what limits data concerning his private life might be divulged and to protect himself against an increasing tendency to make him "public property".

In 1950, techniques for interfering in private life were still archaic; the meaning and import of the term interference as understood at that time cannot prevail over the current meaning. Consequently, interceptions which in previous times necessitated recourse to tapping must be classified as "interferences" in 1984, even if they have been effected without tapping thanks to "bugging" and long-distance listening techniques.

For it is settled, as was recalled in paragraph 42 of the Klass judgment, that Article 8 para. 2 (art. 8-2), since it provides for an exception to a guaranteed right, "is to be narrowly interpreted" and that "powers of secret surveillance of citizens, characterising as they do the police State, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions". To leave to the police alone, even subject to the control of the Home Office, the task of assessing the degree of suspicion or dangerousness cannot, in my opinion, be regarded as an adequate means consistent with the aim pursued, even if that aim be legitimate; and in any event, practices of systematic interception of communications in the absence of impartial, independent and judicial control would be disproportionate to the aim sought to be achieved. In this connection, the Malone judgment has to read with reference to the reasoning expounded in the Klass judgment.

States must admittedly be left a domestic discretion and the scope of this discretion is admittedly not identical in respect of each of the aims enumerated in Articles 8 and 10 (art. 8, art. 10), but the right to respect for private life against spying by executive authorities comes within the most exacting category of Convention rights and hence entails a certain restriction on this domestic "discretion" and on the margin of appreciation. In this sphere (more than in the sphere of morality - cf. the Handyside judgment), it can be maintained that it is possible, whilst still taking account of the circumstances resulting from the threat posed to democratic societies by terrorism, to identify European standards of State conduct in relation to surveillance of citizens. The shared characteristics of statutory texts or draft legislation on data banks and interception of communications is evidence of this awareness.

The Court in its examination of cases of violation of Article 8 (art. 8) must be able to inquire into all the techniques giving rise to the interference.

The Post Office Engineering Union, during the course of the Malone case, referred to proposals for the adoption of regulations capable of being adapted to new techniques as they are developed and for a system of warrants issued by "magistrates".

The Court has rightly held that there was also violation of Article 8 para. 1 (art. 8-1) in respect of metering.

On this point, it would likewise have been possible to have given a ruling by applying Article 8 para. 2 (art. 8-2). The comprehensive metering of telephone communications (origin, destination, duration), when effected for a purpose other than its sole accounting purpose, albeit in the absence of any interception as such, constitutes an interference in private life. On the basis of the data thereby obtained, the authorities are enabled to deduce information that is not properly meant to be within their knowledge. It is known that, as far as data banks are concerned, the processing of "neutral" data may be as revealing as the processing of sensitive data.

The simple reference in the judgment to the notion of necessity in a democratic society and to the requirement of "adequate guarantees", without any eludication of the principles and principal conditions attaching to these guarantees, might well be inadequate for the purposes of the interpretation that the State should give to the Convention and to the judgment.

The Malone judgment complementing as it does the Klass judgment, in that it arrives at a conclusion of violation by finding unsatisfactory a system that is laid down neither by statute nor by any statutory equivalent in Anglo-Saxon law, takes its place in that continuing line of decisions through which the Court acts as guardian of the Convention. The Court fulfils that function by investing Article 8 (art. 8) with its full dimension and by limiting the margin of appreciation especially in those areas where the individual is more and more vulnerable as a result of modern technology; recognition of his right to be "left alone" is inherent in Article 8 (art. 8). The Convention protects the community of men; man in our times has a need to preserve his identity, to refuse the total transparency of society, to maintain the privacy of his personality.

[*]  Note by the registry: The revised Rules of Court, which entered into force on 1 January 1983 , are applicable to the present case.