26
MALONE v. THE UNITED KINGDOM JUGDMENT
Others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41), the
admitted measure of interception involved an "interference by a public
authority" with the exercise of a right guaranteed to the applicant under
paragraph 1 of Article 8 (art. 8-1).
Despite the applicant’s allegations, the Government have consistently
declined to disclose to what extent, if at all, his telephone calls and mail
have been intercepted otherwise on behalf of the police (see paragraph 16
above). They did, however, concede that, as a suspected receiver of stolen
goods, he was a member of a class of persons against whom measures of
postal and telephone interception were liable to be employed. As the
Commission pointed out in its report (paragraph 115), the existence in
England and Wales of laws and practices which permit and establish a
system for effecting secret surveillance of communications amounted in
itself to an "interference ... with the exercise" of the applicant’s rights under
Article 8 (art. 8), apart from any measures actually taken against him (see
the above-mentioned Klass and Others judgment, ibid.). This being so, the
Court, like the Commission (see the report, paragraph 114), does not
consider it necessary to inquire into the applicant’s further claims that both
his mail and his telephone calls were intercepted for a number of years.
3. Whether the interferences were justified
65. The principal issue of contention was whether the interferences
found were justified under the terms of paragraph 2 of Article 8 (art. 8-2),
notably whether they were "in accordance with the law" and "necessary in a
democratic society" for one of the purposes enumerated in that paragraph.
(a) "In accordance with the law"
(i) General principles
66. The Court held in its Silver and Others judgment of 25 March 1983
(Series A no. 61, pp. 32-33, para. 85) that, at least as far as interferences
with prisoners’ correspondence were concerned, the expression "in
accordance with the law/ prévue par la loi" in paragraph 2 of Article 8 (art.
8-2) should be interpreted in the light of the same general principles as were
stated in the Sunday Times judgment of 26 April 1979 (Series A no. 30) to
apply to the comparable expression "prescribed by law/ prévues par la loi"
in paragraph 2 of Article 10 (art. 10-2).
The first such principle was that the word "law/loi" is to be interpreted as
covering not only written law but also unwritten law (see the abovementioned Sunday Times judgment, p. 30, para. 47). A second principle,
recognised by Commission, Government and applicant as being applicable
in the present case, was that "the interference in question must have some
basis in domestic law" (see the the above-mentioned Silver and Others