MALONE v. THE UNITED KINGDOM JUGDMENT
27
judgment, p. 33, para. 86). The expressions in question were, however, also
taken to include requirements over and above compliance with the domestic
law. Two of these requirements were explained in the following terms:
"Firstly, the law must be adequately accessible: the citizen must be able to have an
indication that is adequate in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as ‘law’ unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct: he must be able - if
need be with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail." (Sunday Times
judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88)
67. In the Government’s submission, these two requirements, which
were identified by the Court in cases concerning the imposition of penalties
or restrictions on the exercise by the individual of his right to freedom of
expression or to correspond, are less appropriate in the wholly different
context of secret surveillance of communications. In the latter context,
where the relevant law imposes no restrictions or controls on the individual
to which he is obliged to conform, the paramount consideration would
appear to the Government to be the lawfulness of the administrative action
under domestic law.
The Court would reiterate its opinion that the phrase "in accordance with
the law" does not merely refer back to domestic law but also relates to the
quality of the law, requiring it to be compatible with the rule of law, which
is expressly mentioned in the preamble to the Convention (see, mutatis
mutandis, the above-mentioned Silver and Others judgment, p. 34, para. 90,
and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para.
34). The phrase thus implies - and this follows from the object and purpose
of Article 8 (art. 8) - that there must be a measure of legal protection in
domestic law against arbitrary interferences by public authorities with the
rights safeguarded by paragraph 1 (art. 8-1) (see the report of the
Commission, paragraph 121). Especially where a power of the executive is
exercised in secret, the risks of arbitrariness are evident (see the abovementioned Klass and Others judgment, Series A no. 28, pp. 21 and 23,
paras. 42 and 49). Undoubtedly, as the Government rightly suggested, the
requirements of the Convention, notably in regard to foreseeability, cannot
be exactly the same in the special context of interception of communications
for the purposes of police investigations as they are where the object of the
relevant law is to place restrictions on the conduct of individuals. In
particular, the requirement of foreseeability cannot mean that an individual
should be enabled to foresee when the authorities are likely to intercept his
communications so that he can adapt his conduct accordingly. Nevertheless,
the law must be sufficiently clear in its terms to give citizens an adequate
indication as to the circumstances in which and the conditions on which
public authorities are empowered to resort to this secret and potentially