38
MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
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.