MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
39
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