40
MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
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.