MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
41
If, as the British Government submitted, only the suspected criminal is
placed under secret surveillance, there can be no ground for denying a
measure involving judicial or equivalent control, or for refusing to have a
neutral and impartial body situated between the authority deciding on the
interception and the authority responsible for controlling the legality of the
operation and its conformity with the legitimate aims pursued.
The requirement of judicial control over telephone interceptions does not
flow solely from a concern rooted in a philosophy of power and institutions
but also from the necessities of protecting private life.
In reality, even justified and properly controlled telephone interceptions
call for counter-measures such as the right of access by the subject of the
interception when the judicial phase has terminated in the discharge or
acquittal of the accused, the right to erasure of the data obtained, the right of
restitution of the tapes.
Other measures are necessary, such as regulations safeguarding the
confidentiality of the investigation and legal professional privilege, when
the interception has involved monitoring a conversation between lawyer and
client or when the interception has disclosed facts other than those forming
the subject of the criminal investigation and the accusation.
Provisions of criminal procedure alone are capable of satisfying such
requirements which, moreover, are consistent with the Council of Europe
Convention of 1981 (Private Life, Data Banks). It is in fact impossible to
isolate the issue of interception of communications from the issue of data
banks since interceptions give rise to the filing and storing of the
information obtained. For States which have also ratified the 1981
Convention, their legislation must satisfy these double requirements.
The work of the Council of Europe (Orwell Colloquy in Strasbourg on 2
April 1984, and Data Bank Colloquy in Madrid on 13 June 1984) has been
directed towards the same end, namely the protection of the individual
threatened by methods of storing and transmission of information. The
mission of the Council of Europe and of its organs is to prevent the
establishment of systems and methods that would allow "Big Brother" to
become master of the citizen’s private life. For it is just as serious to be
made subject to measures of interception against one’s will as to be unable
to stop such measures when they are illegal or unjustified, as was for
example the case with Orwell’s character who, within his own home, was
continually supervised by a television camera without being able to switch it
off.
The distinction between administrative interceptions and interceptions
authorised by a judicial authority must be clearly made in the law in order to
comply with Article 8 (art. 8); it would appear preferable to lay down the
lawfulness of certain interventions within an established legal framework
rather than leaving a legal vacuum permitting arbitrariness. The designation
of the collective institutions responsible for ensuring the ex post facto