42
MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
control of the manner of implementation of measures of interception; the
determination of the dates of cancellation of the tapping and monitoring
measures, the means of destruction of the product of interception; the
inclusion in the code of criminal procedure of all measures applying to such
matters in order to afford protection of words uttered in a private context or
in a private place, verification that the measures do not constitute an unfair
stratagem or a violation of the rights of the defence - all this panoply of
requirements must be taken into consideration to judge whether or not the
system satisfies the provisions of Article 8 (art. 8). The Malone case
prompted queries of this kind since the State cannot enjoy an "unlimited
discretion" in this respect (see the Klass judgment).
According to the spirit of the Council of Europe Convention of 1981 on
private life and data banks, the right of access includes the right for the
individual to establish the existence of the data, to establish the banks of
which he is a "data subject", access properly speaking, the right to challenge
the data, and the exceptions to and derogations from this right of access in
the case notably of police or judicial investigations which must by nature
remain secret during the initial phase so as not to alert the criminals or
potential criminals.
Recommendation R (83) 10 of the Committee of Ministers of the Council
of Europe states that respect for the privacy of individuals should be
guaranteed "in any research project requiring the use of personal data".
The nature and implications of data processing are totally different as
soon as computerisation enters the picture. The Karlsruhe Constitutional
Court has rightly identified the concept of "informational selfdetermination", that is to say, the right of the individual to decide within
what limits data concerning his private life might be divulged and to protect
himself against an increasing tendency to make him "public property".
In 1950, techniques for interfering in private life were still archaic; the
meaning and import of the term interference as understood at that time
cannot prevail over the current meaning. Consequently, interceptions which
in previous times necessitated recourse to tapping must be classified as
"interferences" in 1984, even if they have been effected without tapping
thanks to "bugging" and long-distance listening techniques.
For it is settled, as was recalled in paragraph 42 of the Klass judgment,
that Article 8 para. 2 (art. 8-2), since it provides for an exception to a
guaranteed right, "is to be narrowly interpreted" and that "powers of secret
surveillance of citizens, characterising as they do the police State, are
tolerable under the Convention only in so far as strictly necessary for
safeguarding the democratic institutions". To leave to the police alone, even
subject to the control of the Home Office, the task of assessing the degree of
suspicion or dangerousness cannot, in my opinion, be regarded as an
adequate means consistent with the aim pursued, even if that aim be
legitimate; and in any event, practices of systematic interception of