MALONE v. THE UNITED KINGDOM JUGDMENT
CONCURRING OPINION OF JUDGE PETTITI
43
communications in the absence of impartial, independent and judicial
control would be disproportionate to the aim sought to be achieved. In this
connection, the Malone judgment has to read with reference to the reasoning
expounded in the Klass judgment.
States must admittedly be left a domestic discretion and the scope of this
discretion is admittedly not identical in respect of each of the aims
enumerated in Articles 8 and 10 (art. 8, art. 10), but the right to respect for
private life against spying by executive authorities comes within the most
exacting category of Convention rights and hence entails a certain
restriction on this domestic "discretion" and on the margin of appreciation.
In this sphere (more than in the sphere of morality - cf. the Handyside
judgment), it can be maintained that it is possible, whilst still taking account
of the circumstances resulting from the threat posed to democratic societies
by terrorism, to identify European standards of State conduct in relation to
surveillance of citizens. The shared characteristics of statutory texts or draft
legislation on data banks and interception of communications is evidence of
this awareness.
The Court in its examination of cases of violation of Article 8 (art. 8)
must be able to inquire into all the techniques giving rise to the interference.
The Post Office Engineering Union, during the course of the Malone
case, referred to proposals for the adoption of regulations capable of being
adapted to new techniques as they are developed and for a system of
warrants issued by "magistrates".
The Court has rightly held that there was also violation of Article 8 para.
1 (art. 8-1) in respect of metering.
On this point, it would likewise have been possible to have given a ruling
by applying Article 8 para. 2 (art. 8-2). The comprehensive metering of
telephone communications (origin, destination, duration), when effected for
a purpose other than its sole accounting purpose, albeit in the absence of any
interception as such, constitutes an interference in private life. On the basis
of the data thereby obtained, the authorities are enabled to deduce
information that is not properly meant to be within their knowledge. It is
known that, as far as data banks are concerned, the processing of "neutral"
data may be as revealing as the processing of sensitive data.
The simple reference in the judgment to the notion of necessity in a
democratic society and to the requirement of "adequate guarantees", without
any eludication of the principles and principal conditions attaching to these
guarantees, might well be inadequate for the purposes of the interpretation
that the State should give to the Convention and to the judgment.
The Malone judgment complementing as it does the Klass judgment, in
that it arrives at a conclusion of violation by finding unsatisfactory a system
that is laid down neither by statute nor by any statutory equivalent in AngloSaxon law, takes its place in that continuing line of decisions through which
the Court acts as guardian of the Convention. The Court fulfils that function