24
LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
61. The Court observes, first, that the above passage from Malone was
itself a reference to Silver and Others, also cited above, §§ 88-89. There the
Court accepted that administrative Orders and Instructions, which set out
the detail of the scheme for screening prisoners’ letters but did not have the
force of law, could be taken into account in assessing whether the criterion
of foreseeability was satisfied in the application of the relevant primary and
secondary legislation, but only to “the admittedly limited extent to which
those concerned were made sufficiently aware of their contents”. It was only
on this basis – that the content of the Orders and Instructions were made
known to the prisoners – that the Court was able to reject the applicants’
contention that the conditions and procedures governing interferences with
correspondence, and in particular the directives set out in the Orders and
Instructions, should be contained in the substantive law itself.
62. More recently, in its admissibility decision in Weber and Saravia,
cited above, §§ 93-95, the Court summarised its case-law on the
requirement of legal “foreseeability” in this field as follows (and see also
Association for European Integration and Human Rights and Ekimzhiev,
cited above, §§ 75-77):
“93. .... foreseeability in the special context of secret measures of surveillance, such
as the interception of communications, cannot mean that an individual should be able
to foresee when the authorities are likely to intercept his communications so that he
can adapt his conduct accordingly (see, inter alia, Leander [v. Sweden, judgment of
26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power
vested in the executive is exercised in secret, the risks of arbitrariness are evident (see,
inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and
Rotaru [v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V]). It is therefore
essential to have clear, detailed rules on interception of telephone conversations,
especially as the technology available for use is continually becoming more
sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II,
pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998,
Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its
terms to give citizens an adequate indication as to the circumstances in which and the
conditions on which public authorities are empowered to resort to any such measures
(see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, §
29; and Valenzuela Contreras, ibid.).
94. Moreover, since the implementation in practice of measures of secret
surveillance of communications is not open to scrutiny by the individuals concerned
or the public at large, it would be contrary to the rule of law for the legal discretion
granted to the executive or to a judge to be expressed in terms of an unfettered power.
Consequently, the law must indicate the scope of any such discretion conferred on the
competent authorities and the manner of its exercise with sufficient clarity to give the
individual adequate protection against arbitrary interference (see, among other
authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51;
and Huvig, cited above, pp. 54-55, § 29).
95. In its case-law on secret measures of surveillance, the Court has developed the
following minimum safeguards that should be set out in statute law in order to avoid
abuses of power: the nature of the offences which may give rise to an interception