Concurring Opinion of Judge Pettiti, in Kopp v. Switzerland, Application No. 23224/94, Before the European Court of Human Rights, (The President, Judge Bernhardt; Judges Thor Vilhjalmsson, Pettiti, Russo, Spielmann, Morenilla), Judgment of 25 March 1998.
Submitted by Yaman Akdeniz, Director of Cyber-Rights & Cyber-Liberties (UK)
in addition to the Cyber-Rights & Cyber-Liberties (UK) Statement for the European Parliament, Temporary Committee on the ECHELON interception system, meeting of Thursday, 22 March, 2001, Brussels.
Per Judge Pettiti:
I voted for the finding of a breach of Article 8, in agreement with the analysis made by my colleagues. However, as to reasons, I did so on the basis of a number of additional considerations.
The Kopp case was of particular interest, coming as it did eight years after the Kruslin and Huvig judgments, and provided an opportunity to consolidate the case law which led to the enactment of new French legislation regulating telephone tapping. Unfortunately, since that time mistakes have continued to be made in a number of Council of Europe Member States, and some draft legislation may cause jurists some concern.
It is a regrettable fact that State, para-State and private bodies are making increasing use of the interception of telephone and other communications for various purposes. Private companies engage in all manner of illicit practices for industrial espionage. In Europe so-called administrative telephone monitoring is not generally subject to an adequate system or level of protection.
There is now less respect for private life, and this is accentuated by the excesses of certain sections of the media on the lookout for indiscreet articles or documents.
The Kopp case involved multiple breaches of Article 8, in that the law firm's partners and employees, clients and third parties who had no connection with the criminal proceedings were all monitored.
In my Opinion, paragraph 72 of the judgment should also contain a reference to the serious breach of professional privilege. A number of states lay down conditions for the Bar associations to be involved in the procedure when a judge wishes to order searches or interceptions in respect of lawyer's practices. The safeguards mentioned in paragraph 72 are insufficient, since the fact that the applicant was informed dealt with only one aspect of the problem.
Swiss law, as formulated by the texts in force, does not afford sufficient protection to third parties, and does not provide for checks to ensure that recordings have been destroyed. In addition, it is shocking that Post Office officials were deployed to listen to the calls. The Court's considerations in paragraphs 73 and 74 could be more severe.
The European Court has clearly laid down in its case law the requirement of supervision by the judicial authorities in a democratic society, which is characterised by the rule of law, with the attendant guarantees of independence and impartiality; this is all the more important in order to meet the threat posed by new technologies. The Court has set forth the rules which telephone monitoring as a part of criminal procedure must obey. These cover matters such as the existence of serious grounds for suspicion, the lack of other sources of evidence, restrictions concerning the persons to be monitored, maximum duration, etc. The Court has also previously paid attention to measures for the destruction of tapes used for monitoring. [FN44]
FN44 See my concurring opinion in the case of Malone and United Kingdom loc. cit.
Where monitoring is ordered by a judicial authority, even where there is a valid basis in law, it must be used for a specific purpose, not as a general "fishing" exercise to bring in information.
Similarly, where it is justified, the monitoring of suspects or those occupying posts of authority who may be guilty of offences or responsible for violations of state security must never be extended to partners in private life, because that is going beyond the bounds of what is required to protect democratic institutions and amounts to a perverse inquisition.The legislation of numerous European states fails to comply with Article 8 of the Convention where telephone tapping is concerned. States use--or abuse-- the concepts of official secrets and secrecy in the interests of national security. Where necessary, they distort the meaning and nature of that term. Some clarification of what these concepts mean is needed in order to refine and improve the system for the prevention of terrorism.
The warnings of jurists and parliamentarians go back more than 20 years: the Schmelck Report in France, my report as a consultant to the Luxembourg parliament, the Government white paper in the United Kingdom and the Court's Klass, Malone, Kruslin and Huvig judgments have all remained largely ineffective. The people running the relevant state services remain deaf to these injunctions and to a certain extent act with impunity. Apart from the specific problem, is this not a sign of the decadence of the democracies; does it not reveal to what extent the meaning of human dignity has been eroded? For this depressing trend states and individuals must share responsibility.