case law of the european court of human rights concerning the ...

DP (2006) CASE LAW
CASE LAW OF THE
EUROPEAN COURT OF HUMAN RIGHTS
CONCERNING THE PROTECTION
OF PERSONAL DATA
Strasbourg, December 2006
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

CASE LAW OF THE
EUROPEAN CONVENTION ON HUMAN RIGHTS
CONCERNING THE PROTECTION OF PERSONAL DATA
Contents
JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS (PRESS RELEASES) ......... 9
1. Klass and others v. Germany, judgment of 6 September 1978, Series A no.28 (No
violation of the Convention). Law authorising secret services to carry out secret monitoring
of communications (postal and telephone).............................................................................11
2. Malone v. The United Kingdom, judgment of 2 August 1984, Series A no. 82 (Violation
of Article 8 of the Convention). Interception of postal and telephone communications and
release of information obtained from “metering” of telephones, both effected by or on behalf
of the police within the general context of criminal investigation. ........................................16
3. Leander v. Sweden, judgment of 26 March 1987, Series A no.116 (Violation of Articles
8, 10 and 13 of the Convention). Use of information kept in a secret police-register when
assessing a person’s suitability for employment on a post of importance for national security.22
4. Gaskin v. The United Kingdom, judgment of 7 July 1989, Series A no.160 (Violation of
Article 8 of the Convention). Refusal to grant former child in care unrestricted access to case
records kept by social services. .............................................................................................27
5. Kruslin v. France, judgment of 24 April 1990, Series A no.176-A , and Eur. Court HR,
Huvig v. France judgment of 24 April 1990, Series A no.176-B (Violation of Article 8 of the
Convention). Telephone tapping carried out by senior police officer under warrant issued by
investigating judge.................................................................................................................32
6. B. v. France, judgment of 25 March 1992, application no. 13343/87. (Violation of
Article 8 of the Convention). Refusal of rectifying civil status data about a person further to
her change of gender..............................................................................................................37
7. Lüdi v. Switzerland, judgment of 15 June 1992, Series A no.238 (No violation of the
Convention). Telephone interception combined with the intervention of an undercover agent......47
8. Niemietz v. Germany, judgment of 16 December 1992, Series A no.251-B (Violation of
Article 8 of the Convention). Search of a lawyer’s office in course of criminal proceedings
against a third party...............................................................................................................51
9. Funke v. France judgment of 25 February 1993, Series A no.256-A, Eur. Court HR,
Crémieux v. France judgment of 25 February 1993, Series A no.256-B , and Eur. Court HR,
Miailhe v. France judgment of 25 February 1993, Series A no.256-C (Violation of Article 8
of the Convention). House searches and seizures made by customs officers.........................55
10. Hoffmann v. Austria, judgment of 23 June 1993, Series A no.255-C (Violation of
Articles 8 and 14 of the Convention). Parental rights after divorce refused to the mother in
view of her membership of the Jehovah’s Witnesses.............................................................63
11. A. v. France, judgment of 23 November 1993, Series A no.277-B (Violation of Article
8 of the Convention). Recording of a telephone conversation effected clandestinely by a
private citizen with the assistance of a high-ranking police officer.......................................68
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

12. Murray v. The United Kingdom, judgment of 28 October 1994, Series A no. 300-A (No
violation of the Convention). As far as a person suspected of terrorism is concerned, entry
into and search of her home for the purpose of effecting the arrest; record of personal details
and photograph without her consent. .....................................................................................72
13. Z. v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions
1997-I (Article 8 of the Convention). Seizure of medical records and their inclusion in
investigation file without the patient’s prior consent in criminal proceedings; limitation of
the duration of the confidentiality of the medical data concerned; publication of her identity
and HIV infection in a court judgment given in those proceedings. ......................................79
14. Halford v. The United Kingdom, judgment of 25 June 1997, Reports of Judgments and
Decisions 1997-III (Violation of Articles 8 and 13 of the Convention). Interception of
telephone calls made on internal telecommunications system operated by police and on
public network; lack of regulation by domestic law. .............................................................85
15. Anne-Marie Andersson v. Sweden, judgment of 27 August 1997, Reports of Judgments
and Decisions 1997-IV (No violation of the Convention). Lack of possibility for a patient,
prior to the communication of personal and confidential medical data by medical authority to
a social services authority, to challenge the measure before a court. .....................................89
16. M.S. v. Sweden, judgment of 27 August 1997, Reports of Judgments and Decisions
1997-IV (No violation of the Convention). Communication, without the patient’s consent, of
personal and confidential medical data by one public authority to another and lack of
possibility for patient, prior to the measure, to challenge it before a court. ...........................92
17. Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions
1998-II (Violation of Article 8 of the Convention). Monitoring of a law firm’s telephone
lines on orders of the Federal Public Prosecutor....................................................................96
18. Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports of Judgments and
Decisions 1998-V (Violation of Article 8 of the Convention). Monitoring of private
telephone line in connection with criminal proceedings against subscriber.........................101
19. Lambert v. France, judgment of 24 August 1998, Reports of Judgments and Decisions
1998-V (Violation of Article 8 of the Convention). Judgment whereby Court of Cassation
refused a person locus standi to complain of interception of some of his telephone
conversations, on the ground that it was a third party’s line that had been tapped...............105
20. Fressoz and Roire v. France , judgment of 21 January 1999, Reports of Judgments and
Decisions 1999-I (Violation of Article 10 of the Convention). Conviction for unlawful
possession of photocopies of Inland Revenue documents (income tax returns) following
publication by the satirical weekly Canard enchaîné of details of the salary of the chairman
of Peugeot motor cars. .........................................................................................................109
21. Lustig-Prean and Beckett v. The United Kingdom, judgment of 27 September 1999,
applications nos.31417/96 and 32377/96, and Eur. Court HR, Smith and Grady v. The United
Kingdom judgment of 27 September 1999, applications nos.33985/96 and 33986/96
(Violation of Article 8 of the Convention). Dismissal of homosexuals from the armed forces
following investigations into private life (especially their sexual orientation). ...................113
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

22. Salgueiro da Silva Mouta v. Portugal, judgment of 21 December 1999, application no.
33290/96 (Violation of Articles 8 and 14 of the Convention). Refusal to award custody to
father on the grounds that he is homosexual and lives with another man. ...........................118
23. Amann v. Switzerland, judgment of 16 February 2000, application no. 27798/95
(Violation of Article 8 of the Convention). Recording a telephone conversation concerning
business activities, and creation of a card index and storing of data, both by the Public
Prosecutor............................................................................................................................121
24. Rotaru v. Romania, judgment of 4 May 2000, application no. 28341/95 (Violation of
Articles 8 and 13 of the Convention). Storing and use of personal data held by the Romanian
intelligence services and absence of the possibility of refuting their accuracy....................125
25. Khan v. The United Kingdom, judgment of 12 May 2000, application no. 35394/97
(Violation of Article 8 of the Convention). Absence of legal basis for interception of
conversation by means of listening device installed on private property. ............................129
26. P.G. and J.H. v. The United Kingdom , judgment of 25 September 2001, application no.
44787/98 (Violation of Articles 8 and 13 of the Convention). Absence of a legal basis for the
installation of a covert listening device in private property and for the covert recording of
voice samples at a police station; acquisition by the police of information concerning the use
of a private telephone..........................................................................................................131
27. Krone Verlag Gmbh & Co. KG v. Austria, judgment of 26 February 2002, no. 34315/96
(Violation of Article 10 of the Convention). Conviction of applicant company for publishing
photographs of a politician..................................................................................................135
28. Mikulić v. Croatia, judgment of 7 February 2002, application no. 53176/99 (Violation
of Article 8 of the Convention). People in the applicant’s situation had a vital interest in
receiving the information necessary to uncover the truth about an important aspect of their
personal identity: establishing paternity..............................................................................137
29. Armstrong v. the United Kingdom, judgment of 19 March 2002, no. 48521/99
(Violation of Articles 8 and 13 of the Convention) Conviction for conspiracy to supply drugs
on evidence resulting from covert surveillance involving observation and recording of
conversations.......................................................................................................................140
30. Christine Goodwin v. the United Kingdom , judgment of 11 July 2002 (application no.
28957/95). (Violation of articles 8 of the Convention. Recognition of a sex conversion by the
employer and social services. ..............................................................................................141
31. M.G v. the United Kingdom, judgment of 24 September 2002, no. 39393/98 (Violation
of Article 8 of the Convention) Requested access to his social service records...................145
32. Taylor-Sabori v. the United Kingdom, judgment of 22 October 2002, no. 47114/99
(Violation of Articles 8 and 13 of the Convention) Interception of pager messages by the
police and subsequent reference to them at the trial. ...........................................................147
33. Allan v. the United Kingdom, judgment of 5 November 2002, application no. 48539/99
(Violation of Articles 6, 8, and 13 of the Convention) The use of covert audio and video
surveillance within a prison cell and the prison visiting area...............................................149
34. A. v. the United Kingdom, judgment of 17 December 2002, no. 35373/97 (No violation
of Articles 6.1, 8, 13 and 14 of the Convention) Personal information stated and derogatory
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

statements made by an MP subsequently quoted in local pqpers was protected by absolute
parliamentary privilege........................................................................................................151
35. Peck v. the United Kingdom, judgment of 28 January 2003 (application no. 44647/98).
Violation of Article 8 (right to respect for private life). Images of the applicant being
published and broadcast widely...........................................................................................155
36. Odièvre v. France (application no. 42326/98). (No violation of Article 8). Anonymous
birthgiving and impossibility for the applicant to obtain information on her natural family159
37. Perry. v. the United Kingdom, judgment of 17 July 2003, no. 63737/00 (violation of
Article 8 of the Convention). Use of videotape by the Police for identification and
prosecution purposes. ..........................................................................................................163
38. Sciacca v. Italy, judgment of 11 January 2005, application no. 50774/99. The applicant
submits that the dissemination of the photograph at a press conference organised by the
public prosecutor’s office and the tax inspectors infringed her right to respect for her private
life, contrary to Article 8.....................................................................................................164
39. Matheron v. France , judgment of 29 March 2005, application no. 57752/00. The
applicant complains under Article 8 of the Convention (right to respect for his private life)
that evidence was used against him that had been obtained by telephone tapping in separate
proceedings. Not being a party to those proceedings, he had been unable to contest their
validity.................................................................................................................................166
40. Vetter v. France , judgment of 31 May 2005, application no. 59842/00, Complains
under Article 8 (right to respect for private life), and Article 6 § 1 (right to a fair trial). ....168
41. Antunes Rocha v. Portugal, judgment of 31 May 2005, application no. 64330/0.
Complains under Article 6 § 1 (right to a fair hearing), and Article 8 (right to respect for
private and family life)........................................................................................................170
42. Von Hannover v. Germany, judgment of 28 July 2005 (application no. 59320/00).
(Violation of Article 8) Publication of photographs of a public figure taken without her
knowledge ...........................................................................................................................172
43. Wisse v. France , judgment of 20 December 2005, application no. 71611/01. Relying on
Article 8 (right to respect for private and family life), the applicants contend that the
recording of their conversations in the prison visiting rooms constituted interference with
their right to respect for their private and family life...........................................................175
44. Turek v. Slovakia, judgment of 14 February 2006, application no. 57986/00. The applicant
complains about being registered as a collaborator with the former Czechoslovak Communist
Security Agency, the issuing of a security clearance to that effect and the dismissal of his action
challenging that registration. He relies on Article 8 (right to respect for private and family life) and
Article 6 § 1 (right to a fair hearing within a reasonable time)..................................................177
45. Segerstedt-Wiberg and Others v. Sweden, judgment of 6 June 2006 (application no.
62332/00). (Violation of Article 8, 10, 11 and 13 of the Convention). Storage of information
about the applicants by the Swedish Security Police files and refusal to reveal the extent of
the information stored..........................................................................................................180
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

46. Petre v. Romania, judgment of 27 June 2006 (French only). Case no. 71649/01.
Temporary Registration in the criminal record. Request for data suppression. The applicant
complains about an impact on his private and professional life...........................................186
47. Weber Gabriele Weber and Cesar Richard Saravia against Germany, judgment of 29
June 2006, Application no. 54934/00. Provisions of the Fight against Crime Act violating the
applicants’ right to respect for their private life and their correspondence..........................190
48. Panteleyenko v. Ukraine (no. 11901/02), judgment of 29 June 2006. Violation of
Article 8, disclosure at a court hearing of confidential information regarding the applicant’s
mental state and psychiatric treatment.................................................................................217
49. L.L. v. France (no. 7508/02), judgment of 10 October 2006. Non respect of medical
secrecy. Disclosure of personal medical data from the French Court of Appeal concerning
the applicant. .......................................................................................................................220
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int )

JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS
(PRESS RELEASES) ∗
∗ The complete texts of the Court’s judgments are available on the Court’s Internet website at www.echr.coe.int

1. Klass and others v. Germany, judgment of 6 September 1978, Series A no.28 (No violation of
the Convention). Law authorising secret services to carry out secret monitoring of
communications (postal and telephone).
C (78) 37
6.9.78
THE EUROPEAN COURT OF HUMAN RIGHTS
DELIVERS JUDGMENT IN THE CASE OF KLASS AND OTHERS
The following information is communicated by the Registrar of the European Court of Human
Rights:
On 6 September 1978, the European Court of Human Rights delivered judgment in the case of Klass
and others. This case concerns the 1968 legislation in the Federal Republic of Germany restricting
the secrecy of the mail, post and telecommunications - legislation which permits measures of secret
surveillance under certain circumstances. The Court held unanimously that there had been no breach
of the European Convention on Human Rights.
The judgment was read out at a public hearing by Mr. G.J. Wiarda, Vice-President of the Court.
***
I. BACKGROUND TO THE CASE BEFORE THE COURT
1. The applicants, who are German nationals, are Gerhard Klass, a public prosecutor, Peter
Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans-Jürgen Pohl and Dieter Selb, lawyers.
2. Legislation passed in 1968 - namely an amendment to Article 10 §2 of the Basic Law and an Act of
13 August 1968 restricting the right to secrecy of mail, post and telecommunications - authorises in
certain circumstances secret surveillance without the need to inform the person concerned, In addition,
the legislation excludes legal remedy before the courts in respect of the ordering and implementation
of the surveillance measures; it institutes instead supervision by two agencies, that is a Board of five
Members of Parliament appointed by the Bundestag and a Commission of three members nominated
by that Board.
3. Following an appeal lodged by the applicants, the Federal Constitutional Court held on 15
December 1970 that the Act of 13 August 1968 was void insofar as it prevented notification to the
subject of the surveillance even when such notification could be made without jeopardising the
purpose of the restriction.
4. In June 1971, the applicants lodged a complaint with the European Commission of Human
Rights. They claimed that the above-mentioned legislation involves breaches of three Articles of the
European Convention on Human Rights, namely Article 6 §l (the right to a fair hearing before a
court in civil or criminal proceedings), Article 8 (the right to respect for private and family life,
11

home and correspondence) and Article 13 (the right to an effective remedy before a national
authority for violations of the rights set forth in the Convention. 1
5. In its report of 9 March 1977, the Commission expressed the opinion:
- that there was no violation of Article 6 §l of the Convention, either insofar as the applicants rely on
the notion "civil rights" (eleven votes to one with two abstentions) or insofar as they rely on the
notion "criminal charge" (unanimously);
- that there was no violation of Article 8 or Article 13 (twelve votes with one abstention).
6. At the oral hearing in March 1978, the Agent of the German Government informed the Court that
at no time had surveillance measures under the legislation been ordered or implemented in respect of
the applicants.
II. SUMMARY OF THE JUDGMENT 2
A. Article 25§1
7. The German Government had contended that, since the substance of the applicants' complaint was
the purely hypothetical possibility of being subject to surveillance under the legislation, they could not
be considered as "victims" within the meaning of Article 25 of the Convention. This Article empowers
the European Commission of Human Rights, subject to certain conditions, to receive petitions from
any person “claiming to be the victim of a violation" of the Convention.
Having regard to the specific circumstances of the case,, the Court concluded that the applicants
were entitled to claim to be victims of a violation even though - due to the secrecy of any
surveillance measures - they were not able to allege in support of their application that they had in
fact been subject to surveillance.
[Paragraphs 30 to 38 of the judgment./
8. The Court then turned to the question whether the applicants were actually the victims of any
violation of the Convention and examined the compatibility with the Convention of the contested
legislation.
B. Article 8
9. There being no dispute that the contested legislation results in an interference with the applicants’
right to respect for their private and family life and correspondence, the cardinal issue was whether
that interference is justified under paragraph 2 of Article 8. Since that paragraph provides for an
exception to a right guaranteed by the Convention, it must, emphasised the Court, be narrowly
interpreted. Thus, “powers of secret surveillance of citizens, characterising as they do the police
State, are tolerable under the Convention only insofar as strictly necessary for safeguarding the
democratic institutions".
1 The text of these Articles in set out in an appendix to this release.
2 This summary has been prepared by the Registry and in no way binds the Court.
12

10. The Court found that the legislation in question has an aim that is legitimate under paragraph 2
of Article 8, namely the safeguarding of national security and the prevention of disorder or crime. It
then went on to consider whether the means adopted remain within the bounds of what is necessary
in a democratic society in order to achieve that aim.
11. (a) The Court took notice of the fact that "democratic societies nowadays find themselves
threatened by highly sophisticated. forms of espionage and by terrorism, with the result that the
State must be able, in order effectively to counter such threats, to undertake the secret surveillance
of subversive elements operating within its jurisdiction". It had therefore to be accepted that "the
existence of some legislation granting powers of secret surveillance over the mail, post and ,
telecommunications is, under exceptional conditions, necessary in a democratic Society in the
interests of national security and/or for the prevention of disorder or crime".
(b) Although recognising that the Convention leaves to Contracting States a certain discretion as
regards the fixing of the conditions under which the system of surveillance is to be operated, the
judgment continues: " ... this does not mean that the Contracting States enjoy an unlimited discretion
to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the
danger such a law poses of undermining or even destroying democracy on the ground of defending
it, affirms that the Contracting States may not, in the name of the struggle against espionage and
terrorism, adopt whatever measures they deem appropriate!” "The Court must be satisfied that,
whatever system is adopted, there exist adequate and effective guarantees against abuse."
12. In the light of these considerations, the Court then examined the functioning of the system of
secret surveillance established by the contested legislation. The judgment notes in particular that:
- according to that legislation, a series of limitative conditions have to be satisfied before a
surveillance measure can be ordered ;
- strict conditions are laid down with regard to the implementation of the surveillance measures and
to the processing of the information thereby obtained ;
- while "in a field where abuse is potentially so easy in individual cases and could have such harmful
consequences for democratic society as a whole, it is in principle desirable to entrust supervisory
control to a judge”, the two supervisory bodies instituted by the legislation “may, in the
circumstances of the case, be regarded as enjoying sufficient independence to give an objective
ruling”;
- the fact of not informing the individual once surveillance has ceased cannot itself be incompatible
with Article 8 since it is this very fact which ensures the efficacy of the measure.
13. The Court accordingly found no breach of Article 8.
[Paragraphs 39 to 60 of the judgment.]
C. Article 13
14. The Court then examined the case under Article 13 which guarantees that everyone whose rights
and freedoms as set forth in the Convention are violated shall have an effective remedy before a
national authority. The Court found, inter alia, that:
13

- the lack of notification of surveillance measures is not, in the circumstances of the case, contrary to
the concept of an “effective remedy” and does not therefore entail a violation of Article 13;
-"for the purposes of the present proceedings, an 'effective remedy' under Article must mean a
remedy that is as effective as can be having regard to the restricted scope for recourse inherent in
any system of secret surveillance";
- in the particular circumstances of this case, the aggregate of remedies available to the applicants
under German law satisfies the requirements of Article 13.
[Paragraphs 61 to 72 of the judgment/]
D. Article 6 § 1
15. Both the German Government and the Commission considered Article 6 to be inapplicable to the
facts of the case. The Court concluded that Article 6, even if applicable, had not been violated.
[Paragraphs 73 to 75 of the judgment.]
The Court gave judgment at a plenary sitting, in accordance with Rule 48 of the Rules of Court, and
was composed as follows:
Mr. G. BALLADORE PALLIERI (Italian), President, Mr. G. WIARDA (Dutch), Mr. H. MOSLER
(German), Mr. M. ZEKIA (Cypriot), Mr. J. CREMONA (Maltese), Mr. P. O'DONOGHUE (Irish),
Mr. Thor VILHJALMSSON (Icelandic), Mr. W. GANSHOF VAN DER MEERSCH (Belgian), Sir
Gerald FITZMAURICE (British), Mrs. D. BINDSCHEDLER-ROBERT (Swiss), Mr. P.-H.
TEITGEN (French), Mr. G. LAGERGREN (Swedish), Mr. L. LIESCH (Luxemburger), Mr. F.
GOLCUKU (Turkish), Mr. F. MATSCHER (Austrian), Mr. J. PINHEIRO FARINHA (Portuguese),
Judges, and also Mr. H. PETZOLD Deputy Registrar.
There is one separate opinion attached to the judgment.
***
For further information, reference should be made to the text of the judgment and to the previous
press release C (78) 10. The judgment is available on request in French and English, the two official
languages of the Court.
Subject to the discretion attached to his duties, the Registrar is responsible under the Rules of Court
for replying to all requests for information concerning the work of the Court, and in particular to
requests from the Press.
14

A P P E N D I X
Text of the Articles of the, Convention whose violation was alleged by the applicants.
Article 6 § 1
1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.
Article 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity.
15

2. Malone v. The United Kingdom, judgment of 2 August 1984, Series A no. 82 (Violation of
Article 8 of the Convention). Interception of postal and telephone communications and
release of information obtained from “metering” of telephones, both effected by or on
behalf of the police within the general context of criminal investigation.
C (84) 57
2.8.84
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE MALONE CASE
On 2 August 1984 at Strasbourg, the European Court of Human Rights delivered judgment in the
Malone case, which concerns the laws and practices in England and Wales allowing interception of
communications and “metering" of telephones by or on behalf of the police. The Court unanimously
held that there had been violation of Mr. James Malone's right to respect for his private life and his
correspondence, as guaranteed by Article 8 of the European Convention on Human Rights 1 . The
Court further considered, by sixteen votes to two, that it was unnecessary in the circumstances to
examine Mr. Malone's complaint under Article 13 of the Convention (right to an effective remedy
before a national authority) 2 .
I. BACKGROUND TO THE CASE
A. Principal facts
***
1. The applicant in the present case is Mr. James Malone, a United Kingdom citizen who currently
resides in Dorking, Surrey, in England. In March 1977, he was charged with offences relating to the
dishonest handling of stolen goods; he was ultimately acquitted. During his trial, it emerged that a
telephone conversation to which he had been a party had been intercepted by the Post Office on
behalf of the police on the authority of a warrant issued by the Home Secretary.
2. Mr. Malone further believes that, at the behest of the police, his correspondence has been
intercepted, his telephone lines "tapped" and, in addition, his telephone "metered" by a device
recording all the numbers dialled. Beyond admitting the interception of the one conversation
adverted to in evidence at his trial, the United Kingdom Government have neither admitted
nor denied the allegations concerning correspondence and tapping, and have denied that concerning
metering; they have, however, accepted that the applicant, as a suspected receiver of stolen goods,
was one of a class of persons whose postal and telephone communications were liable to be
intercepted.
3. It has for long been the publicly known practice for interceptions of postal and telephone
communications for the purposes of the detection and prevention of crime to be carried out on the
authority of a warrant issued under the hand of a Secretary of State, as a general rule the Home
Secretary. There is, however, no overall statutory code governing the matter. Nonetheless, various
1 The text of this article is set out in an appendix to the present release.
2 The text of this article is set out in an appendix to the present release.
16

statutory provisions are relevant, including one under which the Post Office - as from 1981, the Post
Office and British Telecommunications - may be required to inform the Crown about matters
transmitted through the postal or telecommunication services.
4. There also exists a practice, of which Parliament has been informed, whereby the telephone service
- the Post Office prior to 1921 and thereafter British Telecommunications - makes and supplies
records of metering at the request of the police in connection with police enquiries into the
commission of crime.
5. In October Mr. Malone instituted civil proceedings in the High Court against the Metropolitan
Police Commissioner, seeking, amongst other things, a declaration that any tapping of conversations
on his telephone without his consent was unlawful even if done pursuant to a warrant of the
Secretary of State. The Vice-Chancellor, Sir Robert Megarry, dismissed his claim in February 1979.
B. Proceedings before the European Commission of Human Rights
The present case originated in an application against the United Kingdom lodged with the
Commission by Mr. Malone in July 1979. The Commission declared the application admissible in
July 1981.
In its report adopted in December 1982, the Commission expressed the opinion:
- (by eleven votes, with one abstention) that there had been a breach of the applicant's rights under
Article 8 by reason of the admitted interception of one of his telephone conversations and of the law
and practice in England and Wales governing the interception of postal and telephone
communications on behalf of the police;
- (by seven votes against three, with two abstentions) that it was unnecessary in the circumstances of
the case to investigate whether the applicant's rights had also been interfered with by the procedure
known as "metering" of telephone calls;
- (by ten votes against one, with one abstention) that there had been a breach of the applicant's rights
under Article 13 in that the law in England and Wales did not provide an "effective remedy before a
national authority" in respect of interceptions carried out under a warrant.
The Commission referred the case to the Court in May 1983.
II. SUMMARY OF THE JUDGMENT 3
A. ARTICLE 8 OF THE CONVENTION
1. Scope of the issues before the Court
The present case is concerned only with interception of communications and metering of telephones
effected by or on behalf of the police within the general context of a criminal investigation, together
with the relevant legal and administrative framework.
3 This summary, drafted by the registry, does not bind the court.
17

[see paragraphs 63 and 85 of the judgment]
2. Interception of communications
(a) Was there any interference with an Article 8 right?
The one admitted interception of a telephone call to which Mr. Malone was a party involved an
"interference" with the exercise of his right to respect for his private life and his correspondence. In
addition, as a suspected receiver of stolen goods, Mr. Malone was a member of a class of persons
against whom measures of postal and telephone interception were liable to be employed. This being
so, the existence in England and Wales of laws and practices which permit and establish a system for
carrying out secret surveillance of communications amounted in itself to such an "interference", apart
from any concrete measures taken against him.
[see paragraph 64 of the judgment]
(b) Were these interferences "in accordance with the law"?
(i) General principles
The expression "in accordance with the law" in paragraph 2 of Article 8 means firstly that any
interference must have some basis in the law of the country concerned. However, over and above
compliance with domestic law, it also requires that domestic law itself be compatible with the rule of
law. It thus implies that there must be a measure of legal protection in domestic law against arbitrary
interferences by public authorities with the rights safeguarded by paragraph 1.
The Court accepted the Government's contention that the requirements of the Convention cannot be
exactly the same in the special context of interception of communications for the purposes of police
investigations as they are in other contexts. Thus, the "law" does not have to be such that an
individual should be enabled to foresee when his communications are likely to be intercepted so that
he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to
give citizens in general an adequate indication as to the circumstances in which and the conditions
on which public authorities are empowered to resort to this secret and potentially dangerous
interference with the right to respect for private life and correspondence.
Furthermore, 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 to be expressed in terms of
an unfettered power. Consequently, the substantive law itself, as opposed to accompanying
administrative practice, must indicate the scope and manner of exercise of any such discretion with
sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual
adequate protection against arbitrary interference.
[see paragraphs 66 to 68 of the judgment]
(ii) Application of those principles to the particular facts
18

It was common ground that the settled practice of intercepting communications on behalf of the police
in pursuance of a warrant issued by the Secretary of State was lawful under the law of England and
Wales. There were, however, fundamental differences of view between the Government, the applicant
and the Commission as to the effect, if any, of certain statutory provisions in imposing legal restraints
on the manner in which and the purposes for which interception of communications may lawfully be
carried out.
The Court found that, on the evidence adduced, in its present state domestic law in this domain is
somewhat obscure and open to differing interpretations. In particular, it cannot be said with any
reasonable certainty what elements of the powers to intercept are incorporated in legal rules and
what elements remain within the discretion of the executive. In the opinion of the Court, the law of
England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the
relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal
protection to which citizens are entitled under the rule of law in a democratic society is lacking.
The Court therefore concluded that the interferences found were not “in accordance with the law"
within the meaning of paragraph 2 of Article 8.
[see paragraphs 69 to 80 of the judgment]
(c) Were the interferences “necessary in a democratic society” for a recognised purpose?
Undoubtedly, the existence of some law granting powers of interception of communications to aid
the police may be "necessary" for prevention of disorder or crime". However, “in a democratic
society'' the system of secret surveillance adopted must contain adequate guarantees against abuse.
In the light of its conclusion under (b), the Court considered that it did not have to examine further
the content of the other guarantees required by paragraph 2 of Article 8 and whether the system
complained of furnished those guarantees in the particular circumstances.
[see paragraphs 31 to 82 of the judgment]
3. "Metering" of telephones
The records of metering contain information, in particular the numbers dialled, which is an integral
element in the communications made by telephone. Consequently, release of that information to the
police without the consent of the subscriber amounts to an interference with the exercise of a right
guaranteed by Article 8. The applicant was potentially liable to be directly affected by the practice
which existed in this respect. Despite the clarification by the Government that the .police had not
caused his telephone to be metered, the applicant could claim to be the victim of an interference in
breach of Article 8 by reason of the very of the practice.
No rule of domestic law makes it unlawful for the telephone service to comply with a request from the
police to make and supply records of metering. Apart from this absence of prohibition, there would
appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by
the public authorities. Consequently, so the Court found, although lawful in terms of domestic law, the
resultant interference was not "in accordance with the law", within the meaning of paragraph 2 of Article
8.
19

This finding removed the need for the Court to determine whether the interference was "necessary in
a democratic society".
[see paragraphs 83 to 88 of the judgment]
4. Recapitulation
There had accordingly been a breach of Article 8 in the applicant's case as regards both interception
of communications and release of records of metering to the police.
[see paragraph 89 of the judgment and point 1 of the operative provisions]
B. ARTICLE 13 OF THE CONVENTION
Having regard to its decision on Article 8, the Court did not consider it necessary to rule on this
issue.
[see paragraphs 90 to 91 of the judgment and point 2 of the operative provisions]
C. ARTICLE 50 OF THE CONVENTION 4
By way of "just satisfaction" under Article 50, the applicant had claimed reimbursement of legal
costs and an award of compensation. Judging that it was not yet ready for decision, the Court
reserved the question and referred it back to the Chamber originally constituted to hear the case.
[see paragraphs 92 to 93 of the judgment and point 3 of the operative provisions]
***
The Court gave judgment at a plenary session, in accordance with Rule 50 of the Rules of Court,
and was composed as follows: Mr G. Wiarda (Dutch) President, Mr R. Ryssdal (Norwegian), Mr J.
Cremona (Maltese), Mr. Thór Vilhjálmsson (Icelandic), Mr. W. Ganshof van der Meersch (Belgian),
Mrs. D. Bindschedler-Robert .(Swiss”, Mr. D. Evrigenis (Greek), Mr. G. Lagergren (Swedish), Mr.
F. Gö1cük1ü (Turkish), Mr. F. Matscher (Austrian), Mr. J. Pinheiro Farinha (Portuguese), Mr. E.
García de Enterría (Spanish), I'~ir.. L.-E. Pettiti (French), Mr. B. Walsh (Irish), Sir Vincent Evans
(British), Mr. R.Macdonald (Canadian), Mr. C. Russo (Italian) and Mr J. Gersing (Danish), Judges,
and also Mr. M.A. Eissen, Registrar, and Mr H Petzold, Deputy Registrar.
Three judges expressed separate opinions which are annexed to the judgment.
***
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 82 of Series A of the Publications of the Court
(obtainable from Carl Heymanns Verlag K.G., Gereonstrasse 18-32, D - 5000 KOLN 1).
4 The text of Article 50 is set out in the appendix to the present release.
20

Subject to the discretion attached to his duties, the Registrar is responsible under the Rules of Court
for replying to all requests for information concerning the work of the Court, and in particular to
requests from the press.
Article 8
A P P E N D I X
Text of the Convention Articles referred to in the release
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity.
Article 50
If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the
present Convention, and if the internal law of the said Party allows only partial reparation to be
made for the consequences of this decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party.
21

3. Leander v. Sweden, judgment of 26 March 1987, Series A no.116 (Violation of Articles 8, 10
and 13 of the Convention). Use of information kept in a secret police-register when
assessing a person’s suitability for employment on a post of importance for national
security.
C (87) 31
26.3.1987
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE LEANDER CASE
In a judgment delivered at Strasbourg on 26 March 1987 in the Leander case, which concerns Sweden,
the European Court of Human Rights held:
- unanimously, that there had been no breach of either Article 8 or Article 10 of the European
Convention on Human Rights;
- by four votes to three, that there had been no breach of Article 13 of the Convention. 1
The judgment was read out at a public hearing by Mr. Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
In August 1979, Mr. Leander was considered for employment at the Naval Museum in Karlskrona,
in the south of Sweden. Part of the Museum's premises were located within an adjacent naval base.
As a consequence, appointment to the post sought by Mr. Leander had to be preceded by a security
check - a so-called personnel control, which involved consulting information held on a secret
register kept by the security police. The procedure to be followed was governed principally by the
Personnel Control Ordinance 1969, published in the Swedish Official Journal. In Mr. Leander's case,
the outcome of the control was such that his employment was refused, without his having received
an opportunity to know and to comment upon the information released to the Navy from the secret
police-register.
Mr. Leander complained to the Government, requesting annulment of the assessment that he
constituted a security risk, a declaration that he was acceptable for employment, access to the
information kept on him and an opportunity to comment on this information. The Government
rejected the complaint on all points.
B. Proceedings before the European Commission of Human Rights
Mr. Leander's application was lodged with the European Commission of Human Rights on 2
November 1980 and declared admissible on 10 October 1983.
1 The text of the Convention Articles in question is set out in the appendix hereto.
22

Having unsuccessfully attempted to reach a friendly settlement, the Commission drew up a report
establishing the facts and stating its opinion as to whether or not the facts found disclosed a breach by
Sweden of its obligations under the Convention. In its report of 17 May 1985 2 , the Commission
expressed the opinion that there had been no breach of Article 8 (unanimously), that no separate issue
arose under Article 10 (unanimously) and that the case did not disclose any breach of Article 13
(seven votes to five).
The Commission referred the case to the Court on 11 July 1985.
II. SUMMARY OF THE JUDGMENT 3
A. Alleged violation of Article 8
1. Whether there was any interference with an Article 8 right
It was uncontested that the secret police register contained information relating to Mr. Leander's
private life. Both the storing and the release of such information, which had been coupled with a
refusal to allow Mr. Leander an opportunity to refute it, amounted to an interference with his right to
respect for private life as guaranteed by Article 8 § 1.
2. Whether the interference was justified
(a) Legitimate aim
The aim of the Swedish personnel control system was clearly a legitimate one for the purposes of
Article 8, that is the protection of national security.
(b) "In accordance with the law"
The interference had a valid base in domestic law, namely the Personnel Control Ordinance.
The Ordinance, which had been published in the Swedish Official Journal, met the further condition
that the "law" in question be accessible to the individual concerned.
It is also a requirement in Article 8 that the consequences of the "law" be foreseeable for the individual
concerned. This requirement, the Court pointed out, cannot be the same in the special context of secret
controls of staff in sectors affecting national security as in many other fields. The Court concluded that
in a system applicable to citizens generally, as under the Personnel Control Ordinance, the "law" in
question has to be sufficiently clear as to the circumstances in which and the conditions on which the
2 The report is available to the press and the public on request to the Registrar of the Court.
3 This summary, which has been prepared by the registry, does not bind the Court.
23

public authorities are empowered to resort to this kind of potentially dangerous interference with
private life.
Taking into account the various limitations imposed on the registration of information, in particular
the prohibition on registration merely on the ground of political opinion, and the explicit and
detailed provisions governing the operation of the personnel control procedure, the Court found that
Swedish law satisfied the requirement of foreseeability.
(c) "Necessary in a democratic society in the interests of national security"
According to well-established principles in the Court's case-law, the notion of necessity implies that
the interference must correspond to a pressing social need and, in particular, that it is proportionate
to the legitimate aim pursued. The respondent State's interest in protecting national security had to
be balanced against the seriousness of the interference with the applicant's right to respect for private
life. The Court accepted that, in the circumstances, the State enjoyed a wide margin of appreciation
in making its assessment.
There can be no doubt as to the necessity for the Contracting States to have a system for controlling
the suitability of candidates for employment in posts of importance for national security.
Nevertheless, in view of the risk that a system of secret surveillance for the protection of national
security poses of undermining or even destroying democracy on the ground of defending it, the
Court had to be satisfied that there existed in the system at issue adequate and effective guarantees
against abuse.
The Court noted that the Swedish system was designed to reduce the effects of the personnel control
procedure to an unavoidable minimum and that, leaving aside the monitoring affected by the
Government themselves, supervision of its proper implementation was entrusted both to Parliament
and to independent institutions. The Court attached especial importance, firstly, to the presence of
parliamentarians on the police board that authorised the release of the information to the Navy and,
secondly, to the supervision effected by the Chancellor of Justice and the Parliamentary
Ombudsman as well as the Parliamentary Standing Committee on Justice. The safeguards contained
in the Swedish personnel control system were therefore judged sufficient to meet the requirements
of Article 8.
Having regard to the wide margin of appreciation available to it, the respondent State was entitled to
consider that, in the particular case, the interests of national security prevailed over Mr. Leander's
individual interests. Accordingly, there had been no breach of Article 8.
B. Alleged violation of Article 10
1. Freedom to express opinions
It appeared clearly from the provisions of the Personnel Control Ordinance that its purpose was to
ensure that persons holding security-sensitive posts had the necessary personal qualifications. This
24

eing so, the right of access to the public service, a right not protected by the Convention, lay at the
heart of the issue submitted to the Court. There had accordingly been no interference with Mr.
Leander's freedom to express opinions.
2. Freedom to receive information
Article 10 does not, in the circumstances such as those in the case at issue, confer on the individual a
right of access to a register containing information on his personal position, nor does it embody an
obligation on the Government to impart such information to the individual. Accordingly, there had
likewise been no interference with Mr. Leander's freedom to receive information.
C. Alleged violation of Article 13
As established in the Court's case-law, the “national authority” referred to in Article 13 need not be
a judicial authority in the strict sense. In addition, in the special context of Mr. Leander's case, an
“effective remedy" must mean a remedy that is as effective as can be having regard to the restricted
scope for recourse inherent in any system of secret surveillance for the protection of national
security. Further, although no single remedy may itself entirely satisfy the requirements of Article
13, the aggregate of remedies provided for under domestic law may do so.
The Court noted that under Swedish law the applicant could have filed complaints with the
Parliamentary Ombudsman or the Chancellor of Justice, who both had to be considered independent
of the Government. Although both lacked the power to render legally binding decisions, in practice
their opinions were usually followed. There also existed the remedy of complaint to the
Government, to which Mr. Leander had had recourse, albeit unsuccessfully.
The Court held that even if, taken on its own, the complaint to the Government were not to be
considered sufficient, the aggregate of available remedies satisfied the conditions of Article 13 in the
particular circumstances of the case.
***
In accordance with the Convention, the judgment was delivered by a Chamber composed of seven
judges, namely Mr. R. Ryssdal (Norwegian), President, Mr. G. Lagergren (Swedish), Mr. F.
Gölcüklu (Turkish), Mr. L.E. Pettiti (French), Sir Vincent Evans (British), Mr. C. Russo (Italian)
and Mr. R. Bernhardt (German), Judges , and of Mr. M-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar.
Three judges expressed separate opinions which are annexed to the judgment.
***
25

For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 116 of Series A of the Publications of the Court
(obtainable from Carl Heymanns Verlag K.G., Luxemburger Strasse 449, D-5000 Köln 41).
Subject to the discretion attached to his duties, the Registrar is responsible under the Rules of Court
for replying to requests for information concerning the work of the Court, and in particular to
requests from the press.
Article 8
A P P E N D I X
Extracts from the Convention Articles referred to
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others."
Article 10
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and
regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary."
Article 13
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity."
26

4. Gaskin v. The United Kingdom, judgment of 7 July 1989, Series A no.160 (Violation of
Article 8 of the Convention). Refusal to grant former child in care unrestricted access to
case records kept by social services.
C (89) 90
7.7.89
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE GASKIN CASE
By a judgment delivered in Strasbourg on 7 July 1989 in the Gaskin case, which concerns the United
Kingdom, the Court held by eleven votes to six that the procedures followed in relation to access by
Mr Gaskin to his case records failed to secure respect for his private and family life as required by
Article 8 of the European Convention on Human Rights. ∗
I. BACKGROUND TO THE CASE
A. Summary of the facts
Following the death of his mother, the applicant, a British citizen born in 1959, was received into care on
1 September 1960 by the Liverpool City Council under the Children Act 1948. He ceased to be in the
care of the Council on attaining the age of majority (18) on 2 December 1977. During the period while
the applicant was in care, he was boarded out with various foster parents. He contends that he was
ill-treated.
Under the provisions of the Boarding-Out of Children Regulations 1955, the local authority was
under a duty to keep certain confidential records concerning the applicant and his care.
In 1979 the applicant, wishing to bring proceedings against the local authority for damages for
negligence, made an application under the Administration of Justice Act 1970 for discovery of the
local authority's case records made during his period in care. Discovery was refused by the High
Court on 22 February 1980, on the ground that case records compiled pursuant to the 1955
Regulations were private and confidential. This decision was confirmed by the Court of Appeal on
27 June 1980.
Between 1980 and 1983, various committees of the City Council adopted resolutions on the release of
child care records. To a certain extent, these resolutions were challenged in the courts. Finally, in
November 1983, Liverpool City Council adopted a further resolution which provided that the
information in the applicant's file should be made available to him if the contributors to the file gave
their consent to disclosure. This resolution was in line with the Circular issued by the Department of
Health and Social Security in August 1983.
The applicant's case record consisted of some 352 documents contributed by 46 persons. On 23 May
1986 copies of 65 documents supplied by 19 persons were sent to the applicant's solicitors. These
were documents whose authors had consented to disclosure to the applicant.
∗ The text of the Convention Articles referred to in this release is set out in the Appendix.
27

B. Proceedings before the Commission
On 17 February 1983, the applicant applied to the Commission which declared admissible the
applicant's complaint concerning the continuing refusal of Liverpool City Council to give him access
to his case records.
In its report of 13 November 1987, the Commission concluded, by six votes to six, with a casting
vote by the acting President, that there had been a violation of Article 8 of the Convention by the
procedures and decisions which resulted in the refusal to allow the applicant access to the file. It
further concluded, by eleven votes to none with one abstention, that there had been no violation of
Article 10 of the Convention. The Commission referred the case to the Court on 14 March 1988.
The United Kingdom Government had done so on 8 March 1988.
II. SUMMARY OF THE JUDGMENT
A. Scope of the case before the Court
1. The Court held that the only issues before it were those arising under Articles 8 and 10 in relation to
the procedures and decisions pursuant to which the applicant was refused access to the file subsequently
to the termination of domestic proceedings brought by him for discovery of the documents in his
personal file.
[paragraph 35 of the judgment]
B. Alleged breach of Article 6
1. Applicability
2. Although the Government argued that the applicant's personal file did not form part of his private
life, the Court, like the Commission, found that the file did relate to Mr Gaskin's "private and family
life" in such a way that the question of his access thereto fell within the ambit of Article 8. That
finding was, reached without expressing any opinion on whether general rights of access to personal
data may be derived from Article 8 § 1 of the Convention.
[paragraph 37 of the judgment]
2. Application of Article 8 in the present case
3. According to the Court's case-law, "although the essential object of Article 8 is to protect the
individual against arbitrary interference by the public authorities, there may in addition be positive
obligations inherent in an effective 'respect' for family life".
It was common ground that Mr Gaskin neither challenged the fact that information was compiled
and stored about him nor alleged that any use was made of it to his detriment. He challenged rather
the failure to grant him unimpeded access to that information.
Indeed, the Court found that, by refusing him complete access to his case records, the United
Kingdom could not be said to have "interfered" with Mr Gaskin's private or family life. In this
connection, the substance of the applicant's complaint was not that the State had acted but that it had
failed to act.
28

It was therefore necessary to examine whether the United Kingdom, in handling the applicant's
requests for access to his case records, was in breach of a positive obligation flowing from Article 8 of
the Convention.
[paragraphs 38 and 41 of the judgment]
4. According to the Government, the proper operation of the child-care service depended on
information supplied by professional persons and bodies, and others. If the confidentiality of these
contributors were not respected, their co-operation would be lost and this would have a detrimental
effect on the child-care service. There was no blanket refusal of access to case records. Access was
given to confidential information in so far as the consent of the contributor could be obtained.
[paragraphs 44 and 48 of the judgment]
5. According to the applicant, however, the Access to Personal Files Act 1987 and regulations made
thereunder illustrated the extent to which information of the kind sought by him would in the future
be made available by public authorities. The Government pointed out that the new regulations would
not apply to records compiled before the entry into force of the regulations (April 1989).
[paragraph 45 of the judgment]
6. The local authority obtained consent in respect of 65 out of some 352 documents, and those were
released. The Government argued that no obligation to do more than this existed.
[paragraph 47 of the judgment]
7.In the Court's opinion, however, persons in the applicant's situation have a vital interest, protected
by the Convention, in receiving the information necessary to know and understand their childhood
and early development. Although a system, like the British one, which makes access to child-care
records dependent on the contributor's consent, can in principle be considered to be compatible with
the obligations under Article 8, the Court considered that the interests of an individual seeking
access to records relating to his private and family life must be secured when a contributor to the
records either is not available or improperly refuses consent. In such a case, the principle of
proportionality requires that an independent authority decide whether access should be granted.
As no such system was available to Mr Gaskin, the Court held by eleven votes to six that the
procedures followed had failed to secure respect for Mr Gaskin's private and family life as required
by Article 8 of the Convention. There was therefore a breach of that provision.
[paragraph 49 of the judgment and point 1 of the operative provisions]
C. Alleged breach of Article 10
8. The Court unanimously held that Article 10 did not embody an obligation on the Government to
impart the information in question to the individual. There had thus been no interference with Mr
Gaskin's right to receive information as protected by that Article.
[paragraph 52 of the judgment and point 2 of the operative provisions]
29

D. Application of Article 50
1. Pecuniary damage
9. The Court rejected claims for losses in respect of future earnings.
[paragraph 56 of the judgment]
2. Non-pecuniary damage
10. The Court acknowledged that Mr Gaskin may have suffered some emotional distress and anxiety
by reason of the absence of any independent review procedure as mentioned under paragraph 7
above. Making a determination on an equitable basis, the Court awarded to Mr Gaskin under this
head the amount of £5,000.
[paragraph 58 of the judgment]
3. Costs and expenses
11. The applicant claimed a total sum of £117,000 for legal costs and expenses.
[paragraph 59 of the judgment]
(i) Costs incurred at domestic level
12. The Court held that only costs incurred subsequently to the termination of the domestic
proceedings could be considered.
[paragraph 60 of the judgment]
(ii) Costs incurred in the European proceedings
13. The Court considered that the total amount claimed was not reasonable as to quantum. Making
an equitable assessment, the Court awarded Mr Gaskin, for legal fees and expenses, the sum of
£11,000 less 8,295 French francs already paid in legal aid.
[paragraph 62 of the judgment and point 3 of the operative provisions]
The Court gave judgment at a plenary sitting, in accordance with Rule 50 of the Rules of Court, and
was composed as follows:
Mr R. Ryssdal (Norwegian), President, Mr J. Cremona (Maltese), Mr Th6r Vilhjálmsson (Icelandic),
Mrs D. Bindschedler-Robert (Swiss), Mr F. Gökcüklü (Turkish), Mr F. Matscher (Austrian), Mr
L,E. Pettiti (French), Mr B. Walsh (Irish), Sir Vincent Evans (British), Mr R. Macdonald
(Canadian), Mr C. Russo (Italian), Mr R. Bernhardt (German), Mr A. Spielmann (Luxemburger), Mr
J. De Meyer (Belgian), Mr J.A. Carrillo Salcedo (Spanish), Mr N. Valticos (Greek), Mr S.K.
Martens (Dutch), Judges, and also Mr M,A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar.
Several judges expressed separate opinions which are annexed to the judgment.
30

For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 160 of Series A of the Publications of the Court
(obtainable from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D-5000 K6ln 41).
Subject to the discretion attached to his duties, the Registrar is responsible under the Rules of Court
for replying to requests for information concerning the work of the Court, and in particular to requests
from the press.
***
Article 8
A P P E N D I X
Text of the Convention Articles referred to in the release
“1.. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 10
“1.. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary."
Article 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the
present Convention, and if the internal law of the said Party allows only partial reparation to be
made for the consequences of this decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
31

5. Kruslin v. France, judgment of 24 April 1990, Series A no.176-A , and Eur. Court HR, Huvig
v. France judgment of 24 April 1990, Series A no.176-B (Violation of Article 8 of the
Convention). Telephone tapping carried out by senior police officer under warrant issued
by investigating judge.
C (90) 50
24.4.1990
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENTS IN THE KRUSLIN AND HUVIG CASES
In two judgments delivered at Strasbourg on 24 April 1990 in the Kruslin and Huvig cases, which
concern France, the Court held unanimously that there had been a violation of Article 8 of the
European Convention on Human Rights 1 , as the interception of telephone conversations had
infringed the applicants' right to respect for their private life and their correspondence.
The judgments were read out in open court by Mr Rolv Ryssdal, President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
1. Kruslin case
In April 1985 the Indictment Division of the Toulouse Court of Appeal committed Mr Kruslin for
trial at the Haute-Garonne Assize Court on charges of aiding and abetting a murder, aggravated theft
and attempted aggravated theft. One item of evidence was the recording of a telephone conversation
that the applicant had had on a line belonging to a third party, a recording that had been made at the
request of an investigating judge at Saint-Gaudens in connection with other proceedings. An appeal
on points of law brought by Mr Kruslin on this ground was dismissed by the Court of Cassation.
2. Huvig case
Mr Huvig, who, with his wife's assistance, ran a business at the material time, was the subject of a
complaint in December 1973 alleging tax evasion, failure to make entries in accounts and false
accounting.
A judicial investigation was begun by an investigating judge at Chaumont, who issued a warrant to the
gendarmerie at Langres requiring them to monitor and transcribe all Mr and Mrs Huvig's telephone
calls, both business and private ones. The telephone tapping took place over a period of 28 hours in
April 1974.
Charges were brought against Mr and Mrs Huvig, who were convicted on nearly all of them by the
Chaumont tribunal de grande instance in March 1982. In March 1983 the Dijon Court of Appeal
1 The text of the Articles mentioned in this release is appended.
32

upheld the convictions and increased the sentences. In April 1984 the Court of Cassation dismissed
an appeal on points of law by the applicants.
B. Proceedings before the European Commission of Human Rights
The applications made by Mr and Mrs Huvig on 9 August 1984 and by Mr Kruslin on 16 October
1985 were declared admissible by the Commission on 6 July 1988 and 6 May 1988 respectively -
the Huvigs' in part and Mr Kruslin's in its entirety.
Having attempted unsuccessfully to achieve friendly settlements, the Commission drew up two
reports 2 on 14 December 1988 in which it established the facts and expressed the opinion (by 10
votes to 2) that there had been a breach of Article 8 of the Convention.
The Commission referred the cases to the Court on 16 March 1989.
II. SUMMARY OF THE JUDGMENTS 3
I. Article 8 of the Convention
The Court found that the interceptions complained of amounted to interferences by a public
authority with the exercise of the applicants’ right to respect for their correspondence and their
private life. It proceeded to ascertain whether such interferences were justified under paragraph 2 of
Article 8.
[See paragraph 26 of the Kruslin judgment and paragraph 25 of the Huvig judgment.]
A. "In accordance with the law"
The expression "in accordance with the law", within the meaning of Article 8 § 2, required firstly
that the impugned measure should have some basis in domestic law, but also referred to the quality
of the law in question, requiring that it should be accessible to the person concerned, who had
moreover to be able to foresee its consequences for him, and compatible with the rule of law.
[See paragraph 27 of the Kruslin judgment and paragrapn 26 of the Huvig judgment.]
1. Whether there had been a legal basis in French law
It had been a matter of dispute before the Commission and the Court whether the first condition had been
satisfied. The applicants had said it had not been. The Government submitted that by "law" was meant
the law in force in a given legal system, in this instance a combination of the written law - essentially
Articles 81, 151 and 152 of the Code of Criminal Procedure - and the case-law interpreting it.
The Delegate of the Commission considered that in the case of the Continental countries, including
France, only a substantive enactment of general application - whether or not passed by Parliament -
could amount to a “law” for the purposes of Article 8 § 2 of the Convention.
[See paragraph 28 of the Kruslin judgment and paragraph 27 of the Huvig judgment.]
2 The reports are available to the press and the public on application to the Registrar of the Court.
3 This summary by the registry does not bind the Court.
33

The Court pointed out, firstly, that it was primarily for the national authorities, notably the courts, to
interpret and apply domestic law. It was therefore not for the Court to express an opinion contrary to
theirs on whether telephone tapping ordered by investigating judges was compatible with Article
368 of the Criminal Code. For many years now, the courts - and in particular the Court of Cassation
- had regarded Articles 81, 151 and 152 of the Code of Criminal Procedure as providing a legal basis
for telephone tapping carried out by a senior police officer under a warrant issued by an
investigating judge. The Court held that settled case-law of that kind could not be disregarded. In
relation to paragraph 2 of Article 8 of the Convention and other similar clauses, the Court had
always understood the term "law" in its substantive sense, not its formal one, and had included both
enactments of lower rank than statutes and unwritten law.
In sum, the Court held that the interferences complained of had had a legal basis in French law.
[See paragraph 29 of the Kruslin judgment and paragraph 28 of the Huvig judgment.]
2. "Quality of the law,'
The second requirement which emerged from the phrase "in accordance with the law" - the
accessibility of the law - did not raise any problem. The same was not true of the third requirement, the
law's "foreseeability” as to the meaning and nature of the applicable measures. As the Court had
pointed out in an earlier judgment, Article 8 § 2 of the Convention did not merely refer back to
domestic law but also related to the quality of the law, requiring it to be compatible with the rule of
law.
[See paragraph 30 of the Kruslin judgment and paragraph 29 of the Huvig judgment.]
The Government had submitted that the Court had to he careful not to rule on whether French
legislation conformed to the Convention in the abstract and not to give a decision based on legislative
policy.
[See paragraph 31 of the Kruslin judgment and paragraph 30 of the Huvig judgment.]
Since the Court had to ascertain whether the interferences complained of were "in accordance with the
law", it had to assess the relevant French "law" in force at the material times in relation to the
requirements of the fundamental principle of the rule of law. Tapping and other forms of interception
of telephone conversations represented a serious interference with private life and correspondence and
accordingly had to be based on a "law" that was particularly precise. It was essential to have clear,
detailed rules on the subject, especially as the technology available for use was continually becoming
more sophisticated.
The Government had listed seventeen safeguards which they said were provided for in French law.
These related either to the carrying out of telephone tapping or to the use made of the results or to the
means of having any irregularities righted, and the Government had claimed that the applicants had
not been deprived of any of them.
The Court did not in any way minimise the value of several of the safeguards. It noted, however,
that only some of them were expressly provided for in Articles 81, 151 and 152 of the Code of
Criminal Procedure. Others had been laid down piecemeal in judgments given over years, the great
majority of them after the interceptions complained of by the applicants. Some had not yet been
34

expressly laid down in the case law at all. Above all, the system did not for the time being afford
sufficient safeguards against various possible abuses. For example, the categories of people liable to
have their telephones tapped by judicial order and the nature of the offences which might give rise to
such an order were nowhere defined. Nothing obliged a judge to set a limit on the duration of
telephone tapping. Similarly unspecified were the procedure for drawing up the summary reports
containing intercepted conversations; the precautions to be taken in order to communicate the
recordings intact and in their entirety for possible inspection by the judge (who could hardly verify
the number and length of the original tapes on the spot) and by the defence; and the circumstances in
which recordings might be or had to be erased or the tapes be destroyed, in particular where an
accused had been discharged by an investigating judge or acquitted by a court. The information
provided by the Government on these various points showed at best the existence of a practice, but a
practice lacking the necessary regulatory control in the absence of legislation or case law.
In short, French law, written and unwritten, did not indicate with reasonable clarity the scope and
manner of exercise of the relevant discretion conferred on the public authorities. This was truer still
at the material times, so that the applicants had not enjoyed the minimum degree of protection to
which citizens were entitled under the rule of law in a democratic society. The Court therefore held
that there had been a breach of Article 8 of the Convention.
[See paragraphs 32-36 of the Kruslin judgment and point 1 of its operative provisions; and
paragraphs 31-35 of the Huvig judgment and point 1 of its operative provisions.]
B. Purpose and necessity of the interference
The Court, like the Commission, did not consider it necessary to review compliance with the other
requirements of paragraph 2 of Article 8.
[See paragraph 37 of the Kruslin judgment and paragraph 36 of Huvig judgment.]
II. Article 50 of the Convention
A. Kruslin case
The applicant claimed, firstly, compensation in the amount of 1,000,000 French francs (FRF) in
respect of his fifteen-year prison sentence. He also sought reimbursement of FRF 70,000 in respect
of lawyer's fees and expenses in the national proceedings. He made no claim for the proceedings at
Strasbourg, as the Commission and the Court had granted him legal aid. The Government and the
Delegate of the Commission expressed no opinion on the matter.
The Court considered that the finding that there been a breach of Article 8 afforded Mr Kruslin
sufficient just satisfaction for the alleged damage and that it was accordingly unnecessary to award
pecuniary compensation.
[See paragraphs 38-39 of the judgment and point 2 of the operative provisions]
As to the costs and expenses, theCourt held that France was to pay the applicant the sum of FRF 20,000
which he had sought in respect of one set of national proceedings. It dismissed the remainder of his
claims.
35

[See paragraph 40 of the judgment and points 3 and 4 of the operative provisions.]
B. Huvig case
The applicants had asked the Commission to award them "just compensation", but before the Court
they had not sought either compensation or reimbursement of costs and expenses.
As these were not matters which the Court had to examine of its own motion, it found that it was
unnecessary to apply Article 50 in this case.
[See paragraphs 37-38 of the judgment and point 2 of the operative provisions.]
***
In accordance with the Convention, the judgments were delivered by a Chamber composed of seven
judges, namely Mr R. Ryssdal (Norwegian), President , Mrs D. Bindschedler-Robert (Swiss), Mr F.
Gölcüklü (Turkish), Mr F. Matscher (Austrian), Mr L.-E. Pettiti (French), Mr B. Walsh (Irish) and
Sir Vincent Evans (British), and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar.
***
For further information, reference should be made to the text of the judgments, which are available
on request and will be published shortly as volume 176 of Series A of the Publications of the Court
(obtainable from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D - 5000 Köln 41).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
Article 8
***
A P P E N D I X
Convention Articles referred to in the release
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 50
If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the ...
convention, and if the internal law of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court shall, if necessary, afford just
satisfaction to the injured party.
36

6. B. v. France, judgment of 25 March 1992, application no. 13343/87. (Violation of Article 8
of the Convention). Refusal of rectifying civil status data about a person further to her
change of gender
[…]
AS TO THE FACTS
COURT (PLENARY)
CASE OF B. v. FRANCE
(Application no. 13343/87)
JUDGMENT
STRASBOURG
25 March 1992
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was
registered with the civil status registrar as of male sex, with the forenames Norbert Antoine.
A. The background to the case
10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was
considered as a girl by her brothers and sisters and is said to have had difficulty coping with a
wholly segregated scholastic environment.
She completed her military service in Algeria, as a man, and her behaviour at the time was
noticeably homosexual.
After spending five years teaching reading and writing to young persons from Kabylia, she left
Algeria in 1963 and settled in Paris, working in a cabaret under an assumed name.
11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967,
when she was treated in hospital for a month. The doctor who treated her from 1963 observed a
hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly
brought about development of the breasts and feminisation of her appearance. The applicant adopted
female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the
removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below).
12. Miss B. is now living with a man whom she met shortly before her operation and whom she at
once informed of her situation. She is no longer working on the stage, and is said to have been
unable to find employment because of the hostile reactions she aroused.
B. The proceedings brought by the applicant
1. Before the Libourne tribunal de grande instance
37

13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public
prosecutor (procureur de la République) on 18 April 1978, asking the court
"to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in
reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her]
birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette".
14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the
following reasons:
"...
Whereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at
birth as of male sex, developed towards female morphology, appearance and behaviour, apparently
because of congenital hypogenesis ... and psychological tendencies following hormone treatment and
surgical operations;
Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes;
Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the
inalienability of the status of individuals;
..."
2. Before the Bordeaux Court of Appeal
15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment
of the lower court. The court said inter alia:
"... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors
existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it
be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true
sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having
been tried and without the operations having been necessitated by Mr [B.’s] biological development.
..."
3. Before the Court of Cassation
16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows:
"This appeal complains that the challenged judgment dismissed the appellant’s application for
rectification of civil status,
On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an
amendment can be made where ‘irreversible necessity, independent of the individual, compels this’,
which may be the case with real transsexuals, such amendment can be approved only after a long period
of observation and reflection prior to the operation stage, during which a qualified medical team can
‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form
of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone
treatment did not carry out any protracted observation, no guarantee of such observation was given
before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about
solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation
he still shows the characteristics of a person of male sex whose external appearance has been altered
thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden
true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other
treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological
development’ ...;
Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by
biological components but also by psychological ones; that by considering surgery undergone by a
transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept
his male genetic and chromosomal characteristics, and by not undertaking any investigation of his
38

contradictory psychological history - investigation which was not prevented by the lack of psychotherapy
of the patient before the operation, bearing in mind the expert report produced for the court - the Court of
Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code.
..."
The applicant’s supplementary pleadings opened with the following "introduction":
"The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing
them rectification of their civil status.
The solution is legally possible since the European Commission of Human Rights has stated sexual
identity to be a fundamental right of the individual.
It is humanly necessary in order for people who are not medically perverted but are merely victims of
aberrations of nature finally to be able to live in harmony with themselves and with the whole of
society."
It also included an argument relating to the Convention:
"VI. In the European legal system this argument [accepting the transsexual’s right to recognition of his
true identity] has been entirely accepted, thus making up for the absence of a French statutory provision
on the point.
The European Commission of Human Rights, when applied to by a transsexual whose request had been
dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take
account of changes which had occurred lawfully Belgium had failed to observe the respect due to the
applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on
Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of
physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an
ambiguous being, an appearance’ ...
This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental
right of the individual ∗ .
France has expressly subscribed thereto by issuing a declaration [recognising] the right of individual
petition to the European Commission of Human Rights ..."
17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March
1987 for the following reasons:
[…]
"Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the
tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should
consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette;
whereas his application was dismissed by the confirmatory judgment under appeal;
Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite
the fact that sexual identity is constituted not only by biological components but also by psychological
ones, so that by taking a decision without carrying out any investigation of his psychological history it
deprived its decision of any legal foundation;
Whereas, however, the court of second instance found that even after the hormone treatment and surgical
operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex;
whereas it considered that, contrary to the contentions of the person in question, his present state is not
the result of elements which existed before the operation and of surgical intervention required by
therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it
thus justified its decision in law; whereas the ground of appeal can therefore not be upheld;
..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87)
∗ Note by the Registrar: opinion of the Commission in the case of Van Oosterwijck v. Belgium, Series B no. 36, p. 26, para. 52.
39

II. THE MERITS
A. Alleged violation of Article 8 (art. 8)
43. According to the applicant, the refusal to recognise her true sexual identity was a breach of
Article 8 (art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others."
She argued that by failing to allow the indication of her sex to be corrected in the civil status register
and on her official identity documents, the French authorities forced her to disclose intimate
personal information to third parties; she also alleged that she faced great difficulties in her
professional life.
44. The Court notes first of all that the notion of "respect" enshrined in Article 8 (art. 8) is not clearcut.
This is the case especially where the positive obligations implicit in that concept are concerned,
as in the instant case (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A
no. 106, p. 14, para. 35, and the Cossey v. the United Kingdom judgment of 27 September 1990,
Series A no. 184, p. 15, para. 36), and its requirements will vary considerably from case to case
according to the practices followed and the situations obtaining in the Contracting States. In
determining whether or not such an obligation exists, regard must be had to the fair balance that has
to be struck between the general interest and the interests of the individual (see in particular the
above-mentioned Cossey judgment, p. 15, para. 37).
45. Miss B. argued that it was not correct to consider her application as substantially identical to
those of Mr Rees and Miss Cossey previously before the Court.
Firstly, it was based on new scientific, legal and social elements.
Secondly, there was a fundamental difference between France and England in this field, with regard
to their legislation and the attitude of their public authorities.
Thus the application of the very criteria stated in the above-mentioned judgments of 17 October
1986 and 27 September 1990 would have led to a finding of a violation by France, as French law,
unlike English law, did not even acknowledge the appearance lawfully assumed by a transsexual.
The applicant also invited the Court to develop its analysis further than in the aforesaid two cases.
She wished the Court to hold that a Contracting State is in breach of Article 8 (art. 8) if it denies in
general fashion the reality of the psycho-social sex of transsexuals.
1. Scientific, legal and social developments
46. (a) The Court said in the Cossey judgment that it "[had] been informed of no significant
scientific developments that [had] occurred" since the Rees judgment; "in particular, it remain[ed]
the case ... that gender reassignment surgery [did] not result in the acquisition of all the biological
characteristics of the other sex" (loc. cit., p. 16, para. 40).
According to the applicant, science appears to have contributed two new elements to the debate on
the contrast between appearance (changed somatic sex and constructed gonadal sex) and reality
(unchanged chromosomal sex but contrary psycho-social sex) as regards the sex of transsexuals.
Firstly, the chromosomal criterion was not infallible (cases of persons with intra-abdominal testicles,
40

so-called testicular feminisation, or with XY chromosomes despite their feminine appearance);
secondly, current research suggested that the ingestion of certain substances at a given stage of
pregnancy, or during the first few days of life, determined transsexual behaviour, and that
transsexualism might result from a chromosome anomaly. There might thus be a physical, not
merely psychological explanation of the phenomenon, which would mean that there could be no
excuse for refusing to take it into account in law.
(b) As regards the legal aspects of the problem, Miss B. relied on the dissenting opinion of Judge
Martens, annexed to the Cossey judgment (Series A no. 184, pp. 35-36, para. 5.5); the differences
which still subsisted between the member States of the Council of Europe as to the attitude to be
adopted towards transsexuals (ibid., p. 16, para. 40) were counterbalanced to an increasing extent by
developments in the legislation and case-law of many of those States. This was supported by
resolutions and recommendations of the Assembly of the Council of Europe and the European
Parliament.
(c) Finally, the applicant stressed the rapidity of social changes in the countries of Europe, and the
diversity of cultures represented by those countries which had adapted their laws to the situation of
transsexuals.
47. The Government did not deny that science had in the twentieth century, especially in the last
three decades, made considerable advances in the use of sexual hormones and in plastic and
prosthetic surgery, and that the question of sexual identity was still in the course of evolution from
the medical point of view. Transsexuals nevertheless kept their original chromosomal sex; only their
appearance could be changed. But the law should fasten on the reality. Moreover, operations which
presented certain dangers should not be trivialised.
National laws were also evolving and many of them had already changed, but the new laws thus
introduced did not lay down identical solutions.
In short, things were in a state of flux, legally, morally and socially.
48. The Court considers that it is undeniable that attitudes have changed, science has progressed and
increasing importance is attached to the problem of transsexualism.
It notes, however, in the light of the relevant studies carried out and work done by experts in this
field, that there still remains some uncertainty as to the essential nature of transsexualism and that
the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations
which result are moreover extremely complex: anatomical, biological, psychological and moral
problems in connection with transsexualism and its definition; consent and other requirements to be
complied with before any operation; the conditions under which a change of sexual identity can be
authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for
life with the new sexual identity); international aspects (place where the operation is performed); the
legal consequences, retrospective or otherwise, of such a change (rectification of civil status
documents); the opportunity to choose a different forename; the confidentiality of documents and
information mentioning the change; effects of a family nature (right to marry, fate of an existing
marriage, filiation), and so on. On these various points there is as yet no sufficiently broad
consensus between the member States of the Council of Europe to persuade the Court to reach
opposite conclusions to those in its Rees and Cossey judgments.
2. The differences between the French and English systems
49. The applicant argued that the lot of transsexuals could be seen to be much harder in France than
in England on a number of points. The Commission agreed in substance with this opinion.
41

50. In the Government’s opinion, on the other hand, the Court could not depart in the case of France
from the solution adopted in the Rees and Cossey judgments. The applicant might no doubt in the
course of her daily life experience a number of embarrassing situations, but they were not serious
enough to constitute a breach of Article 8 (art. 8). At no time had the French authorities denied
transsexuals the right to lead their own lives as they wished. The applicant’s own history was
evidence of this, as Miss B. had succeeded in passing as a woman despite her male civil status.
Besides, a transsexual who did not want third parties to know his or her biological sex was in a
similar situation to that of a person wishing to keep other personal information secret (age, income,
address, etc.).
Moreover, as a general consideration, the margin of appreciation allowed to the Contracting States
applied both to the choice of criteria for recognition of a change of sex and to the choice of ancillary
measures in the event of a refusal of recognition.
51. The Court finds, to begin with, that there are noticeable differences between France and England
with reference to their law and practice on civil status, change of forenames, the use of identity
documents, etc. (see paragraphs 19-22 and 25 above, to be contrasted with paragraph 40 of the
above-mentioned Rees judgment). It will examine below the possible consequences of these
differences in the present case from the point of view of the Convention.
(a) Civil status
(i) Rectification of civil status documents
52. The applicant considered the rejection of her request for rectification of her birth certificate to be
all the more culpable since France could not claim, as the United Kingdom had done, that there were
any major obstacles linked to the system in force.
The Court had found, in connection with the English civil status system, that the purpose of the
registers was not to define the present identity of an individual but to record a historic fact, and their
public character would make the protection of private life illusory if it were possible to make
subsequent corrections or additions of this kind (see the above-mentioned Rees judgment, Series A
no. 106, pp. 17-18, para. 42). This was not the case in France. Birth certificates were intended to be
updated throughout the life of the person concerned (see paragraph 19 above), so that it would be
perfectly possible to insert a reference to a judgment ordering the amendment of the original sex
recorded. Moreover, the only persons who had direct access to them were public officials authorised
to do so and persons who had obtained permission from the procureur de la République; their public
character was ensured by the issuing of complete copies or extracts. France could therefore uphold
the applicant’s claim without amending the legislation; a change in the Court of Cassation’s caselaw
would suffice.
53. In the Government’s opinion, French case-law in this respect was not settled, and the law
appeared to be in a transitional phase.
54. In the Commission’s opinion, none of the Government’s arguments suggested that the Court of
Cassation would agree to a transsexual’s change of sex being recorded in the civil status register. It
had rejected the appeal in the present case on the grounds that the applicant’s situation derived from
a voluntary choice on her part and not from facts which had existed prior to the operation.
55. The Court notes first of all that nothing would have prevented the insertion, once judgment had
been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was
42

not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to
reflect the applicant’s present position. Furthermore, numerous courts of first instance and courts of
appeal have already ordered similar insertions in the case of other transsexuals, and the procureur’s
office has hardly ever appealed against such decisions, the great majority of which have now
become final and binding (see paragraph 23 above). The Court of Cassation has adopted a contrary
position in its case-law, but this could change (see paragraph 24 above).
It is true that the applicant underwent the surgical operation abroad, without the benefit of all the
medical and psychological safeguards which are now required in France. The operation nevertheless
involved the irreversible abandonment of the external marks of Miss B.’s original sex. The Court
considers that in the circumstances of the case the applicant’s manifest determination is a factor
which is sufficiently significant to be taken into account, together with other factors, with reference
to Article 8 (art. 8).
(ii) Change of forenames
56. The applicant pointed out that the law of 6 Fructidor Year II (see paragraph 22 above) prohibited
any citizen from bearing a surname or forename other than those recorded on his or her birth
certificate. In the eyes of the law, her forename was therefore Norbert; all her identity documents
(identity card, passport, voting card, etc.), her cheque books and her official correspondence
(telephone accounts, tax demands, etc.) described her by that name. Unlike in the United Kingdom,
whether she could change her forename did not depend on her wishes only; Article 57 of the Civil
Code made this subject to judicial permission and the demonstration of a "legitimate interest"
capable of justifying it (see paragraph 22 above). Miss B. knew of no decision which had regarded
transsexualism as giving rise to such an interest. In any event, the Libourne tribunal de grande
instance and the Bordeaux Court of Appeal had refused to allow her the forenames Lyne Antoinette
(see paragraphs 13-15 above). Finally, the status of informally adopted forenames was highly
uncertain.
The Commission agreed in substance with this argument.
57. The Government maintained, on the other hand, that there was ample favourable case-law on the
point, supported by the public prosecutor’s offices. It merely required that a "neutral" forename such
as Claude, Dominique or Camille was chosen; the applicant had, however, requested forenames
which were exclusively female.
In addition, many people frequently made use of an informally adopted forename ("prénom
d’usage") which differed from that recorded in their birth certificate. The Government conceded,
however, that this practice had no legal validity.
58. The judgments supplied to the Court by the Government do indeed show that non-recognition of
the change of sex does not necessarily prevent the person in question from obtaining a new
forename which will better reflect his or her physical appearance (see paragraph 23 above).
However, this case-law was not settled at the time when the Libourne and Bordeaux courts gave
their rulings. Indeed, it does not appear to be settled even today, as the Court of Cassation has
apparently never had an occasion to confirm it. Moreover, the door it opens is a very narrow one, as
only the few neutral forenames can be chosen. As to informally adopted forenames, they have no
legal status.
To sum up, the Court considers that the refusal to allow the applicant the change of forename
requested by her is also a relevant factor from the point of view of Article 8 (art. 8).
43

(b) Documents
59. (a) The applicant stressed that an increasing number of official documents indicated sex: extracts
of birth certificates, computerised identity cards, European Communities passports, etc.
Transsexuals could consequently not cross a frontier, undergo an identity check or carry out one of
the many transactions of daily life where proof of identity is necessary, without disclosing the
discrepancy between their legal sex and their apparent sex.
(b) According to the applicant, sex was also indicated on all documents using the identification
number issued to everyone by INSEE (see paragraph 26 above). This number was used as part of the
system of dealings between social security institutions, employers and those insured; it therefore
appeared on records of contributions paid and on payslips. A transsexual was consequently unable to
hide his or her situation from a potential employer and the employer’s administrative staff; the same
applied to the many occasions in daily life where it was necessary to prove the existence and amount
of one’s income (taking a lease, opening a bank account, applying for credit, etc). This led to
difficulties for the social and professional integration of transsexuals. Miss B. had allegedly been a
victim of this herself. The INSEE number was also used by the Banque de France in keeping the
register of stolen and worthless cheques.
(c) Finally, the applicant encountered problems every day in her economic life, in that her invoices
and cheques indicated her original sex as well as her surname and forenames.
60. The Commission agreed substantially with the applicant’s arguments. In its opinion the
applicant, as a result of the frequent necessity of disclosing information concerning her private life
to third parties, suffered distress which was too serious to be justified on the ground of respect for
the rights of others.
61. The Government replied, to begin with, that certificates of civil status and French nationality,
driving licences, voting cards and national identity cards of traditional type did not mention sex.
This was admittedly not the case with the Community passport, but the design of that depended on
regulations from Brussels and was thus not a requirement imposed by France. The applicant could in
fact enjoy freedom of movement independently of her sexual identity, and some of the examples
given by her were of no relevance; thus the report of a road accident or other claim did not require
the sex of the insured to be specified.
The INSEE number had been introduced after the second world war for demographic statistical
purposes, and was used subsequently for identifying the recipients of French social security benefits.
It was hardly ever used apart from this, and did not appear on identity cards, passports or other
administrative documents. In any event, the public authorities to which it was communicated were
obliged to keep it secret. As for employers, they needed to know it in order to pay a proportion of
their employees’ social security contributions.
In this connection the Government expressed the opinion that if Miss B. had been unable to find
paid work outside the entertainment world, there could be many reasons for this apart from her
being a transsexual. There were transsexuals who exercised other equally worthy professions. What
was more, any discrimination in recruitment based on the sex or morals of the person concerned was
an offence under Article 416-1 of the Criminal Code. No transsexual had ever relied on this Article.
There was no reason either why banks should not be asked to print on cheques only the surname and
forenames of the drawer without the prefix "M.", "Mme" or "Mlle" (see paragraph 27 above), nor
did banks verify that the forenames stated were the same as those recorded in the civil status
register. Similarly, invoices did not normally mention the customer’s sex or forenames, but only the
44

surname (see paragraph 28 above). There were thus means available to transsexuals for preserving
their privacy.
62. The Court is not convinced by this argument. It considers, in agreement with the Commission,
that the inconveniences complained of by the applicant in this field reach a sufficient degree of
seriousness to be taken into account for the purposes of Article 8 (art. 8).
(c) Conclusion
63. The Court thus reaches the conclusion, on the basis of the above-mentioned factors which
distinguish the present case from the Rees and Cossey cases and without it being necessary to
consider the applicant’s other arguments, that she finds herself daily in a situation which, taken as a
whole, is not compatible with the respect due to her private life. Consequently, even having regard
to the State’s margin of appreciation, the fair balance which has to be struck between the general
interest and the interests of the individual (see paragraph 44 above) has not been attained, and there
has thus been a violation of Article 8 (art. 8).
The respondent State has several means to choose from for remedying this state of affairs. It is not
the Court’s function to indicate which is the most appropriate (see inter alia the Marckx v. Belgium
judgment of 13 June 1979, Series A no. 31, p. 25, para. 58, and the Airey v. Ireland judgment of 9
October 1979, Series A no. 32, p. 15, para. 26).
45

7. Lüdi v. Switzerland, judgment of 15 June 1992, Series A no.238 (No violation of the
Convention). Telephone interception combined with the intervention of an undercover agent.
281
15.6.92
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF LÜDI v. SWITZERLAND
In a judgment delivered at Strasbourg on 15 June 1992 in the case of Lüdi v. Switzerland, the Court
found by 8 votes to 1 that there had been a violation of Article 6 (paragraph 3 (d) in conjunction
with paragraph 1) of the European Convention on Human Rights, in that the applicant had not
enjoyed a fair trial, because of excessive restriction of the rights of the defence. By contrast, it held
unanimously that the surveillance of the applicant's telephone communications combined with the
intervention of an undercover agent had not breached Article 8 1 .
The judgment was read out in open court by MrRolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
On 15 March 1984 the Laufen investigating judge, acting on information from the German police
that MrLüdi was planning to buy drugs in Switzerland, opened a preliminary inquiry against him
and ordered his telephone communications to be intercepted. The police authorities selected one of
their officers to pass himself off as a potential purchaser of cocaine. After five meetings with this
agent, the applicant was arrested on 1 August 1984 and charged with unlawful trafficking in drugs.
On 4 June 1985 the Laufen District Court found him guilty on seven charges under the Federal
Drugs Law and sentenced him to three years' imprisonment. In order to protect the police officer's
anonymity, the court had refused to call him as a witness, on the grounds that it followed clearly
from his reports and the records of the telephone interceptions that the applicant had, independently
of the agent's intervention, intended to act as intermediary in the supply of substantial quantities of
drugs. His appeal against his conviction for two of the offences was dismissed on 24 October 1985
by the Berne Court of Appeal, which likewise refused to call the agent as a witness. On 8 April
1986 the Federal Court dismissed Mr Lüdi's public-law appeal; on the other hand, it granted his
application for a declaration of nullity, inter alia on the grounds that insufficient account had been
taken, when passing sentence, of the effect of the agent's activities. The Berne Court of Appeal
subsequently reduced the sentence to eighteen months' imprisonment, suspended for three years.
B. Proceedings before the European Commission of Human Rights
The application was lodged with the Commission on 30 September 1986 and declared admissible on
10 May 1990. After attempting unsuccessfully to secure a friendly settlement, the Commission
1. The text of the Articles mentioned in this press release is appended.
47

drew up a report 2 on 6 December 1980 in which it established the facts and expressed the opinion
that there had been violations of Article 8 (10 votes to 4) and of paragraph 3(d) in conjunction with
paragraph 1 of Article 6 (13 votes to 1).
The case was referred to the Court by the Commission on 8 March 1991, and by the Government of
the Swiss Confederation on 25 April 1991.
II. SUMMARY OF THE JUDGMENT 3
I. The Government's preliminary objection
Notwithstanding the mitigation of his sentence by the Berne Court of Appeal, the applicant could
claim to be a victim within the meaning of Article 25 of the Convention.
[See paragraphs 31-34 of the judgment and point 1 of the operative provisions]
II. Article 8
The Court had no doubt that the telephone interception had been an interference with MrLüdi's
private life and correspondence. It found, however, that this interference had been "in accordance
with the law" (Articles 171b and 171c of the Berne Code of Criminal Procedure) and "necessary in a
democratic society" for "the prevention of crime".
[See paragraphs 35-39 of the judgment]
It considered, by contrast, that the use of an undercover agent had not in the present case, either
alone or in combination with the telephone interception, affected private life. The use of an
undercover agent had taken place within the context of a deal relating to 5 kg of cocaine and had
been aimed at arresting the dealers. MrLüdi must have been aware that he was engaged in a
criminal act under the Drugs Law and that consequently he ran the risk of encountering an
undercover police officer whose task would in fact be to expose him.
[See paragraphs 40-41 of the judgment and point 2 of the operative provisions]
III. Article 6 §§ 1 and 3 (d)
According to the Court's consistent case-law, the evidence must normally be produced in the
presence of the defendant at a public hearing with a view to adversarial argument. There were
exceptions to this principle, but the rights of the defence had to be respected.
[See paragraphs 42-47 of the judgment]
The applicant's conviction had been based not on the testimony of anonymous witnesses but inter
alia on the written statements of a sworn police officer whose mission the investigating judge had
2. The report is available to the press and the public on application to the Registrar of the Court.
3. This summary by the registry does not bind the Court.
48

een aware of. Moreover, the applicant knew the agent, if not by his real identity, at least by his
physical appearance, as a result of having met him.
However, neither the investigating judge nor the trial courts had been able or willing to call the
undercover agent as a witness and carry out a confrontation with the aim of comparing his
statements with Mr Lüdi's allegations. In addition, neither Mr Lüdi nor his counsel had at any time
during the proceedings had an opportunity to question him and cast doubt on his credibility. Yet it
would have been possible to do this in a way which took into account the legitimate interest of the
police authorities, in a drug trafficking case, in preserving the anonymity of their agent, so that they
could protect him and also make use of him again in the future.
In short, the rights of the defence had been restricted to such an extent that the applicant had not had
a fair trial. There had therefore been a violation of paragraph 3(d) in conjunction with paragraph1
of Article 6.
[See paragraphs 48-50 of the judgment and point 3 of the operative provisions]
IV. Article 50
Mr Lüdi claimed the reimbursement of his costs and expenses before the Federal Court and the
Strasbourg institutions, but the Government considered the sums claimed excessive.
The Court, reaching its decision on an equitable basis, awarded 15,000 Swiss francs.
[See paragraphs 51-53 of the judgment and points 4 and 5 of the operative provisions]
In accordance with the Convention, the judgment was delivered by a Chamber of nine judges,
namely MrR.Ryssdal (Norwegian), President, Mr J. Cremona (Maltese), MrF.Matscher
(Austrian), Mr B. Walsh (Irish), Mr A. Spielmann (Luxemburger), MrS.K.Martens (Dutch),
Mr A.N. Loizou (Cypriot), Mr F. Bigi (San Marinese) and Mr L. Wildhaber (Swiss), and also of
Mr M.-A. Eissen, Registrar , and MrH.Petzold, Deputy Registrar .
***
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 238 of Series A of the Publications of the Court
(obtainable from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D-5000 Köln 41).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
49

Article 6 §§ 1 and 3(d)
A P P E N D I X
Text of the Articles of the Conventionreferred to in the press release
"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
..."
Article 8
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others."
Article 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the
(...) Convention, and if the internal law of the said Party allows only partial reparation to be made
for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford
just satisfaction to the injured party”.
50

8. Niemietz v. Germany, judgment of 16 December 1992, Series A no.251-B (Violation of
Article 8 of the Convention). Search of a lawyer’s office in course of criminal proceedings
against a third party.
555
16.12.92
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF NIEMIETZ v. GERMANY
In a judgment delivered at Strasbourg on 16 December 1992 in the case of Niemietz v. Germany, the
European Court of Human Rights held unanimously that the search of the applicant's law office had
given rise to a violation of Article 8 of the European Convention on Human Rights (right to respect
for private and family life, home and correspondence). It dismissed unanimously his claim for just
satisfaction under Article 50 4 .
The judgment was read out in open court by Mr Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
On 9 December 1985 a letter concerning criminal proceedings pending before the Freising District
Court was sent by telefax from the Freiburg post office to a judge of that court. It bore the signature
"Klaus Wegner" - possibly a fictitious person - followed by the words "on behalf of the Anti-clerical
Working Group of the Freiburg Bunte Liste ". The applicant had for some years been chairman of
the Bunte Liste , which is a local political party, and the colleague with whom he shared his office
had also been active on its behalf.
2. In view of the contents of the letter, criminal proceedings were subsequently instituted against
Klaus Wegner for insulting behaviour. In the course of the investigations the Munich District Court
issued, on 8 August 1986, a warrant to search, inter alia, the applicant's office for and to seize any
documents revealing the identity of Klaus Wegner; the reason given in the warrant was that mail for
the Bunte Liste was sent to a post-office box the contents of which had, until 1985, been forwarded
to the applicant's office. The search was effected on 13 November 1986; four cabinets with data
concerning clients and six individual files were examined but no relevant documents were found.
3. On 27 March 1987 the Munich I Regional Court declared the applicant's appeal against the search
warrant to be inadmissible, on the ground that it had already been executed. It considered that there
was no legal interest in having the warrant declared unlawful and it also noted, amongst other
things, that it could not be assumed that mail for the Bunte Liste could concern a lawyer-client
relationship. On 18 August 1987 the Federal Constitutional Court declined to accept for
4 The text of the Articles mentioned in this release is appended.
51

adjudication the applicant's constitutional complaint against the search warrant and the Regional
Court's decision, on the ground that it did not offer sufficient prospects of success.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 15 February 1988, was declared partly
admissible on 5 April 1990.
Having attempted unsuccessfully to secure a friendly settlement, the Commission drew up a report 5
on 29 May 1991, in which it established the facts and expressed the unanimous opinion that there
had been a violation of Article 8 of the Convention and that no separate issue arose under Article 1
of Protocol No. 1.
The Commission referred the case to the Court on 12 July 1991.
II. SUMMARY OF THE JUDGMENT6
I. Article 8 of the Convention
1. The Court held firstly that there had been an interference with the applicant's rights under Article
8, thereby rejecting the German Government's argument that that provision did not afford protection
against the search of a lawyer's office. It noted the following in this connection.
(a) Respect for private life comprised to a certain degree the right to establish and develop
relationships with others. There was no reason of principle why the notion of "private life" should
be taken to exclude professional or business activities, since it was in the course of their working
lives that the majority of people had a significant opportunity of developing such relationships. To
deny the protection of Article 8 on the ground that the measure complained of related only to
professional activities could lead to an inequality of treatment, in that such protection would remain
available to a person whose professional and non-professional activities could not be distinguished.
(b) In certain Contracting States the word "home" had been accepted as extending to business
premises, an interpretation which was consonant with the French text of Article 8 ("domicile"). A
narrow interpretation of "home" could give rise to the same risk of inequality of treatment as that
mentioned at (a) above.
(c) To interpret the words "private life" and "home" as including certain professional or business
activities or premises would be consonant with the object and purpose of Article 8; the entitlement
of the Contracting States to "interfere" under paragraph 2 of that provision would remain and might
be more far-reaching for such activities or premises than would otherwise be the case.
(d) In addition, it was clear from the particular circumstances of the case that the search operations
must have covered "correspondence" within the meaning of Article 8.
[see paragraphs 27-33 of the judgment]
5 Available to the press and the public on request to the Registrar of the Court.
6 This summary by the registry does not bind the Court.
52

2. In the Court's opinion, the interference in question was "in accordance with the law" and pursued
aims that were legitimate under paragraph 2 of Article 8, but was not "necessary in a democratic
society". It considered in particular that, having regard to the materials that were in fact inspected,
the search impinged on professional secrecy to an extent that was disproportionate in the
circumstances.
3. The Court thus concluded that there had been a breach of Article 8.
[see paragraphs 34-38 of the judgment and point 1 of the operative provisions]
II. Article 1 of Protocol No. 1
Mr Niemietz submitted that, by impairing his reputation as a lawyer, the search had violated Article
1 of Protocol No. 1. The Court concluded that no separate issue arose under this provision.
[see paragraphs 39-40 of the judgment and point 2 of the operative provisions]
III. Article 50 of the Convention
The Court dismissed the applicant's claim for compensation under Article 50: he had not established
any pecuniary damage or supplied particulars of his costs and expenses, and the finding of a
violation of Article 8 constituted sufficient just satisfaction for any non-pecuniary damage he might
have sustained.
[see paragraphs 41-43 of the judgment and point 3 of the operative provisions]
***
In accordance with the Convention the judgment was delivered by a Chamber composed of nine
judges, namely, Mr R. Ryssdal (Norwegian), President , Mr R. Bernhardt (German), Mr L.-E. Pettiti
(French), Mr B. Walsh (Irish), Mr C. Russo (Italian),
Mr A. Spielmann (Luxemburger), Mr N. Valticos (Greek), Mr A.N. Loizou (Cypriot) and Sir John
Freeland (British), and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar.
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 251-B of Series A of the Publications of the Court
(available from Carl Heymanns Verlag KG, Luxemburger Strasse 449,
D - 5000 Köln 41).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
53

Articles mentioned in the release
Article 8 of the Convention
A P P E N D I X
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others."
Article 50 of the Convention
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the
(...) Convention, and if the internal law of the said Party allows only partial reparation to be made
for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford
just satisfaction to the injured party."
Article 1 of Protocol No. 1
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public interest and subject to the conditions provided for
by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such
laws as it deems necessary to control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties."
54

9. Funke v. France judgment of 25 February 1993, Series A no.256-A, Eur. Court HR,
Crémieux v. France judgment of 25 February 1993, Series A no.256-B , and Eur. Court HR,
Miailhe v. France judgment of 25 February 1993, Series A no.256-C (Violation of Article 8
of the Convention). House searches and seizures made by customs officers.
83
25.2.93
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENTS IN THE CASES OF FUNKE, CREMIEUX AND
MIAILHE v. FRANCE
In three judgments delivered at Strasbourg on 25 February 1993 in the cases of Funke, Crémieux
and Miailhe v. France, the European Court of Human Rights held by eight votes to one that the
house searches and seizures made by the customs had violated Article 8 of the European Convention
on Human Rights 1 . It also held by eight votes to one that, for want of a fair trial, there had been a
violation of Article 6 § 1 in the Funke case.
The judgments were read out in open court by Mr Rudolf Bernhardt, Vice-President of the Court.
I. BACKGROUND TO THE CASES
A. PRINCIPAL FACTS
1. Funke case
Mr Funke, a German citizen, was a sales representative living in France. He died in 1987 and the
proceedings were continued by his widow.
In connection with inquiries into possible offences against the legislation governing financial
dealings with foreign countries, customs officers, assisted by a senior police officer, searched Mr
and Mrs Funke's home on 14 January 1980 and seized a number of documents and other items. They
also asked Mr Funke to produce the statements of certain bank accounts abroad. In April 1982 the
customs authorities obtained from the Strasbourg District Court an order, upheld on appeal, for
attachment of Mr Funke’s assets to the value of 100,220 French francs to secure the payment of
customs penalties. The applicant's bank accounts were consequently frozen in August 1982 and a
charge was registered over a property of his; these measures were lifted in July 1990 on an
application by Mrs Funke.
As Mr Funke failed to honour his undertaking to produce the statements, the customs authorities
instituted proceedings in the Strasbourg police court, which on 27 September 1982 fined him 1,200
francs and ordered him to produce the documents on pain of a penalty of 20 francs per day's delay.
On 14 March 1983 the Colmar Court of Appeal upheld this decision save on one point, but raised
1 The text of the Articles mentioned in this release is appended.
55

the daily penalty to 50 francs. An appeal on points of law by Mr Funke was dismissed by the Court
of Cassation on 21 November 1983. Finally, in January 1985 the customs authorities served a notice
on Mr Funke’s bank requiring it to pay the penalties then due for failure to produce the statements.
The validity of this notice was confirmed by the District Court in March 1985, but its decision was
reversed by the Colmar Court of Appeal in February 1989, whereupon the customs authorities
appealed to the Court of Cassation, but without success. At the time of his death on 22 July 1987,
Mr Funke had still not been committed for trial on charges of offences against the legislation in
question.
2. Crémieux case
In connection with inquiries into possible offences against the legislation governing financial
dealings with foreign countries, involving a company of which Mr Crémieux, a French national, was
chairman and managing director, customs officers, assisted by a senior police officer, made
numerous searches at the applicant's home and at other addresses of his between January 1977 and
February 1980 and seized a large quantity of documents. Charges were brought against the applicant
in November 1982, but the customs authorities subsequently agreed to a composition with him and
the criminal proceedings were brought to an end by a discharge order issued by the investigating
judge in June 1987. While the proceedings were still in progress, Mr Crémieux unsuccessfully
challenged the lawfulness and constitutionality of the searches and seizures, the validity of the
official reports on them and the compatibility of the relevant provisions of the Customs Code with
the European Convention on Human Rights; in particular, an application he made to the Court of
Cassation was dismissed in January 1985.
3. Miailhe case
On 5 and 6 January 1983 customs officials, assisted by a senior police officer, made searches at
premises occupied by Mr and Mrs Miailhe and Mr Miailhe’s mother, which also served as the
Philippines consulate, and seized nearly 15,000 documents, some of which were subsequently
returned. This operation was carried out in connection with an investigation of the applicants’
residence status (the applicants were French citizens but one of them also had Philippine nationality)
and for the purpose of establishing whether an offence had been committed against the legislation
governing financial dealings with foreign countries.
The applicants instituted proceedings in the Paris District Court against the Director-General of
Customs and Excise, seeking a declaration that the seizures were null and void. On 20 December
1983 the District Court held that it had no jurisdiction in the matter, as the ordinary courts could take
cognisance of such cases only in the event of an infringement of the liberty of the individual and a
flagrantly unlawful act. The applicants then applied to the Paris tribunal de grande instance , which
on 16 May 1984 likewise held that it had no jurisdiction. On an appeal by the applicants, this
decision was upheld on 23 October 1984 by the Paris Court of Appeal, which noted that no
manifest, deliberate violation of a personal freedom could be found. An appeal on points of law by
the applicants was dismissed by the Court of Cassation on 17 June 1986.
The applicants were charged on 20 June 1985 by an investigating judge in Bordeaux; on 3 July 1991
he made orders discharging Mrs Victoria Miailhe and committing Mr and Mrs Miailhe for trial at
the Criminal Court, and on 2 December 1992 that court ruled that the public prosecution and the
proceedings for imposition of customs penalties were barred.
56

B. Proceedings before the European Commission of Human Rights
The applications lodged on 13 February 1984 (Funke), 11 March 1985 (Crémieux) and 11
December 1986 (Miailhe) were declared admissible by the Commission on 6 October 1988, 19
January 1989 and 3 October 1990 respectively. Having attempted unsuccessfully to achieve a
friendly settlement, the Commission adopted three reports 2 on 8 October 1991 in which it
established the facts and expressed the opinion that there had been no violation:
(a) in the Funke case: of Article 6 § 1 either as regards the principle of a fair trial (seven votes to
five) or on account of the length of the proceedings (eight votes to four) , Article 6 § 2 (nine votes to
three) or Article 8 (six votes to six, with the President's casting vote);
(b) in the Crémieux case:- of Articles 8 (eleven votes to seven), 6 § 3 (unanimously) or 10
(unanimously);
(c) in the Miailhe case: of Articles 8 (eleven votes to seven) or 13 (unanimously).
The Commission referred the cases to the Court on 13 December 1991.
II. SUMMARY OF THE JUDGMENTS 3
I. Article 6 §§ 1 and 2 (Funke case)
A. Fairness of the proceedings and presumption of innocence
1. The Government's preliminary objection
In the Government's submission, Mr Funke did not have the status of victim, as no criminal
proceedings had been taken against him for contravening the regulations governing financial
dealings with foreign countries.
The Court dismissed the objection (unanimously), since the applicant's complaints under Article 6
related to quite different proceedings, those concerning the production of documents.
[See paragraphs 39-40 of the judgment and point 1 of the operative provisions.]
2. Merits of the complaint
(a) Article 6 § 1
The Court noted that the customs had secured Mr Funke’s conviction in order to obtain certain
documents which they believed must exist, although they were not certain of the fact. Being unable or
unwilling to procure them by some other means, they had attempted to compel the applicant himself to
provide the evidence of offences he had allegedly committed. The special features of customs law
2 Available to the press and the public on application to the Registrar of the Court.
3 This summary by the registry does not bind the Court.
57

could not justify such an infringement of the right of anyone "charged with a criminal offence”, within
the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to
incriminating himself. Since Mr Funke had not had a fair trial, there had been a violation of Article 6 §
1 (eight votes to one).
[See paragraphs 41-44 of the judgment and point 2 of the operative provisions.]
(b) Article 6 § 2
The foregoing conclusion made it unnecessary for the Court to ascertain whether Mr Funke's
conviction also contravened the principle of presumption of innocence (eight votes to one).
[See paragraph 45 of the judgment and point 3 of the operative provisions.']
B. Length of the proceedings
The Court considered it likewise unnecessary to examine the complaint that the proceedings relating
to the making and discharge of the interim orders had lasted for more than a "reasonable time as
required by Article 6 § 1 (eight votes to one).
[See paragraph 46 of the judgment and point 3 of the operative provisions.]
II. Article 8
A. Preliminary objections (Crémieux and Miailhe cases)
In the Government's submission, Mr Crémieux had not exhausted domestic remedies as he had not
complained in the ordinary courts of a flagrantly unlawful act and had not sought compensation, and
the Miailhes had lodged their application to Strasbourg prematurely, since they could, at the outset of
their trial at the Bordeaux Criminal Court, complain that the customs' action forming the basis of the
prosecution had been unlawful.
The Court dismissed the objections of inadmissibility (unanimously), as the applicants had brought
proceedings to have customs reports on the facts and on the seizures declared null and void and had
pursued them to a conclusion, without omitting to plead Article 8.
[See paragraphs 29-30 of the Crémieux judgment and 26-27 of the Miailhe judgment and point 1 of
the operative provisions of both.]
B. Merits of the complaint (Funke, Crémieux and Miailhe cases)
The Court noted that there had been an interference with the private lives and the correspondence of
all the applicants and also with the homes of Mr Funke and Mr Crémieux. It therefore had to
determine whether the interferences in question satisfied the conditions in paragraph 2 of Article 8.
[See paragraph 48 of the Funke judgment, 31 of the Crémieux judgment and 28 of the Miailhe
judgment.]
58

1. "In accordance with the law”
The applicants had contended that the interferences had had no legal basis: as worded at the time,
Article 64 of the Customs Code was, they claimed, contrary to the 1958 Constitution because it did
not make house searches and seizures subject to judicial authorisation.
The Court did not consider it necessary to determine the issue, as at all events the interferences
complained of were incompatible with Article 8 in other respects.
[See paragraphs 49-51 of the Funke judgment, 32-34 of the Crémieux judgment and 30-32 of the
Miailhe judgment.]
2. Legitimate aim
Notwithstanding the applicants’ arguments to the contrary, the Court was of the view that the
interferences were in pursuit of at any rate "the economic well-being of the country".
[See paragraph 52 of the Funke judgment, 35 of the Crémieux judgment and 33 of the Miailhe
judgment.]
3. Necessary in a democratic society
In the prevention of capital outflows and tax evasion, States encountered serious difficulties owing
to the scale and complexity of banking systems and financial channels and to the immense scope for
international investment, made all the easier by the relative porousness of national borders. The
Court therefore recognised that they might consider it necessary to have recourse to measures such
as house searches and seizures in order to obtain evidence of exchange-control offences and
prosecute those responsible. Nevertheless, the relevant legislation and practice had to afford
adequate and effective safeguards against abuse.
That had not been so in these cases. At the material time – and the Court did not have to express an
opinion on the legislative reforms of 1986 and 1989, which had been designed to afford better
protection for individuals - the customs authorities had had very wide powers; in particular, they had
exclusive competence to assess the expediency, number, length and scale of inspections. Above all,
in the absence of any requirement of a judicial warrant the restrictions and conditions provided for
in law appeared too lax and full of loopholes for the interferences with the applicants’ rights to have
been strictly proportionate to the legitimate aim pursued.
Furthermore, the authorities had never lodged a complaint against Mr Funke alleging an offence
against the regulations governing financial dealings with foreign countries, and the seizures made on
the Miailhes’ premises had been wholesale and, above all, indiscriminate.
In sum, there had been a breach of Article 8.
[See paragraphs 53-59 of the Funke judgment, 36-41 of the Crémieux judgment and 34-40 of the
Miailhe judgment and point 4 of the operative provisions in the Funke judgment and point 2 of the
operative provisions in the Cr6mieux and Miailhe judgments.]
59

III. Article 6 § 3 and Article 10 (Crémieux case)
The Court held that as the alleged infringements of the rights of the defence and of freedom of
expression related to the same facts as those which it had held to have contravened Article 8, it was
unnecessary to consider them separately (unanimously).
[See paragraph 42 of the judgment and point 3 of the operative provisions.]
IV. Article 13 (Miailhe case)
Before the Court the applicants had abandoned their complaint that they had had no effective
remedy before a national authority, and the Court held that it was unnecessary to examine the issue
of its own motion (unanimously).
[See paragraph 41 of the judgment and point 3 of the operative provisions.]
V. Article 50
A. Damage (Funke and Crémieux cases)
The Court considered that the applicants must have suffered non-pecuniary damage. It awarded FRF
50,000 to Mr Funke and held that the judgment afforded Mr Crémieux sufficient compensation
(unanimously).
[See paragraphs 61-62 of the Funke judgment and 44-45 of the Crémieux judgment and points 5 and 4
respectively of the operative provisions.]
B. Costs and expenses (Funke and Crémieux cases)
For costs and expenses incurred in the French courts and in the proceedings before the Convention
institutions the Court awarded FRF 70,000 to Mr Funke and FRF 50,000 to Mr Crémieux
(unanimously).
[See paragraphs 63-64 of the Funke judgment and 46-47 of the Crémieux judgment and point 5 of the
operative provisions of both.]
C. Question reserved (Miailhe case)
In the Court's view, the question of the application of Article 50 was not ready for decision in the
Miailhe case, although the criminal proceedings against Mr and Mrs Miailhe had ended.
Accordingly, it had to be reserved (unanimously).
[See paragraphs 42-44 of the judgment and point 4 of the operative provisions.)
***
In accordance with the Convention, the judgments were delivered by a Chamber composed of nine
judges, namely Mr R. Bernhardt (German), President , Mr Th6r Vilhjálmsson (Icelandic), Mr F.
60

Matscher (Austrian) , Mr L.E. Pettiti (French), Mr C. Russo (Italian), Mr N. Valticos (Greek), Mr
J.M. Morenilla (Spanish), Mr M.A. Lopes Rocha (Portuguese), and Mr L. Wildhaber (Swiss), and
also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar .
Two judges expressed separate opinions, and these are appended to the judgments.
***
For further information, reference should be made to the text of the judgments, which are available
on request and will be published shortly as volume 256-A, B and C of Series A of the Publications
of the Court (obtainable from Carl Heymans Verlag KG, Luxemburger Strasse 449, D - 5000 Köln
41).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court and in particular to enquiries from the press.
Article 6
***
A P P E N D I X
Convention provisions mentioned in the release
“1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
(d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in
court."
61

Article 8
“1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others."
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary."
Article 13
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity."
Article 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the ...
Convention, and if the internal law of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
62

10. Hoffmann v. Austria, judgment of 23 June 1993, Series A no.255-C (Violation of Articles 8
and 14 of the Convention). Parental rights after divorce refused to the mother in view of
her membership of the Jehovah’s Witnesses.
260
23.6.1993
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF HOFFMANN v. AUSTRIA
In a judgment delivered at Strasbourg on 23 June 1993 in the case of Hoffmann v. Austria, the
European Court of Human Rights held, by five votes to four, that there had been a violation of Article
8 taken in conjunction with Article 14 (discrimination on the ground of religion in the enjoyment of
the right to respect for family life) of the European Convention on Human Rights 1 . It also decided
unanimously that it was not necessary to rule on the allegation of a violation of Article 8 (right to
respect for family life) taken alone, that no separate issue arose under Article 9 (right to freedom of
thought, conscience and religion) either taken alone or in conjunction with Article 14 (prohibition of
any discrimination), and that it was not necessary to rule on the allegation of a violation of Article 2 of
Protocol No. 1 (right of parents to ensure the education and teaching of children in conformity with
their own religious and philosophical convictions). The respondent State was ordered, by eight votes
to one, to pay the applicant 75,000 Austrian Schillings under Article 50.
The judgment was read out in open court by Mr Rudolf Bernhardt, the Vice-President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
Mrs Ingrid Hoffmann married in 1980, at which time both she and her husband were Roman
Catholics. The couple had two children, who were born in 1980 and 1982 and baptised as Roman
Catholics. The applicant subsequently joined the Jehovah's Witnesses; her husband and the children
did not. In August 1984, following the breakdown of the marriage, the applicant left the matrimonial
home together with the children; a divorce was pronounced in June 1986.
Whilst the divorce proceedings were pending, both parents applied for custody of the children; the
father opposed a grant of custody to the applicant, mainly on the ground that she was a Jehovah's
Witness and on account of the principles applied and practices followed by that religious group. On 8
January 1986 the Innsbruck District Court granted custody to the applicant. An appeal by her husband
was dismissed by the Innsbruck Regional Court on 14 March 1986. However, on 3 September 1986
the Supreme Court allowed his further appeal, on the ground that the decisions of the courts below
were manifestly unlawful. It noted that in the instant case the education of the children in accordance
with the principles of the Jehovah's Witnesses violated the provisions of the Religious Education Act,
which those courts had not taken into account; they had also disregarded the children's best interests
because their contact with that religious group was likely to create a risk of their social marginalisation
1 The text of the Articles mentioned in this release is appended.
63

and their life could be endangered by the applicant's refusal to consent to their receiving blood
transfusions.
B. Proceedings before the European Commission of Human Rights
The application made on 20 February 1987 was declared admissible by the Commission on 7 December
1990.
Having attempted unsuccessfully to achieve a friendly settlement, the Commission adopted a report 2
on 16 January 1992, in which it established the facts of the case and expressed the opinion:
(a) by eight votes to six, that there had been a violation of Article 8 read in conjunction with Article 14
of the Convention, in that the applicant had been discriminated against, on the ground of her religion,
in the enjoyment of her right to respect for her family life;
(b) by twelve votes to two, that no separate issue arose in regard to Article 9 taken separately or in
conjunction with Article 14 of the Convention;
(c) unanimously, that there had been no violation of Article 2 of Protocol No. 1, read in isolation or in
conjunction with Article 14 of the Convention.
The Commission referred the case to the Court on 13 April 1992.
II. SUMMARY OF THE JUDGMENT 3
I. Article 8, taken alone and in conjunction with Article 14
The Court noted at the outset that the children had lived with their mother for two years after she had
left with them, before the judgment of the Supreme Court compelled her to give them up to their
father. The Supreme Court's decision therefore constituted an interference with her right to respect for
her family life, and the case thus fell within the ambit of Article 8. The fact relied upon by the
Government in support of the opposite view, namely that the Supreme Court's decision was taken in
the context of a dispute between private individuals, made no difference in this respect.
In view of the nature of the allegations made, the Court considered it appropriate to examine the case,
as the Commission had, under Article 8 taken in conjunction with Article 14.
The Court did not deny that, depending on the circumstances of the case, the factors relied upon by the
Austrian Supreme Court in support of its decision - the practical consequences of the mother's
membership of the Jehovah's Witnesses, i.e. the possible effects on the children's social life of being
associated with that religious minority and her total rejection of blood transfusions not only for herself
but, in the absence of a court order, for her children as well - might in themselves be capable of tipping
the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a
new element, namely the Federal Act on the Religious Education of Children, which it clearly found
decisive.
2 The report is available to the press and the public on application to the Registrar of the Court.
3 This summary by the registry does not bind the Court.
64

The Court therefore accepted that there had been a difference in treatment based on the ground of
religion; it found this conclusion to be supported by the tone and phrasing of the Supreme Court's
considerations regarding the practical consequences of the applicant’s religion.
The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of
the health and rights of the children.
But where the Austrian Supreme Court did not rely solely on the Federal Act on the Religious
Education of Children, it weighed the facts differently from the courts below, whose reasoning was
moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the
contrary, a distinction based essentially on a difference in religion alone was not acceptable.
The Court therefore could not find that a reasonable relationship of proportionality had existed
between the means employed and the aim pursued; there had accordingly been a violation of Article 8
taken in conjunction with Article 14 (five votes to four).
[See paragraphs 30-36 of the judgment and point 1 of the operative provisions.]
In view of this conclusion, the Court did not consider it necessary to rule on the allegation of a
violation of Article 8 taken alone; the arguments advanced in that respect were in any case the same
(unanimously).
[See paragraph 37 of the judgment and point 2 of the operative provisions.]
II. Article 9
The Court considered, as had the Commission, that no separate issue arose under that Article either
taken alone or in conjunction with Article 14, since the factual circumstances relied on as the basis of
that complaint were the same as those which were at the root of the complaint under Article 8 taken in
conjunction with Article 14, of which a violation had been found (unanimously).
[See paragraph 38 of the judgment and point 3 of the operative provisions.]
III. Article 2 of Protocol No. 1
The applicant's complaint under this Article was not pursued before the Court, which found no reason
to examine it of its own motion (unanimously).
[See paragraph 39 of the judgment and point 4 of the operative provisions.]
IV. Article 50
The Court awarded the applicant 75,000 Austrian Schillings in respect of the costs and expenses
actually incurred before the Convention organs and not covered by legal aid (eight votes to one).
[See paragraph 40 of the judgment and point 5 of the operative provisions.]
***
65

In accordance with the Convention and the Rules of Court, the judgment was delivered by a Chamber
composed of nine judges, namely Mr R. Bernhardt (German), President, Mr F. Matscher (Austrian),
Mr L. -E. Pettiti (French) , Mr B. Walsh (Irish) , Mr C. Russo (Italian) , Mr N. Valticos (Greek), Mr I.
Foighel (Danish), Mr M.A. Lopes Rocha (Portuguese), and Mr G. Mifsud Bonnici (Maltese), and also
of Mr M.-A. Eissen, Registrar , and Mr H. Petzold, Deputy Registrar .
Four judges expressed separate opinions, and these are appended to the judgment.
***
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 255-C of Series A of the Publications of the Court
(available from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D - 5000 Köln 41).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
Article 8
***
A P P E N D I X
Convention Articles referred to in the release
“l. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is
in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom
to change his religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedoms of others."
Article 14
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status."
66

Article 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the (…)
Convention, and if the internal law of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
Article 2 of Protocol No. 1
"No person shall be denied the right to education. In the exercise of any functions which it assumes in
relation to education and to teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and philosophical convictions."
67

11. A. v. France, judgment of 23 November 1993, Series A no.277-B (Violation of Article 8 of
the Convention). Recording of a telephone conversation effected clandestinely by a private
citizen with the assistance of a high-ranking police officer.
485
23.11.93
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF A. v. FRANCE
By a judgment delivered in Strasbourg on 23 November 1993 in the case of A. v. France, the
European Court of Human Rights held unanimously that there had been a violation of Article 8 of the
European Convention on Human Rights 4 inasmuch as the recording of one of the applicant's telephone
conversations had infringed the latter's right to respect for her correspondence.
The judgment was read out in open court by Mr Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
In July or August 1980, in Paris, a certain Mr Gehrling informed Chief Superintendent Aimé-Blanc,
the Head of the Central Office for the Prevention of Serious Crime, of an alleged plan, instigated by
the applicant, to murder Mr De Varga, who was at the time detained in prison. Mr Aimé-Blanc
agreed that Mr Gehrling should telephone from his office to the applicant at her home. The
conversation was recorded on a tape, which was kept in the police records office.
On 9 November 1981 the applicant laid a criminal complaint, together with an application to join the
proceedings as a civil party, against Mr Gehrling and Mr Aimé-Blanc. She claimed that the
recording of a conversation conducted in a private place by a person, without the latter's consent,
infringed Articles 368 and 369 of the Criminal Code.
On 28 January 1985 the Paris investigating judge assigned to the case made an order finding that
there was no case to answer. On 22 October 1985 the Indictment Division of the Paris Court of
Appeal upheld the investigating judge's decision. However, the Court of Cassation quashed that
decision on 11 May 1987 and remitted the case to the Indictment Division, composed differently,
which again upheld, on 13 January 1989, the investigating judge's order. It took the view in
particular that, in the circumstances of the case, the applicant's conversation concerning the plan to
murder Mr De Varga fell outside the scope of the concept of private life. On 8 November 1988 the
Court of Cassation dismissed the appeal from that decision.
On 7 March 1991 the Paris investigating judge responsible for conducting the investigation against
Mrs A. and five other persons on charges of attempted murder made an order finding that there was no
case to answer.
4 The text of the Convention Articles mentioned in the release is appended.
68

B. Proceedings before the European Commission of Human Rights
The application was lodged with the Commission on 15 February 1989; it was declared admissible
on 5 March 1991. Having attempted unsuccessfully to secure a friendly settlement, the Commission
drew up a report 5 on 2 September 1992 in which it established the facts of the case and expressed
the opinion that there had been a violation of Article 8 of the Convention (nine votes to one).
It referred the case to the Court on 26 October 1992.
II. SUMMARY OF THE JUDGMENT 6
I. Article 8
A. Government's preliminary objections
1. Whether the application was out of time
The Government contended in the first place that the application had been filed out of time.
The Court dismissed this objection (unanimously) because the bringing of an appeal on points of
law against the second decision of the Indictment Division had not been a futile step and had had the
effect at the very least of postponing the beginning of the six-month period.
[see paragraphs 29-30 of the judgment and point 1 of the operative provisions]
2. The failure to exhaust domestic remedies
In the alternative the Government maintained that Mrs A. had neglected to bring a civil action in the
ordinary courts against Mr Gehrling, and possibly Superintendent Aimé-Blanc, for compensation
and to institute proceedings for damages in the administrative courts in respect of the State's liability
on account of the conduct of one of its officials.
The Court noted that Mrs A. had laid a complaint, together with an application to join the
proceedings as a civil party, and pursued the resulting proceedings to their conclusion. She could not
be criticised for not having had recourse to legal remedies which would have been directed
essentially to the same end and would in any case not have offered better chances of success. The
objection was accordingly dismissed (unanimously).
[see paragraphs 31-32 of the judgment and point 1 of the operative provisions]
B. Merits of the complaint
1. Whether there was an interference
5 Available to the press and the public on application to the Registrar of the Court.
6 This summary by the registry does not bind the Court.
69

The Court observed that the recording in issue had depended on Mr Gehrling and Mr Aimé-Blanc
working together and that they could hardly be dissociated from each other. The former had played a
decisive role in conceiving and putting into effect the plan to make the recording by going to see the
superintendent and then telephoning Mrs A. Mr Aimé-Blanc was an official of the "public
authority". He had made a crucial contribution to executing the scheme by making available for a
short time his office, his telephone and his tape recorder. Admittedly he had not informed his
superiors of his actions and he had not sought the prior authorisation of an investigating judge, but
he was acting in the performance of his duties as a high-ranking police officer. It followed that the
public authorities were involved to such an extent that the State's responsibility under the
Convention was engaged. In any case the recording had constituted an interference in respect of
which the applicant was entitled to protection from the French legal system.
Furthermore the interference in question had undoubtedly concerned Mrs A.'s right to respect for her
"correspondence". In those circumstances it was not necessary to consider whether it also affected
her "private life,”.
[see paragraphs 34-37 of the judgment]
2. Whether the interference was justified
The contested recording had had no basis in national law; moreover this had been conceded by the
Government. The Court therefore found a breach of Article 8 (unanimously).
That finding made it unnecessary for the Court to rule on compliance with the requirements of
paragraph 2 of that Article.
[see paragraphs 38-39 of the judgment and point 2 of the operative provisions]
II. Article 50
A. Damage
The Court took the view that the applicant might have sustained non-pecuniary damage, but that its
judgment afforded her sufficient just satisfaction in that respect.
[see paragraphs 41-42 of the judgment and point 3 of the operative provisions]
B. Costs and expenses
The Court allowed for the most part the applicant’s claims for the costs and expenses that she had
incurred first in the French courts and then before the Convention institutions. It awarded her 50,000
French francs (unanimously).
[see paragraphs 43-44 of the judgment and point 4 of the operative provisions]
***
70

In accordance with the Convention, judgment was given by a Chamber composed of nine judges,
namely Mr R. Ryssdal (Norwegian), President, Mr Th6r Vilhjálmsson (Icelandic), Mr L.-E. Pettiti
(French), Mr B. Walsh (Irish) , Mr R. Macdonald (Canadian) , Mr C. Russo (Italian), Mr J. De
Meyer (Belgian), Mr J.M. Morenilla (Spanish) and Sir John Freeland (British), and also Mr M.-A.
Eissen, Registrar , and Mr H. Petzold, Deputy Registrar.
***
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 277-B of Series A of the Publications of the Court
(available from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D - 50939 Kö1n).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
***
A P P E N D I X
Convention Articles referred to in the release
Article 8
“l. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
Article 50
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a
High Contracting Party is completely or partially in conflict with the obligations arising from the
(...) Convention, and if the internal law of the said Party allows only partial reparation to be made
for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford
just satisfaction to the injured party."
71

12. Murray v. The United Kingdom, judgment of 28 October 1994, Series A no. 300-A (No
violation of the Convention). As far as a person suspected of terrorism is concerned, entry
into and search of her home for the purpose of effecting the arrest; record of personal
details and photograph without her consent.
482
28.10.1994
Press release issued by the
Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF MURRAY v. THE UNITED KINGDOM
In a judgment delivered at Strasbourg on 28 October 1994 in the case of Murray v. the United
Kingdom, the European Court of Human Rights, sitting as a Grand Chamber, found no violation of the
European Convention on Human Rights in relation to a number of complaints made by the six
members of the Murray family. The applicants' complaints concerned Mrs Murray's arrest and
detention by the Army under special criminal legislation enacted to deal with acts of terrorism
connected with the affairs of Northern Ireland. In particular, the Court held that there had been no
violation of Mrs Murray's right to liberty and security of person as guaranteed by Article 5 § 1
(fourteen votes to four), or of her right under Article 5 § 2 to be informed promptly of the reasons for
her arrest (thirteen votes to five), or of her right under Article 5 § 5 to compensation for wrongful
arrest (thirteen votes to five), or of the six applicants' right under Article 8 to respect for their private
and family life and their home (fifteen votes to three). The Court further ruled that it was not
necessary to examine under Article 13 one of Mrs Murray's claims as to the lack of an effective
domestic remedy for the alleged violations of the Convention and that, for the rest, there had been no
violation of Article 13 (unanimously). 1
The judgment was read out in open court by Mr Rolv Ryssdal, President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
***
1. The six applicants are Irish citizens. The first applicant, Mrs Margaret Murray, and the second
applicant, Mr Thomas Murray, are husband and wife. The other four applicants (Mark, Alana,
Michaela and Rossina Murray) are their children. At the relevant time in 1982 all six applicants
resided together in the same house in Belfast, Northern Ireland.
2. In June 1982 two of the first applicant's brothers were convicted in the United States of America
("USA") of arms offences connected with the purchase of weapons for the Provisional Irish
Republican Army ("Provisional IRA").
1. The text of the relevant Convention provisions is appended.
72

3. Mrs Murray was arrested by the Army at the family home in Belfast at 7.00 a.m. on 26 July 1982,
under section 14 of the Northern Ireland (Emergency Provisions) Act 1978. This provision, as
construed by the domestic courts, empowered the Army to arrest and detain for up to four hours a
person suspected of the commission of a criminal offence, provided that the suspicion of the arresting
officer was honestly and genuinely held. According to the Army, Mrs Murray was arrested on
suspicion of involvement in the collection of money for the purchase of arms for the Provisional IRA
in the USA. While she was dressing, the other applicants were roused and asked to assemble in the
living room. The soldiers in the meantime recorded details concerning the applicants and their home.
On being asked twice by Mrs Murray under what section of the legislation she was being arrested, the
arresting officer, a woman corporal, replied, "Section 14".
Mrs Murray was then taken to Springfield Road Army screening centre and detained two hours for
questioning. She refused to answer any questions, save to give her name. At some stage during her
stay at the centre she was photographed without her knowledge or consent. She was released at 9.45
a.m. without charge.
4.In 1984 Mrs Murray brought an unsuccessful action before the High Court for false imprisonment
and other torts against the Ministry of Defence.
Evidence was given by Mrs Murray and by the corporal. Mrs Murray acknowledged that she had been
in contact with her brothers and had been to the USA. Although the corporal did not have a precise
recollection of the interrogation of Mrs Murray at the Army centre, she remembered that questions had
been asked about money and about America. The trial judge accepted the testimony of the corporal as
being truthful.
Mrs Murray appealed, again challenging the legality of her arrest and certain related matters in the
Court of Appeal, which rejected her claims in February 1987. The Court of Appeal granted her leave
to appeal to the House of Lords. This appeal was dismissed in May 1988.
5. The 1978 Act under which Mrs Murray was arrested forms part of the special legislation enacted in
the United Kingdom in an attempt to deal with the threat of terrorist violence in Northern Ireland.
Section 14 was replaced in 1987 by a provision requiring that an arrest be based on reasonable
suspicion.
B. Proceedings before the European Commission of Human Rights
1. In the application lodged with the Commission on 28 September 1988, Mrs Murray complained that
her arrest and detention for questioning had given rise to a violation of Article 5 §§ 1 and 2, for which
she had had no enforceable right to compensation as guaranteed by Article 5 § 5; and that the taking
and keeping of a photograph and personal details about her had been in breach of her right to respect
for private life under Article 8. The other five applicants alleged a violation of Article 5 §§ 1, 2 and 5
as a result of being required to assemble for half an hour in one room of their house while the first
applicant prepared to leave with the Army. They further argued that the recording and retention of
certain personal details about them, such as their names and relationship to the first applicant, had
violated their right to respect for private life under Article 8. All six applicants claimed that the entry
into and search of their home by the Army were contrary to their right to respect for their private and
family life and their home under Article 8 of the Convention; and that, contrary to Article 13, no
73

effective remedies existed under domestic law in respect of their foregoing complaints under the
Convention.
2. On 10 December 1991 the Commission declared admissible all the first applicant's complaints and
the other applicants' complaint under Article 8 in connection with the entry into and search of the
family home. The remainder of the application was declared inadmissible.
3. In its report of 17 February 1993 2 the Commission expressed the opinion that
- in the case of the first applicant, there had been a violation of Article 5 § 1 (eleven votes to three), of
Article 5 § 2 (ten votes to four) and of Article 5 § 5 (eleven votes to three);
- there had been no violation of Article 8 (thirteen votes to one);
- it was not necessary to examine further the first applicant's complaint under Article 13 concerning
remedies for arrest, detention and the lack of information about the reasons for arrest (thirteen votes to
one);
- in the case of the first applicant, there had been no violation of Article 13 in relation to either the
entry and search of her home (unanimously) or the taking and keeping of a photograph and personal
details about her (ten votes to four).
II. SUMMARY OF THE JUDGMENT 3
A. General approach
1. As stated in previous judgments, for the purposes of interpreting and applying the relevant
provisions of the Convention, due account had to be taken of the special nature of terrorist crime, the
threat it poses to democratic society and the exigencies of dealing with it.
[See paragraph 47 of the judgment]
B. Alleged breach of Article 5 § 1 of the Convention
2. Mrs Murray argued that, contrary to paragraph 1 (c) of Article 5, she had not been arrested on
"reasonable suspicion" of having committed a criminal offence and that the purpose of her arrest and
subsequent detention had not been to bring her before a competent legal authority.
1. "Reasonable suspicion"
3. It was relevant but not decisive that the domestic legislation at the time provided for an honest and
genuine, rather than reasonable, suspicion. Having a "reasonable suspicion" presupposed the existence
of facts or information which would satisfy an objective observer that the person concerned might
have committed the offence.
2. The report is available to the press and the public on request to the Registrar of the Court.
3. This summary by the registry does not bind the Court.
74

4. The level of "suspicion" required was not the same as that for the bringing of a charge. In this
respect, the length of the deprivation of liberty at risk (a maximum of four hours under section 14 of
the 1978 Act) might also be material.
5. What could be regarded as "reasonable" in relation to a suspicion depended on all the circumstances
of the particular case. In view of the difficulties inherent in the investigation and prosecution of
terrorist offences in Northern Ireland, the "reasonableness" of the suspicion justifying such arrests
could not always be judged according to the same standards that were applied when dealing with
conventional crime. Contracting States could not be asked to establish the reasonableness of the
suspicion grounding the arrest of a suspected terrorist by disclosing information or facts leading to
confidential sources, thereby placing the lives and safety of others in danger. The Court accepted that
the power of arrest granted to the Army by section 14 of the 1978 Act represented a bona fide attempt
by a democratically elected parliament to deal with terrorist crime under the rule of law; and it was
prepared to attach some credence to the United Kingdom Government's declaration as to the existence
of reliable but confidential information grounding the suspicion against MrsMurray. Nonetheless, the
Court had to be furnished with at least some facts or information capable of satisfying it that the
arrested person was reasonably suspected of having committed the alleged offence, particularly where
domestic law had set a lower threshold by merely requiring honest suspicion.
6. In that connection, the Court had regard to relevant findings of fact made by the domestic courts in
the civil proceedings brought by Mrs Murray, to the recent conviction of her brothers in the USA of
offences connected with the purchase of arms for the Provisional IRA, to her visits to the USA and her
contacts with her brothers there, and to the collaboration with "trustworthy" persons residing in
Northern Ireland which was implied in the offences of which her brothers were convicted.
7. The Court concluded that, in the particular circumstances, there did exist sufficient facts or
information which would provide a plausible and objective basis for a suspicion that Mrs Murray may
have committed the offence of involvement in the collection of funds for the Provisional IRA.
[See paragraphs 50-63 of the judgment]
2. Purpose of the arrest
8. In Mrs Murray's submission it was clear from the surrounding circumstances that she had not been
arrested for the purpose of bringing her before the "competent legal authority" but merely for the
purpose of interrogating her with a view to gathering general intelligence.
9. The domestic courts, after hearing witnesses, had found that the purpose of her arrest had been to
establish facts concerning the offence of which she was suspected. No cogent elements had been
produced in the proceedings before the Convention institutions which could lead the Court to depart
from that finding of fact. It could be assumed that, had the suspicion against Mrs Murray been
confirmed, she would have been charged with a criminal offence and brought before a court. Her arrest
and detention had therefore been effected for the purpose specified in paragraph 1 (c) of Article 5.
[See paragraphs 64-69 of the judgment]
3. Conclusion
75

10. The Court therefore concluded that there had been no violation of Article 5 § 1 in respect of the
first applicant.
[See paragraph 70 of the judgment and point 1 of the operative provisions]
C. Alleged breach of Article 5 § 2 of the Convention
11. Mrs Murray submitted that at no time during her arrest or detention had she been given any or
sufficient information as to the grounds for her arrest.
12. The Court pointed out that whether the content and promptness of the information conveyed were
sufficient had to be assessed in each case according to its special features. Whilst the reasons for
the arrest had not been sufficiently indicated when Mrs Murray was taken into custody, they had been
brought to her attention during her subsequent interrogation. Moreover, the interval of a few hours
that had elapsed between arrest and interrogation could not be regarded as falling outside the
constraints of time imposed by the notion of promptness.
13. The Court thus concluded that there had been no breach of Article 5 § 2.
[See paragraphs 71-80 of the judgment and point 2 of the operative provisions]
D. Alleged breach of Article 5 § 5 of the Convention
14. No violation of paragraphs 1 or 2 of Article 5 having been found, no issue arose under paragraph
5.
[See paragraphs 81-82 of the judgment and point 3 of the operative provisions]
E. Alleged violation of Article 8 of the Convention
15. All six applicants claimed to be the victims of a violation of Article 8. They complained about the
entry into and search of their family home by the Army, including the confinement of the family
members other than Mrs Murray for a short while in one room. Mrs Murray also objected to the
recording (at the Army centre) of personal details concerning herself and her family, as well as the
photograph which was taken of her without her knowledge or consent.
16. The Court held, however, that the resultant interferences with the applicants' exercise of their right
to respect for their private and family life and their home were justified under paragraph 2 of Article 8.
17. In the first place each of the various measures complained of was found to have been "in
accordance with the law".
18. The Court further considered that the measures, which pursued the legitimate aim of the
prevention of crime, were "necessary in a democratic society". In striking the balance between the
exercise by the individual of the right guaranteed to him or her under Article 8 § 1 and the necessity
for the State to take effective measures for the prevention of terrorist crime, regard had to be had to the
responsibility of an elected government in a democratic society to protect its citizens and its
institutions against the threats posed by organised terrorism and to the special problems involved in the
76

arrest and detention of persons suspected of terrorist-linked offences. The domestic courts had rightly
adverted to the conditions of extreme tension under which such arrests in Northern Ireland had to be
carried out. As regards the entry and search, the means employed by the authorities could not be
considered to have been disproportionate to the legitimate aim pursued. A similar conclusion was
arrived at as regards the recording and retaining of personal details, including the photograph of Mrs
Murray.
[See paragraphs 83-95 of the judgment and point 4 of the operative provisions]
F. Alleged breach of Article 13 of the Convention
19. Mrs Murray submitted that, contrary to Article 13, she had had no remedy under domestic law in
respect of her claims under Articles5 and 8.
20. The Court first held that it was not necessary to examine under Article 13 her complaint
concerning remedies for her claims as to arrest, detention and lack of information about the reasons for
her arrest (Article 5 §§ 1 and 2), since she had at no stage raised any complaint under Article 5 § 4, the
Convention provision which sets forth a specific entitlement to a remedy in relation to arrest and
detention.
21. In relation to her claims as to entry and search and as to the taking and retention of a photograph
and personal details (Article 8), the Court found that in both these regards effective remedies were
available to her under domestic law. Her feeble prospects of success in the light of the particular
circumstances of her case did not detract from the effectiveness of the remedies for the purpose for the
purpose of Article 13. Consequently, the facts of her case did not disclose a violation of Article 13.
[See paragraphs 96-103 of the judgment and points 5 and 6 of the operative provisions]
***
In accordance with the Rules of Court, judgment was delivered by a Grand Chamber composed of Mr
R. Ryssdal (Norwegian), President , Mr R. Bernhardt (German), Mr F. Gölcüklü (Turkish), Mr R.
Macdonald (Canadian), Mr A. Spielmann (Luxemburger), Mr S.K. Martens (Dutch), Mr I. Foighel
(Danish), Mr R. Pekkanen (Finnish), Mr A.N. Loizou (Cypriot), Mr J.M. Morenilla (Spanish), Sir
John Freeland (British), Mr A.B. Baka (Hungarian), Mr M.A. Lopes Rocha (Portuguese),
Mr L. Wildhaber (Swiss), Mr G. Mifsud Bonnici (Maltese), Mr J. Makarczyk (Polish), Mr J. Jambrek
(Slovenian) and Mr K. Jungwiert (Czech), Judges , and of Mr H. Petzold, Acting Registrar .
The joint dissenting opinion of three judges and the partly dissenting opinions of two other judges are
annexed to the judgment.
***
For further information, reference should be made to the text of the judgment, which is available on
request and will be published shortly as volume 300-A of Series A of the Publications of the Court
(available from Carl Heymanns Verlag KG, Luxemburger Strasse 449, D-50939 Köln).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
77

Article 5
A P P E N D I X
Convention Articles referred to in the release
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence...;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him.
...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this
Article shall have an enforceable right to compensation."
Article 8
"1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 13
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
78

13. Z. v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I
(Article 8 of the Convention). Seizure of medical records and their inclusion in
investigation file without the patient’s prior consent in criminal proceedings; limitation of
the duration of the confidentiality of the medical data concerned; publication of her
identity and HIV infection in a court judgment given in those proceedings.
99
25.2.1997
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF Z v. FINLAND
In a judgment delivered in Strasbourg on 25 February 1997 in the case of Z v. Finland, the European
Court of Human Rights found by eight votes to one that there had been no violation of Article 8 of the
European Convention on Human Rights 1 in respect of orders requiring the applicant's medical advisers
to give evidence or with regard to the seizure of her medical records and their inclusion in the
investigation file in criminal proceedings against her husband. On the other hand, the Court
unanimously found that an order to make the medical data concerned accessible to the public as early
as 2002 would, if implemented, give rise to a violation of this Article and that there had been a
violation thereof with regard to the publication of the applicant's identity and medical condition in a
court of appeal judgment. It unanimously concluded that it was not necessary to examine the case
under Article 13. Lastly, the Court awarded the applicant specified sums as compensation for nonpecuniary
damage and in reimbursement of legal costs and expenses.
The judgment was read out in open court by Mr Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
***
The applicant was at the time of the events which gave rise to her complaints under the Convention
married to X. They divorced in September 1995. They are both infected with HIV.
Between December 1991 and September 1992 Mr X committed a number of sexual offences.
Following a first conviction for rape on 10 March 1992, in respect of which he received a suspended
prison sentence, MrX was charged with, among other offences, attempted manslaughter on the ground
that he had knowingly exposed his victims to the risk of HIV infection. On 19 March 1992 he had
been informed of the results of a blood test showing that he was HIV positive.
In the course of the subsequent criminal proceedings in the Helsinki City Court, a number of doctors and
a psychiatrist who had been treating the applicant were compelled, despite their protests, to give
evidence concerning, and to disclose information about, the applicant. Mrs Z had herself refused to
testify and the doctors' evidence was sought with a view to establishing the date at which Mr X first
became aware, or had reason to suspect, that he was HIV positive. In addition, medical records relating
1. The text of the Convention Articles mentioned in this release is appended.
79

to MrX and Mrs Z were seized during a police search of the hospital where they were both receiving
treatment and photocopies of the records were added to the case file. Although the proceedings were in
camera, reports of the trial appeared in major newspapers on at least two occasions.
On 19May 1993 the Helsinki City Court convicted Mr X, inter alia, on three counts of attempted
manslaughter and one of rape and sentenced him to terms of imprisonment totalling seven years. The
relevant legal provisions, the operative provisions of the judgment and a summary of the court's
reasoning were made public. The court ordered that the full judgment and the case-documents should
remain confidential for ten years despite requests from MrX and his victims for a longer period of
confidentiality.
The prosecution, Mr X and the victims all appealed and, at a hearing of the Court of Appeal on 14
September 1993, requested that the court documents should remain confidential for longer than ten
years.
In a judgment of 10 December 1993 the Court of Appeal upheld the conviction of X on three counts of
attempted manslaughter and, in addition, convicted him on two further such counts. It increased the
total sentence to more than eleven years. The judgment, which gave the names of Mrs Z and Mr X in
full and went into the circumstances of their HIV infection, was made available to the press. The
Court of Appeal did not extend the period of confidentiality fixed by the first-instance court. Its
judgment was widely reported in the press.
On 26 September 1994 the Supreme Court refused Mr X leave to appeal.
On 1 September 1995 the Supreme Court dismissed an application by the applicant for an order
quashing or reversing the Court of Appeal's judgment in so far as it concerned the ten-year limitation on
the confidentiality order. The court documents in the case are due to become public in the year 2002.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 21 May 1993, was declared admissible on
28 February 1995.
Having attempted unsuccessfully to secure a friendly settlement the Commission drew up a report on 2
December 1995 in which it established the facts and expressed the unanimous opinion that Article 8
had been violated and that it was not necessary also to examine whether there had been a violation of
Article 13.
II. SUMMARY OF THE JUDGMENT 2
I. Article 8 of the Convention
A. Scope of the issues before the Court
It was not established that there had been a leak of confidential medical data concerning the applicant
for which the respondent State could be held responsible under Article 8 of the Convention. Nor did
2. This summary by the registry does not bind the Court.
80

the Court have jurisdiction to entertain the applicant's allegation that she had been subjected to
discriminatory treatment. It therefore confined its examination to the other matters complained of.
[see paragraphs 65, 69-70 of the judgment]
B. Was there an interference with the applicant's right to respect for her private life?
The various measures complained of constituted interferences with the applicant's right to respect for
her private and family life.
[see paragraph 71 of the judgment]
C. Were the interferences justified?
1. "In accordance with the law"
There was nothing to suggest that the measures did not comply with domestic law or that the relevant
law was not sufficiently foreseeable in its effects for the purposes of the quality requirement which
was implied by the expression "in accordance with the law" in paragraph 2 of Article 8.
[see paragraph 73 of the judgment]
2. Legitimate aim
The orders requiring the applicant's medical advisers to give evidence, the seizure of her medical
records and their inclusion in the investigation file were aimed at the "prevention of ... crime" and the
"protection of the rights and freedoms of others". The ten-year limitation on the confidentiality order
could be said to have been aimed at protecting the "rights and freedoms of others", but not at the
prevention of crime. On the other hand, the Court had doubts as to whether the publication of the
applicant's full name as well as her medical condition following their disclosure in the Court of
Appeal's judgment pursued any of the legitimate aims enumerated in paragraph2 of Article 8, but
deemed it unnecessary to decide the issue.
[see paragraphs 75-78 of the judgment]
3. "Necessary in a democratic society"
In determining whether the impugned measures were "necessary in a democratic society", the Court
took into account that the protection of personal data, not least medical data, was of fundamental
importance to a person's enjoyment of his or her right to respect for private and family life as
guaranteed by Article 8. Respecting the confidentiality of health data was a vital principle in the legal
systems of all the Contracting Parties to the Convention. It was crucial not only to respect the sense of
privacy of a patient but also to preserve his or her confidence in the medical profession and in the
health services in general.
The above considerations were especially valid as regards protection of the confidentiality of
information about a person's HIV infection, the disclosure of which could dramatically affect his or
her private and family life, as well as social and employment situation, by exposing him or her to
81

opprobrium and the risk of ostracism. For this reason it could also discourage persons from seeking
diagnosis or treatment and thus undermine any preventive efforts by the community to contain the
pandemic. The interests in protecting the confidentiality of such information would therefore weigh
heavily in the balance in determining whether the interference was proportionate to the legitimate aim
pursued. Such interference could not be compatible with Article 8 of the Convention unless it was
justified by an overriding requirement in the public interest.
Against this background, the Court examined each measure in turn, whilst noting at the outset that the
decision-making process did not give rise to any misgivings and that remedies were apparently
available for challenging the seizure and for having the limitation on the confidentiality order quashed.
[see paragraphs 94-101 of the judgment]
(i) The orders requiring the applicant's medical advisers to give evidence
The orders requiring the applicant's medical advisers to give evidence had been made in the context of
Z availing herself of her right under Finnish law not to give evidence against her husband. The object
was exclusively to ascertain from her medical advisers when X had become aware of or had reason to
suspect his HIV infection. Their evidence had been at the material time potentially decisive for the
question whether X was guilty of attempted manslaughter in relation to two offences committed prior
to 19March 1992, when the positive results of the HIV test had become available. There could be no
doubt that very weighty public interests militated in favour of the investigation and prosecution of X
for attempted manslaughter in respect of all of the five offences concerned and not just three of them.
The resultant interference with the applicant's private and family life was moreover subjected to
important safeguards against abuse. There was no reason to question the extent to which the doctors
were required to testify. Especially because the proceedings were confidential and were highly
exceptional, the contested orders were unlikely to have deterred potential and actual HIV carriers from
undergoing blood tests and from seeking medical treatment. Accordingly, the Court, by eight votes to
one, found no violation on this point.
[see paragraphs 102-105 of the judgment and point 1 of the operative provisions]
(ii) Seizure of the applicant's medical records and their inclusion in the investigation file
The seizure of the applicant's medical records and their inclusion in the investigation file were
complementary to the orders compelling her medical advisers to give evidence. Their context and
object were the same and they were based on the same weighty public interests. Furthermore, they
were subject to similar limitations and safeguards against abuse. Admittedly, unlike those orders, the
seizure had not been authorised by a court but had been ordered by the prosecution. However, this
fact could not give rise to any breach of Article 8 since the conditions for the seizure were essentially
the same as those for the orders to testify, two of which had been given by the City Court prior to the
seizure and the remainder shortly thereafter. Also, it would have been possible for the applicant to
challenge the seizure before the City Court. There was no reason to doubt the national authorities'
assessment that it was necessary to seize all the material concerned and to include it in the
investigation file.
Therefore, the Court, by eight votes to one, found no violation on this point either.
[see paragraphs 106-110 of the judgment and point 2 of the operative provisions]
82

(iii) Duration of the confidentiality order
The ten-year limitation on the confidentiality order did not correspond to the wishes or interests of the
parties in the proceedings, all of whom had requested a longer period of confidentiality.
The Court was not persuaded that, by prescribing such a short period, the domestic courts had attached
sufficient weight to the applicant's interests. As a result of the information in issue having been
produced in the proceedings without her consent, she had already been subjected to a serious
interference with her right to respect for private and family life. The further interference which she
would suffer if the medical information were to be made accessible to the public after ten years was
not supported by reasons which could be considered sufficient to override her interest in the data
remaining confidential for a longer period. The Court unanimously concluded that the order to make
the material accessible as early as 2002 would, if implemented, amount to a disproportionate
interference with her right to respect for her private and family life, in violation of Article 8.
[see paragraphs 111-112 of the judgment and point 3 of the operative provisions]
(iv) Publication of the applicant's identity and condition in the Court of Appeal's judgment
The disclosure of the applicant's identity and HIV infection in the text of the Court of Appeal's
judgment made available to the press was not supported by any cogent reasons. Accordingly, the
Court unanimously found that the publication of the information concerned gave rise to a violation of
the applicant's right to respect for her private and family life as guaranteed by Article 8.
[see paragraph 113 of the judgment and point 4 of the operative provisions]
II. Article 13 of the Convention
The Court, having taken the applicant's allegations as to the lack of remedies into account in relation to
Article 8, did not find it necessary to examine them under Article 13.
[see paragraph 117 of the judgment and point 5 of the operative provisions]
III. Article 50 of the Convention
A. Non-pecuniary damage
The Court found it established that the applicant must have suffered non-pecuniary damage as a result
of the disclosure of her identity and medical condition in the Court of Appeal's judgment and, making
an assessment on an equitable basis, awarded her FIM 100,000.
[see paragraph 122 of the judgment and points 6 and 7 of the operative provisions]
B. Costs and expenses
The Court allowed in part (FIM 160,000) the applicant's claim for costs and expenses, plus any
applicable VAT, less FRF 10,835 paid in legal aid by the Council of Europe.
83

[see paragraph 126 of the judgment and points 6 and 7 of the operative provisions]
***
In accordance with the Convention, judgment was given by a Chamber composed of nine judges,
namely Mr R. Ryssdal (Norwegian), President, Mr F. Gölcüklü (Turkish), Mr L.-E.Pettiti (French),
Mr C. Russo (Italian), Mr J. De Meyer (Belgian), Mr R. Pekkanen (Finnish), Mr G. Mifsud Bonnici
(Maltese), Mr J. Makarczyk (Polish) and Mr B. Repik (Slovakian), and also of Mr H. Petzold,
Registrar , and Mr P.J. Mahoney, Deputy Registrar.
One judge expressed a partly dissenting opinion and this is annexed to the judgment.
***
The judgment will be published shortly in the Reports of Judgments and Decisions for 1997 (available
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
84

14. Halford v. The United Kingdom, judgment of 25 June 1997, Reports of Judgments and
Decisions 1997-III (Violation of Articles 8 and 13 of the Convention). Interception of
telephone calls made on internal telecommunications system operated by police and on
public network; lack of regulation by domestic law.
379
25.6.1997
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF HALFORD v. THE UNITED KINGDOM
In a judgment delivered at Strasbourg on 25 June 1997 in the case of Halford v. the United Kingdom,
the European Court of Human Rights unanimously held that there had been violations of Articles 8
and 13 of the European Convention on Human Rights 1 in respect of Ms Halford's complaints that
telephone calls made from her office in Merseyside Police Headquarters had been intercepted and that
she had not had available to her any effective remedy for this complaint.
The Court further held, unanimously, that there had been no violation of Article 8 in relation to the
alleged interception of calls made from the telephone in Ms Halford's home and, by eight votes to one,
that there had been no violation of Article 13 in respect of this allegation. It also decided unanimously
that it was not necessary to consider her complaints under Articles 10 and 14 of the Convention.
Under Article 50 of the Convention, the Court awarded Ms Halford £10,000 in compensation for nonpecuniary
damage, together with part of the legal costs and expenses she had claimed.
The judgment was read out in open court by Mr Rudolf Bernhardt, the Vice-President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
***
Ms Alison Halford was born in 1940 and lives in the Wirral.
In May 1983 she was appointed Assistant Chief Constable with the Merseyside Police and as such was
the highest ranking female police officer in the United Kingdom. After she had failed on several
occasions to be appointed to a more senior post, in 1990 she commenced proceedings against the
Home Office and Merseyside Police Authority in the Industrial Tribunal alleging discrimination on
grounds of sex. She withdrew her complaint in August 1992, following an agreement under which she
was to retire from the police force and receive ex gratia payments totalling £15,000.
Ms Halford alleges that certain members of the Merseyside Police Authority launched a "campaign"
against her in response to her discrimination complaint. This took the form inter alia of leaks to the
press, the bringing of disciplinary proceedings against her and the interception of her telephone calls.
For the purposes of the case before the Court, the Government accepted that there was a reasonable
1. The Convention Articles referred to in this press release are appended.
85

likelihood that calls made from her office telephones had been intercepted, but did not accept that any
such likelihood had been established in relation to calls made from her home telephone.
In December 1991, Ms Halford complained to the Interception of Communications Tribunal. In
February 1992 the Tribunal informed her that it was satisfied that there had been no contravention of
the Interception of Communications Act 1985 in relation to her home telephone, but, under the terms
of the Act, it was not empowered to specify whether this was because there had been no interception,
or because there had been an interception which had been carried out pursuant to a warrant in
accordance with the Act. In a letter to David Alton MP, Ms Halford's Member of Parliament, the
Home Office explained that eavesdropping by the Merseyside Police on their own internal telephone
system fell outside the scope of the 1985 Act and would not require a warrant.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 22 April 1992, was declared admissible on 2
March 1995.
Having attempted unsuccessfully to secure a friendly settlement, the Commission drew up a report on
18 April 1996 in which it established the facts and expressed the opinion that there had been violations
of both Articles 8 and 13 in relation to the applicant's office telephones (26 votes to 1); that there had
been no violations of Articles 8, 10 or 13 in respect of her home telephone (unanimously); that it was
not necessary to examine separately her complaint under Article 10 in relation to her office telephones
(unanimously); and, finally, that there had been no violation of Article 14 (unanimously).
II. SUMMARY OF THE JUDGMENT 2
A. Article 8 of the Convention
1. Applicability of Article 8
It was clear from the Court's case-law that telephone calls made from business premises as well as
from the home might be covered by the notions of "private life" and "correspondence" within the
meaning of Article 8 § 1.
There was no evidence of any warning having been given to Ms Halford, as a user of the internal
telecommunications system operated at the Merseyside Police Headquarters, that calls made on that
system would be liable to interception and the Court considered that she would have had a reasonable
expectation of privacy for such calls.
Article 8 was therefore applicable to the complaints relating to both the office and home telephones.
[see paragraphs 42-46 and 52 of the judgment and point 1 of the operative provisions]
2. This summary by the registry does not bind the Court.
86

2. The office telephones:
(i) existence of an interference
There was a reasonable likelihood, as the Government had conceded, that calls made by Ms Halford
from her office had been intercepted by the Merseyside Police, probably with the primary aim of
gathering material to assist in the defence of the sex discrimination proceedings brought against them.
This constituted an "interference by a public authority", within the meaning of Article 8 § 2.
[see paragraphs 47-48 of the judgment]
(ii) whether the interference was "in accordance with the law"
The Interception of Communications Act 1985 did not apply to internal communications systems
operated by public authorities, such as that at Merseyside Police Headquarters, and there was no other
provision in domestic law to regulate the interception of calls on such systems. Since English law
provided no protection to Ms Halford, it could not be said that the interference was "in accordance
with the law" as required by Article 8. There had therefore been a violation of that Article.
[see paragraphs 49-51 of the judgment and point 2 of the operative provisions]
3. The home telephone: existence of an interference
The Court did not consider that the evidence established a reasonable likelihood that calls made on the
telephone in Ms Halford's home had been intercepted. In view of this conclusion, it did not find a
violation of Article 8 in relation to the home telephone.
[see paragraphs 53-60 of the judgment and point 3 of the operative provisions]
B. Article 13 of the Convention
The Court found a violation of Article 13 in respect of Ms Halford's complaint about the interception
of calls made on her office telephones, in view of the fact that the Interception of Communications Act
1985 did not apply to the internal telephone system operated by the Merseyside Police and there was
no other avenue in domestic law for her complaint.
It did not find a violation of Article 13 in relation to her complaint concerning her home telephone,
because Article 13 only requires "an effective remedy before a national authority" in respect of
arguable claims under the Convention. Ms Halford, however, had not adduced enough evidence to
make out an arguable claim.
[see paragraphs 61-70 of the judgment and points 4 and 5 of the operative provisions]
C. Articles 10 and 14 of the Convention
The allegations in relation to these Articles were tantamount to restatements of the complaints under
Article 8. It was not therefore necessary for the Court to consider them.
[see paragraphs 71-72 of the judgment and point 6 of the operative provisions]
87

D. Article 50 of the Convention
The Court awarded Ms Halford £10,000 in compensation for the intrusion into her privacy, and £600
towards her personal expenses incurred in bringing the case to Strasbourg. It also awarded £25,000 of
the £142,875 legal costs and expenses she had claimed.
[see paragraphs 73-82 of the judgment and point 7 of the operative provisions]
***
In accordance with the Convention, judgment was given by a Chamber composed of nine judges,
namely Mr R. Bernhardt (German), President, Mr L-E Pettiti (French), Mr C. Russo (Italian), Mr A.
Spielmann (Luxemburger), Mr I. Foighel (Danish), Mr J.M. Morenilla (Spanish), Sir John Freeland
(British), Mr M.A. Lopes Rocha (Portuguese) and Mr P. K_ris (Lithuanian), and also of Mr H.
Petzold, Registrar , and Mr P.J. Mahoney, Deputy Registrar .
***
The judgment will be published shortly in the Reports of Judgments and Decisions for 1997 (available
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
88

15. Anne-Marie Andersson v. Sweden, judgment of 27 August 1997, Reports of Judgments and
Decisions 1997-IV (No violation of the Convention). Lack of possibility for a patient, prior
to the communication of personal and confidential medical data by medical authority to a
social services authority, to challenge the measure before a court.
460
27.8.1997
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF ANNE-MARIE ANDERSSON v. SWEDEN
In a judgment delivered at Strasbourg on 27 August 1997 in the case of Anne-Marie Andersson v.
Sweden, the European Court of Human Rights held unanimously that the deceased applicant's son had
sufficient interest to justify the continuation of the examination of the case, by five votes to four that
Article 6 § 1 of the European Convention on Human Rights 1 did not apply in the case, by eight votes
to one that there had been no violation of that provision and unanimously that there had been no
violation of Article 13.
The judgment was read out in open court by Mr Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
***
The applicant was born in 1943. She suffered from psychological and psychosomatic disorders which
she attributed to court proceedings concerning her eviction from a flat. She also suffered from dental
problems which aggravated her mental difficulties.
Following her eviction she and her son, who was born in 1981, lived in several different flats allocated
by the welfare authorities. As from May 1988 she was on sick leave.
In April 1989, as a result of the strain caused by her dental pains, she contacted a psychiatric clinic in
Göteborg. From August 1991 she was treated by its Chief Psychiatrist, who on several occasions
drew her attention to the possible detrimental effects of her situation on her son and advised her to
seek assistance from the children's psychiatric clinic or the social welfare authorities. Apparently, the
applicant did not do so.
In January 1992 the Chief Psychiatrist informed the applicant that, since the child's health might be at
risk, she (the psychiatrist) had an obligation under Swedish law to contact the welfare authorities.
Accordingly, the former, acting in accordance with a reporting obligation under the Social Services
Act, informed the Social Council of the applicant's health problems. She notified the applicant that
she had done so. In October 1991 the headmaster and a teacher of the son's school had expressed their
concern to the Social Council about his learning difficulties and general state of health. Following an
1 The text of the Convention provisions mentioned in this release is appended.
89

investigation, the Council, with the applicant's consent, placed her son in a non-residential therapeutic
school.
The applicant died on 20 November 1996.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 11 February 1992, was declared admissible
on 22 May 1995.
Having attempted unsuccessfully to secure a friendly settlement, the Commission drew up a report on
11 April 1996 in which it established the facts and expressed the opinion that there had been no
violation of Article 6 § 1 (unanimously) and that no separate issue arose under Article 13 (twenty
votes to seven).
II. SUMMARY OF THE JUDGMENT 2
A. Preliminary observations
The Court accepted that the applicant's son, Mr Stive Andersson, had sufficient interest to justify the
continuation of its examination of the case. On the other hand, the applicant's complaint that the
disclosure of the data in question amounted to a violation of her right to respect for private life under
Article 8 had been declared inadmissible by the Commission; the Court had therefore no jurisdiction
to entertain it.
[See paragraphs 29-30 of the judgment and point 1 of the operative provisions.]
B. Article 6 § 1 of the Convention
The Court had first to examine whether Article 6 § 1 was applicable to the disagreement between the
applicant and the Swedish authorities as to the disclosure of her medical data.
The relevant rule on confidentiality in the Secrecy Act did not apply where a statutory obligation
required the disclosure of information to another authority. In the case under consideration, if the
chief psychiatrist possessed information about the applicant patient to the effect that intervention by
the Social Council was necessary for the protection of her under age son, the psychiatrist was,
according to the Social Services Act, under a duty to report immediately to the Social Council. That
duty extended to all data in her possession which were potentially relevant to the Social Council's
investigation into the need to take protective measures with respect to the son and depended
exclusively on the relevance of those data.
In addition to the scope of this obligation, the Court noted that the psychiatrist enjoyed a very wide
discretion in assessing what data would be of importance to the Social Council's investigation. In this
regard, she had no duty to hear the applicant's views before transmitting the information to the Social
Council.
2 This summary by the registry does not bind the Court.
90

Accordingly, it transpired from the terms of the legislation in issue that a "right" to prevent
communication of such data could not, on arguable grounds, be said to be recognised under national
law.
In view of the above, Article 6 § 1 was not applicable and had not been violated in the present case.
[See paragraphs 33-37 of the judgment and points 2 and 3 of the operative provisions.]
C. Article 13 of the Convention
A separate issue arose with regard to Article 13. That provision applied only in respect of grievances
under the Convention which were arguable. Whether that was so in the case of the applicant's claim
under Article 8 had to be determined in the light of the particular facts and the nature of the legal
issues raised. In this connection, the Commission's decision on the admissibility of her complaint
under Article 8 and the reasoning therein were not decisive but provided significant pointers. The
Court for its part found, on the evidence adduced, that the applicant had no arguable claim in respect
of a violation of the Convention. There had thus been no violation of Article 13.
[See paragraphs 40-42 of the judgment and point 4 of the operative provisions.]
***
In accordance with the Convention, judgment was given by a Chamber composed of nine judges,
namely Mr R. Ryssdal (Norwegian), President , Mr B. Walsh (Irish), Mr J. De Meyer (Belgian), Mrs
E. Palm (Swedish), Mr A.N. Loizou (Cypriot), Sir John Freeland (British), Mr A.B. Baka (Hungarian),
Mr K. Jungwiert (Czech), and Mr J. Casadevall (Andorran) and also of Mr H. Petzold, Registrar , and
Mr P.J. Mahoney, Deputy Registrar .
Four judges expressed separate opinions and these are annexed to the judgment.
***
The judgment will be published shortly in the Reports of Judgments and Decisions for 1997 (available
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
91

16. M.S. v. Sweden, judgment of 27 August 1997, Reports of Judgments and Decisions 1997-IV
(No violation of the Convention). Communication, without the patient’s consent, of
personal and confidential medical data by one public authority to another and lack of
possibility for patient, prior to the measure, to challenge it before a court.
461
27.8.1997
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF M.S. v. SWEDEN
In a judgment delivered at Strasbourg on 27 August 1997 in the case of M.S. v. Sweden, the European
Court of Human Rights held unanimously that there had been no violation of Article 8 of the European
Convention on Human Rights 1 , by six votes to three that Article 6 § 1 did not apply and unanimously
that there had been no violation of that provision. It further concluded unanimously that there had
been no violation of Article 13 of the Convention.
The judgment was read out in open court by Mr Rolv Ryssdal, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
Ms M.S. was born in 1951 and lives in Sweden.
***
On 9 October 1981 the applicant, who was pregnant at the time, allegedly injured her back while
working at a day care centre. She attended the same day a women's clinic at the regional hospital.
Following this incident, the applicant was unable to return to work for any sustained period of time
because of severe back pain. After she had been on the sick list for some time she was granted a
temporary disability pension and, from October 1994, a disability pension.
In March 1991 she applied to the Social Insurance Office for compensation under the Industrial Injury
Insurance Act. She claimed that, as a result of her back injury, she had been on sick leave for various
periods between October 1981 and February 1991.
On receiving, at her own request, a copy of the file compiled by the Social Insurance Office, she
learned that the Office had, for the purposes of examining her claim, obtained from the hospital
medical records relating to the injury reported on 9 October 1981 and to treatment received thereafter.
According to the records from October 1981, she had stated that she had had pains in her hips and
back, but there was no indication that she considered herself to have been injured at work. Records
relating to the period from October 1985 to February 1986 concerned an abortion and subsequent
treatment made necessary thereby.
1 The text of the Convention provisions mentioned in this release is appended.
92

In May 1992 the Social Insurance Office rejected the applicant's compensation claim, finding that her
sick leave had not been caused by an industrial injury. The applicant appealed against this decision to
the Social Insurance Board, which upheld it in August 1992. Further appeals by the applicant to the
County Administrative Court, to the competent Administrative Court of Appeal and then to the
Supreme Administrative Court were dismissed.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 23 September 1992, was declared
admissible on 22 May 1995.
Having attempted unsuccessfully to secure a friendly settlement, the Commission drew up a report on
11 April 1996 in which it established the facts and expressed the opinion that there had been no
violation of Article 8 of the Convention (twenty-two votes to five), that there had been no violation of
Article 6 § 1 (twenty-four votes to three) and that no separate issue arose under Article 13 (twenty
votes to seven).
II. SUMMARY OF THE JUDGMENT 2
A. Article 8 of the Convention
1. Article 8 § 1
Under the Swedish system, the contested disclosure depended not only on the fact that the applicant
had submitted her compensation claim to the Office but also on a number of factors beyond her
control. It could not therefore be inferred from her request for compensation to the Office that she had
waived in an unequivocal manner her right under Article 8 § 1 of the Convention to respect for private
life with regard to the medical records at the clinic. Accordingly, that the provision applied to the
matters under consideration.
[See paragraph 32 of the judgment.]
The medical records in question contained highly personal and sensitive data about the applicant,
including information relating to an abortion. Although they remained confidential, they had been
disclosed to another public authority and therefore to a wider circle of public servants. Moreover, the
collection and storage of the information and its subsequent communication had served different
purposes. The disclosure of the data by the clinic to the Office thus entailed an interference with the
applicant's right to respect for private life guaranteed by paragraph 1 of Article 8.
[See paragraph 35 of the judgment.]
1. Article 8 § 2
(a) In accordance with the law
2 This summary by the registry does not bind the Court.
93

The interference had a legal basis and was foreseeable; it was thus in accordance with the law.
[See paragraph 37 of the judgment.]
(b) Legitimate aim
Since the communication of data was potentially decisive for the allocation of public funds to
deserving claimants it could be said to have pursued the aim of protecting the economic well-being of
the country.
[See paragraph 38 of the judgment.]
(c) Necessary in a democratic society:
The applicant's medical data were communicated by one public institution to another in the context of
an assessment of whether she satisfied the legal conditions for obtaining a benefit which she herself
had requested. The Office had a legitimate need to check information received from her against data in
the possession of the clinic. The claim concerned a back injury which she had allegedly suffered in
1981 and all the medical records produced by the clinic to the Office, including those concerning her
abortion in 1985 and the treatment thereafter, contained information relevant to the applicant's back
problems. The applicant had not substantiated her allegation that the clinic could not reasonably have
considered certain medical records to have been material to the Office's decision. In addition, the
contested measure was subject to important limitations and was accompanied by effective and
adequate safeguards against abuse.
In view of the above, there were relevant and sufficient reasons for the communication of the
applicant's medical records by the clinic to the Office and the measure was not disproportionate to the
legitimate aim pursued. Accordingly, there had been no violation of Article 8.
[See paragraphs 41-44 of the judgment and point 1 of the operative provisions.]
B. Article 6 § 1 of the Convention
The Court had first to examine whether Article 6 § 1 was applicable to the disagreement between the
applicant and the Swedish authorities as to the disclosure of her medical records.
The relevant rule on confidentiality in the Secrecy Act did not apply where a statutory obligation
required the disclosure of information to another authority. In the case under consideration, the clinic
had, according to the Insurance Act, been under an obligation to supply the Office with information on
the applicant concerning circumstances of importance to the application of the Act. Thus, the
obligation incumbent on the imparting authority vis-à-vis the requesting authority depended
exclusively on the relevance of the data in its possession; it comprised all data which the clinic had in
its possession concerning the applicant and which were potentially relevant to the Office's
determination of her compensation claim.
In addition to the scope of this obligation, the Court noted that the clinic enjoyed a very wide
discretion in assessing what data would be of importance to the application of the Insurance Act. In
this regard, it had no duty to hear the applicant's views before transmitting the information to the
Office.
94

Accordingly, it appeared from the very terms of the legislation in issue that a "right" to prevent
communication of such data could not, on arguable grounds, be said to be recognised under national
law.
Having regard to the foregoing, Article 6 § 1 was not applicable and had not been violated in the
present case.
[See paragraphs 47-50 of the judgment and points 2 and 3 of the operative provisions.]
C. Article 13 of the Convention
A separate issue arose under Article 13. Having regard to its findings under Article 8, the Court was
satisfied that the applicant had had an arguable claim for the purposes of Article 13. It remained to
examine whether she had been afforded an effective remedy.
In this regard, it was open to her to bring criminal and civil proceedings before the ordinary courts
against the relevant staff of the clinic and to claim damages for breach of professional secrecy. Thus
the applicant had had access to an authority empowered both to deal with the substance of her Article
8 complaint and to grant her relief. Having regard to the limited nature of the disclosure and to the
different safeguards, in particular the Office's obligation to secure and maintain the confidentiality of
the information, the various ex post facto remedies referred to satisfied the requirements of Article 13.
Accordingly, there had been no violation of that provision.
[See paragraphs 54-56 of the judgment and point 4 of the operative provisions.]
***
In accordance with the Convention, judgment was given by a Chamber composed of nine judges,
namely Mr R. Ryssdal (Norwegian), President , Mr F. Gölcüklü (Turkish), MrsE.Palm (Swedish), Mr
R. Pekkanen (Finnish), Sir John Freeland (British), Mr G. Mifsud Bonnici (Maltese), Mr J. Makarczyk
(Polish), Mr D. Gotchev (Bulgarian), and Mr P. Jambrek (Slovenian), and also of Mr H. Petzold,
Registrar , and Mr P.J. Mahoney, Deputy Registrar.
Three judges expressed separate opinions and these are annexed to the judgment.
***
The judgment will be published shortly in the Reports of Judgments and Decisions for 1997 (available
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
95

17. Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions
1998-II (Violation of Article 8 of the Convention). Monitoring of a law firm’s telephone
lines on orders of the Federal Public Prosecutor.
194
25.3.1998
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF KOPP v. SWITZERLAND
In a judgment delivered at Strasbourg on 25 March 1998 in the case of Kopp v. Switzerland, the
European Court of Human Rights held unanimously that the monitoring of Mr Kopp’s law firm’s
telephone lines had breached Article 8 of the European Convention on Human Rights 1 (right to
respect for private life). In accordance with Article 50 of the Convention, the Court also
unanimously ordered the respondent State to pay the applicant, within three months, fifteen
thousand Swiss francs in reimbursement of costs and expenses.
The judgment was read out in open court by Mr Rudolf Bernhardt, the Vice-President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
The applicant, Mr Hans W. Kopp, a Swiss national and former lawyer, was born in 1931 and lives in
Zürich. His wife was formerly a member of the Swiss Government – the Federal Council – on which
she served as Head of the Federal Department of Justice and Police. Suspicions arose that she had
passed secret information to the applicant for the benefit of one of his firm’s clients. As a result, she
resigned from the Federal Council but an inquiry later revealed that these allegations were
unfounded.
In the course of these investigations, the President of the Indictment Division of the Federal Court,
on an application by the Federal Attorney-General, issued an order on 23 November 1989 for the
applicant’s telephone lines to be tapped. The order stated that conversations in which the applicant
participated in his capacity as a lawyer should be “disregarded”.
The telephone tapping was discontinued on 11 December 1989, when it appeared that the suspicions
against the applicant and his wife were groundless. The applicant was informed by a letter of 9
March 1990 that his telephone lines had been tapped, but that all recordings had since been
destroyed.
The applicant filed a complaint about the tapping of his telephone lines with the Federal Department
of Justice and Police. The complaint was dismissed on 2 November 1992.
He then filed an administrative appeal with the Federal Council. He also lodged an administrativelaw
appeal with the Federal Court. In both appeals he relied on provisions of the Federal Criminal
1. The text of the Convention Articles mentioned in this release is appended.
96

Procedure Act (“the FCPA”) which prohibit the tapping of lawyers’ telephone lines. He further
complained that he had been refused unrestricted access to the case file.
The administrative appeal was dismissed on 30 June 1993, as was the administrative-law appeal on
8 March 1994.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 15 December 1993, was declared
admissible on 12 April 1996.
Having attempted unsuccessfully to secure a friendly settlement, the Commission drew up a report
on 16 October 1996 in which it established the facts and expressed the unanimous opinion that there
had been a violation of Article 8 but no violation of Article 13 (right to an effective remedy).
It referred the case to the Court on 22 January 1997.
II. SUMMARY OF THE JUDGMENT 2
A. Article 8 of the Convention
Mr Kopp contended that the interception of his telephone communications had breached Article8 of
the Convention.
1. The Government’s preliminary objection
In the present case the Court noted that in Mr Kopp’s administrative appeal to the Federal Council
of 2 December 1992 his lawyer had complained, under the heading “Violation of Article 8 of the
Convention”, that the tapping of his telephone lines had been unlawful. He had maintained in
particular that section 66(1 bis) of the FCPA expressly prohibited the interception of lawyers’
telephone calls and consequently that the monitoring of the lines of the applicant’s law firm had
contravened Swiss law.
The Court therefore considered that the applicant had raised in substance, before the national
authorities, his complaint relating to Article 8 of the Convention. The preliminary objection
accordingly failed.
[see paragraphs 47-49 of the judgment and point 1 of the operative provisions]
2. Merits of the complaint
(a) Applicability of Article 8
In the Court’s view, it was clear from its case-law that telephone calls made from or to business
premises, such as those of a law firm, might be covered by the notions of “private life” and
“correspondence” within the meaning of Article 8 § 1. This point had in fact not been disputed.
2. This summary by the registry does not bind the Court.
97

(b) Compliance with Article 8
(i) Existence of an interference
Interception of telephone calls constituted “interference by a public authority”, within the meaning
of Article 8 § 2, with the exercise of a right guaranteed to the applicant under paragraph 1. The
subsequent use of the recordings made had no bearing on that finding.
(ii) Justification of the interference
Such interference breached Article 8 unless it was “in accordance with the law”, pursued one or
more of the legitimate aims referred to in paragraph 2 and was, in addition, “necessary in a
democratic society” to achieve those aims.
- Whether the interference was “in accordance with the law”
The expression “in accordance with the law”, within the meaning of Article 8 § 2, required firstly
that the impugned measure should have some basis in domestic law; it also referred to the quality of
the law in question, requiring that it should be accessible to the person concerned, who moreover
had to be able to foresee its consequences for him, and compatible with the rule of law.
Whether there was a legal basis in Swiss law
In principle, it was not for the Court to express an opinion contrary to that of the Federal Department
of Justice and Police and the Federal Council on the compatibility of the judicially ordered tapping
of Mr Kopp’s telephone with sections 66(1 bis) and 77 of the FCPA. Moreover, the Court could not
ignore the opinions of academic writers and the Federal Court’s case-law on the question. In short,
the interference complained of had a legal basis in Swiss law.
Quality of the law
The second requirement which emerged from the phrase “in accordance with the law” – the
accessibility of the law – did not raise any problem in the instant case. The same was not true of the
third requirement, the law’s “foreseeability” as to the meaning and nature of the applicable
measures.
The Court therefore had to examine the “quality” of the legal rules applicable to Mr Kopp in the instant
case.
It noted in the first place that the telephone lines of the applicant’s law firm had been tapped
pursuant to sections 66 et seq. of the FCPA and that he had been monitored as a third party. On the
face of it, the text of this provision seemed clear and appeared to prohibit the monitoring of a
lawyer’s telephone lines when he was neither suspected nor accused. It was intended to protect the
professional relations between a lawyer and his clients through the confidentiality of telephone
conversations. However, as the Court had already observed, all the telephone lines of Mr Kopp’s
law firm had been monitored from 21 November to 11 December 1989.
98

Secondly, tapping and other forms of interception of telephone conversations constituted a serious
interference with private life and correspondence and accordingly had to be based on a “law” that
was particularly precise. It was essential to have clear, detailed rules on the subject, especially as the
technology available for use was continually becoming more sophisticated.
In that connection, the Court by no means sought to minimise the value of some of the safeguards
built into the law, such as the requirement at the relevant stage of the proceedings that the
prosecuting authorities’ telephone-tapping order be approved by the President of the Indictment
Division, who was an independent judge, or the fact that the applicant had been officially informed
that his telephone calls had been intercepted.
However, the Court discerned a contradiction between the clear text of legislation which protected
legal professional privilege when a lawyer was being monitored as a third party and the practice
followed in the present case. Even though the case-law had established the principle, which was
moreover generally accepted, that legal professional privilege covered only the relationship between a
lawyer and his clients, the law did not clearly state how, under what conditions and by whom the
distinction was to be drawn between matters arising specifically out of a lawyer-client relationship and
a lawyer’s other activities. Above all, in practice, it was, to say the least, astonishing that this task
should be assigned to an official of the Post Office’s legal department, who was a member of the
executive, without supervision by an independent judge, especially in this sensitive area of the
confidential relations between a lawyer and his clients, which directly concerned the rights of the
defence.
In short, Swiss law, whether written or unwritten, did not indicate with sufficient clarity the scope
and manner of exercise of the authorities’ discretion in the matter. Consequently, Mr Kopp, as a
lawyer, had not enjoyed the minimum degree of protection required by the rule of law in a
democratic society. There had therefore been a breach of Article 8.
[see paragraphs 50-75 of the judgment and point 2 of the operative provisions]
B. Article 13 of the Convention
Mr Kopp had expressly stated that he did not intend to pursue this complaint before the Court, and
the Court considered that it was not required to consider it of its own motion.
[see paragraph 78 of the judgment and point 3 of the operative provisions]
C. Article 50 of the Convention
1. Damage
Mr Kopp claimed CHF 550,000 for pecuniary damage on account of the effects that publication of the
fact that his law firm’s telephone lines had been tapped had had on his professional activities and his
firm’s good name. He also claimed CHF 1,000 for non-pecuniary damage, on the ground that the
monitoring of his telephone lines had seriously perturbed his relations with his family and the
members of his firm.
99

As regards pecuniary damage, the Court considered that Mr Kopp had not been able to prove the
existence of a causal connection between the interception of his telephone calls and the alleged loss.
As to non-pecuniary damage, the Court considered that the finding of a violation of Article 8
constituted sufficient compensation.
2. Costs and expenses
The applicant also claimed CHF 67,640 in respect of his costs and expenses for the proceedings in
the Swiss courts and CHF 58,291 in respect of those he had incurred for the proceedings before the
Convention institutions. He further sought CHF 174,000 for research he had conducted himself and
for out-of-pocket expenses.
On the basis of the information in its possession and its case-law on this question, and taking into
account the fact that only the applicant’s complaint under Article 8 of the Convention had given rise
to the finding of a violation, as the applicant had expressly stated that he no longer wished to pursue
the complaint relating to Article 13 of the Convention, the Court decided, on an equitable basis, to
award the applicant the sum of CHF 15,000.
[see paragraphs 79-87 of the judgment and points 4, 5 and 6 of the operative provisions]
Judgment was given by a Chamber composed of nine judges, namely Mr R. Bernhardt (German),
President , Mr Thór Vilhjálmsson (Icelandic), Mr L.-E. Pettiti (French), Mr C. Russo (Italian), Mr A.
Spielmann (Luxemburger), Mrs E. Palm (Swedish), Mr A.B. Baka (Hungarian), MrL.Wildhaber
(Swiss) and Mr M. Voicu (Romanian), and also of Mr H. Petzold, Registrar , and Mr P.J. Mahoney,
Deputy Registrar .
Judge Pettiti expressed a concurring opinion and this is annexed to the judgment.
The judgment will be published shortly in Reports of Judgments and Decisions 1998 (obtainable
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln). Judgments are available
on the day of delivery on the Court’s internet site (www.dhcour.coe.fr).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
100

18. Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports of Judgments and
Decisions 1998-V (Violation of Article 8 of the Convention). Monitoring of private
telephone line in connection with criminal proceedings against subscriber.
505
30.7.1998
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF VALENZUELA CONTRERAS v. SPAIN
In a judgment delivered at Strasbourg on 30 July 1998 in the case of Valenzuela Contreras v. Spain,
the European Court of Human Rights held unanimously that it had no jurisdiction to hear the
applicant’s complaint under Article 6 of the European Convention on Human Rights (right to a fair
hearing and presumption of innocence) and that there had been a violation of Article 8 (right to
respect for private life) 1 . Under Article 50 of the Convention, the Court awarded the applicant a
specified sum for legal costs and expenses.
The judgment was read out in open court by Mr Rudolf Bernhardt, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
The applicant, Mr Cosme Valenzuela Contreras, a Spanish national, was born in 1952 and was, at
the material time, deputy head of personnel in the W. company. In January and February 1985,
following a complaint lodged by Mrs M., an employee of that company, and her fiancé that they had
received anonymous insulting and threatening telephone calls and letters, the investigating judge
assigned to the case ordered, at the complainants' request, the tapping of their telephone lines.
On 19 November 1985 the investigating judge also ordered the monitoring of the applicant's private
telephone lines. He was the main suspect as most of the calls had been made from the premises of
the W. company and he had been one of the only persons to have access to staff files. He had also
had a relationship with Mrs M.
The resulting tape recordings were handed over to the judge and added to the court file of evidence,
which was available for examination by the parties.
On 8 May 1992 the Madrid Audiencia Provincial convicted the applicant of having over a period of four
years threatened by telephone and by letter Mrs M., her fiancé and their respective families. It sentenced
him to four months' imprisonment and ordered him to pay fines and compensation to Mrs M.
At the hearing, the applicant had pleaded, inter alia, that the telephone tapping had not been effected
in conformity with the relevant statutory provisions. However, the court found that even if that had
not been the case the measures had provided only one of the items of evidence relied on to establish
the applicant's guilt.
1. The text of the Convention Articles mentioned in this release is appended.
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The applicant lodged an appeal on points of law which was dismissed by the Supreme Court on 19
March 1994. The Supreme Court found that the evidence obtained by the telephone tapping had not
been the sole basis of the trial court's verdict and that in any event it had been established that the
threats in question had also been made in writing.
The " amparo " appeal lodged with the Constitutional Court was likewise dismissed on the same
grounds as those cited by the Supreme Court.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 2 May 1995, was declared admissible on
18 October 1996.
Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report
on 11 April 1997 in which it established the facts and expressed the opinion that there had been a
violation of Article 8 (11 votes to 6).
It referred the case to the Court on 29 May 1997.
II. SUMMARY OF THE JUDGMENT 2
The applicant complained that his right to a fair hearing and to be presumed innocent had been
infringed and that the tapping of his telephone line had constituted an interference with his right to
respect for his private life. He relied on Articles 6 and 8 of the Convention.
A. Article 6 of the Convention
Since the compass of the case before it was delimited by the Commission’s decision on
admissibility, the Court had no jurisdiction to revive issues declared inadmissible
[See paragraph 40 of the judgment and point 1 of the operative provisions.]
B. Article 8 of the Convention
1. Applicability
The Court considered that it was clear from its case-law that telephone calls from a person’s home
came within the notions of “private life” and “correspondence” referred to in Article 8. Indeed, the
point had not been disputed.
2. Compliance
(a) Whether there had been an interference
The tapping of Mr Valenzuela Contreras’s telephone line between 26 November and 20December
1985 constituted an “interference by a public authority” within the meaning of Article 8 § 2 in the
2 . This summary by the registry does not bind the Court.
102

exercise of his right to respect for his private life and correspondence. Indeed, that point had not
been disputed. It was not decisive in that regard that only a “metering” system had been used
(b) Was the interference justified?
It was necessary to examine whether that interference had satisfied the requirements of paragraph 2
of Article 8.
(i) Was the interference “in accordance with the law”?
It had not been contested that there was a legal basis in Spanish law for such a measure. The Court
therefore confined itself to noting that Article 18 § 3 of the Constitution, on which the investigating
judge had principally based the order for the applicant’s telephone line to be monitored, provided
that “communications, particularly postal, telegraphic and telephone communications, should be
confidential unless the court decides otherwise”.
The second requirement resulting from the phrase “in accordance with the law”, namely that the law
be accessible, did not give rise to any problem in the case before the Court.
That was not true of the third requirement, namely that the law be foreseeable as regards the
meaning and nature of the applicable measures.
The Court noted firstly that the applicant’s telephone line had been tapped under Article 18 § 3 of
the Constitution, which had been the only provision allowing, at the time the order for the telephone
tapping was made, restrictions on the right to confidentiality of telephone communications. It
observed, however, that in order to justify his decision the judge who ordered the measure had taken
into account Chapter VIII of Volume II of the Code of Criminal Procedure, which had been in force
at the time, “on the entry into and searches of closed premises, the opening of books and written
documents and the interception and opening of written and telegraphic correspondence”.
However, the Court noted that some of the conditions necessary under the Convention to ensure the
foreseeability of the effects of the “law” and, consequently, to guarantee respect for private life and
correspondence had not been included either in Article 18 § 3 of the Constitution or in the
provisions of the Code of Criminal Procedure cited in the order of 19 November 1985. They
included, in particular, the conditions regarding the definition of the categories of people liable to
have their telephones tapped by judicial order, the nature of the offences which could give rise to
such an order, a limit on the duration of telephone tapping, the procedure for drawing up the
summary reports containing intercepted conversations and the use and destruction of the recordings
made.
The Court reiterated that the conditions concerning the quality of the law stemmed from the
Convention itself. The requirement that the effects of the “law” be foreseeable meant, in the sphere
of monitoring telephone communications, that the guarantees stating the extent of the authorities’
discretion and the manner in which it was to be exercised had to be set out in detail in domestic law
so that it had a binding force which circumscribed the judges’ discretion in the application of such
measures. Consequently, the Spanish “law” which the investigating judge had had to apply should
have provided those guarantees with sufficient precision. The Court further noted that at the time the
order for the monitoring of the applicant’s telephone line had been made it had already stated, in a
103

judgment in which it had found a violation of Article 8, that “the law must be sufficiently clear in its
terms to give citizens an adequate indication as to the circumstances in and the conditions on which
public authorities are empowered to resort to this secret and potentially dangerous interference with
the right to respect for private life and correspondence”.
In sum, Spanish law, both written and unwritten, had not indicated with sufficient certainty at the
material time the extent of the authorities’ discretion in the domain concerned or the way in which it
was to be exercised. Mr Valenzuela Contreras had not, therefore, enjoyed the minimum degree of
legal protection to which citizens were entitled under the rule of law in a democratic society. There
had therefore been a violation of Article 8.
(ii) Aim of the interference and the need for it
Having regard to that conclusion, the Court did not consider it necessary to consider whether the
other requirements of paragraph 2 of Article 8 had been complied with in the case.
[See paragraphs 42, 47-51, 53, 54, and 59-62 of the judgment and point 2 of the operative
provisions.]
C. Article 50 of the Convention
1. Damage
The Court considered that there was no causal link between the finding of a violation of Article 8
and the alleged pecuniary damage corresponding to the amounts the applicant had had to pay as a
result of his conviction for making threats. The claim therefore had to be dismissed.
2. Costs and expenses
Making its assessment on an equitable basis having regard to the criteria it applies in such
circumstances, the Court grants the sum claimed in full.
[See paragraphs 66 and 70 of the judgment and points 3 and 4 of the operative provisions.]
Judgment was given by a Chamber composed of nine judges, namely Mr R. Bernhardt (German),
President , Mrs E. Palm (Swedish), Mr A.N. Loizou (Cypriot), Mr J.M. Morenilla (Spanish), Sir
John Freeland (British), Mr A.B. Baka (Hungarian), Mr L. Wildhaber (Swiss), Mr J. Casadevall
(Andorran) and Mr V. Butkevych (Ukrainian), and also of Mr H. Petzold, Registrar , and Mr P.J.
Mahoney, Deputy Registrar .
The judgment will be published shortly in Reports of Judgments and Decisions 1998 (obtainable
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln). Judgments are available
on the day of delivery on the Court’s internet site (www.dhcour.coe.fr).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the press.
104

19. Lambert v. France, judgment of 24 August 1998, Reports of Judgments and Decisions 1998-
V (Violation of Article 8 of the Convention). Judgment whereby Court of Cassation refused
a person locus standi to complain of interception of some of his telephone conversations, on
the ground that it was a third party’s line that had been tapped.
544
24.8.1998
Press release issued by the Registrar of the European Court of Human Rights
JUDGMENT IN THE CASE OF LAMBERT v. FRANCE
In a judgment delivered at Strasbourg on 24 August 1998 in the case of Lambert v. France, the
European Court of Human Rights held unanimously that there had been a violation of Article 8 of
the European Convention on Human Rights 1 and that it was unnecessary to examine the complaint
based on Article 13 of the Convention. Under Article 50 of the Convention, the Court awarded the
applicant specified sums for non-pecuniary damage and for legal costs and expenses.
The judgment was read out in open court by Mr Rudolf Bernhardt, the President of the Court.
I. BACKGROUND TO THE CASE
A. Principal facts
The applicant, Mr Michel Lambert, a French national, was born in 1957 and lives at Buzet-sur-Tarn.
In the course of an investigation into offences of theft, burglary, handling the proceeds of theft and
aggravated theft, and unlawful possession of class 4 weapons and ammunition, an investigating
judge at Riom issued a warrant on 11 December 1991 instructing the gendarmerie to arrange for the
telephone line of a certain R.B. to be tapped until 31 January 1992. By means of standard-form
written instructions (“ soit transmis ”) dated 31 January, 28 February and 30 March 1992 the judge
extended the duration of the telephone tapping until 29 February, 31 March and 31 May 1992
respectively. As a result of the interception of some of his conversations, the applicant was charged
with handling the proceeds of aggravated theft. He was held in custody from 15 May to 30
November 1992, when he was released subject to judicial supervision.
On 5 April 1993 the applicant’s lawyer applied to the Indictment Division of the Riom Court of
Appeal for a ruling that the extensions of 31 January and 28 February 1992 were invalid, arguing
that they had been ordered merely by standard-form written instructions without any reference to the
offences justifying the telephone tapping. The Indictment Division dismissed the application in a
judgment of 25 May 1993.
The applicant appealed on a point of law, relying solely on a violation of Article 8 of the European
Convention on Human Rights. In a judgment of 27 September 1993 the Court of Cassation affirmed
the decision appealed against. It held that “the applicant had no locus standi to challenge the manner
in which the duration of the monitoring of a third party’s telephone line was extended” and that
1. The text of the Convention Articles mentioned in this release is appended.
105

accordingly “the grounds of appeal, which contest[ed] the grounds on which the Indictment Division
[had] wrongly considered it must examine [the] objections of invalidity and subsequently dismissed
them, [were] inadmissible”.
B. Proceedings before the European Commission of Human Rights
The application to the Commission, which was lodged on 8 February 1994, was declared admissible
on 2 September 1996.
Having attempted unsuccessfully to secure a friendly settlement, the Commission adopted a report
on 1 July 1997 in which it established the facts and expressed the opinion that there had been a
violation of Article 8 of the Convention (20 votes to 12) and that it was unnecessary to examine the
case under Article 13 of the Convention (27 votes to 5).
It referred the case to the Court on 22 September 1997.
II. SUMMARY OF THE JUDGMENT 2
A. Article 8 of the Convention
1. Whether there had been any inteference
The Court pointed out that as telephone conversations were covered by the notions of “private life”
and “correspondence” within the meaning of Article 8, the admitted measure of interception had
amounted to “interference by a public authority” with the exercise of a right secured to the applicant
in paragraph 1 of that Article. In that connection, it was of little importance that the telephone
tapping in question had been carried out on the line of a third party.
[See paragraph 21 of the judgment.]
2. Justification for the interference
(a) Had the interference been “in accordance with the law”?
(i) Whether there had been a statutory basis in French law
The Court noted that the investigating judge had ordered the telephone tapping in question on the
basis of Articles 100 et seq. of the Code of Criminal Procedure.
The interference complained of had therefore had a statutory basis in French law.
[See paragraphs 24-25 of the judgment.]
(ii) “Quality of the law”
2 . This summary by the registry does not bind the Court.
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The second requirement which derived from the phrase “in accordance with the law” – the
accessibility of the law – did not raise any problem in the instant case.
The Court considered, as the Commission had done, that Articles 100 et seq. of the Code of
Criminal Procedure, inserted by the Act of 10 July 1991 on the confidentiality of
telecommunications messages, laid down clear, detailed rules and specified with sufficient clarity
the scope and manner of exercise of the relevant discretion conferred on the public authorities.
[See paragraphs 26-28 of the judgment.]
(b) Purpose and necessity of the interference
The Court considered that the interference had been designed to establish the truth in connection with
criminal proceedings and therefore to prevent disorder.
It remained to be ascertained whether the interference had been “necessary in a democratic society”
for achieving those objectives. The Court accordingly had to ascertain whether an “effective
control” had been available to Mr Lambert to challenge the telephone tapping to which he had been
made subject.
It noted firstly that the Court of Cassation in its judgment of 27 September 1993 had gone beyond
the ground relied on by the applicant concerning the extension of the duration of the telephone
tapping and had held that a victim of the tapping of a telephone line not his own had no standing to
invoke the protection of national law or Article 8 of the Convention. It had concluded that in the
instant case the Indictment Division had been wrong to examine the objections of invalidity raised
by the applicant as the telephone line being monitored had not been his own.
Admittedly, the applicant had been able to avail himself of a remedy in respect of the disputed point
in the Indictment Division, which had held that the investigating judge’s extension of the duration of
the telephone tapping had been in accordance with Articles 100 et seq. of the Code of Criminal
Procedure, and it was not the Court’s function to express an opinion on the interpretation of
domestic law, which was primarily for the national courts to interpret. However, the Court of
Cassation, the guardian of national law, had criticised the Indictment Division for having examined
the merits of Mr Lambert’s application.
As the Court had already said, the provisions of the Law of 1991 governing telephone tapping
satisfied the requirements of Article 8 of the Convention and those laid down in the Kruslin and
Huvig judgments. However, it had to be recognised that the Court of Cassation’s reasoning could
lead to decisions whereby a very large number of people were deprived of the protection of the law,
namely all those who had conversations on a telephone line other than their own. That would in
practice render the protective machinery largely devoid of substance.
That had been the case with the applicant, who had not enjoyed the effective protection of national
law, which did not make any distinction according to whose line was being tapped.
The Court therefore considered that the applicant had not had available to him the “effective
control” to which citizens were entitled under the rule of law and which would have been capable of
restricting the interference in question to what was “necessary in a democratic society”.
107

There had consequently been a violation of Article 8 of the Convention (unanimously).
[See paragraphs 29-41 of the judgment and point 1 of the operative provisions.]
B. Article 13 of the Convention
In view of the preceding conclusion, the Court did not consider that it needed to rule on the
complaint in question (unanimously).
[See paragraphs 42-43 of the judgment and point 2 of the operative provisions.]
C. Article 50 of the Convention
1. Non-pecuniary damage
Mr Lambert had sought 500,000 French francs (FRF) for non-pecuniary damage.
The Court considered that the applicant had undeniably sustained non-pecuniary damage and
awarded him the sum of FRF 10,000 under this head (unanimously).
2. Costs and expenses
The applicant had also claimed FRF 15,000 in respect of the costs and expenses incurred in the
proceedings before the Court.
Making its assessment on an equitable basis and with reference to its usual criteria, the Court
awarded the sum claimed (unanimously).
[See paragraphs 45, 48, 49 and 52 of the judgment and points 3 and 4 of the operative provisions.]
Judgment was given by a Chamber composed of nine judges, namely Mr R. Bernhardt (German),
President , Mr L.-E. Pettiti (French), Mr A. Spielmann (Luxemburger), Mr N. Valticos (Greek), Sir
John Freeland (British), Mr L. Wildhaber (Swiss), Mr K. Jungwiert (Czech), MrM.Voicu
(Romanian) and Mr V. Butkevych (Ukrainian), and also of Mr H. Petzold, Registrar , and Mr P.J.
Mahoney, Deputy Registrar .
The judgment will be published shortly in Reports of Judgments and Decisions 1998 (obtainable
from Carl Heymanns Verlag KG, Luxemburger Straße 449, D-50939 Köln). Judgments are available
on the day of delivery on the Court’s internet site (www.dhcour.coe.fr).
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the press.
108

20. Fressoz and Roire v. France , judgment of 21 January 1999, Reports of Judgments and
Decisions 1999-I (Violation of Article 10 of the Convention). Conviction for unlawful
possession of photocopies of Inland Revenue documents (income tax returns) following
publication by the satirical weekly Canard enchaîné of details of the salary of the chairman
of Peugeot motor cars.
29
21.1.1999
Press release issued by the Registrar
JUDGMENT IN THE CASE OF FRESSOZ AND ROIRE v. FRANCE
In a judgment delivered at Strasbourg on 21 January 1999 in the case of Fressoz and Roire v.
France, the European Court of Human Rights held unanimously that there had been a violation of
Article 10 of the European Convention on Human Rights (freedom of expression) and that no
separate issue arose under Article 6 § 2 (presumption of innocence). Under Article 41 of the
Convention (just satisfaction), the Court awarded the applicants a specified sum for pecuniary
damage and legal costs and expenses.
1. Principal facts
The applicants, Mr Roger Fressoz and Mr Claude Roire, who are both French nationals, were born
in 1921 and 1939 respectively and lived in Paris at the material time.
In September 1989, against the background of an industrial dispute in the Peugeot company
following the rejection of pay claims by management, Le Canard enchainé published an article by
the second applicant referring to salary increases awarded to MrJacques Calvet, the company’s
Chairman and Managing Director. The article, which was accompanied by photocopies of extracts
from Mr Calvet’s last three tax assessments, carried the headline "Mr Calvet turbo-charges his salary
– his tax forms reveal more than he does. The boss has given himself a 45.9% rise over the last two
years".
Following a complaint by Mr Calvet, criminal proceedings were brought against the applicants for
handling photocopies of his tax assessments which had been obtained through a breach of
professional confidence by an unidentified tax official. After acquittal at first instance, the Paris
Court of Appeal convicted the applicants of handling the photocopies. Mr Fressoz was fined 10,000
French francs (FRF) and Mr Roire FRF 5,000. Their appeal on points of law was dismissed by the
Court of Cassation in April 1995.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 3August 1995.
Having found the application admissible the Commission adopted a report on 13 January 1998 in
which it expressed the opinion that there had been a violation of Article 10 of the Convention (21
votes to 11) and that no separate issue arose under Article 6 § 2 (18 votes to 14). It referred the case
to the old Court on 16 March 1998. The French Government also brought the case before the Court.
Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to
the Grand Chamber of the new European Court of Human Rights on the entry into force of the
Protocol, on 1 November 1998. Judgment was given by the Grand Chamber composed of 17 judges,
namely:
109

Luzius Wildhaber (Swiss), President , Elisabeth Palm (Swedish), Vice-President , Lucius Caflisch
(Swiss), Jerzy Makarczyk (Polish), Jean-Paul Costa (French), Viera Stráznická (Slovakian), Willi
Fuhrmann (Austrian), Karel Jungwiert (Czech), Marc Fischbach (Luxemburger), Nina Vajic
(Croatian), Wilhelmina Thomassen (Dutch), Margarita Tsatsa-Nikolovska (FYROMacedonia),
Tudor Pantiru (Moldovan), Rait Maruste (Estonian), Egils Levits (Latvian), Kristaq Traja
(Albanian), Snejana Botoucharova (Bulgarian), and also of Paul Mahoney , Deputy Registrar, and
Maud de Boer-Buquicchio , Deputy Registrar.
3. Summary of the judgment
Complaints
The applicants had complained that their conviction by the Paris Court of Appeal infringed their
right to freedom of expression guaranteed under Article 10 of the Convention. They had also alleged
a violation of their right to be presumed innocent on the ground that they had not been proved guilty
according to law within the meaning of Article 6 § 2 of the Convention.
Decision of the Court
Article 10 of the Convention
The Court dismissed the Government’s objection of failure to exhaust domestic remedies and
examined the merits of the complaint.
The Court considered, firstly, that the applicants’ conviction was an "interference" with the exercise
of their right to freedom of expression. It found that, as required by paragraph 2 of Article 10, the
interference was "prescribed by law" and was intended to protect the reputation or rights of others
and to prevent the disclosure of information received in confidence. It therefore had to consider
whether the interference had been "necessary" in a democratic society in order to achieve those
aims.
After reiterating the fundamental principles under its case-law, the Court examined whether relevant
and sufficient reasons existed to justify the applicants’ conviction for the purposes of paragraph 2 of
Article 10.
The Court was unconvinced by the Government’s argument that the information was not a matter of
general interest. The article had been published during an industrial dispute – widely reported in the
press – at one of the major French car manufacturers. The article showed that the company chairman
had received large pay increases during the period under consideration while at the same time
opposing his employees’ claims for a rise. It had not been intended to damage Mr Calvet’s
reputation but to contribute to the more general debate on a topic that interested the public.
An interference with the exercise of press freedom could not be compatible with Article 10 of the
Convention unless it was justified by an overriding requirement in the public interest.
While recognising the vital role played by the press in a democratic society, the Court stressed that
journalists could not, in principle, be released from their duty to obey the ordinary criminal law on
the basis that Article 10 afforded them protection. Indeed, paragraph2 of Article 10 defined the
boundaries of the exercise of freedom of expression. It fell to be decided whether, in the particular
circumstances of the case, the interest in the public’s being informed outweighed the "duties and
responsibilities" the applicants had as a result of the suspect origin of the documents that had been
sent to them.
110

The Court had in particular to determine whether the objective of protecting fiscal confidentiality,
which in itself was legitimate, constituted a relevant and sufficient justification for the interference.
Although publication of the tax assessments had in the case before the Court been prohibited, the
information they contained had not been confidential. Indeed, the remuneration of people who, like
Mr Calvet, ran major companies was regularly published in financial reviews and the second
applicant had said, without it being disputed, that he had referred to information of that type in order
to check roughly how much Mr Calvet was earning. Accordingly, there was no overriding
requirement for the information to be protected as confidential.
If, as the Government had accepted, the information about Mr Calvet’s annual income was lawful
and its disclosure permitted, the applicants’ conviction merely for having published the documents
in which that information had been contained, namely the tax assessments, could not be justified
under Article 10. In essence, that Article left it for journalists to decide whether or not it was
necessary to reproduce such documents to ensure credibility. It protected journalists’ rights to
divulge information on issues of general interest provided that they were acting in good faith and on
an accurate factual basis and furnished "reliable and precise" information in accordance with the
ethics of journalism.
In the case before it, the Court noted that neither Mr Fressoz and Mr Roire’s account of the events
nor their good faith had been called into question. Mr Roire, who had verified the authenticity of the
tax assessments, had acted in accordance with the standards governing his profession as a journalist.
The extracts from each document had been intended to corroborate the terms of the article in
question. The publication of the tax assessments had thus been relevant not only to the subject
matter but also to the credibility of the information supplied.
In sum, there had not, in the Court’s view, been a reasonable relationship of proportionality between
the legitimate aim pursued by the journalists’ conviction and the means deployed to achieve that
aim, given the interest a democratic society had in ensuring and preserving freedom of the press.
There had therefore been a violation of Article 10 of the Convention.
[See paragraphs 40-56 of the judgment and points 1 and 2 of the operative provisions.]
Article 6 § 2 of the Convention
The applicants had argued that the national courts had failed to apply the presumption of innocence
in two respects. The Court held that, in the light of its finding of a violation of Article 10 and the
matters it took into account in so finding, no separate issue arose under Article 6 § 2 of the
Convention.
[See paragraphs 57-60 of the judgment and point 3 of the operative provisions.]
Article 41 of the Convention
The Court found that there was a causal link between the FRF 10,001 that Mr Fressoz and Mr Roire
had been ordered by the Paris Court of Appeal to pay Mr Calvet and the violation of Article 10, such
that the applicants should recover that sum. It was therefore appropriate to award the amount
claimed. That apart, the finding of a breach made in the judgment constituted just satisfaction for
any other damage.
As regards costs and expenses, the Court, ruling on an equitable basis and on the basis of the
information it had before it, awarded the applicants FRF 60,000.
111

[See paragraphs 61-69 of the judgment and points 4 to 6 of the operative provisions.]
Judgments are accessible on the day of delivery on the Court’s Internet site (www.dhcour.coe.fr)
Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to
requests for information concerning the work of the Court, and in particular to enquiries from the
press.
112

21. Lustig-Prean and Beckett v. The United Kingdom, judgment of 27 September 1999,
applications nos.31417/96 and 32377/96, and Eur. Court HR, Smith and Grady v. The
United Kingdom judgment of 27 September 1999, applications nos.33985/96 and 33986/96
(Violation of Article 8 of the Convention). Dismissal of homosexuals from the armed forces
following investigations into private life (especially their sexual orientation).
505
27.9.99
Press release issued by the Registrar
JUDGMENTS IN THE CASES OF
LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM
AND
SMITH AND GRADY v. THE UNITED KINGDOM
In a judgment 1 delivered at Strasbourg on 27 September 1999 in the case of Lustig-Prean and
Beckett v. the United Kingdom, the European Court of Human Rights held unanimously that there
had been a violation of Article 8 (right to respect for private and family life) of the European
Convention on Human Rights. In a second judgment delivered on the same day in the case of Smith
and Grady v. the United Kingdom, the Court also found a violation of Article 8 together with a
violation of Article 13 (right to an effective remedy) of the Convention. The Court reserved for
separate judgments the question of an award of just satisfaction under Article 41.
1. Principal facts
Duncan Lustig-Prean and John Beckett, British nationals, were born in 1959 and 1970 and live in
London and Sheffield (United Kingdom) respectively. Jeanette Smith and Graeme Grady, British
nationals, were born in 1966 and 1963 and live in Edinburgh and London (United Kingdom)
respectively.
All four applicants, who were at the relevant time members of the United Kingdom armed forces,
are homosexual. The Ministry of Defence apply a policy which excludes homosexuals from the
armed forces. The applicants, who were each the subject of an investigation by the service police
concerning their homosexuality, all admitted their homosexuality and were administratively
discharged on the sole ground of their sexual orientation, in accordance with Ministry of Defence
policy. They were discharged in January 1995, July 1993, November 1994 and December 1994
respectively. In November 1995 the Court of Appeal rejected their judicial review applications.
2. Procedure and composition of the Court
1 The judgment becomes final subject to Articles 43 and 44 of the Convention:
Under Article 43, within three months from the date of the Chamber judgment, any party to the case may, in
exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. A panel of five
judges accepts the request if the case raises a serious question affecting the interpretation or application of the
Convention or its Protocols, or a serious issue of general importance.
Under Article 44, the Chamber judgment becomes final
(a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or
(b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested;
or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43.
113

The applications were lodged with the European Commission of Human Rights on 23 April, 11 July,
9 September and 6 September 1996 respectively. On 1 November 1998, in accordance with Article 5
§ 2 of Protocol No. 11 to the Convention, the cases were transmitted to the Court.
On 23 February 1999 the Court (Third Section) joined Mr Lustig-Prean and Mr Beckett’s
applications and joined Ms Smith’s and Mr Grady’s applications. On the same day the Court also
declared the complaints admissible.
A hearing in both cases was held on 18 May 1999.
Judgment in each case was given by a Chamber of seven judges, composed as follows:
Jean-Paul Costa (French), President, Nicolas Bratza (British), Loukis Loucaides (Cypriot), Pranas
Kuris (Lithuanian), Willi Fuhrmann (Austrian), Hanne Sophie Greve (Norwegian), Kristaq Traja
(Albanian), Judges, and also Sally Dollé, Section Registrar.
3. Summary of the judgments
Complaints
Mr Lustig-Prean and Mr Beckett complained that the investigations into their sexual orientation and
their subsequent discharges violated their right to respect for their private lives, protected by Article
8 of the Convention, and that they had been discriminated against contrary to Article 14.
Ms Smith and Mr Grady made the same complaints under Articles 8 and 14. They further
complained that the Ministry of Defence policy against homosexuals and consequent investigations
and discharges were degrading contrary to Article 3 (prohibition of inhuman or degrading treatment
or punishment), and that the policy limited their right to express their sexual identity in violation of
Article 10 (freedom of expression) and that they did not have an effective domestic remedy for their
complaints as required by Article 13. Article 14 was also invoked in conjunction with the
complaints under Articles 3 and 10.
Decision of the Court in the case of Lustig-Prean and Beckett v. the United Kingdom
Article 8
The Court considered the investigations, and in particular the interviews of the applicants, to have
been exceptionally intrusive, it noted that the administrative discharges had a profound effect on the
applicants’ careers and prospects and considered the absolute and general character of the policy,
which admitted of no exception, to be striking. It therefore considered that the investigations
conducted into the applicants’ sexual orientation together with their discharge from the armed forces
constituted especially grave interferences with their private lives.
As to whether the Government had demonstrated "particularly convincing and weighty reasons" to
justify those interferences, the Court noted that the Government’s core argument was that the
presence of homosexuals in the armed forces would have a substantial and negative effect on morale
and, consequently, on the fighting power and operational effectiveness of the armed forces. The
Government relied, in this respect, on the Report of the Homosexual Policy Assessment Team
(HPAT) published in February 1996. The Court found that, insofar as the views of armed forces’
personnel outlined in the HPAT Report could be considered representative, those views were
founded solely upon the negative attitudes of heterosexual personnel towards those of homosexual
orientation. It was noted that the Ministry of Defence policy was not based on a particular moral
standpoint and the physical capability, courage, dependability and skills of homosexual personnel
114

were not in question. Insofar as those negative views represented a predisposed bias on the part of
heterosexuals, the Court considered that those negative attitudes could not, of themselves, justify the
interferences in question any more than similar negative attitudes towards those of a different race,
origin or colour.
While the Court noted the lack of concrete evidence to support the Government’s submissions as to
the anticipated damage to morale and operational effectiveness, the Court was prepared to accept
that certain difficulties could be anticipated with a change in policy (as was the case with the
presence of women and racial minorities in the past). It found that, on the evidence, any such
difficulties were essentially conduct-based and could be addressed by a strict code of conduct and
disciplinary rules. The usefulness of such codes and rules was not undermined, in the Court’s view,
by the Government’s suggestion that homosexuality would give rise to problems of a type and
intensity that race and gender did not or by their submission that particular problems would arise
with the admission of homosexuals in the context of shared accommodation and associated
facilities. Finally, the Court considered that it could not ignore widespread and consistently
developing views or the legal changes in the domestic laws of Contracting States in favour of the
admission of homosexuals into the armed forces of those States. Accordingly, convincing and
weighty reasons had not been offered by the Government to justify the discharge of the applicants.
While the applicants’ administrative discharges were a direct consequence of their homosexuality,
the investigations conducted into the applicants’ sexual orientation deserved separate consideration,
because the investigations continued after the applicants had admitted their homosexuality. The
Government suggested that the investigations continued in order to verify the admissions of
homosexuality so as to avoid false claims by those seeking an administrative discharge from the
armed forces. This argument was rejected by the Court because both applicants wished to remain in
the armed forces. In addition, the Court was not persuaded by the Government’s argument that
medical, security and disciplinary reasons necessitated the investigations. The Court rejected the
Government’s submission that the applicants knew they were not obliged to participate in the
interviews, finding, in this latter respect, that the applicants had no real choice but to co-operate, as
they wished to keep the investigations as discreet as possible. Accordingly, the investigations
conducted after the applicants’ confirmed their homosexuality were also considered unjustified.
The Court therefore took the view that neither the investigations nor the discharges of the applicants
were justified within the meaning of Article 8 § 2.
Article 14 in conjunction with Article 8
The applicants argued that they had been subjected to discriminatory treatment as a result of the
Ministry of Defence policy against homosexuals in the armed forces. The Court considered that this
complaint did not give rise to any issue separate to that already considered under Article 8.
Article 41
The Court considered that the issue of just satisfaction was not yet ready for decision and reserved
the question for a separate judgment.
Decision of the Court in the case of Smith and Grady v. the United Kingdom
Article 8 alone and in conjunction with 14
Since these complaints were similar to those of Mr Lustig-Prean and Mr Beckett, the Court adopted
the same reasoning and reached the same conclusion.
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Article 3 alone and in conjunction with Article 14
The Court noted that it had already indicated, in the context of the complaints under Article 8, why
it considered that the investigation and discharge together with the blanket nature of the policy of
the Ministry of Defence were of a particularly grave nature. In addition, the Court did not exclude
that treatment grounded upon a predisposed bias on the part of a heterosexual majority against a
homosexual minority as in the present case could, in principle, fall within the scope of Article 3. It
also accepted that the Ministry of Defence policy together with the consequent investigations and
discharges were undoubtedly distressing and humiliating for each of the applicants. However, the
Court did not consider that, in the circumstances of the case, the treatment reached the minimum
level of severity which would bring it within the scope of Article 3.
It accordingly concluded that there had been no violation of Article 3 either alone or in conjunction
with Article 14.
Article 10 alone and in conjunction with Article 14
The Court considered that the freedom of expression element of the case was subsidiary to the
applicants’ right to respect for their private lives which was principally at issue. The Court therefore
found that it was not necessary to examine the applicants’ complaints under Article 10 either alone
or in conjunction with Article 14.
Article 13 in conjunction with Article 8
The applicants argued that the judicial review proceedings did not constitute an effective domestic
remedy within the meaning of Article 13.
The Court noted that the sole issue before the domestic courts in the context of the judicial review
proceedings was whether the policy was irrational and that the test of irrationality was that
expounded by Sir Thomas Bingham MR in the Court of Appeal. According to that test, a court was
not entitled to interfere with the exercise of an administrative discretion on substantive grounds save
where that court was satisfied that the decision was unreasonable, in the sense that it was beyond the
range of responses open to a reasonable decision-maker. In judging whether the decision-maker had
exceeded this margin of appreciation, the human rights context was important, so that the more
substantial the interference with human rights, the more the court would require by way of
justification before it was satisfied that the decision was reasonable.
The Court also noted that Sir Thomas Bingham MR emphasised that the threshold beyond which a
decision would be considered irrational was a high one and it considered that this was confirmed by
the judgments of the High Court and of the Court of Appeal. Both of those courts had commented
very favourably on the applicants’ submissions challenging the Government’s justification of the
policy and both courts considered that there was an argument to be made that the policy was in
breach of the United Kingdom’s Convention obligations. The Court observed that, nevertheless,
those domestic courts were bound to conclude, given the test of irrationality applicable, that the
Ministry of Defence policy could not be said to be irrational.
The Court therefore found that the threshold at which the domestic courts could find the policy of
the Ministry of Defence irrational had been placed so high that it effectively excluded any
consideration by the domestic courts of the question of whether the interference with the applicants’
private lives had answered a pressing social need or was proportionate to the national security and
116

public order aims pursued by the Government, principles which lie at the heart of the Court’s
analysis under Article 8.
The Court concluded, accordingly, that the applicants did not have an effective domestic remedy in
relation to the violation of their right to respect for their private lives.
Article 41
As in the Lustig-Prean and Beckett case, the Court considered that the issue of just satisfaction was
not yet ready for decision and reserved the question for separate judgment.
Judge Loucaides expressed in both cases a partly dissenting and partly concurring opinion which is
annexed to the judgments.
---
The Court’s judgments are accessible on its Internet site (http://www.dhcour.coe.fr ) on the day of
their delivery.
117

22. Salgueiro da Silva Mouta v. Portugal, judgment of 21 December 1999, application no.
33290/96 (Violation of Articles 8 and 14 of the Convention). Refusal to award custody to
father on the grounds that he is homosexual and lives with another man.
741
21.12.1999
Press release issued by the Registrar
JUDGMENT IN THE CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL
In a judgment 1 delivered at Strasbourg on 21 December 1999 in the case of Salgueiro da Silva
Mouta v. Portugal, the European Court of Human Rights held unanimously that there had been a
violation of Article 8 (right to respect for private and family life) taken together with Article 14
(prohibition of discrimination) of the European Convention on Human Rights, and that it was
unnecessary to rule on the complaints made under Article 8 taken alone. Under Article 41 (just
satisfaction) of the Convention, the Court held that the judgment constituted of itself sufficient just
satisfaction for the damage alleged by the applicant; it awarded him 1,800,000 Portuguese escudos
(PTE) for costs and PTE 350,000 for expenses.
1. Principal facts
The applicant, João Manuel Salgueiro da Silva Mouta, a Portuguese national, was born in 1961 and
lives in Queluz (Portugal).
He was prevented by his ex-wife from visiting his daughter M., in breach of an agreement reached at
the time of their divorce. He sought an order giving him parental responsibility for the child, which
was granted by the Lisbon Family Affairs Court in 1994. M. lived with the applicant until 1995
when, he alleges, she was abducted by her mother. On appeal, the mother was given parental
responsibility whereas the applicant was granted a contact order which, he maintained, he was
unable to exercise. The Lisbon Court of Appeal gave two reasons in its judgment for granting
parental responsibility for M. to her mother, namely the interest of the child and the fact that the
applicant was a homosexual and living with another man.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 12 February 1996.
The case was transmitted to the Court on 1 November 1998 under the transitional provisions of
Protocol No. 11 to the Convention and declared admissible on 1 December 1998. A hearing was
held on 28 September 1999 in private.
Judgment was given by a Chamber of seven judges, composed as follows:
1 This judgment is not final. Under Article 43 of the European Convention on Human Rights, within three months from
the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the
17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious
question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general
importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel
will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the
expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
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Matti Pellonpää (Finnish), President , Georg Ress (German), Antonio Pastor Ridruejo (Spanish),
Lucius Caflisch (Swiss), Jerzy Makarczyk (Polish), Ireneu Cabral Barreto (Portuguese), Nina
Vajic (Croatian), Judges , and also Vincent Berger, Section Registrar .
3. Summary of the judgment
Complaints
The applicant complained of an unjustified interference with his right to respect for his private and
family life, as guaranteed by Article 8 of the Convention and discrimination contrary to Article 14 of
the Convention. He maintained, too, that contrary to Article 8 he had been forced by the court of
appeal to hide his homosexuality when seeing his daughter.
Decision of the Court
Article 8 taken together with Article 14 of the Convention
The Court noted at the outset that under the case-law of the Convention institutions Article 8 applied
to decisions concerning granting parental responsibility for a child to one of the parents on a divorce
or separation. The judgment of the Lisbon Court of Appeal constituted an interference with the
applicant’s right to respect for his family life in that it had reversed the judgment of the Lisbon
Family Affairs Court granting parental responsibility to the applicant.
The Court went on to observe that although the court of appeal had considered the interest of the
child in deciding to reverse the judgment of the Lisbon Family Affairs Court and, consequently, to
grant parental responsibility to the mother rather than the father, it had had regard to a new factor,
namely the fact that the applicant was a homosexual and living with another man. There had
therefore been a difference in treatment between the applicant and M.’s mother based on the
applicant’s sexual orientation, a notion that fell within Article 14 of the Convention. Such a
difference in treatment was discriminatory under that provision if it had no objective or reasonable
justification, that is if it did not pursue a legitimate aim or if there was not a reasonable relationship
of proportionality between the means employed and the aim sought to be realised.
The court of appeal had pursued a legitimate aim in reaching its decision, namely the protection of
the child’s health and rights. In order to decide whether there was no reasonable basis for the
decision that was finally made, the Court examined whether the new factor taken into account by the
Lisbon Court of Appeal – the applicant’s homosexuality – was a mere obiter dictum with no direct
impact on the final decision, or whether, on the contrary, it was a decisive factor. To that end, the
Court reviewed the Lisbon Court of Appeal’s judgment and noted that after finding that there were
no sufficient reasons for depriving the mother of parental responsibility – which the parents had
agreed she should exercise – it had gone on to say: "... even if that had not so, we consider that the
mother should be granted custody of the child". In so doing the court of appeal had noted that the
applicant was a homosexual and living with another man and had stated: "the child must live in ... a
traditional Portuguese family" and "it is unnecessary to examine whether or not homosexuality is an
illness or a sexual orientation towards people of the same sex. Either way, it is an abnormality and
children must not grow up in the shadow of abnormal situations".
The Court was of the view that those passages from the judgment of the Lisbon Court of Appeal
were not simply clumsy or unfortunate, or mere obiter dicta ; they suggested that the applicant’s
homosexuality had been decisive in the final decision and thus amounted to a distinction dictated by
factors relating to the applicant’s sexual orientation that it was not permissible to draw under the
Convention. That conclusion was supported by the fact that, when ruling on the applicant’s contact
119

ights, the court of appeal had discouraged the applicant from behaving during visits in a way that
would make the child aware that he was living with another man "as if they were spouses".
The Court therefore held that there had been a violation of Article 8 taken together with Article 14.
Article 8 of the Convention taken alone
The Court held that it was unnecessary to rule on the alleged violation of Article 8 taken alone as the
case made out on that point was, in substance, the same as that considered under Article 8 taken
together with Article 14.
Article 41 of the Convention
The applicant had sought "just reparation" but had failed to quantify his claim. In the circumstances,
the Court held that the finding of a violation in the judgment was of itself sufficient just satisfaction
for the alleged damage.
However, it awarded the applicant PTE 2,150,000 for costs and expenses.
120

23. Amann v. Switzerland, judgment of 16 February 2000, application no. 27798/95 (Violation
of Article 8 of the Convention). Recording a telephone conversation concerning business
activities, and creation of a card index and storing of data, both by the Public Prosecutor.
116
16.02.00
Press release issued by the Registrar
JUDGMENT IN THE CASE OF AMANN v. SWITZERLAND
In a judgment delivered at Strasbourg on 16 February 2000 in the case of Amann v. Switzerland, the
European Court of Human Rights held unanimously that there had been a violation of Article 8
(right to respect for private life and correspondence) of the European Convention on Human Rights.
It also held unanimously that there had not been a violation of Article 13 (right to an effective
remedy) of the Convention. Under Article 41 (just satisfaction) of the Convention, the Court
awarded the applicant 7,082.15 Swiss francs for legal costs and expenses.
1. Principal facts
The applicant, Hermann Amann, a Swiss national, was born in 1940 and lives in Berikon
(Switzerland).
In the early 1980s the applicant, who is a businessman, imported depilatory appliances into
Switzerland which he advertised in magazines. On 12 October 1981 a woman telephoned the
applicant from the former Soviet embassy in Berne to order a "Perma Tweez" depilatory appliance.
That telephone call was intercepted by the Federal Public Prosecutor’s Office ("the Public
Prosecutor’s Office"), which then requested the Intelligence Service of the police of the Canton of
Zürich to carry out an investigation into the applicant.
In December 1981 the Public Prosecutor’s Office filled in a card on the applicant for its national
security card index on the basis of the report drawn up by the Zürich police. In particular, the card
indicated that the applicant had been "identified as a contact with the Russian embassy" and was a
businessman. It was numbered (1153:0) 614, that code meaning "communist country" (1), "Soviet
Union" (153), "espionage established" (0) and "various contacts with the Eastern block" (614).
In 1990 the applicant learned of the existence of the card index kept by the Public Prosecutor’s
Office and asked to consult his card. He was provided with a photocopy in September 1990, but two
passages had been blue-pencilled.
After trying in vain to obtain disclosure of the blue-pencilled passages, the applicant filed an
administrative-law action with the Federal Court requesting, inter alia, 5,000 Swiss francs in
compensation for the unlawful entry of his particulars in the card index kept by the Public
Prosecutor’s Office. In a judgment of 14 September 1994, which was served on 25 January 1995,
the Federal Court dismissed his action on the ground that the applicant had not suffered a serious
infringement of his personality rights.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 27 June 1995.
Having declared the application admissible, the Commission adopted a report on 20 May 1998 in
which it expressed the opinion that there had been a violation of Article 8 (nine votes to eight) and
121

that there had not been a violation of Article 13 (unanimous). It referred the case to the Court on 24
November 1998.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Elisabeth Palm (Swedish), President, Luzius Wildhaber (Swiss), Luigi Ferrari Bravo (Italian),
Gaukur Jörundsson (Icelandic), Lucius Caflisch (Swiss), Ireneu Cabral Barreto (Portuguese),
Jean-Paul Costa (French), Willi Fuhrmann (Austrian), Karel Jungwiert (Czech), Marc Fischbach
(Luxemburger), Boštjan Zupancic (Slovenian), Nina Vajic (Croatian), John Hedigan (Irish),
Wilhelmina Thomassen (Dutch), Margarita Tsatsa-Nikolovska (FYROMacedonia), Egils Levits
(Latvian), Kristaq Traja (Albanian), Judges , and also Michele de Salvia , Registrar,
3. Summary of the judgment
Complaints
The applicant complained that the interception of the telephone call on 12 October 1981 and the
creation by the Public Prosecutor’s Office of a card on him and the storage of that card in the
Confederation’s card index had violated Article 8 of the European Convention on Human Rights. He
also complained that he had not had an effective remedy within the meaning of Article 13 of the
Convention to obtain redress for the alleged violations.
Decision of the Court
Article 8 of the Convention
(a) as regards the telephone call
The Court considered that the measure in question, namely the interception by the Public
Prosecutor’s Office of the telephone call of 12 October 1981, amounted to an interference with the
applicant’s exercise of his right to respect for his private life and his correspondence.
The Court pointed out that such interference breached Article 8 unless it was "in accordance with
the law", pursued one or more of the legitimate aims referred to in paragraph 2 of that provision and
was, in addition, necessary in a democratic society to achieve those aims.
In determining the issue of lawfulness, the Court had to examine whether the impugned measure had
a legal basis in domestic law and whether it was accessible and foreseeable to the person concerned.
A rule was "foreseeable" if it was formulated with sufficient precision to enable any individual – if
need be with appropriate advice – to regulate their conduct. With regard to secret surveillance
measures, the Court reiterated that the "law" had to be particularly detailed.
The Court noted in the instant case that Article 1 of the Federal Council’s Decree of 29 April 1958
on the Police Service of the Federal Public Prosecutor’s Office and section 17(3) of the Federal
Criminal Procedure Act ("FCPA"), on which the Government relied and according to which the
Public Prosecutor’s Office "shall provide an investigation and information service in the interests of
the Confederation’s internal and external security", were worded in terms too general to satisfy the
requirement of "foreseeability". As regards sections 66 et seq. FCPA, which governed the
monitoring of telephone communications, the Government were unable to establish that the
conditions of application of those provisions had been complied with. The Court went on to observe
that, in the Government’s submission, the applicant had not been the subject of the impugned
measure, but had been involved "fortuitously" in a telephone conversation recorded in the course of
a surveillance measure taken against a third party. The primary object of sections 66 et seq. FCPA
122

was the surveillance of persons suspected or accused of a crime or major offence or even third
parties presumed to be receiving information from or sending it to such persons, but those
provisions did not specifically regulate in detail the case of persons not falling into any of those
categories.
The Court concluded, in the light of the foregoing, that the interference had not been "in accordance
with the law". Accordingly, there had been a violation of Article 8 of the Convention.
(b) as regards the card
The Court reiterated firstly that the storing of data relating to the "private life" of an individual fell
within the application of Article 8 § 1 of the Convention. It pointed out in this connection that the
term "private life" must not be interpreted restrictively.
In the present case the Court noted that a card had been filled in on the applicant on which it was
stated, inter alia, that he was a businessman and a "contact with the Russian embassy". The Court
found that those details undeniably amounted to data relating to the applicant’s "private life" and
that, accordingly, Article 8 was applicable.
The Court then reiterated that the storing by a public authority of data relating to an individual
amounted in itself to an interference within the meaning of Article 8. The subsequent use of the
stored information had no bearing on that finding and it was not for the Court to speculate as to
whether the information gathered was sensitive or not or as to whether the person concerned had
been inconvenienced in any way.
The Court noted that in the present case it had not been disputed that a card containing data on the
applicant’s private life had been filled in by the Public Prosecutor’s Office and stored in the
Confederation’s card index. There had therefore been an interference with the applicant’s exercise of
his right to respect for his private life.
Such interference breached Article 8 unless it was "in accordance with the law", pursued one or
more of the legitimate aims referred to in paragraph 2 and was, in addition, necessary in a
democratic society to achieve those aims.
The Court observed that in the instant case the legal provisions relied on by the Government, in
particular the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public
Prosecutor’s Office, the Federal Criminal Procedure Act and the Federal Council’s Directives of 16
March 1981 applicable to the Processing of Personal Data in the Federal Administration, did not
contain specific and detailed provisions on the gathering, recording and storing of information. It
also pointed out that domestic law, particularly section 66(1ter) FCPA, expressly provided that
documents which were no longer "necessary" or had become "purposeless" had to be destroyed; the
authorities had failed to destroy the data they had gathered on the applicant after it had become
apparent, as the Federal Court had pointed out in its judgment of 14 September 1994, that no
criminal offence was being prepared.
The Court concluded, in the light of the foregoing, that there had been no legal basis for the creation
of the card on the applicant and its storage in the Confederation’s card index. Accordingly, there had
been a violation of Article 8 of the Convention.
Article 13 of the Convention
123

The Court reiterated that Article 13 of the Convention requires that any individual who considers
himself injured by a measure allegedly contrary to the Convention should have a remedy before a
national authority in order both to have his claim decided and, if appropriate, to obtain redress. That
provision did not, however, require the certainty of a favourable outcome.
The Court noted that in the instant case the applicant was able to consult his card as soon as he
asked to do so in 1990. It also observed that the applicant had complained in his administrative-law
action in the Federal Court that there had been no legal basis for the interception of the telephone
call and the creation of his card and, secondly, that he had had no effective remedy against those
measures. In that connection the Court reiterated that the Federal Court had had jurisdiction to rule
on those complaints and had duly examined them.
The Court concluded, in the light of the foregoing, that the applicant had therefore had an effective
remedy under Swiss law. Accordingly, there had not been a violation of Article 13 of the
Convention.
Article 41 of the Convention
The applicant did not allege any pecuniary damage. However, he claimed 1,000 Swiss francs (CHF)
for non-pecuniary damage.
The Court held that the non-pecuniary damage had been adequately compensated by the finding of
violations of Article 8 of the Convention.
The applicant also claimed CHF 7,082.15 in respect of his costs and expenses for the proceedings
before the Convention institutions.
The Court considered that the claim for costs and expenses was reasonable and that it should be
allowed in full.
124

24. Rotaru v. Romania, judgment of 4 May 2000, application no. 28341/95 (Violation of
Articles 8 and 13 of the Convention). Storing and use of personal data held by the
Romanian intelligence services and absence of the possibility of refuting their accuracy.
311
4.5.2000
Press release issued by the Registrar
JUDGMENT IN THE CASE OF ROTARU v. ROMANIA
In a judgment delivered at Strasbourg on 4 May 2000 in the case of Rotaru v. Romania, the
European Court of Human Rights held by 16 votes to 1 that there had been a violation of Article 8
(right to respect for private life) of the European Convention on Human Rights and unanimously
that there had been a violation of Article 13 (right to an effective remedy) and Article 6 (right to a
fair trial) of the Convention. Under Article 41 (just satisfaction) of the Convention, the Court
awarded the applicant 63,450 French francs for pecuniary and non-pecuniary damage and for legal
costs and expenses.
1. Principal facts
The applicant, Aurel Rotaru, a Romanian national, was born in 1921 and lives in Bârlad (Romania).
In 1992 the applicant, who in 1948 had been sentenced to a year’s imprisonment for having expressed
criticism of the communist regime established in 1946, brought an action in which he sought to be
granted rights that Decree no. 118 of 1990 afforded persons who had been persecuted by the communist
regime. In the proceedings which followed in the Bârlad Court of First Instance, one of the defendants,
the Ministry of the Interior, submitted to the court a letter sent to it on 19 December 1990 by the
Romanian Intelligence Service, which contained, among other things, information about the applicant’s
political activities between 1946 and 1948. According to the same letter, Mr Rotaru had been a member
of the Christian Students’ Association, an extreme right-wing "legionnaire" movement, in 1937.
The applicant considered that some of the information in question was false and defamatory – in
particular, the allegation that he had been a member of the legionnaire movement – and brought
proceedings against the Romanian Intelligence Service, claiming compensation for the non-pecuniary
damage he had sustained and amendment or destruction of the file containing the untrue information.
The claim was dismissed by the Bârlad Court of First Instance in a judgment that was upheld by the
Bucharest Court of Appeal on 15 December 1994. Both courts held that they had no power to order
amendment or destruction of the information in the letter of 19 December 1990 as it had been gathered
by the State’s former security services, and the Romanian Intelligence Service had only been a
depositary.
In a letter of 6 July 1997 the Director of the Romanian Intelligence Service informed the Ministry of
Justice that after further checks in their registers it appeared that the information about being a
member of the "legionnaire" movement referred not to the applicant but to another person of the
same name.
In the light of that letter the applicant sought a review of the Court of Appeal’s judgment of 15
December 1994 and claimed damages. In a decision of 25 November 1997 the Bucharest Court of
Appeal quashed the judgment of 15 December 1994 and declared the information about the
applicant’s past membership of the "legionnaire" movement null and void. It did not rule on the claim
for damages.
125

2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 22 February 1995.
Having declared the application admissible, the Commission adopted a report on 1 March 1999 in
which it expressed the unanimous opinion that there had been a violation of Articles 8 and 13 of the
Convention. It referred the case to the Court on 3 June 1999. The applicant also brought the case
before the Court on 20 June 1999.
Under the transitional provisions of Protocol No. 11 to the Convention, a panel of the Grand
Chamber decided on 7 July 1999 that the case would be heard by the Grand Chamber. On
19 January 2000 the Grand Chamber held a public hearing.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President, Elisabeth Palm (Swedish), Antonio Pastor Ridruejo
(Spanish), Giovanni Bonello (Maltese), Jerzy Makarczyk (Polish), Riza Türmen (Turkish), Jean-
Paul Costa (French), Françoise Tulkens (Belgian), Viera Strážnická (Slovakian), Peer Lorenzen
(Danish), Marc Fischbach (Luxemburger), Volodymyr Butkevych (Ukrainian), Josep Casadevall
(Andorran), András Baka (Hungarian), Rait Maruste (Estonian), Snejana Botoucharova (Bulgarian),
Judges, Renate Weber (Romanian), ad hoc Judge , and also Michele de Salvia , Registrar .
3. Summary of the judgment
Complaints
The applicant complained of an infringement of his right to private life in that the Romanian
Intelligence Service held a file containing information on his private life and that it was impossible
to refute the untrue information. He relied on Article 8 of the European Convention on Human
Rights. He also complained of the lack of an effective remedy before a national authority which
could rule on his application for amendment or destruction of the file containing untrue information
and of the courts’ refusal to consider his applications for costs and damages, which he said infringed
his right to a court. He relied on Articles 13 and 6 of the Convention.
Decision of the Court
The Government’s preliminary objections
(i) Applicant’s victim status
The Court noted that the applicant complained of the holding of a secret register containing
information about him, whose existence had been publicly revealed during judicial proceedings. It
considered that he could on that account claim to be the victim of a violation of the Convention.
As to the Bucharest Court of Appeal’s judgment of 25 November 1997, assuming that it could be
considered that it did to some extent afford the applicant redress for the existence in his file of
information that proved false, the Court took the view that such redress was only partial and that at
all events it was insufficient under the case-law to deprive him of his status of victim.
The Court concluded that the applicant could claim to be a "victim" for the purposes of Article 34 of
the Convention.
(ii) Exhaustion of domestic remedies
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As to the Government’s submission that the applicant had not exhausted domestic remedies, because
he had not brought an action based on Decree no. 31/1954 on natural and legal persons, the Court
noted that there was a close connection between the Government’s argument on this point and the
merits of the complaints made by the applicant under Article 13 of the Convention. It accordingly
joined this objection to the merits.
Article 8 of the Convention
The Court noted that the RIS’s letter of 19December 1990 contained various pieces of information
about the applicant’s life, in particular his studies, his political activities and his criminal record,
some of which had been gathered more than fifty years earlier. In the Court’s opinion, such
information, when systematically collected and stored in a file held by agents of the State, fell
within the scope of "private life" for the purposes of Article 8 § 1 of the Convention. Article 8
consequently applied.
The Court considered that both the storing of that information and the use of it, which were coupled
with a refusal to allow the applicant an opportunity to refute it, had amounted to interference with
his right to respect for family life as guaranteed by Article 8 § 1.
If it was not to contravene Article 8, such interference had to have been "in accordance with the
law", pursue a legitimate aim under paragraph 2 and, furthermore, be necessary in a democratic
society in order to achieve that aim.
In that connection, the Court noted that in its judgment of 25 November 1997 the Bucharest Court of
Appeal had confirmed that it was lawful for the RIS to hold the information as depositary of the
archives of the former security services. That being so, the Court could conclude that the storing of
information about the applicant’s private life had had a basis in Romanian law.
As regards the requirement of foreseeability, the Court noted that no provision of domestic law laid
down any limits on the exercise of those powers. Thus, for instance, domestic law did not define the
kind of information that could be recorded, the categories of people against whom surveillance
measures such as gathering and keeping information could be taken, the circumstances in which
such measures could be taken or the procedure to be followed. Similarly, the Law did not lay down
limits on the age of information held or the length of time for which it could be kept.
Section 45 empowered the RIS to take over for storage and use the archives that had belonged to the
former intelligence services operating on Romanian territory and allowed inspection of RIS
documents with the Director’s consent. The Court noted that the section contained no explicit,
detailed provision concerning the persons authorised to consult the files, the nature of the files, the
procedure to be followed or the use that could be made of the information thus obtained.
It also noted that although section 2 of the Law empowered the relevant authorities to permit
interferences necessary to prevent and counteract threats to national security, the ground allowing
such interferences was not laid down with sufficient precision.
The Court also noted that the Romanian system for gathering and archiving information did not
provide any safeguards, no supervision procedure being provided by Law no. 14/1992, whether
while the measure ordered was in force or afterwards.
That being so, the Court considered that domestic law did not indicate with reasonable clarity the
scope and manner of exercise of the relevant discretion conferred on the public authorities. The
Court concluded that the holding and use by the RIS of information on the applicant’s private life
127

had not been "in accordance with the law", a fact that sufficed to constitute a violation of Article 8.
Furthermore, in the instant case that fact prevented the Court from reviewing the legitimacy of the
aim pursued by the measures ordered and determining whether they had been – assuming the aim to
have been legitimate – "necessary in a democratic society".
There had consequently been a violation of Article 8.
Article 13 of the Convention
The Court noted that Article 54 of the decree provided for a general action in the courts, designed to
protect non-pecuniary rights that had been unlawfully infringed. The Bucharest Court of Appeal,
however, had indicated in its judgment of 25 November 1997 that the RIS was empowered by
domestic law to hold information on the applicant that came from the files of the former intelligence
services. The Government had not established the existence of any domestic decision that had set a
precedent in the matter. It had therefore not been shown that such a remedy would have been
effective. That being so, the relevant preliminary objection by the Government had to be dismissed.
As to the machinery provided in Law no. 187/1999, assuming that the council provided for was set
up, the Court noted that neither the provisions relied on by the respondent Government nor any other
provisions of that law made it possible to challenge the holding, by agents of the State, of
information on a person’s private life or the truth of such information. The supervisory machinery
established by sections 15 and 16 related only to the disclosure of information about the identity of
some of the Securitate’s collaborators and agents.
The Court had not been informed of any other provision of Romanian law that made it possible to
challenge the holding, by the intelligence services, of information on the applicant’s private life or to
refute the truth of such information.
The Court consequently concluded that the applicant had been the victim of a violation of Article 13.
Article 6 of the Convention
The applicant’s claim for compensation for non-pecuniary damage and costs was a civil one within
the meaning of Article 6 § 1, and the Bucharest Court of Appeal had had jurisdiction to deal with it.
The Court accordingly considered that the Court of Appeal’s failure to consider the claim had
infringed the applicant’s right to a fair hearing within the meaning of Article 6 § 1.
There had therefore been a violation of Article 6 § 1 of the Convention also.
Article 41 of the Convention
The Court therefore considered that the events in question had entailed serious interference with Mr
Rotaru’s rights and that the sum of FRF 50,000 would afford fair redress for the non-pecuniary
damage sustained.
The Court awarded the full amount claimed by the applicant, that is to say FRF 13,450, less the sum
already paid by the Council of Europe in legal aid.
Judges Wildhaber, Lorenzen and Bonello expressed separate opinions and these are annexed to the
judgment. Judges Makarczyk, Türmen, Costa, Tulkens, Casadevall and Weber joined the opinion of
Judge Wildhaber.
128

25. Khan v. The United Kingdom, judgment of 12 May 2000, application no. 35394/97
(Violation of Article 8 of the Convention). Absence of legal basis for interception of
conversation by means of listening device installed on private property.
338
12.5.2000
Press release issued by the Registrar
JUDGMENT IN THE CASE OF KHAN v. THE UNITED KINGDOM
In a judgment delivered at Strasbourg on 12 May 2000 in the case of Sultan KHAN v. the United
Kingdom, the European Court of Human Rights held unanimously that there has been violations of
Article 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the
Convention, and by 6 to 1 votes that there had been no violation of Article 6 (right to a fair trial) of
the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the
Court awarded the applicant 11,500 (eleven thousand five hundred) pounds sterling less 11,900.30
(eleven thousand and ninety) French francs (and thirty centimes) for legal costs and expenses and
dismissed the remainder of the applicant’s claim for just satisfaction.
1. Principal facts
Sultan Kahn, a British national born in 1957 and living in Sheffield, was convicted of drug-dealing
on the basis of evidence improperly obtained by a secret listening device installed by the police. His
appeal against his conviction was dismissed on the ground that the invasion of his privacy was
outweighed by the aim of proving he had been involved in serious crime. He complains that his trial
was unfair, in breach of Article 6 § 1 and of violations of his right to respect for his private life
(Article 8) and 13 (right to an effective remedy).
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 1 January 1997.
In accordance with the transitional provisions of Protocol No. 11 to the Convention, a panel of the
Grand Chamber of the Court decided that the case should be examined by a Chamber constituted
within one of the Sections of the Court. On 24 April 1999 the Court (Third Section) declared the
application admissible. A hearing was held on 26 October 1999. Judgment was given by a Chamber of
seven judges, composed as follows:
Jean-Paul Costa, (French), President ,
Willi Fuhrmann (Austrian), Loukis Loucaides (Cypriot), Pranas Kuris (Lithuanian), Sir Nicolas
Bratza (British), Hanne Sophie Greve (Norwegian), Kristaq Traja (Albanian), judges, and also Sally
Dollé, Section Registrar.
3. Summary of the judgment
Complaints
The applicant complained that his rights guaranteed under Articles 6, 8 and 13 of the European
Convention on Human Rights had been violated.
Decision of the Court
Article 8 of the Convention
129

By reference to earlier Convention case-law, the Court found that at the time of the interference with
the applicant’s conversations, there had existed no statutory system to regulate the use of covert
listening devices. The Home Office Guidelines which existed were neither legally binding nor were
they directly publicly accessible. The Court therefore found that the interference with the applicant’s
right to respect for his private life and his correspondence was not "in accordance with the law", as
required by Article 8 § 2 of the Convention.
It therefore found a violation of that provision.
Article 6 of the Convention
The Court noted that it was not its role to determine, as a matter of principle, whether particular
types of evidence - for example, unlawfully obtained evidence - might be admissible or, indeed,
whether the applicant was guilty or not. Furthermore it recalled earlier case-law to the effect that it
would not exclude as a matter of principle and in the abstract that unlawfully obtained evidence
might be admissible.
In examining whether, in all the circumstances of the case, including the way in which evidence was
obtained, the proceedings as a whole were unfair, the Court observed that the recording of the
applicant’s conversation had not been unlawful in the sense of being contrary to domestic criminal
law, even though it had been obtained in breach of Article 8 of the Convention. The Court then
considered the fact that the contested material in the present case was in effect the only evidence
against the applicant. However, where as here, there was no risk of the recording being unreliable, the
need for supporting evidence was correspondingly weaker. Returning to the central question whether
the proceedings as a whole were fair, the Court noted that the applicant had had ample opportunity to
challenge both the authenticity and the use of the recording. He did not challenge its authenticity, but
challenged its use before the trial court and again before the Court of Appeal and the House of Lords.
At each level of jurisdiction the domestic courts assessed the effect of admission of the evidence on
the fairness of the trial and discussed, amongst other matters, the non-statutory basis for the
surveillance.
In the Court’s view it was clear that, had the domestic courts been of the view that the admission of
the evidence would have given rise to substantive unfairness, they would have had a discretion to
exclude it under section 78 of the Police and Criminal Evidence Act.
In these circumstances, the Court found that the use at the applicant’s trial of the secretly taped material
did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.
Article 13 of the Convention
The Court found that none of the remedies open to the applicant to challenge the alleged lack of an
adequate basis in law complied with the requirement of Article 13 that a remedy must allow the
competent national authority to deal with the substance of the Convention complaint and to grant
appropriate relief.
Article 41 of the Convention
The Court awarded the applicant the sum of £11,500 plus VAT for costs and expenses less sums
received by way of legal aid.
Judge Loucaides expressed a partly concurring, partly dissenting opinion which is annexed to the
judgment.
130

26. P.G. and J.H. v. The United Kingdom, judgment of 25 September 2001, application no.
44787/98 (Violation of Articles 8 and 13 of the Convention). Absence of a legal basis for the
installation of a covert listening device in private property and for the covert recording of
voice samples at a police station; acquisition by the police of information concerning the
use of a private telephone.
663
25.9.2001
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF P.G. AND J.H. v. THE UNITED KINGDOM
In a judgment 1 notified in writing in the case of P.G. and J.H. v. the United Kingdom (no.
44787/98), the European Court of Human Rights held:
• unanimously that there had been a violation of Article 8 (right to respect for private life) of
the European Convention on Human Rights concerning the use of a covert listening device at
a flat;
• unanimously that there had been no violation of Article 8 concerning obtaining information
about the use of a telephone;
• unanimously that there had been a violation of Article 8 concerning the use of covert
listening devices at a police station;
• unanimously that there had been no violation of Article 6 § 1 (right to a fair hearing)
concerning the non-disclosure of part of a report to the applicants at trial or the hearing of
evidence from a police officer in the absence of the applicants or their lawyers;
• by six votes to one that there had been no violation of Article 6 § 1 concerning the use at
trial of the materials obtained by the covert listening devices;
• unanimously that there had been a violation of Article 13 (right to an effective remedy)
concerning the use of covert listening devices.
Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 1,000
pounds sterling (GBP) for non-pecuniary damage and a total of GBP 12,000 for costs and expenses.
(The judgment is available only in English)
1. Principal facts
The applicants are both British nationals.
On 28 February 1995, D.I. Mann received information that an armed robbery of a Securicor cash
collection van was going to be committed on or around 2 March 1995 by the first applicant and B. at
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
131

one of several possible locations. Visual surveillance of B.’s home began the same day. No robbery
took place.
By 3 March, however, the police had been informed the robbery was to take place ‘somewhere’ on 9
March 1995. In order to obtain further details, D.I. Mann prepared a report applying for
authorisation to install a covert listening device in B.’s flat. On 4 March 1995, the Chief Constable
gave oral authorisation and a listening device was installed in a sofa in B.’s flat the same day; the
Deputy Chief Constable gave retrospective written authorisation on 8 March 1995. On 14 March
1995, the police requested itemised billing for calls from the telephone in B.’s flat. On 15 March
1995, B. and others who were with him in his home discovered the listening device and abandoned
the premises. The robbery did not take place.
The applicants were arrested on 16 March 1995 in a stolen car containing two black balaclavas, five
black plastic cable ties, two pairs of leather gloves, and two army kitbags.
As they wished to obtain speech samples to compare with the tapes, the police applied for
authorisation to use covert listening devices in the applicants’ cells and to attach listening devices to
the police officers who were to be present when the applicants were charged. Written authorisation
was given by the Chief Constable and samples of the applicants’ speech were recorded without their
knowledge or permission. An expert concluded it was ‘likely’ the first applicant’s voice featured on
the taped recordings and ‘very likely’ the second applicant’s voice featured on them.
B. and the applicants were charged with conspiracy to rob. During their trial, evidence derived from
the use of the covert listening devices was deemed admissible and some documents, including parts
of D.I. Mann’s report, were withheld from the applicants and their lawyers. Oral evidence was also
taken from D.I. Mann in the absence of the applicants or their lawyers. The applicants were
convicted on 9 August 1996 of conspiracy to rob and sentenced to 15 years’ imprisonment. Their
application to the Court of Appeal for leave to appeal was rejected.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 7 May 1997. The
case was transmitted to the European Court of Human Rights on 1 November 1998 and declared
admissible on 24 October 2000.
Judgment was given by a Chamber of seven judges, composed as follows:
Jean-Paul Costa (French), President, Willi Fuhrmann (Austrian), Pranas Kūris (Lithuanian),
Françoise Tulkens (Belgian), Karel Jungwiert (Czech), Nicolas Bratza (British), Kristaq Traja
(Albanian), judges , and also Sally Dollé, Section Registrar .
Judge Tulkens expressed a dissenting opinion, which is annexed to the judgment.
3. Summary of the judgment
Complaints
The applicants complained, relying on Article 8, about the use of covert listening devices to monitor
and record their conversations at B’s flat, the monitoring of calls from B’s telephone and the use of
listening devices to obtain voice samples while they were at the police station.
Relying on Article 6 § 1, they complained that part of the evidence relating to the authorisation of a
listening device was not disclosed to the defence during the trial, that part of the police officer’s oral
132

evidence was heard by the judge alone and that information obtained from the listening device at
B’s flat and the voice samples were used in evidence at their trial. They also relied on Article 13.
Decision of the Court
Article 8
Use of a covert listening device at B.’s flat
Noting that the UK Government had conceded that the police surveillance of B’s flat was not in
accordance with the law existing at the time in question, the Court held that there had been a
violation of Article 8.
Obtaining information about the use of B.’s telephone
Observing that the information about the use of B.’s telephone was obtained and used in the context
of an investigation and trial concerning a suspected conspiracy to commit armed robberies, the
Court found that the measure was necessary in a democratic society. There had therefore been no
violation of Article 8.
Use of covert listening devices at the police station
Noting that, at the relevant time, there existed no statutory system to regulate the use of covert
listening devices by the police on their own premises, the Court found the interference with the
applicants’ right to a private life was not in accordance with the law. There had therefore been a
violation of Article 8.
Article 6 § 1
Non-disclosure of evidence during the trial
The Court was satisfied that the defence were kept informed and permitted to make submissions and
participate in the decision-making process as far as was possible without revealing to them the
material which the prosecution sought to keep secret on public interest grounds. The questions
which the defence counsel had wished to put to the witness D.I. Mann were asked by the judge in
chambers. The Court also noted that the material which was not disclosed in the present case formed
no part of the prosecution case whatever, and was never put to the jury. The fact that the need for
disclosure was at all times under assessment by the trial judge provided a further, important
safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the
evidence being withheld.
In conclusion, therefore, the Court found that, as far as possible, the decision-making procedure
complied with the requirements of adversarial proceedings and equality of arms and incorporated
adequate safeguards to protect the interests of the accused. It followed that there had been no
violation of Article 6 § 1.
Use of taped evidence obtained by covert surveillance devices
The Court observed that the taped evidence at the trial was not the only evidence against the
applicants. Furthermore, they had had ample opportunity to challenge both the authenticity and the
use of the recordings. It was also clear that, had the domestic courts been of the view that the
admission of the evidence would have given rise to substantive unfairness, they would have had a
discretion to exclude it. The Court further considered that there was no unfairness in leaving it to the
133

jury, on the basis of a thorough summing-up by the judge, to decide where the weight of the
evidence lay.
Insofar as the applicants complained that the way in which the voice samples were obtained
infringed their right not to incriminate themselves, the Court considered that the voice samples,
which did not include any incriminating statements, might be regarded as akin to blood, hair or other
physical or objective specimens used in forensic analysis, to which the right did not apply. There
had therefore been no violation of Article 6 § 1.
Article 13
The Court observed that the domestic courts were not capable of providing a remedy because it was
not open to them either to deal with the complaint that the interference with the applicants’ right to
respect for their private lives was not in accordance with the law or to grant appropriate relief in
connection with the complaint.
The Court further found that the system of investigation of complaints did not meet the standards of
independence necessary to constitute sufficient protection against the abuse of authority and to provide
an effective remedy within the meaning of Article 13. There had therefore been a violation of Article 13.
134

27. Krone Verlag Gmbh & Co. KG v. Austria, judgment of 26 February 2002, no. 34315/96
(Violation of Article 10 of the Convention). Conviction of applicant company for
publishing photographs of a politician.
104
26.2.2002
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING AUSTRIA
The European Court of Human Rights has today notified in writing the following three Chamber
judgments, none of which is final. 1 (All three are available only in English.)
(…..)
(3) Krone Verlag Gmbh & Co. KG v. Austria (no. 34315/96) Violation Article 10
Krone Verlag GmbH & Co. KG, a limited partnership, is the publisher of a newspaper
( Kronenzeitung), based in Vienna.
Between March and 29 June 1995, the applicant company published, in its Carinthian regional
edition ( Lokalausgabe) , articles on the financial situation of a MrPosch who, at that time, was
employed as a teacher while also a member of the Austrian National Assembly (Nationalrat ) and the
European Parliament. The articles, which were accompanied by photographs of Mr Posch, alleged
that he received three salaries unlawfully as, according to Austrian law, he was not entitled to a
teacher’s salary during his membership of the European Parliament.
On 18 August 1995 Mr Posch applied for an injunction under Section 78 of the Copyright Act
( Urheberrechtsgesetz) against the applicant company. On 4 January 1996, Klagenfurt Regional
Court granted a permanent injunction prohibiting the applicant company from publishing the
plaintiff’s picture in connection with the article in question or similar articles. The court found that,
as Mr Posch’s face was not generally known, his legitimate interests had been infringed by creating
the possibility of identifying him. Whether or not the contents of the articles were true or not was
not taken into consideration. The applicant company appealed unsuccessfully.
The European Court of Human Rights observed that the applicant company had accused Mr Posch,
a politician, of earning money illegally, which was, without doubt, a matter of public concern. The
Court found that the Austrian courts failed to take into account the essential function the press fulfils
in a democratic society and its duty to impart information and ideas on all matters of public interest.
Moreover, it was of little importance whether a certain person (or his or her picture) was actually
known to the public. What counted was whether that person has entered the public arena.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
135

In view of Mr Posch’s position as a politician, there was no doubt that he had entered the public
arena and had to bear the consequences. There was, therefore, no valid reason why the applicant
company should have been prevented from publishing his picture. The Court attached particular
importance to the fact that the published photographs did not disclose any details of his private life.
In addition, the curriculum vitae and picture of Mr Posch, still a member of the Austrian Parliament
(national council), were included on the Austrian Parliament’s internet site.
The interference with the applicant company’s right to freedom of expression was therefore not
"necessary in a democratic society". Accordingly, the Court held, unanimously, that there had been a
violation of Article 10 and awarded the applicant EUR 4,318.16 for pecuniary damage and EUR
6,411.53 for costs and expenses.
136

28. Mikulić v. Croatia, judgment of 7 February 2002, application no. 53176/99 (Violation of
Article 8 of the Convention). People in the applicant’s situation had a vital interest in
receiving the information necessary to uncover the truth about an important aspect of
their personal identity: establishing paternity.
074
7.2.2002
Press release issued by the Registrar
JUDGMENT IN THE CASE OF MIKULIĆ v. CROATIA
The European Court of Human Rights has today notified in writing a judgment in the case of
Mikulić v. Croatia (no. 53176/99); the judgment is not final 1 .
The Court held, unanimously, that there had been a:
• violation of Article 6 § 1 (right to a determination of civil rights within a reasonable time) of
the European Convention on Human Rights;
• violation of Article 8 (right to respect for private life) of the Convention;
• violation of Article 13 (right to an effective remedy) in respect of the complaint raised under
Article 6 § 1.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 7,000 Euros
for non-pecuniary damage. (The judgment is only available in English.)
1. Principal facts
Montana Mikulić is a Croatian national born out of wedlock in 1996. On 30 January 1997, she and
her mother filed a paternity suit against H.P. before Zagreb Municipal Court. A number of hearings
scheduled by the court were adjourned because H.P. failed to appear. H.P. also failed to abide by
court orders to attend appointments to undergo DNA tests to establish paternity, which were
scheduled six times. After three-and-a-half years, the court concluded that H.P. was the applicant’s
father. It based its conclusion on the testimony of the applicant’s mother and on the fact that H.P.
had been avoiding DNA tests.
H.P. appealed to Zagreb County Court, which quashed the first-instance judgment, finding that
H.P.’s paternity could not be established primarily on the basis of his avoidance of DNA tests. The
case was sent back to the municipal court which was ordered to hear witnesses who, H.P. alleged,
had had intimate relations with the applicant’s mother during the relevant period. On 19 November
the municipal court established H.P.’s paternity and granted the applicant maintenance. H.P.
appealed. The proceedings still appear to be pending before the county court.
2. Procedure and composition of the Court
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
137

The application was lodged with the European Court of Human Rights on 9 October 1999 and
declared partly admissible on 7 December 2000.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President , Françoise Tulkens (Belgian), Peer Lorenzen (Danish), Nina
Vajić (Croatian), Egils Levits (Latvian), Anatoly Kovler (Russian), Vladimiro Zagrebelsky
(Italian),judges, nd also Erik Fribergh, Section Registrar .
3. Summary of the judgment
Complaints
The applicant complained, under Article 8, that the failure of the domestic courts to reach a decision
in her case had left her uncertain about her personal identity. She also complained, under Article 6 §
1, about the length of the proceedings and, under Article 13, that she had no means of speeding up
the proceedings and that Croatian law does not oblige defendants in paternity suits to comply with a
court order to undergo a DNA test.
Decision of the Court
Article 6 § 1
The Court noted that the municipal court scheduled 15 hearings, six of which had been adjourned
because H.P. had failed to appear, while none had been adjourned owing to the applicant’s absence.
Having regard to the circumstances of the case, the Court considered that the length of the
proceedings to be taken into account failed to satisfy the reasonable-time requirement. There had,
therefore, been a violation of Article 6 § 1.
Article 8
The Court noted that no measures existed under Croatian law to compel H.P. to comply with the
court order for DNA tests to be carried out. Nor was there any direct provision governing the
consequences of such non-compliance. It was true, however, that the courts in civil proceedings
were free to reach conclusions taking into consideration the fact that a party had been obstructing the
establishment of certain facts. However, that was not in itself a sufficient and adequate means for
establishing paternity in cases where the putative father was avoiding a court order to undergo DNA
tests. In addition, the first-instance court had failed to resolve the question of paternity through the
assessment of other relevant evidence.
The Court considered that people in the applicant’s situation had a vital interest, protected by the
Convention, in receiving the information necessary to uncover the truth about an important aspect of
their personal identity. On the other hand, it had to be borne in mind that the protection of third
persons might preclude their being compelled to make themselves available for medical tests of any
kind, including DNA tests.
A system like the Croatian one, which had no means of compelling the alleged father to comply a
court order to undergo DNA tests, could in principle be considered to be compatible with Article 8.
The Court considered, however, that under such a system the interests of the individual seeking the
establishment of paternity must be secured when paternity could not be established by means of
DNA testing. The lack of any procedural measure to compel the alleged father to comply with the
court order was only in conformity with the principle of proportionality if it provided alternative
138

means enabling an independent authority to determine the paternity claim speedily. No such
procedure was available to the applicant in the present case.
Furthermore, in determining an application to have paternity established, the courts were required to
have regard to the basic principle of the child’s interests. The Court found that the procedure
available did not strike a fair balance between the right of the applicant to have her uncertainty as to
her personal identity eliminated without unnecessary delay and that of her supposed father not to
undergo DNA tests. Accordingly, the inefficiency of the courts had left the applicant in a state of
prolonged uncertainty as to her personal identity. There had, consequently, been a violation of
Article 8.
Article 13
The Court found that the applicant had no effective remedy in respect of the length of the
proceedings and that there had, therefore, been violation of Article 13 read in conjunction with
Article 6 § 1.
Concerning her complaint that no measures existed under domestic law to ensure the presence of the
defendant before the court in paternity proceedings, the Court concluded that it had already taken
this aspect into account in its considerations under Article 8 and that it was, therefore, unnecessary
to examine the same issue under Article 13.
139

29. Armstrong v. the United Kingdom, judgment of 19 March 2002, no. 48521/99 (Violation of
Articles 8 and 13 of the Convention) Conviction for conspiracy to supply drugs on evidence
resulting from covert surveillance involving observation and recording of conversations.
378
16.7.2002
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
TURKEY, ROMANIA, CYPRUS AND THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing the following seven Chamber
judgments, of which only the friendly settlements are final: 1
( ... )
(7) Armstrong v. the United Kingdom (no. 48521/99) Violation Article 8 Violation Article 13
On 27 January 1997 Mark Armstrong, a United Kingdom national, pleaded guilty to charges of
conspiracy to supply Class A and Class B drugs after the trial judge ruled disputed evidence
admissible. On 6 February 1997, he was sentenced to nine years’ imprisonment. His application to
seek leave to appeal was refused on 28 January 1999.
The evidence in question resulted from a covert surveillance operation involving observation and
recording of conversations in the home of one of Mr Armstrong’s co-defendants, allegedly from
October 1994 to January 1995 and in April 1995. According to the applicant, the authority for such
surveillance had been sought and granted by the Chief Superintendent rather than the Chief
Constable on the purported grounds that the drug operation conducted by the defendants was of such
sophistication that conventional evidence gathering techniques were ineffective. The defendants
challenged the admissibility of the evidence on grounds of improper compliance with the Home
Office Guidelines and argued that the judge should exercise his discretion to exclude the recordings.
As the taped conversations constituted the sole evidence against the applicant, a trial within a trial
( voir dire) regarding the assertions was conducted.
The applicant complained about the covert audio surveillance carried out by the police, relying on
Article 8 (right to respect for private life) and Article 13 (right to an effective remedy).
The Court held unanimously that there had been a violation of Articles 8 and 13 that the finding of a
violation in itself constituted sufficient just satisfaction for any non-pecuniary damage suffered by
the applicant. (The judgment is available only in English.)
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
140

30. Christine Goodwin v. the United Kingdom, judgment of 11 July 2002 (application no.
28957/95). (Violation of articles 8 of the Convention. Recognition of a sex conversion by the
employer and social services.
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT IN THE CASE OF
CHRISTINE GOODWIN v. THE UNITED KINGDOM
141
366
11.7.2002
In a judgment delivered at Strasbourg on 11 July 2002 in the case of Christine Goodwin v. the
United Kingdom (application no. 28957/95), the European Court of Human Rights held
unanimously that:
• there had been a violation of Article 8 (right to respect for private and family life) of the
European Convention on Human Rights;
• there had been a violation of Article 12 (right to marry and to found a family);
• no separate issue had arisen under Article 14 (prohibition of discrimination);
• there had been no violation of Article 13 (right to an effective remedy).
The Court held, unanimously, that the finding of violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage sustained by the applicant and awarded the applicant
39,000 euros for costs and expenses.
1. Principal facts
The applicant, Christine Goodwin, a United Kingdom national born in 1937, is a post-operative
male to female transsexual.
The applicant claimed that she had problems and faced sexual harassment at work during and
following her gender re-assignment. Most recently, she experienced difficulties concerning her
national insurance (NI) contributions. As legally she is still a man, she has to continue to pay NI
contributions until the age of 65. If she had been recognised as a woman, she would have ceased to
be liable at the age of 60 in April 1997. She has had to make special arrangements to continue
paying her NI contributions directly herself to avoid questions being raised by her employers about
the anomaly. She also alleged that the fact that she keeps the same NI number has meant that her
employer has been able to discover that she previously worked for them under another name and
gender, with resulting embarrassment and humiliation.
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 5 June 1995 and
declared admissible on 1 December 1997. The case was transmitted to the European Court of
Human Rights on 1 November 1998. On 11 September 2001 a Chamber of the Court (Third Section)
relinquished the case to the Grand Chamber and a hearing was held on 20 March 2002.

Judgment was given by a Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President ,Jean-Paul Costa (French), Nicolas Bratza
(British), Elisabeth Palm (Swedish), Lucius Caflisch 1 (Swiss), Riza Türmen (Turkish), Françoise
Tulkens (Belgian), Karel Jungwiert (Czech), Marc Fischbach (Luxemburger), Volodymyr
Butkevych (Ukrainian),Nina Vajić (Croatian), John Hedigan (Irish), Hanne Sophie Greve
(Norwegian), András Baka (Hungarian), Kristaq Traja (Albanian), Mindia Ugrekhelidze
(Georgian), Antonella Mularoni (San Marinese), judges ,and also Paul Mahoney , Registrar .
3. Summary of the judgment 2
Complaints
The applicant complained about the lack of legal recognition of her post-operative sex and about the
legal status of transsexuals in the United Kingdom. She complained, in particular, about her
treatment in relation to employment, social security and pensions and her inability to marry. She
relied on Articles 8, 12, 13 and 14 of the Convention.
Decision of the Court
Article 8
Although the applicant had undergone gender re-assignment surgery provided by the national health
service and lived in society as a female, she remained for legal purposes a male. This had effects on
her life where sex was of legal relevance, such as in the area of pensions, retirement age etc. A
serious interference with private life also arose from the conflict between social reality and law
which placed the transsexuals in an anomalous position in which they could experience feelings of
vulnerability, humiliation and anxiety. Though there were no conclusive findings as to the cause of
transsexualism, the Court considered it more significant that the condition had a wide international
recognition for which treatment was provided. It was not convinced that the inability of the
transsexual to acquire all the biological characteristics took on decisive importance. There was clear
and uncontested evidence of a continuing international trend in favour of not only increased social
acceptance of transsexuals but also of legal recognition of the new sexual identity of post-operative
transsexuals. There was no material before the Court to show that third parties would suffer any
material prejudice from any possible changes to the birth register system that might flow from
allowing recognition of the gender re-assigment and it was noted that the Government were
currently discussing proposals for reform of the registration system in order to allow ongoing
amendment of civil status data.
While the difficulties and anomalies of the applicant’s situation as a post-operative transsexual did
not attain the level of daily interference suffered by the applicant in B. v. France (judgment of 25
March 1992, Series A no. 232), the Court emphasised that the very essence of the Convention was
respect for human dignity and human freedom. Under Article 8 of the Convention in particular,
where the notion of personal autonomy was an important principle underlying the interpretation of
its guarantees, protection was given to the personal sphere of each individual, including the right to
establish details of their identity as individual human beings. In the twenty-first century the right of
transsexuals to personal development and to physical and moral security in the full sense enjoyed by
others in society could no longer be regarded as a matter of controversy requiring the lapse of time
to cast clearer light on the issues involved. Domestic recognition of this evaluation could be found in
the report of the Interdepartmental Working Group on Transsexual People and the Court of Appeal’s
judgment of Bellinger v. Bellinger (EWCA Civ 1140 [2001]).
142

Though the Court did not underestimate the important repercussions which any major change in the
system would inevitably have, not only in the field of birth registration, but also for example in the
areas of access to records, family law, affiliation, inheritance, social security and insurance, these
problems were far from insuperable, as shown by the Working Group’s proposals. No concrete or
substantial hardship or detriment to the public interest had indeed been demonstrated as likely to
flow from any change to the status of transsexuals and, as regards other possible consequences, the
Court considered that society might reasonably be expected to tolerate a certain inconvenience to
enable individuals to live in dignity and worth in accordance with the sexual identity chosen by
them at great personal cost. Despite the Court’s re-iteration since 1986 and most recently in 1998 of
the importance of keeping the need for appropriate legal measures under review having regard to
scientific and societal developments, nothing had effectively been done by the respondent
Government. Having regard to the above considerations, the Court found that the respondent
Government could no longer claim that the matter fell within their margin of appreciation, save as
regards the appropriate means of achieving recognition of the right protected under the Convention.
It concluded that the fair balance that was inherent in the Convention now tilted decisively in favour
of the applicant. There had, accordingly, been a failure to respect her right to private life in breach of
Article 8.
Article 12
While it was true that Article 12 referred in express terms to the right of a man and woman to marry,
the Court was not persuaded that at the date of this case these terms restricted the determination of
gender to purely biological criteria. There had been major social changes in the institution of
marriage since the adoption of the Convention as well as dramatic changes brought about by
developments in medicine and science in the field of transsexuality. The Court had found above,
under Article 8 of the Convention, that a test of congruent biological factors could no longer be
decisive in denying legal recognition to the change of gender of a post-operative transsexual. There
were other important factors – the acceptance of the condition of gender identity disorder by the
medical professions and health authorities within Contracting States, the provision of treatment
including surgery to assimilate the individual as closely as possible to the gender in which they
perceived that they properly belonged and the assumption by the transsexual of the social role of the
assigned gender.
As the right under Article 8 to respect for private life did not however subsume all the issues under
Article 12, where conditions imposed by national laws are accorded a specific mention, the Court
went on to consider whether the allocation of sex in national law to that registered at birth was a
limitation impairing the very essence of the right to marry in this case. In that regard, it found that it
was artificial to assert that post-operative transsexuals had not been deprived of the right to marry
as, according to law, they remained able to marry a person of their former opposite sex. The
applicant in this case lived as a woman and would only wish to marry a man. As she had no
possibility of doing so, she could therefore claim that the very essence of her right to marry had been
infringed. Though fewer countries permitted the marriage of transsexuals in their assigned gender
than recognised the change of gender itself, the Court did not find that this supported an argument
for leaving the matter entirely within the Contracting States’ margin of appreciation. This would be
tantamount to finding that the range of options open to a Contracting State included an effective bar
on any exercise of the right to marry. The margin of appreciation could not extend so far. While it
was for the Contracting State to determine inter alia the conditions under which a person claiming
legal recognition as a transsexual established that gender re-assignment has been properly effected
and the formalities applicable to future marriages (including, for example, the information to be
143

furnished to intended spouses), the Court found no justification for barring the transsexual from
enjoying the right to marry under any circumstances. It concluded that there had been a breach of
Article 12.
Article 14
The Court considered that the lack of legal recognition of the change of gender of a post-operative
transsexual lay at the heart of the applicant’s complaints under Article 14 of the Convention. These
issues had been examined under Article 8 and resulted in the finding of a violation of that provision.
In the circumstances, the Court found that no separate issue arose under Article 14 and made no
separate finding.
Article 13
The case-law of the Convention institutions indicated that Article 13 could not be interpreted as
requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on
Contracting States a requirement to incorporate the Convention. Insofar therefore as no remedy
existed in domestic law prior to 2 October 2000 when the Human Rights Act 1998 took effect, the
applicant’s complaints fell foul of this principle. Following that date, it would have been possible for
the applicant to raise her complaints before the domestic courts, which would have had a range of
possible redress available to them. In the circumstances no breach of Article 13 arose.
1. Judge elected in respect of Liechtenstein.
2. This summary by the Registry does not bind the Court.
***
144

31. M.G v. the United Kingdom, judgment of 24 September 2002, no. 39393/98 (Violation of
Article 8 of the Convention) Requested access to his social service records.
448
24.9.2002
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
FINLAND AND THE UNITED KINGDOM,
The European Court of Human Rights has today notified in writing four Chamber judgments, none
of which is final.[ fn]
Section 2
…
(2) M.G. v. the United Kingdom (no. 39393/98) Violation Article 8
M.G., a United Kingdom national, was born in 1960 and lives in Leicester. He was in local authority
voluntary care from: 8 September to 6 November 1961, 15 February to 20 July 1962, 26 October to
23 December 1962, 4 April 1963 to 4 April 1966 and 16 January to 8April 1967. During these
periods his mother was receiving periodic psychiatric treatment and his father had some difficulty
coping with the children on his own. M.G. had contact with both parents while in care.
By letter dated 10 April 1995, the applicant requested access to his social service records. By letters
dated 5 and 9 June 1995, he requested specific information including whether he had ever been on
the "risk register", whether his father had been investigated or convicted of crimes against children
and about the responsibility of the local authority for abuse he had suffered as a child.
By letter dated 12 June 1996 to the local authority the applicant’s legal representatives noted that the
applicant had been provided with summary information and certain documents. They requested that
he be allowed full access to his file. In reply, the local authority indicated that the social service
records had been created prior to the entry into force of the Access to Personal Files Act 1987.
Further to the applicant’s queries, the local authority confirmed that there were no detailed records
relating to him after 1967 and little mention of ill-treatment.
In his letter of 21 January 1997, the applicant stated that he was undergoing counselling for abuse he
had received as a child and that he had consulted solicitors about a negligence action against the
local authority. He requested specific information about allegations of ill-treatment made in
November 1966 and about his being abused by his father for eight years thereafter. The local
authority responded by letter dated 17February 1997, referring the applicant to the information
already provided in 1995 and to the differences between social work standards and procedures in
1997 and in the 1960s.
The applicant complained, in particular, about inadequate disclosure by the local authority of his
social service records, records which related to his time spent in local authority care. He pointed out
145

that he had not yet received all his social service records and referred, in particular, to the period
from April 1967 - 1976 for which he has received no records whatsoever. He maintained that the
failure to allow him unimpeded access to all social service records relating to him during those
periods constituted a violation of Article 8 (right to respect for private and family life).
The Court noted that one of the main reasons the applicant sought access to his records was his
sincere belief that he had been physically abused when he was a child by his father and his need to
obtain as much information as possible about that period in order to come to terms with the
emotional and psychological impact of any such abuse and to understand his own subsequent and
related behaviour.
The Court observed that the applicant was only given limited access to his records in 1995,
compared to the records submitted to the Court by the United Kingdom Government. In addition, he
had no statutory right of access to those records or clear indication by way of a binding circular or
legislation of the grounds upon which he could request access or challenge a denial of access. Most
importantly, he had no appeal against a refusal of access to any independent body. The records
disclosed by the Government demonstrated the need for such an independent appeal, given that
significant portions of the records were blanked out and certain documents had been retained on the
basis that non-disclosure was justified by the duty of confidence to third parties.
In such circumstances, the Court concluded that there had been a failure to fulfil the positive
obligation to protect the applicant’s private and family life in respect of his access to his social
service records from April 1995. However, from 1 March 2000 (the date of entry into force of the
Data Protection Act 1998) the applicant could have, but had not, appealed to an independent
authority against the non-disclosure of certain records on grounds of a duty of confidentiality to
third parties. Accordingly, the Court held, unanimously, that there had been a violation of Article 8
in respect of the applicant’s access, between April 1995 and 1 March 2000, to his social service
records. The applicant was awarded 4,000 euros (EUR) for non-pecuniary damage. (The judgment is
available only in English.)
146

32. Taylor-Sabori v. the United Kingdom, judgment of 22 October 2002, no. 47114/99 (Violation
of Articles 8 and 13 of the Convention) Interception of pager messages by the police and
subsequent reference to them at the trial.
518
22.10.2002
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
ROMANIA, TURKEY AND THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing the following six Chamber
judgments, none of which is final [ fn].
Section 2
…
(3) Taylor-Sabori v. the United Kingdom (no. 47114/99) Violation Article 8 & Violation Article
13
Sean-Marc Taylor-Sabori is a United Kingdom national. Between August 1995 and the applicant’s
arrest on 21 January 1996, he was kept under police surveillance. Using a "clone" of the applicant’s
pager, the police were able to intercept messages sent to him.
The applicant was arrested and charged with conspiracy to supply a controlled drug. The
prosecution alleged that he had been a principal organiser in the importation to the United Kingdom
from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried,
along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997.
Part of the prosecution case against the applicant consisted of the contemporaneous written notes of
the pager messages, which had been transcribed by the police. The applicant’s counsel submitted
that these notes should not be admitted in evidence because the police had not had a warrant under
section 2 of the Interception of Communications Act 1985 for the interception of the pager
messages. However, the trial judge ruled that, since the messages had been transmitted via a private
system, the 1985 Act did not apply and no warrant had been necessary.
The applicant pleaded not guilty. He was convicted and sentenced to ten years’ imprisonment.
The applicant appealed against conviction and sentence. One of the grounds was the admission in
evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998,
upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on
the private radio system, so that the 1985 Act did not apply and the messages were admissible
despite having been intercepted without a warrant.
The applicant complained, principally, under Articles 8 (right to respect for private and family life)
and 13 (right to an effective remedy) that the interception of his pager messages by the police and
147

subsequent reference to them at his trial amounted to an unjustified interference with his private life
and correspondence which was not "in accordance with the law" and in respect of which there was
no remedy under English law.
The European Court of Human Rights noted that, at the time of the events in question, there was no
statutory system to regulate the interception of pager messages transmitted via a private
telecommunication system. It followed, as the Government had accepted, that the interference was
not "in accordance with the law". The Court, therefore, held, unanimously, that there had been a
violation of Article 8.
Concerning Article 13, the Court recalled that in its finding in the case Khan v. the United Kingdom
(application no. 35394/97, judgment 12/5/2000), in circumstances similar to those in the applicant’s
case, the courts in the criminal proceedings were not capable of providing a remedy because,
although they could consider questions of the fairness of admitting the evidence in the criminal
proceedings, it was not open to them to deal with the substance of the Convention complaint that the
interference with the applicant’s right to respect for his private life was not "in accordance with the
law"; still less, to grant appropriate relief in connection with the complaint. As it did not appear that
there was any other effective remedy available to Mr Taylor-Sabori for his Article 8 complaint, the
Court held, unanimously, that there had been a violation of Article 13.
The Court further held unanimously that the finding of a violation constituted sufficient just
satisfaction for any non-pecuniary damage sustained by the applicant and awarded him EUR 4,800
for costs and expenses. (The judgment is in English only.)
148

33. Allan v. the United Kingdom, judgment of 5 November 2002, application no. 48539/99
(Violation of Articles 6, 8, and 13 of the Convention) The use of covert audio and video
surveillance within a prison cell and the prison visiting area.
5.11.2002
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING:
AUSTRIA, BELGIUM, CYPRUS, THE CZECH REPUBLIC, FINLAND, FRANCE, ITALY,
THE NETHERLANDS, POLAND, SWITZERLAND AND THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing the following 11 Chamber
judgments, none of which is final.[ fn1 ]
Section 2
…
(11) Allan v. the United Kingdom (no. 48539/99)
• Violation Article 8 Violation Article 6 Violation Article 13
Richard Roy Allan is a United Kingdom national. On or about 20 February 1995, an anonymous
informant told the police that Mr Allan had been involved in the murder of David Beesley, a store
manager, who was shot dead in a Kwik-Save supermarket in Greater Manchester on 3 February
1995.
On 8 March 1995, the applicant was arrested for the murder. In the police interviews which
followed, the applicant availed himself of his right to remain silent.
Around this time, recordings were made of the applicant’s conversations with his female friend
while in the prison visiting area and with his co-accused in the prison cell they shared.
On 23 March 1995, H., a long-standing police informant with a criminal record, was placed in the
applicant’s cell for the purpose of eliciting information from the applicant. The applicant maintains
that H. had every incentive to inform on him. Telephone conversations between H. and the police
included comments by the police instructing H. to "push him for what you can" and disclosed
evidence of concerted police coaching. After 20 April 1995, he associated regularly with the
applicant, who was remanded at Strangeways Prison.
On 25 July 1995, in a 59-60 page witness statement, H. claimed that the applicant had admitted his
presence at the murder scene. This asserted admission was not part of the recorded interview and
was disputed. No evidence, other than the alleged admissions, connected the applicant with the
killing of Mr Beesley.
149

On 17 February 1998 the applicant was convicted of murder before the Crown Court at Manchester
by a 10-2 majority and sentenced to life imprisonment. He appealed unsuccessfully.
The applicant complained of the use of covert audio and video surveillance within his cell, the
prison visiting area and upon a fellow prisoner and of the use of materials gained by these means at
his trial. He relied on Articles 6 (right to a fair trial), 8 (right to respect for private life) and 13 (right
to an effective remedy).
Recalling that, at the relevant time, there existed no statutory system to regulate the use of covert
recording devices by the police, the European Court of Human Rights held, unanimously, that there
had been violations of Article 8 concerning the use of these devices.
The Government having accepted that the applicant did not enjoy an effective remedy in domestic
law at the relevant time in respect of the violations of his right to private life under Article 8, the
Court also held, unanimously, that there had been a violation of Article 13.
Concerning the complaint under Article 6, the Court noted that, in his interviews with the police
following his arrest, the applicant had, on the advice of his solicitor, consistently availed himself of
his right to silence.
H., who was a longstanding police informer, had been placed in the applicant’s cell and later at the
same prison for the specific purpose of eliciting from the applicant information implicating him in
the offences of which he was suspected. The evidence adduced at the applicant’s trial showed that
the police had coached H. The admissions allegedly made by the applicant to H. were not
spontaneous and unprompted statements volunteered by the applicant, but were induced by the
persistent questioning of H., who, at the instance of the police, had channelled their conversations
into discussions of the murder in circumstances which could be regarded as the functional
equivalent of interrogation, without any of the safeguards of a formal police interview, including the
attendance of a solicitor and the issuing of the usual caution.
The Court considered that the applicant would have been subject to psychological pressures which
impinged on the "voluntariness" of the disclosures that he had allegedly made to H.: he was a
suspect in a murder case, in detention and under direct pressure from the police in interrogations
about the murder, and would have been susceptible to persuasion to take H., with whom he shared a
cell for some weeks, into his confidence. In those circumstances, the information gained by the use
of H. in this way might be regarded as having been obtained in defiance of the will of the applicant
and its use at trial to have impinged on the applicant’s right to silence and privilege against selfincrimination.
The Court, therefore, held, unanimously, that there had been a violation of Article 6
concerning the admission at the applicant’s trial of the evidence obtained through the informer H.
The Court awarded the applicant EUR 1,642 for non-pecuniary damage and EUR 12,800 for costs
and expenses. (The judgment is in English only.)
150

34. A. v. the United Kingdom, judgment of 17 December 2002, no. 35373/97 (No violation of
Articles 6.1, 8, 13 and 14 of the Convention) Personal information stated and derogatory
statements made by an MP subsequently quoted in local pqpers was protected by absolute
parliamentary privilege.
644
17.12.2002
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF A. v. THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing a judgment [fn] in the case of A.
v. the United Kingdom (application no. 35373/97). The Court held:
• by 6 votes to 1, that there had been no violationof 6 § 1 (right to a fair hearing) of the
European Convention on Human Rights;
• by six votes to one, that there had been no violation of Article 8 (right to respect for private
life);
• unanimously, that there had been no violation of Article 14 (prohibition of discrimination)
taken in conjunction with Article 6;
• by six votes to one, that there had been no violation of Article 13 (right to an effective
remedy).
(The judgment is available only in English.)
1. Principal facts
A. is a United Kingdom national, born in 1971, who lives in Bristol. She is a young black woman
with two children.
During a parliamentary debate on municipal housing policy in July 1996, A.’s Member of
Parliament (MP) named her, stated that her brother was in prison, gave her precise address and made
derogatory remarks about the behaviour of both her and her children. He mentioned verbal abuse,
truancy, vandalism and drug activity and called the family the "neighbours from hell", a phrase
which was subsequently quoted in local and national newspapers.
A. states that none of the allegations referred to by her MP had ever been substantiated or upheld by
the investigating authorities and that many of them came from neighbours motivated by racism and
spite. Following the MP’s speech and the ensuing adverse publicity, she received racist hate-mail.
The responsible housing association was advised that she and her children should be moved as a
matter of urgency three weeks after the speech was given. They were eventually re-housed in
October 1996 and the children were obliged to change schools.
The MP’s statement was protected by absolute parliamentary privilege under Article 9 of the Bill of
Rights 1689. The press reports, to the extent that they reported the parliamentary debate, were
protected by qualified privilege. This privilege requires the reports to be fair and accurate and is
only lost if they are published for improper motives or with "reckless indifference" to the truth.
151

2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 13 January 1997
and transmitted to the Court on 1 November 1998. A hearing was held on 5 March 2002 and on the
same day the Chamber unanimously declared the application admissible. Third party interventions
were submitted by the Austrian, Belgian, Netherlands, Finnish, French, Irish, Italian and Norwegian
Governments.
Judgment was given by a Chamber of seven judges, composed as follows:
Jean-Paul Costa (French), President , András Baka (Hungarian), Nicolas Bratza (British), Gaukur
Jörundsson (Icelandic), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Mindia
Ugrekhelidze (Georgian), judges , and also Sally Dollé, Section Registrar .
3. Summary of the judgment
Complaints
A. complained, under Article 6 § 1 of the Convention, that, given the absolute nature of
parliamentary privilege, she was denied access to a court to defend her reputation and that legal aid
was not available for defamation proceedings. She also relied on Articles 8, 13 and 14 in that she
was disadvantaged, compared to a person about whom equivalent statements had been made in an
unprivileged context.
Decision of the Court
Article 6 § 1
Parliamentary Immunity
The Court observed that the parliamentary immunity enjoyed by the MP in the present case pursued
the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers
between the legislature and the judiciary.
The Court maintained that a rule of parliamentary immunity, which was consistent with and
reflected generally-recognised rules within Member States of the Council of Europe and the
European Union, could not in principle be regarded as imposing a disproportionate restriction on the
right of access to court as embodied in Article 6 § 1. Just as the right of access to court was an
inherent part of the fair trial guarantee in that Article, so some restrictions on access had likewise to
be regarded as inherent.
The immunity afforded to MPs in the United Kingdom appeared to be in several respects narrower
than that afforded to members of legislatures in certain other European States. In particular, the
immunity concerned only statements made in the course of parliamentary debates on the floor of the
House of Commons or House of Lords and not to statements made outside Parliament, even if they
amounted to a repetition of statements made during the course of Parliamentary debates on matters
of public interest. Nor did any immunity attach to an MP’s press statements published prior to
parliamentary debates, even if their contents were repeated subsequently in the debate itself.
The absolute immunity enjoyed by MPs was moreover designed to protect the interests of
Parliament as a whole as opposed to those of individual MPs, as illustrated by the fact that the
immunity did not apply outside Parliament. In contrast, the immunity which protected those engaged
152

in the reporting of parliamentary proceedings, and that enjoyed by elected representatives in local
government, were qualified in nature.
The Court observed that victims of defamatory misstatement in Parliament were not entirely without
means of redress. In particular, they could, where their own MP had made the offending remarks,
petition the House through any other MP with a view to securing a retraction. In extreme cases,
deliberately misleading statements might be punishable by Parliament as a contempt. General
control was exercised over debates by the Speaker of each House. The Court considered all these
factors to be of relevance to the question of proportionality of the immunity enjoyed by the MP in
the present case.
It followed that the application of a rule of absolute Parliamentary immunity could not be said to
exceed the margin of appreciation allowed to States in limiting an individual’s right of access to court.
The Court agreed with the applicant’s submissions to the effect that the allegations made about her in
the MP’s speech were extremely serious and clearly unnecessary in the context of a debate about
municipal housing policy. The MP’s repeated reference to her name and address was particularly
regrettable. The Court considered that the unfortunate consequences of the MP’s comments for the
lives of the applicant and her children were entirely foreseeable. However, those factors could not alter
the Court’s conclusion as to the proportionality of the parliamentary immunity at issue, since the
creation of exceptions to that immunity, the application of which depended upon the individual facts
of any particular case, would seriously undermine the legitimate aims pursued. There had,
accordingly, been no violation of Article 6 § 1 regarding the parliamentary immunity enjoyed by the
MP.
Legal Aid
The Court noted that the applicant was entitled to an initial two hours’ free legal advice under the
"Green Form" scheme and, after July 1998, could have engaged a solicitor under conditional fee
arrangements. Although she would have remained exposed to a potential costs order in the event
that any legal proceedings were unsuccessful, she would have been able to evaluate the risks in an
informed manner before deciding whether or not to proceed had she taken advantage of the "Green
Form" scheme. The Court concluded that the unavailability of legal aid for the purposes of bringing
defamation proceedings in respect of the unprivileged press statement did not prevent the applicant
from having effective access to court. There had, therefore, been no violation of Article 6 § 1
regarding the unavailability of legal aid.
Article 8
Having found that the central issues that arose in relation to the applicant’s Article 8 complaint were
the same as those arising in relation to her Article 6 § 1 complaint about the parliamentary immunity
enjoyed by the MP, the Court found no violation of Article 8.
Article 14
The Court considered that the applicant’s Article 14 complaint raised issues which were identical to
those already examined in relation to Article 6 § 1. In any event, no analogy could be drawn
between what was said in parliamentary debates and what was said in ordinary speech so as to
engage Article 14. There had therefore been no violation of Article 14.
153

Article 13
The Court recalled that Article 13 did not go so far as to guarantee a remedy allowing a Contracting
State’s primary legislation to be challenged before a national authority on grounds that it was
contrary to the Convention. The Court therefore held that there had been no violation of Article 13.
Judges Costa and Loucaides expressed a concurring opinion and a dissenting opinion respectively,
both of which are annexed to the judgment.
[fn] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
154

35. Peck v. the United Kingdom, judgment of 28 January 2003 (application no. 44647/98).
Violation of Article 8(right to respect for private life). Images of the applicant being
published and broadcast widely
046
28.1.2003
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF PECK v. THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing a judgment 1 in the case of Peck
v. the United Kingdom (application no. 44647/98). The Court held unanimously that there had been:
• a violation of Article 8 (right to respect for private life) of the European Convention on
Human Rights;
• a violationof Article 13 (right to an effective remedy) taken in conjunction with Article 8.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 11,800 euros
(EUR) for non-pecuniary damage and EUR 18,075 for costs and expenses.
(The judgment is available only in English.)
1. Principal facts
The applicant, Geoffrey Dennis Peck, is a United Kingdom national, who was born in 1955 and
lives in Essex.
On the evening of 20 August 1995, at a time when he was suffering from depression, Mr Peck
walked alone down Brentwood High Street, with a kitchen knife in his hand, and attempted suicide
by cutting his wrists. He was unaware that he had been filmed by a closed-circuit television (CCTV)
camera installed by Brentwood Borough Council.
The CCTV footage did not show the applicant cutting his wrists; the operator was solely alerted to
an individual in possession of a knife. The police were notified and arrived at the scene, where they
took the knife, gave the applicant medical assistance and brought him to the police station, where he
was detained under the Mental Health Act 1983. He was examined and treated by a doctor, after
which he was released without charge and taken home by police officers.
On 9October 1995 the Council issued two photographs taken from the CCTV footage with an
article entitled “Defused – the partnership between CCTV and the police prevents a potentially
dangerous situation”. The applicant’s face was not specifically masked. The article noted that an
individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for
trouble, that the police had been alerted, that the individual had been disarmed and brought to the
police station where he was questioned and given assistance.
155

On 12 October 1995 the “Brentwood Weekly News” newspaper used a photograph of the incident
on its front page to accompany an article on the use and benefits of the CCTV system. The
applicant’s face was not specifically masked.
On 13 October 1995 an article entitled “Gotcha” appeared in the “Yellow Advertiser”, a local
newspaper with a circulation of approximately 24,000. The article, accompanied by a photograph of
the applicant taken from the CCTV footage, referred to the applicant having been intercepted with a
knife and a potentially dangerous situation having being defused. It was noted that the applicant had
been released without charge. On 16 February 1996 a follow-up article entitled “Eyes in the sky
triumph” was published by the newspaper using the same photograph. It appears that a number of
people recognised the applicant.
On 17 October 1995 extracts from the CCTV footage were included in an Anglia Television
programme, a local broadcast to an average audience of 350,000. The applicant’s face had been
masked at the Council’s oral request.
In late October or November 1995 the applicant became aware that he had been filmed on CCTV
and that footage had been released because a neighbour said he had seen him on television. He did
not take any action as he was still suffering from severe depression.
The CCTV footage was also supplied to the producers of “Crime Beat”, a BBC series on national
television with an average of 9.2 million viewers. The Council imposed orally a number of
conditions, including that no one should be identifiable in the footage and that all faces should be
masked.
However, in trailers for an episode of “Crime Beat”, the applicant’s image was not masked at all.
After being told by friends that they had seen him on 9 March 1996 in the trailers, the applicant
complained to the Council about the forthcoming programme. The Council contacted the producers
who confirmed that his image had been masked in the main programme. On 11 March the CCTV
footage was shown on “Crime Beat”. However, although the applicant’s image was masked in the
main programme, he was recognised by friends and family.
The applicant made a number of media appearances thereafter to speak out against the publication of
the footage and photographs.
On 25 April 1996 the applicant complained to the Broadcasting Standards Commission (BSC) in
relation to, among other things, the “Crime Beat” programme, alleging an unwarranted infringement
of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC
upheld both complaints. On 1 May 1996 the applicant complained to the ITC concerning the Anglia
Television broadcast. The ITC found that the applicant’s identity was not adequately obscured and
that the ITC code had been breached. Given an admission and apology by Anglia Television,
however, no further action was taken. On 17 May 1996 the applicant complained unsuccessfully to
the Press Complaints Commission concerning the articles in the “Yellow Advertiser”.
On 23 May 1996 he applied to the High Court for leave to apply for judicial review concerning the
Council’s disclosure of the CCTV material. His request and a further request for leave to appeal to
the Court of Appeal were both rejected.
2. Procedure and composition of the Court
156

The application was lodged with the European Commission of Human Rights on 22 April 1996 and
transmitted to the Court on 1 November 1998. It was declared admissible on 15 May 2001.
Judgment was given by a Chamber of 7 judges, composed as follows:
Matti Pellonpää (Finnish), President ,
Nicolas Bratza (British),
Antonio Pastor Ridruejo (Spanish),
Marc Fischbach (Luxemburger),
Rait Maruste (Estonian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish), judges ,
and also Michael O’Boyle, Section Registrar .
3. Summary of the judgment 2
Complaints
The applicant complained about the disclosure of the CCTV footage to the media, which resulted in
images of himself being published and broadcast widely, and about a lack of an effective domestic
remedy. He relied on Articles 8 and 13 of the Convention.
Decision of the Court
Article 8
The Court observed that, following the disclosure of the CCTV footage, the applicant’s actions were
seen to an extent which far exceeded any exposure to a passer-by or to security observation and to a
degree surpassing that which the applicant could possibly have foreseen. The disclosure by the
Council of the relevant footage therefore constituted a serious interference with the applicant’s right
to respect for his private life.
The Court did not find that there were relevant or sufficient reasons which would justify the direct
disclosure by the Council to the public of stills of the applicant in “CCTV News”, without the
Council having obtained the applicant’s consent or masking his identity, or which would justify its
disclosures to the media without the Council taking steps to ensure so far as possible that his identity
would be masked. Particular scrutiny and care was needed given the crime prevention objective and
context of the disclosures.
Neither did the Court find that the applicant’s later voluntary media appearances diminished the
serious nature of the interference and nor did these appearances reduce the need for care concerning
disclosures. The applicant was the victim of a serious interference with his right to privacy involving
national and local media coverage: it could not therefore be held against him that he tried afterwards
to expose and complain about that wrongdoing through the media.
Accordingly, the Court considered that the disclosures by the Council of the CCTV material in
“CCTV News” and to the “Yellow Advertiser”, Anglia Television and the BBC were not
accompanied by sufficient safeguards and, therefore, constituted a disproportionate and unjustified
interference with the applicant’s private life and a violation of Article 8.
157

In the light of this finding, the Court did not consider it necessary to consider separately the
applicant’s other complaints under Article 8.
Article 13 in conjunction with Article 8
The Court found that judicial review did not provide the applicant with an effective remedy in
relation to the violation of his right to respect for his private life.
In addition, the lack of legal power of the BSC and ITC to award damages to the applicant meant
that those bodies could not provide an effective remedy to him. The ITC’s power to impose a fine on
the relevant television company did not amount to an award of damages to the applicant. And,
although the applicant was aware of the Council’s disclosures prior to the “Yellow Advertiser”
article of February 1996 and the BBC broadcasts, neither the BSC nor the PCC had the power to
prevent such publications or broadcasts.
The Court further found that the applicant did not have an actionable remedy for breach of
confidence at the relevant time.
Finding, therefore, that the applicant had no effective remedy in relation to the violation of his right
to respect for his private life, the Court concluded that there had been a violation of Article 13.
***
1. Under Article 43 of the European Convention on Human Rights, within three months from the
date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be
referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges
considers whether the case raises a serious question affecting the interpretation or application of the
Convention or its Protocols, or a serious issue of general importance, in which case the Grand
Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on
the expiry of the three-month period or earlier if the parties declare that they do not intend to make a
request to refer.
2. This summary by the Registry does not bind the Court.
158

36. Odièvre v. France (application no. 42326/ 98). (No violation of Article 8). Anonymous
birthgiving and impossibility for the applicant to obtain information on her natural family
086
13.2.2003
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
GRAND CHAMBER JUDGMENT IN THE CASE OF
ODIÈVRE v. FRANCE
The European Court of Human Rights has delivered at a public hearing today a judgment 1 in the
case of Odièvre v. France (application no. 42326/ 98). The European Court of Human Rights held:
● by ten votes to seven that there had been no violation of Article 8 (right to respect for private and
family life) of the European Convention on Human Rights;
● by ten votes to seven that there had been no violation of Article 14 (prohibition of discrimination)
of the Convention, taken together with Article 8.
1. Principal facts
The applicant, Pascale Odièvre, is a French national, who was born in 1965 and lives in Paris. She is
unemployed.
Her application concerns the rules governing confidentiality on birth, which have prevented her
from obtaining information about her natural family.
She was born on 23 March 1965 in Paris. Her mother requested that the birth be kept secret and
completed a form at the Health and Social Security Department abandoning her rights to her child.
The applicant was placed in the care of the Children’s Welfare and Youth-Protection Service and
registered as being in State care. She was subsequently fully adopted by Mr and Mrs Odièvre, whose
surname she continues to use.
The applicant consulted her file at the Children’s Welfare Service of the département of Seine in
1990 and was able to obtain non-identifying information about her natural family. On 27January
1998 she applied to the Paris tribunal de grande instance for an order “for disclosure of confidential
information concerning her birth and permission to obtain copies of any documents, public records
or full birth certificates”. She explained to the court that she had learnt that her natural parents had
had a son in 1963 and two other sons after 1965. However, the Children’s Welfare Service had
refused to provide her with details regarding her brothers’ identity on the ground that it would entail
a breach of confidence. She submitted that having discovered the existence of her brothers, her
application for disclosure of information about her birth was well-founded.
On 2 February 1998 the court registrar returned the case file to the applicant’s lawyer stating “... it
appears that the applicant should perhaps apply to the administrative court to obtain, if possible, an
159

order requiring the authorities to disclose the information, although such an order would in any
event contravene the Law of 8 January 1993”. (The statute lays down that an application for
disclosure of details identifying the natural mother is inadmissible if confidentiality was agreed at
birth).
2. Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 12 March 1998 and
transmitted to the Court on 1 November 1998. Following a hearing on admissibility and the merits,
it was declared admissible by a Chamber from the Third Section on 16 October 2001. On 24 June
2002 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties
being opposed thereto. A hearing was held on 9 October 2002.
Judgment was given by a Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg
Ress (German), Nicolas Bratza (British),Giovanni Bonello (Maltese), Loukis Loucaides
(Cypriot), Pranas Kūris (Lithuanian), Ireneu Cabral Barreto (Portuguese), Françoise Tulkens
(Belgian), Karel Jungwiert (Czech), Matti Pellonpää (Finnish), Hanne Sophie Greve
(Norwegian), Snejana Botoucharova (Bulgarian), Mindia Ugrekhelidze (Georgian), Stanislav
Pavlovschi (Moldovan),Lech Garlicki (Polish), judges and also Paul Mahoney , Registrar .
3. Summary of the judgment 2
Complaint
The applicant complained that she had been unable to obtain details identifying her natural family,
contrary to Article 8 (right to respect for private and family life) of the European Convention on
Human Rights. She said that her inability to do so was highly damaging to her as it deprived her of
the chance of reconstituting her life history. She further submitted that the French rules on
confidentiality governing birth amounted to discrimination on the ground of birth, contrary to
Article 14 (prohibition of discrimination).
Decision of the Court
Article 8 of the Convention
Applicability of Article 8
The Court considered it necessary to examine the case from the perspective of private life, not
family life, since the applicant’s claim to be entitled, in the name of biological truth, to know her
personal history was based on her inability to gain access to information about her origin and to
related identifying data.
The Court reiterated that Article 8 protected, among other interests, the right to personal
development. Matters of relevance to personal development included details of a person’s identity as
a human being and the vital interest protected by the Convention in obtaining information necessary
to discover the truth concerning important aspects of one’s personal identity, such as the identity of
one’s parents. Birth, and in particular the circumstances in which a child was born, formed part of a
160

child’s, and subsequently the adult’s, private life guaranteed by Article 8 of the Convention. That
provision was therefore applicable in the instant case.
Compliance with Article 8
The applicant had complained that France had failed to ensure respect for her private life by its legal
system, which totally precluded an action being brought to establish maternity if the natural mother
had requested confidentiality and which, above all, prohibited access being given to information
identifying her.
The Court observed that there were two competing interests in the case before it: on the one hand,
the right to know one’s origins and the child’s vital interest in its personal development and, on the
other, a woman’s interest in remaining anonymous in order to protect her health by giving birth in
appropriate medical conditions. Those interests were not easily reconciled, as they concerned two
adults, each endowed with free will.
In addition, the problem of anonymous births could not be dealt with in isolation from the issue of
the protection of third parties, essentially the adoptive parents, the father and the other members of
the natural family. The Court noted in that connection that the applicant was now 38 years old,
having been adopted at the age of four, and that non-consensual disclosure could entail substantial
risks, not only for the mother herself, but also for the adoptive family which had brought up the
applicant, and her natural father and siblings, each of whom also had a right to respect for his or her
private and family life.
The general interest was also at stake, as French legislation aimed to protect the mother’s and child’s
health at the birth and to avoid abortions, in particular illegal abortions, and children being
abandoned other than under the proper procedure. The right to respect for life was thus one of the
aims pursued by the French system.
The Court reiterated that the Contracting States had a margin of appreciation in the choice of
measures for securing compliance with Article 8 in the sphere of relations between individuals.
Most of the Contracting States did not have legislation comparable to that applicable in France,
which prevented parental ties ever being established with the natural mother if she refused to
disclose her identity. However, it noted that some countries did not impose a duty on natural parents
to declare their identities on the birth of their children and that there had been cases of child
abandonment in various other countries that had given rise to a debate about the right to give birth
anonymously. In the light of the diversity of practice to be found among the legal systems and
traditions and of the fact that children were being abandoned, the Court considered that States had to
be afforded a margin of appreciation to decide which measures were apt to ensure that the rights
guaranteed by the Convention were secured.
The Court observed that the applicant had been given access to non-identifying information about
her mother and natural family that had enabled her to trace some of her roots, while ensuring the
protection of third-party interests. In addition, while preserving the principle that mothers were
entitled to give birth anonymously, the law of 22 of January 2002 facilitated searches for
information about a person’s biological origins by setting up a National Council on Access to
Information about Personal Origins. The legislation was already in force and the applicant could use
it to request disclosure of her mother’s identity, subject to the latter’s consent being obtained.
The French legislation thus sought to strike a balance and to ensure sufficient proportion between
the competing interests. Consequently, France had not overstepped the margin of appreciation which
it had to be afforded in view of the complex and sensitive nature of the issue of access to
161

information about one’s origins, an issue that concerned the right to know one’s personal history, the
choice of the natural parents, the existing family ties and the adoptive parents. Consequently, there
had been no violation of Article 8 of the Convention.
Article 14 of the Convention, taken together with Article 8
The Court observed that the applicant had complained that restrictions had been imposed on her
ability to receive property from her natural mother. The Court noted that the applicant’s complaint
under Article 14 of the Convention concerned her inability to find out her origins, not a desire to
establish a parental tie that would enable her to claim an inheritance. It considered that, though
presented from a different perspective, that complaint was in practice the same as the complaint it
had already examined under Article 8 of the Convention. In summary, the Court considered that the
applicant had suffered no discrimination with regard to her filiation, as she had parental ties with her
adoptive parents and a prospective interest in their property and estate and, furthermore, could not
claim that her situation with regard to her natural mother was comparable to that of children who
enjoyed established parental ties with their natural mother. Consequently, the Court held that there
had been no violation of Article 14 of the Convention, taken together with Article 8.
Judges Rozakis, Ress, Kūris and Greve expressed concurring opinions. Judges Wildhaber, Bratza,
Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonpää expressed a joint dissenting opinion.
These opinions are annexed to the judgment.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int ).
***
The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of
the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established,
replacing the original two-tier system of a part-time Commission and Court.
1 Grand Chamber judgments are final.
2 .This summary by the Registry does not bind the Court.
162

37. Perry. v. the United Kingdom, judgment of 17 July 2003, no. 63737/00 (violation of Article 8
of the Convention). Use of videotape by the Police for identification and prosecution
purposes.
394
17.07.2003
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING ITALY AND THE UNITED KINGDOM
The European Court of Human Rights has today notified in writing the following Chamber
judgments, none of which is final.[ fn]
7) Perry v. the United Kingdom (no. 63737/00) Violation Article 8
Videotaping for identification purposes
The applicant, Stephen Arthur Perry, is a UK national, born in 1964 and currently detained in HM
Prison Brixton. He was arrested on 17 April 1997 in connection with a series of armed robberies of
mini-cab drivers in and around Wolverhampton and released pending an identification parade. When
he failed to attend that and several further identification parades, the police requested permission to
video him covertly.
On 19 November 1997 he was taken to the police station to attend an identity parade, which he
refused to do. Meanwhile, on his arrival, he was filmed by the custody suite camera. An engineer
had adjusted it to ensure that it took clear pictures during his visit. The pictures were inserted in a
montage of film of other persons and shown to witnesses. Two witnesses of the armed robberies
subsequently identified him from the compilation tape. Neither Mr Perry nor his solicitor was
informed that a tape had been made or used for identification purposes. He was convicted of robbery
on 17 March 1999 and sentenced to five years’ imprisonment. His subsequent appeals were
unsuccessful.
Mr Perry complained, under Article 8 (right to respect for private life) of the Convention, that the
police had covertly videotaped him for identification purposes and used the videotape in the
prosecution against him.
The Court noted that there was no indication that Mr Perry had had any expectation that footage
would be taken of him in the police station for use in a video identification procedure and,
potentially, as evidence prejudicial to his defence at trial. That ploy adopted by the police had gone
beyond the normal use of this type of camera and amounted to an interference with the applicant’s
right to respect for his private life. The interference had not been in accordance with the law because
the police had failed to comply with the procedures set out in the applicable code: they had not
obtained the applicant’s consent or informed him that the tape was being made; neither had they
informed him of his rights in that respect. The Court held unanimously that there had been a
violation of Article 8 of the Convention and awarded the applicant EUR1,500 for non-pecuniary
damage and EUR9,500 for costs and expenses. (The judgment is available only in English.)
163

38. Sciacca v. Italy , judgment of 11 January 2005, application no. 50774/99. The applicant
submits that the dissemination of the photograph at a press conference organised by the
public prosecutor’s office and the tax inspectors infringed her right to respect for her
private life, contrary to Article 8.
007
11.1.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
THE CZECH REPUBLIC, FRANCE, ITALY, TURKEY AND UKRAINE
The European Court of Human Rights has today notified in writing the following ten Chamber
judgments, of which only the friendly-settlement judgments are final 1
…
3) Sciacca v. Italy (no. 50774/99) Violation Article 8
The applicant, Carmela Sciacca, is an Italian national who was born in 1948 and lives in Syracuse
(Italy). She was a teacher at a private school in Lentini which owned a company of which she and
other teachers were members.
During an investigation into irregularities of management of the school’s activities, Mrs Sciacca was
prosecuted for criminal conspiracy, tax evasion and forgery. She was arrested and was made subject
to a compulsory residence order in November 1998. The tax inspectors drew up a file on her
containing photographs and her fingerprints.
Following a press conference on 4 December 1998 given by the public prosecutor’s office and the
tax inspectors, the dailies le Giornale di Sicilia and la Sicilia published articles on the facts giving
rise to the prosecution which were illustrated by a photograph of the four arrested women, including
the applicant. The photograph of Mrs Sciacca, which was published four times, was the one that had
been taken by the tax inspectors when the file was drawn up on her and released by them to the
press.
At the end of the proceedings the applicant was sentenced to one year and ten months’
imprisonment and fined EUR 300.
The applicant submitted that the dissemination of her photograph at the press conference had
infringed her right to respect for her private life, contrary to Article 8 (right to respect for private
life) of the Convention.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
164

The Court noted that the photograph, taken for the purposes of drawing up an official file, had been
released to the press by the tax inspectors. According to the information in its possession, there was
no law governing the taking of photographs of people under suspicion or arrested and assigned to
residence and the release of photos to the press. It was rather an area in which a practice had
developed.
As the interference with the applicant’s right to respect for her private life had not been “in
accordance with the law” within the meaning of Article 8, the Court concluded that there had been a
breach of that provision. It considered that the finding of a violation constituted in itself sufficient
just satisfaction for the non-pecuniary damage alleged by the applicant and awarded her EUR 3,500
for costs and expenses. (The judgment is available only in French).
165

39. Matheron v. France , judgment of 29 March 2005, application no. 57752/00. The applicant
complains under Article 8 of the Convention (right to respect for his private life) that
evidence was used against him that had been obtained by telephone tapping in separate
proceedings. Not being a party to those proceedings, he had been unable to contest their
validity.
159
29.3.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
FRANCE, POLAND, SAN MARINO, SLOVAKIA AND TURKEY
The European Court of Human Rights has today notified in writing the following 11Chamber
judgments, of which only the friendly-settlement judgment is final 1
…
3) Matheron v. France (no. 57752/00) Violation of Article 8
The applicant, Robert Matheron, is a French national who was born in 1949. He is currently in Salon
de Provence Prison (France).
In 1993 criminal proceedings were instituted against him for international drug-trafficking.
Evidence obtained from telephone tapping that had been used in proceedings against a co-defendant
was also used against the applicant. The applicant argued that that evidence was inadmissible, but
the indictment division ruled that it had no jurisdiction to verify whether evidence obtained from
telephone tapping in separate proceedings had been properly communicated and recorded in writing.
On 6 October 1999 the Court of Cassation dismissed an appeal by the applicant, holding that the
indictment division only had jurisdiction to determine the validity of the application to adduce the
telephone records in evidence, but not to decide whether the telephone tapping was lawful.
On 23 June 2000 the applicant was sentenced to 15 years’ imprisonment.
He complained under Article 8 of the Convention (right to respect for his private life) that evidence
had been used against him that had been obtained from telephone tapping in separate proceedings.
Not being a party to those proceedings, he had been unable to contest their validity.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
166

The main task of the Court was to ascertain whether an “effective control” had been available to the
applicant to challenge the telephone tapping to which he had been made subject. It was clear that he
had been unable to intervene in the proceedings in which the order to monitor telephone calls had
been made. Furthermore, the Court of Cassation had ruled that in such cases the role of the
indictment division was confined to checking whether the application to adduce evidence obtained
from the telephone tapping had been made in the proper form.
The Court reiterated that the 1991 Act regulating telephone tapping in France was consistent with
the Convention. However, it said that the reasoning followed by the Court of Cassation could lead to
decisions that would deprive a number of people, namely those against whom evidence obtained
from telephone tapping in separate proceedings was used, of the protection afforded by the Act. That
was what had happened in the case before the Court in which the applicant had not enjoyed the
effective protection of the Act, which made no distinction on the basis of the proceedings in which
the taped telephone conversations were used.
In those circumstances, the Court found that the applicant had not had access to “effective control”
allowing him to contest the validity of the evidence obtained through telephone tapping. It
accordingly held unanimously that there had been a violation of Article 8 of the Convention and
awarded the applicant EUR 3,500 for non-pecuniary damage and EUR 5,500 for costs and expenses.
(The judgment is available only in French.)
167

40. Vetter v. France , judgment of 31 May 2005, application no. 59842/00, Complains under
Article 8 (right to respect for private life), and Article 6 § 1 (right to a fair trial).
290
31.5.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING FINLAND, FRANCE, PORTUGAL
AND TURKEY
The European Court of Human Rights has today notified in writing the following 11 Chamber
judgments, none of which are final. 1[
…
3) Vetter v. France (no. 59842/00) Violation of Article 8 Violation of Article 6 § 1
The applicant, Christophe Vetter, is a French national who was born in 1975. He is currently serving
a prison sentence.
Following the discovery of a body with gunshot wounds, the police installed listening devices in a
flat which the applicant, whom they suspected of the homicide, visited regularly. On the strength of
the conversations that were recorded, the applicant was placed under formal investigation for
intentional homicide and remanded in custody until 30 December 1997.
The applicant argued that there was no statutory basis for the use of listening devices and that the
evidence that had thereby been obtained was inadmissible. The Indictment Division of the
Montpellier Court of Appeal and subsequently the Criminal Division of the Court of Cassation
rejected that argument, holding that the monitoring of his conversations had not contravened
Articles 81 and 100 et seq. of the Code of Criminal Procedure on the confidentiality of telephone
communications.
Partly on the basis of the evidence obtained from the recordings, the applicant was committed for
trial in the Hérault Assize Court. On 23 October 2000 he was convicted and sentenced to twenty
years’ imprisonment.
The applicant complained under Article 8 of the Convention (right to respect for private life) that
there was no statutory basis in French law for the installation of the listening devices in the flat or
the recording of his conversations and that his right to respect for his private life had accordingly
been violated. He also complained under Article 6 § 1 (right to a fair hearing) that the procedure
followed in the Court of Cassation was unfair in that neither the report of the reporting judgment nor
the submissions of the advocate general had been communicated to him and that his complaint under
Article 8 of the Convention had been dismissed on the ground that he had no standing.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
168

The Court noted that the matters complained of by the applicant amounted to interference with his
right to respect for his private life. However, it was not satisfied that Articles 100 et seq. of the Code
of Criminal Procedure had afforded any statutory basis for the order to install the listening devices at
the time it was made and implemented, as those provisions only regulated the interception of
telephone communications and did not refer to listening devices. Even assuming that the provisions
of the Code Criminal Procedure had constituted a basis for the measure, the Court considered that
the “law” so identified did not have the requisite quality required by the Court’s case-law.
In conclusion, the Court noted that French law did not set out the extent of the authorities’ discretion
with regard to listening devices or the procedure by which it was to be exercised with sufficiently
clarity. In those circumstances, it held unanimously that there had been a violation of Article 8 of the
Convention.
The Court held that no separate question arose under Article 6 of the Convention in respect of the
decision by the Criminal Division of the Court of Cassation to dismiss the applicant’s appeal under
Article 8 on the grounds that he had no standing.
Lastly, referring to its settled case-law, the Court held unanimously that there had been a violation
of Article 6 § 1 in the proceedings in the Court of Cassation as the reporting judge’s report had not
been communicate to the applicant or his counsel before the hearing, whereas the advocate general
had received a copy.
Under Article 41 (just satisfaction) the Court awarded the applicant EUR 1,500 for non-pecuniary
damage. (The judgment is available only in French.)
169

41. Antunes Rocha v. Portugal, judgment of 31 May 2005, application no. 64330/0. Complains
under Article 6 § 1 (right to a fair hearing), and Article 8 (right to respect for private and
family life).
290
31.5.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING FINLAND, FRANCE, PORTUGAL
AND TURKEY
The European Court of Human Rights has today notified in writing the following 11 Chamber
judgments, none of which are final. 1[
…
4) Antunes Rocha v. Portugal (no. 64330/01) Violation of Article 6 § 1 Violation of Article 8
The applicant, Gracinda Maria Antunes Rocha, is a Portuguese national who was born in 1954 and
lives in Pontinha (Portugal).
In May 1994 she signed a temporary contract of employment to work as an administrative assistant
for the National Council for Emergency Civil Planning ( CNPCE ), a body accountable to the Prime
Minister. The same day she received two documents on the headed notepaper of NATO and the
National Security Authority which she filled in. The first required her to give information about
herself and close relatives, while the second was an undertaking to comply with NATO security
regulations.
The applicant resigned in September 1994 after discovering that she and her family had been the
subject of an investigation that entailed her home being placed under surveillance and close
acquaintances questioned. According to information from the Defence Ministry, all staff employed by
the CNPCE, which worked with NATO, were liable to vetting in order to receive security clearance.
The applicant lodged a complaint alleging a breach of privacy and an investigation was started
against a person or persons unknown. In June 1999 the public prosecutor discontinued the
proceedings on the grounds that the offence was covered by an amnesty. However, on 21 January
2000 the investigating judge granted the applicant permission to intervene in the proceedings as an
assistant to the prosecuting authority (assistente) and reopened the investigation.
The applicant sought damages for the losses she had sustained as a result of the invasion of her
privacy. Her claim was declared inadmissible by the Lisbon Criminal Court on 26 October 2000,
inter alia on the grounds that the alleged offence was covered by an amnesty.
(1) Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
170

The applicant complained under Article 6 § 1 (right to a fair hearing within a reasonable time) of the
length of the criminal proceedings in which she had participated as an assistente. She also
complained that, without her knowledge or consent, inquiries had been made to obtain information
about her and her family, in breach of Article 8 (right to respect for private and family life).
As regards the length of the proceedings, the Court found that they had lasted one year and eight
months, as they had begun when the applicant applied to intervene as an assistente and ended with
the Criminal Court’s decision. Having regard to the circumstances of the case, it considered that that
period was unreasonable and did not comply with the “reasonable-time” requirement. Accordingly,
the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention.
The Court found that the authorities’ decision to gather information about the applicant constituted
interference with her private life. On examining whether that interference was “in accordance with
the law”, as required by Article 8 § 2 of the Convention, the Court noted, firstly, that there was a
legal basis for it in domestic law, namely Cabinet Resolution no. 50/88 of 8 September 1988, which
was in fact still in force. The Court considered the aim of the legislation sufficiently clear, namely to
establish whether the person concerned was totally honest and loyal and whether his or her
reputation, habits, social life, discretion and commonsense were such as to permit him or her to be
given access to confidential files. However, the same could not be said of the manner in which the
inquiries had been conducted. The legislation was too vague and did not alert those concerned to the
fact that they might be subject to certain measures, such as surveillance of their home or tests of
knowledge. Furthermore, the legislation did not contain any control mechanisms or provide any
safeguards for individuals. That too was unacceptable in the Court’s view.
Consequently, the Court found that Portuguese law did not indicate with sufficient clarity the scope
of security investigations or the manner in which they were to be carried out. The gathering of the
information about the applicant was not, therefore, “in accordance with the law”. The Court
accordingly held by seven votes to one that there had been a violation of Article 8 of the
Convention.
Under Article 41 (just satisfaction)the Court awarded the applicant EUR 7,500 for pecuniary
damage. (The judgment is available only in French.)
171

42. Von Hannover v. Germany , judgment of 28 July 2005 (application no. 59320/00) .(Violation
of Article 8) Publication of photographs of a public figure taken without her knowledge
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
CHAMBER JUDGMENT IN THE CASE OF
VON HANNOVER v. GERMANY
172
317
24.6.2004
The European Court of Human Rights has today delivered at a public hearing a judgment 1 in the
case of von Hannover v. Germany (application no. 59320/ 00).
The Court held unanimously:
• that there had been a violation de Article 8 of the European Convention on Human Rights
(right to respect for private life);
• that the question of the application of Article 41 of the Convention (just satisfaction) was not
ready for determination. It reserved it in its entirety and invited the Government and the
applicant to submit observations in writing.
The judgment is available in French (original version) and English (translation).
1. Principal facts
The applicant, Princess Caroline von Hannover, was born in 1957 and is the eldest daughter of
Prince Rainier III of Monaco. She is a national of Monaco, where she lives.
Since the beginning of the 1990s Princess Caroline von Hannover has been campaigning – often
through the courts – in various European countries to prevent photographs about her private life
being published in the sensationalist press.
She has on several occasions unsuccessfully applied to the German courts for an injunction
preventing any further publication of a series of photographs which had appeared in the 1990s in the
German magazines Bunte , Freizeit Revue and Neue Post . She claimed that they infringed her right to
protection of her private life and her right to control the use of her image.
In a landmark judgment of 15 December 1999 the Federal Constitutional Court granted the
applicant’s injunction regarding the photographs in which she appeared with her children on the
ground that their need for protection of their intimacy was greater than that of adults.
However, the Constitutional Court considered that the applicant, who was undeniably a
contemporary “public figure”, had to tolerate the publication of photographs of herself in a public
place, even if they showed her in scenes from her daily life rather than engaged in her official duties.
The Constitutional Court referred in that connection to the freedom of the press and to the public’s
legitimate interest in knowing how such a person generally behaved in public.
2. Procedure and composition of the Court
The application was lodged on 6 June 2000 and declared admissible on 8 July 2003.

On 16 and 26 September 2003 the President of the Chamber gave leave under Rule 61 § 3 of the
Rules of Court to the Association of German Magazine Publishers (Verband deutscher
Zeitschriftenverleger) and a company, Hubert Burda Media Holding GmbH & Co. KG, to submit
written observations as third parties.
Judgment was given by a Chamber of 7 judges, composed as follows:
Ireneu Cabral Barreto (Portuguese), President , Georg Ress (German), Lucius Caflisch (Swiss) 2 ,
Riza Türmen (Turkish), Boštjan Zupančič (Slovenian), John Hedigan (Irish), Kristaq Traja
(Albanian), judges ,and also Vincent Berger, Section Registrar .
3. Summary of the judgment 3
Complaint
The applicant maintained that the decisions of the German courts infringed her right to respect for
her private life, as guaranteed by Article 8 of the Convention, since they failed to afford her
adequate protection from the publication of photographs taken without her knowledge by paparazzi
on the ground that, in view of her origins, she was undeniably a contemporary “public figure”. She
also complained of an infringement of her right to respect for her family life.
Decision of the Court
The Court noted at the outset that certain photographs of the applicant with her children or in the
company of an actor at the far end of a restaurant courtyard were no longer the subject of the
application, as the Federal Court of Justice had prohibited any further publication of them on the
ground that they infringed the applicant’s right to respect for her private life.
There was no doubt that the publication by various German magazines of photographs of the
applicant in her daily life either on her own or with other people fell within the scope of her private
life. Article 8 of the Convention was accordingly applicable. It was therefore necessary to balance
protection of the applicant’s private life against freedom of expression, as guaranteed by Article 10
of the Convention.
Although freedom of expression also extended to the publication of photographs, this was an area in
which the protection of the rights and reputation of others took on particular importance, as it did
not concern the dissemination of “ideas”, but of images containing very personal or even intimate
“information” about an individual. Furthermore, photos appearing in the tabloid press were often
taken in a climate of continual harassment which induced in the person concerned a very strong
sense of intrusion into their private life or even of persecution.
The Court considered that the decisive factor in balancing the protection of private life against
freedom of expression should lie in the contribution that the published photographs and articles
made to a debate of general interest. In the case before it, the photographs showed Caroline von
Hannover in scenes from her daily life, and thus engaged in activities of a purely private nature. The
Court noted in that connection the circumstances in which the photographs had been taken: without
the applicant’s knowledge or consent and, in some instances, in secret. It was clear that they made
no contribution to a debate of public interest, since the applicant exercised no official function and
the photographs and articles related exclusively to details of her private life.
Furthermore, while the general public might have a right to information, including, in special
circumstances, on the private life of public figures, they did not have such a right in this instance.
The Court considered that the general public did not have a legitimate interest in knowing Caroline
von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared
173

in places that could not always be described as secluded and was well known to the public. Even if
such a public interest existed, just as there was a commercial interest for the magazines to publish
the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right
to the effective protection of her private life.
The Court reiterated the fundamental importance of protecting private life from the point of view of
the development of every human being’s personality and said that everyone, including people
known to the public, had to have a “legitimate expectation” that his or her private life would be
protected. The criteria that had been established by the domestic courts for distinguishing a figure of
contemporary society “ par excellence ” from a relatively public figure were not sufficient to ensure
the effective protection of the applicant’s private life and she should, in the circumstances of the
case, have had a “legitimate expectation” that her private life would be protected.
Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the
State in this area, the Court considered that the German courts had not struck a fair balance between
the competing interests. Accordingly, it held that there had been a violation of Article 8 of the
Convention and that it was not necessary to rule on the applicant’s complaint relating to her right to
respect for her family life.
Judges Cabral Barreto and Zupančič expressed concurring opinions, which are annexed to the
judgment.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int ).
Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex
***
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to
deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a
full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines
the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a
Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the
Court’s judgments.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
2 Judge in respect of Liechtenstein.
3 This summary by the Registry does not bind the Court.
174

43. Wisse v. France, judgment of 20 December 2005, application no. 71611/01. Relying on
Article 8 (right to respect for private and family life), the applicants contend that the
recording of their conversations in the prison visiting rooms constituted interference with
their right to respect for their private and family life.
708
20.12.2005
Press release issued by the Registrar
CHAMBER JUDGMENTS CONCERNING
FRANCE, HUNGARY, POLAND, PORTUGAL, TURKEY AND UKRAINE
The European Court of Human Rights has today notified in writing the following 18 Chamber
judgments, none of which is final. 1
…
3) Wisse v. France (no. 71611/01) Violation of Article 8
The applicants, Jean-François Wisse and his brother Christian Wisse, are French nationals who were
born in 1959 and 1952 respectively. They are currently detained in France in Ploemeur Detention
Centre and Brest Prison, where they are serving sentences of 25 years and 20 years respectively
following their conviction in 1992 for armed robbery and attempted murder.
The applicants were arrested on 9 October 1998 on suspicion of committing armed robberies at the
branches of the Crédit Agricole bank in Tinténiac and Combourg, and were placed in pre-trial
detention. Under a warrant issued by the investigating judge, the telephone conversations between
the applicants and their relatives in the prison visiting rooms were recorded between November
1998 and February 1999.
The applicants made an unsuccessful application to have the steps in the proceedings relating to the
recording of their conversations declared invalid. The Court of Cassation dismissed an appeal
lodged by them on that point on 12 December 2000.
Relying on Article 8 (right to respect for private and family life), the applicants argued that the
recording of their conversations in the prison visiting rooms constituted interference with their right
to respect for their private and family life.
In the Court’s view, the systematic recording of conversations in a visiting room for purposes other
than prison security deprived visiting rooms of their sole raison d’être, namely to allow detainees to
maintain some degree of “private life”, including the privacy of conversations with their families.
(1) Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
175

The conversations conducted in a prison visiting room, therefore, could be regarded as falling within
the scope of the concepts of “private life” and “correspondence”.
The recording and subsequent use of the conversations between the applicants and their relatives in
the visiting rooms amounted to an interference with their private lives which was not in accordance
with the law within the meaning of Article 8 § 2. French law did not indicate with sufficient clarity
how and to what extent the authorities could interfere with detainees’ private lives, or the scope and
manner of exercise of their powers of discretion in that sphere.
Accordingly, the Court held, by six votes to one, that there had been a violation of Article 8. It
considered that the finding of a violation of the Convention constituted in itself sufficient just
satisfaction for the alleged non-pecuniary damage. (The judgment is available only in French.)
176

44. Turek v. Slovakia , judgment of 14 February 2006, application no. 57986/00. The applicant
complains about being registered as a collaborator with the former Czechoslovak
Communist Security Agency, the issuing of a security clearance to that effect and the
dismissal of his action challenging that registration. He relies on Article 8 (right to respect
for private and family life) and Article 6 § 1 (right to a fair hearing within a reasonable
time).
79
14.2.2006
Press release issued by the Registrar
CHAMBER JUDGMENT TUREK v. SLOVAKIA
The European Court of Human Rights has today notified in writing its Chamber judgment 1 in the
case of Turek v. Slovakia (application no. 57986/00).
The Court held:
• by six votes to one, that there had been a violation of Article 8 (right to respect for private
life) of the European Convention on Human Rights; and
• unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing within a
reasonable time) of the Convention.
Under Article 41 (just satisfaction), the Court awarded the applicant 8,000 euros (EUR) in respect of
non-pecuniary damage and EUR900 for costs and expenses. (The judgment is available in English
and in French.)
1. Principal facts
The applicant, Ivan Turek, is a Slovakian national who was born in 1944 and lives in Prešov
(Slovakia). He held a senior public sector post dealing with the administration of education in
schools.
In March 1992, in response to a request made by his employer under the Lustration Act, an Act of
1991 which defined supplementary requirements for holding certain posts in the public sector, the
Ministry of the Interior of the Czech and Slovak Federal Republic issued a negative security
certificate in respect of the applicant. As a consequence, he felt compelled to leave his job.
The document stated that he had been registered by the former State Security Agency ( Štátna
bezpečnosť , “StB”) as its collaborator within the meaning of the Act and that he was therefore
disqualified from holding certain posts in the public sector. The applicant claimed he had unwillingly
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
177

met up with StB agents before and after trips he had made abroad in the mid 80s but had never passed
on to them any confidential information and had not operated as an informer for the agency.
The applicant initially lodged an action against the Federal Ministry on 25 May 1992, but
subsequently directed his action against the Slovak Intelligence Service ( Slovenská informačná
služba – “the SIS”), which had in effect taken over the StB archives. He sought a judicial ruling
declaring that his registration as a collaborator with the StB had been wrongful.
In August 1995, at the request of Kolšice Regional Court, the SIS handed over all ex-StB documents
concerning the applicant in its possession with the indication that the documents were top secret and
that the rules on confidentiality were to be observed. The court then held a number of hearings
where it heard the testimonies of several former StB agents. At a hearing held on 24 September
1998 the SIS submitted the Internal Guidelines of the Federal Ministry of 1972 concerning secret
collaboration. That document was classified and the applicant was therefore denied access to it. The
applicant’s action was dismissed on 19 May 1999.
In October 1999 the Supreme Court upheld the regional court’s judgment. It found, in particular,
that only unjustified registration in the StB files would amount to a violation of an individual’s good
name and reputation. It had therefore been crucial for the applicant to prove that his registration had
been contrary to the rules applicable at the material time, which he had failed to do.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 15 April 2000 and
declared admissible on 14 December 2004. In addition, third-party comments were received from
the Helsinki Foundation for Human Rights (Warsaw, Poland), which had been given leave by the
President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
Judgment was given by a Chamber of seven judges, composed as follows:
Nicolas Bratza (British), President ,
Josep Casadevall (Andorran),
Matti Pellonpää (Finnish),
Rait Maruste (Estonian),
Kristaq Traja (Albanian),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Ján Šikuta (Slovakian), judges ,
and also Michael O’Boyle, Section Registrar .
3. Summary of the judgment 2
Complaints
The applicant alleged that the continued existence of a former Czechoslovak Communist Security
Agency file registering him as one of its agents, the issuance of a security clearance to that effect,
the dismissal of his action challenging that registration and the resultant effects constituted a
2 This summary by the Registry does not bind the Court.
178

violation of his right to respect for his private life. He also complained about the length of the
proceedings. He relied on Article 8 (right to respect for private life) and Article 6 § 1 (right to a fair
hearing within a reasonable time).
Decision of the Court
Article 8
The Court recognised that, particularly in proceedings related to the operations of state security
agencies, there might be legitimate grounds to limit access to certain documents and other materials.
However, in respect of lustration proceedings, that consideration lost much of its validity,
particularly since such proceedings were by their nature orientated towards the establishment of
facts dating from the communist era and were not directly linked to the current functions of the
security services. Furthermore, it was the legality of the agency’s actions which was in question.
It noted that the domestic courts considered it of crucial importance for the applicant to prove that
the State’s interference with his rights was contrary to the applicable rules. Those rules were,
however, secret and the applicant did not have full access to them. On the other hand, the State – the
SIS – did have full access. The Court found that that requirement placed an unrealistic and excessive
burden on the applicant and did not respect the principle of equality. There had therefore been a
violation of Article 8 concerning the lack of a procedure by which the applicant could seek
protection for his right to respect for his private life.
The Court found it unnecessary to examine separately the effects on the applicant’s private life of
his registration in the StB files and of his negative security clearance.
Article 6 § 1
With particular regard to what was at stake for the applicant, the Court found that the length of the
proceedings, lasting seven years and some five months for two levels of jurisdiction, was excessive
and failed to meet the reasonable time requirement in breach of Article 6.
Judge Maruste expressed a dissenting opinion, which is annexed to the judgment.
179

45. Segerstedt-Wiberg and Others v. Sweden, judgment of 6 June 2006 (application no.
62332/00). (Violation of Article 8, 10, 11 and 13 of the Convention). Storage of information
about the applicants by the Swedish Security Police files and refusal to reveal the extent of
the information stored
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
CHAMBER JUDGMENT
SEGERSTEDT-WIBERG AND OTHERS v. SWEDEN
180
326
6.6.2006
The European Court of Human Rights has today notified in writing its Chamber judgment 1 in the
case of Segerstedt-Wiberg and Others v. Sweden (application no. 62332/00).
Concerning four of the applicants (Per Nygren, Staffan Ehnebom, Bengt Frejd and Herman
Schmid), the Court held unanimously that there had been:
• a violationof Article 8 (right to respect for private and family life) of the European
Convention on Human Rights;
• a violation of Article 10 (freedom of expression) of the Convention; and
• a violation of Article 11 (freedom of assembly and association).
Concerning all five applicants (including Ingrid Segerstedt-Wiberg), the Court held unanimously
that there had been:
• a violation of Article 13 (right to an effective remedy).
Under Article 41 (just satisfaction), the Court awarded 3,000 euros (EUR) to Ms Segerstedt-Wiberg,
EUR 7,000 each to Mr Nygren and Mr Schmid and EUR 5,000 each to Mr Ehnebom and Mr Frejd
in respect of non-pecuniary damage. It awarded EUR20,000 to the applicants, jointly, for costs and
expenses. (The judgment is available in English and in French.)
1. Principal facts
The applicants, all Swedish nationals, are: Ms Segerstedt-Wiberg (born in 1911), Mr Nygren (1948),
Mr Ehnebom (1952), Mr Frejd (1948) and Mr Schmid (1939). The first four applicants live in
Sweden in, respectively, Gothenburg, Kungsbacka and Västra Frölunda (Mr Ehnebom and Mr
Frejd). Mr Schmid lives in Copenhagen, Denmark.
The applicants all made unsuccessful requests to view in their entirety the records held about them
by the Swedish Security Police. Their requests were refused on the ground that making them
available might jeopardise crime prevention or national security. The authorities and domestic courts
relied on Chapter 5, section 1(2), of the 1980 Secrecy Act; that it was “not clear that the information
may be imparted without jeopardising the purpose of the decision or measures planned or without
harm to future activities”.

Ms Segerstedt-Wiberg is the daughter of a well-known publisher and anti-Nazi activist, Torgny
Segerstedt. From 1958 to 1970 she was a Liberal Member of Parliament. She is a prominent public
figure in Sweden.
On 22 April 1998 she asked to view her Security Police records, claiming that damaging
information was being circulated about her, including rumours that she was “unreliable” in respect
of the Soviet Union. Her request was refused.
In the light of an amendment to the Secrecy Act, she asked whether or not her name was on the
Security Police register and was subsequently granted authorisation to view certain records which
concerned letter bombs which had been sent to her in 1990.
On 8 October 1999 she brought proceedings to be allowed to consult her file in its entirety. Her
request was refused under Chapter 5, section 1(2).
On 13 December 2002 the Swedish Security Service decided to release all information (51 pages)
stored on Ms Segerstedt-Wiberg up until 1976.
The Swedish Government has also informed the European Court of Human Rights that, in 2001, Ms
Segerstedt-Wiberg was registered by the Security Service because of a new incident that could have
been interpreted as a threat against her.
Mr Nygren is an established journalist at Göteborgs-Posten, one of the largest daily newspapers in
Sweden. He had written a number of articles in the paper on Nazism and on the Security Police
which have attracted wide public attention.
On 27 April 1998 the Security Police rejected a request from Mr Nydren for access to their quarterly
reports on Communist and Nazi activities for the years 1969 to 1998. On 7 June 1999 he further
requested permission to read his Security Police file and any other documents containing his name.
He was given access to two pages of information, concerning his participation in a political meeting
in Warsaw in 1967, but his requests were otherwise refused under Chapter 5, section 1(2).
Mr Ehnebom ,has been a member of the KPML(r) - Marxist-Leninist (revolutionaries) Party -
established in 1970) since 1978. He is an engineer and since 1976 has been employed by the
Ericsson Group.
On 10 April 1999 he submitted a request to the Security Police to see all files that might exist on
him. He was granted access to 30 pages of information, including copies of two security check
forms concerning him from 1980 used by the FMV (the Försvarets Materialverk, an authority
responsible for procuring equipment for the Swedish Army, and with whom the Ericsson Group
worked). The forms noted that Mr Ehnebom was a member of the KPML(r) and in contact with
leading party members of the party. Mr Ehnebom submitted that that information was behind the
FMV ’s call for him to be removed from his post.
His requests were otherwise refused under Chapter 5, section 1(2).
Mr Frejd has been a member of the KPML(r) since 1972 and since 1974 the Chairman of
Proletären FF , a sports club with about 900 members. He is well known within sports circles in
Sweden and has actively worked with children and young people in sport to foster international
solidarity and facilitate social integration through sport.
On 23 January 1999 he requested access to information about him contained in the Security Police
register. He was granted permission to see parts of his file which included a note that he was a active
KPML(r) member and had stood for the party in a local election.
181

On 1 March 2000 he asked to see his file in its entirety and all other records that might have been
entered concerning him. His request was refused under Chapter 5, section 1(2).
Mr Schmid was from 1999 to 2004 a member of the European Parliament, belonging to the
GUE/NGL Group and sitting for the Swedish Left Party.
On 9 December 1997 he filed a request to have access to all information held about him by the
Security Police. He was given access to selected files, but his request was otherwise rejected under
Chapter 5, section 1(2). The entries viewed by Mr Schmid concerned mostly political matters such
as participation in a campaign for nuclear disarmament and general peace movement activities,
including public demonstrations and activities related to membership of the Social-Democratic
Student Association. One entry, dated 12 May 1969, stated that he had extreme left-wing leanings
and had suggested using guerrilla tactics and, if necessary, violence during a demonstration.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 7 October 2000 and
declared partly admissible on 20 September 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Jean-Paul Costa (French), President ,
András Baka (Hungarian),
Ireneu Cabral Barreto (Portuguese),
Antonella Mularoni (San Marinese),
Elisabet Fura-Sandström (Swedish),
Danut� Jočien� (Lithuanian),
Dragoljub Popović (citizen of Serbia and Montenegro), judges ,
and also Sally Dollé, Section Registrar .
3. Summary of the judgment2
Complaints
The applicants complain about the storage of certain information about them in Swedish Security
Police files and the refusal to reveal the extent of the information stored. They rely on Article 8
(right to respect for private life) Article 10 (freedom of expression), Article 11 (freedom of assembly
and association) and Article 13 (right to an effective remedy) of the Convention.
Decision of the Court
Article 8
Storage of the information released to applicants
The Court was satisfied that the storage of the information at issue had a legal basis in the 1998
Police Data Act. It noted in particular that Section 33 of the Act allowed the Security Police register
to include personal information concerning a person suspected of a crime threatening national
security or a terrorist offence, or undergoing a security check or where “there are other special
reasons”. While the Security Police had some discretion in deciding what constituted “special
reasons”, that discretion was not unfettered. For example, under the Swedish Constitution, no entry
regarding a citizen could be made in a public register exclusively on the basis of that person’s
political opinion, without his or her consent. And, among other things, a general prohibition of
registration on the basis of political opinion was set out in section 5 of the Police Data Act. Against
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that background, the Court found that the scope of the discretion conferred on the competent
authorities and the manner of its exercise was indicated with sufficient clarity, having regard to the
legitimate aim of the measure in question, to give the individual adequate protection against
arbitrary interference. Accordingly, the interference with the respective applicants’ private life was
“in accordance with the law”, within the meaning of Article 8.
The Court also accepted that the storage of the information in question pursued legitimate aims,
namely the prevention of disorder or crime, in the case of Ms Segerstedt-Wiberg, and the protection
of national security, for the other applicants.
While the Court recognised that intelligence services might legitimately exist in a democratic
society, it reiterated that powers of secret surveillance of citizens were tolerable under the
Convention only in so far as strictly necessary for safeguarding democratic institutions. Such
interference had to be supported by relevant and sufficient reasons and be proportionate to the
legitimate aim or aims pursued. In the applicants’ case, Sweden’s interest in protecting national
security and combating terrorism had to be balanced against the seriousness of the interference with
the respective applicants’ right to respect for private life.
Concerning Ms Segerstedt-Wiberg, the Court found no reason to doubt that the reasons for keeping
on record the information relating to bomb threats in 1990 against her were relevant and sufficient
as regards the aim of preventing disorder or crime. The measure was at least in part intended to
protect her; there was therefore no question of any disproportionate interference with her right to
respect for her private life.
However, as to the information released to Mr Nygren (his participation in a political meeting in
Warsaw in 1967), the Court, bearing in mind the nature and age of the information, did not find its
continued storage to be supported by reasons which were relevant and sufficient as regards the
protection of national security.
Similarly, the storage of the information released to Mr Schmid (that he, in 1969, had allegedly
advocated violent resistance to police control during demonstrations) could in most part hardly be
deemed to correspond to any actual relevant national security interests for Sweden. Its continued
storage, though relevant, could not be deemed sufficient 30 years later.
Therefore, the Court found that the continued storage of the information released to Mr Nygren and
Mr Schmid entailed a disproportionate interference with their right to respect for private life.
The information released to Mr Ehnebom and Mr Frejd raised more complex issues in that it related
to their membership of the KPML(r) , a political party which, the Swedish Government stressed,
advocated the use of violence and breaches of the law in order to bring about change in the existing
social order. The Court observed that the relevant clauses of the KPML(r) party programme rather
boldly advocated establishing the domination of one social class over another by disregarding
existing laws and regulations. However, the programme contained no statements amounting to an
immediate and unequivocal call for the use of violence as a means of achieving political ends.
Clause 23, for instance, which contained the most explicit statements on the matter, did not propose
violence as either a primary or an inevitable means in all circumstances. Nonetheless, it affirmed the
principle of armed opposition.
The Court reiterated its position that the constitution and programme of a political party could not be
taken into account as the sole criterion for determining its objectives and intentions; the contents of
the programme had to be compared with the actions of the party’s leaders and the positions they
defended.
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The KPML(r) party programme was the only evidence relied upon by the Government, however.
Beyond that they did not point to any specific circumstance indicating that the impugned
programme clauses were reflected in actions or statements by the party’s leaders or members or that
they constituted an actual or even potential threat to national security when the information was
released in 1999, almost 30 years after the party had come into existence. The reasons for the
continued storage of the information about Mr Ehnebom and Mr Frejd, although relevant, could not
be considered sufficient and therefore amounted to a disproportionate interference with their right to
respect for private life.
The Court concluded that the continued storage of the information that had been released was
necessary concerning Ms Segerstedt-Wiberg, but not for any of the remaining applicants.
Accordingly, the Court found that there has been no violation of Article 8 concerning Ms
Segerstedt-Wiberg, but that there had been a violation concerning the other four applicants.
Refusal to grant applicants full access to information stored about them by Security Police
The Court reiterated that a refusal of full access to a national secret police register was necessary
where the State might legitimately fear that the provision of such information might jeopardise the
efficacy of a secret surveillance system designed to protect national security and to combat
terrorism. In the applicants’ case the national administrative and judicial authorities involved had all
found that full access would jeopardise the purpose of the system. The Court did not find any
ground on which it could arrive at a different conclusion.
The Court concluded that Sweden was entitled to consider that the interests of national security and
the fight against terrorism prevailed over the interests of the applicants in being advised of the full
extent to which information was kept about them on the Security Police register. Accordingly, the
Court found that there had been no violation of Article 8.
Articles 10 and 11
The Court considered that the storage of personal data related to political opinion, affiliations and
activities that had been deemed unjustified for the purposes of Article 8 § 2 ipso facto constituted an
unjustified interference with the rights protected by Articles 10 and 11. Having regard to its findings
under Article 8, the Court therefore found that there had been violations of Articles 10 and 11
concerning all the applicants except Ms Segerstedt-Wiberg.
Article 13
Considering the applicants’ access to an effective remedy under Article 13, the Court observed that
the Parliamentary Ombudsman and Chancellor of Justice could receive individual complaints and
had a duty to investigate them in order to ensure that the relevant laws had been properly applied.
By tradition, their opinions commanded great respect in Swedish society and were usually followed.
However, as the Court had found previously, they lacked the power to render a legally-binding
decision. In addition, they exercised general supervision and did not have specific responsibility for
inquiries into secret surveillance or into the entry and storage of information on the Secret Police
register. The Court had already found neither remedy, when considered on its own, to be effective
within the meaning of Article 13.
In the meantime, a number of steps had been taken to improve the remedies, notably authorising the
Chancellor of Justice to pay compensation, with the possibility of judicial appeal against the
dismissal of a compensation claim, and the establishment of the Records Board (empowered to
monitor on a day-to-day basis the Secret Police’s entry and storage of information and compliance
with the Police Data Act). The Data Inspection Board had also been set up. Moreover, a decision by
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the Security Police whether to advise a person of information kept about him or her on its register
could form the subject of an appeal to the County Administrative Court and the Supreme
Administrative Court.
The Court noted that the Records Board had no competence to order the destruction of files or the
erasure or rectification of information kept in the files.
It appeared the Data Inspection Board had wider powers. It could examine complaints made by
individuals. Where it found that data was being processed unlawfully, it could order the processor,
on pain of a fine, to stop processing the information other than for storage. The Board was not itself
empowered to order the erasure of unlawfully stored information, but could make an application for
such a measure to the County Administrative Court. However, the Court had received no
information indicating the effectiveness of the Data Inspection Board in practice. It had therefore not
been shown that that remedy was effective.
In addition the applicants had no direct access to any legal remedy as regards the erasure of the
information in question. In the view of the Court, those shortcomings were not consistent with the
requirements of effectiveness in Article 13 and were not offset by any possibilities for the applicants
to seek compensation.
The Court found that the applicable remedies, whether considered on their own or together, could
not satisfy the requirements of Article 13 and that there had therefore been a violation of Article 13.
***
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
2 This summary by the Registry does not bind the Court.
185

46. Petre v. Romania, judgment of 27 June 2006 ( French only). Case no. 71649/01. Temporary
Registration in the criminal record. Request for the delation of data. The applicant
complained about the impact on his private and professional life.
[…]
EN FAIT
I. LES CIRCONSTANCES DE L’ESPÈCE
[ French only]
DEUXIÈME SECTION
AFFAIRE PETRE c. ROUMANIE
( Requête n o 71649/01)
ARRÊT
STRASBOURG
27 juin 2006
1. Les requérants sont nés respectivement en 1951 et 1975 et résident à Bucarest. Ils exercent la
profession d’avocat.
A. Action pénale à l’encontre des requérants
2. Le 24 décembre 1996, par une ordonnance du parquet auprès de la cour d’appel de Bucarest, le
premier requérant fut mis en examen pour escroquerie et usage de faux. Le parquet retint qu’au
cours du mois de décembre, le requérant, en complicité avec B.V., fonctionnaire dans
l’administration locale de Bucarest, avait utilisé un faux billet à ordre pour transférer une importante
somme d’argent d’un compte de l’administration locale sur son compte personnel. Le même jour, le
premier requérant fut placé en détention provisoire.
3. Par une ordonnance du parquet du 7 janvier 1997, le second requérant fut mis en examen pour
fabrication de faux documents et complicité d’escroquerie. Le même jour, il fut placé en détention
provisoire.
4. Par un réquisitoire du 19 février 1997, le parquet auprès de la cour d’appel de Bucarest renvoya
les requérants et B.V. devant le tribunal départemental de Bucarest du chef des accusations
mentionnées dans les ordonnances de mise en examen au motif que le second requérant, en
complicité avec B.V., avait falsifié le billet à ordre servant de base pour le transfert de l’argent sur le
compte du premier requérant.
5. Par une décision du 27 février 1997, le tribunal de première instance de Bucarest rejeta la
demande du parquet de prolongation de la détention provisoire du premier requérant, qui fut libéré le
même jour.
6. Par un jugement du 15 janvier 1998, confirmé sur recours du parquet par un arrêt du 12 mai 1998
de la cour d’appel de Bucarest, le tribunal départemental de Bucarest annula le réquisitoire du
186

parquet, au motif que la présentation du dossier d’instruction aux requérants avait été irrégulière. Il
ordonna aussi la mise en liberté du second requérant, qui fut libéré le 13 mai 1998.
7. Par un réquisitoire du 28 août 1998, le parquet auprès de la cour d’appel de Bucarest renvoya
pour la deuxième fois les requérants et B.V. devant le tribunal départemental de Bucarest du chef
des mêmes accusations que celles retenues dans le premier réquisitoire.
8. Par un jugement du 15 décembre 1998, confirmé sur recours du parquet par un arrêt du 9
septembre 1999 de la cour d’appel de Bucarest, le tribunal départemental de Bucarest annula le
deuxième réquisitoire du parquet, au motif qu’il avait été rédigé par le même procureur malgré
l’annulation du premier réquisitoire.
9. Par un réquisitoire du 1er septembre 2000, le parquet renvoya pour la troisième fois les
requérants et B.V. devant le tribunal départemental de Bucarest. Le parquet les accusa de complicité
d’escroquerie et de fabrication de faux documents. Le parquet rejeta également les mesures
d’instruction réclamées par les requérants, à savoir la comparution de plusieurs témoins et une
expertise graphologique du billet à ordre litigieux, estimant qu’elles n’étaient pas utiles parce qu’une
telle expertise avait déjà été effectuée et que l’ensemble des témoins qui pouvaient fournir des
informations pertinentes avaient été entendus.
10. Sur les trente-huit audiences qui eurent lieu devant le tribunal départemental entre le 15
septembre 2000 et le 7 janvier 2004, cinq furent reportées à la demande des requérants qui, le 8
décembre 2000, soulevèrent une exception d’inconstitutionnalité de certaines dispositions du code
pénal, le 24 septembre 2001 et les 19 février et 19 mars 2002, récusèrent plusieurs juges du tribunal
départemental et, les 1er et 29 octobre 2002, demandèrent l’ajournement pour étudier le dossier.
11. Par un jugement du 29 janvier 2004, le tribunal condamna B.V. pour escroquerie, fabrication et
usage de faux documents officiels. Le premier requérant fut condamné à une peine d’un an et huit
mois de prison pour complicité d’escroquerie, tandis que le second requérant fut condamné à deux
peines de trois ans et un an de prison pour complicité d’escroquerie et fabrication de faux
documents, respectivement. Les requérants et le parquet firent appel de ce jugement.
12. Par un arrêt du 22 octobre 2004, la cour d’appel de Bucarest accueillit partiellement les appels.
D’une part, elle constata que, pour les infractions de fabrication et usage de faux documents
officiels, la prescription de la responsabilité pénale était intervenue, et, d’autre part, elle maintint la
condamnation des trois inculpés pour escroquerie et complicité d’escroquerie et porta les peines des
deux requérants à quatre ans de prison.
13. Sur recours des requérants, par un arrêt du 18 mai 2005, la Haute Cour de Justice et de
Cassation cassa l’arrêt de la cour d’appel et renvoya le dossier pour un nouvel examen. La Haute
Cour de Justice observa que les juges de la cour d’appel n’avaient pas rédigé le procès-verbal de
l’arrêt, ce qui entraînait la nullité de ce dernier.
14. Par un arrêt du 3 novembre 2005, la cour d’appel rejeta l’appel du premier requérant. En
revanche, elle accueillit partiellement l’appel du second requérant au motif que l’infraction de
fabrication de faux documents était prescrite. Le 9 novembre 2005, les requérants formèrent un
recours devant la Haute Cour de Justice. La procédure est toujours pendante devant cette juridiction.
187

B. Inscription des accusations contre les requérants à leur casier judiciaire
15. Conformément à l’article 9 de la loi no 7/1972 sur le casier judiciaire, les accusations portées
contre les requérants furent inscrites provisoirement à leur casier judiciaire.
16. Par une action introduite auprès de la cour d’appel de Bucarest contre le ministère de l’Intérieur
et le chef du service du casier judiciaire, les requérants demandèrent la suppression de ces mentions
alléguant qu’elles les auraient empêchés de trouver un emploi.
17. Par un arrêt du 12 juin 2001, la cour d’appel rejeta l’action au motif que l’inscription provisoire
de ces mentions était prévue par la loi et qu’au bout de cinq ans, en absence de décision judiciaire
définitive, elles seraient effacées.
18. Sur recours des requérants, par un arrêt du 26 février 2002, la Cour suprême de Justice confirma
le bien-fondé de l’arrêt de la cour d’appel de Bucarest.
19. Les requérants fournissent des extraits de casier judiciaire délivrés en 2004, qui mentionnent
toujours l’existence d’une action pénale pendante à leur encontre.
II. LE DROIT INTERNE PERTINENT
A. Loi no 7/1972 sur le casier judiciaire
Article 9
«La mise en examen ou la détention provisoire d’une personne sont mentionnées provisoirement,
jusqu’à une décision judiciaire définitive, dans les fichiers de la police.
Si une décision définitive n’est pas intervenue au bout de cinq ans, les mentions provisoires sont
effacées. »
20. Cette loi a été abrogée par la loi no 290 du 24 juin 2004 sur le casier judiciaire. En vertu des
dispositions de cette loi, les poursuites en cours sont enregistrées dans les fichiers de la police, mais
ne doivent pas être mentionnées sur les extraits de casier délivrés sur demande des intéressés.
[…]
39. Dans la mesure où ces inscriptions [au casier judiciaire] sont susceptibles de poser un problème
sous l’angle de l’article 8 de la Convention, la Cour rappelle que certains désagréments dans le
déroulement normal de la vie privée sont inhérents aux poursuites pénales en cours. Toutefois, cet
aspect est à prendre en compte dans l’examen du grief tiré de l’article 6 § 1 de la Convention et, le
cas échéant, dans l’estimation d’un dommage moral subi par les intéressés (Volf c. République
tchèque, no 70847/01, § 40, 6 septembre 2005).
40. En tout état de cause, la Cour observe que les requérants n’apportent pas la preuve d’une
quelconque incidence sur leur vie privée ou professionnelle de l’inscription au casier des poursuites
en cours. De plus, elle observe que ces inscriptions provisoires ne comportent pas ex lege
d’incapacités personnelles ou professionnelles de nature à influencer la possibilité des requérants de
développer des relations avec le monde extérieur (voir, a contrario, Sidabras et Džiautas c. Lituanie,
nos 55480/00 et 59330/00, § 48, CEDH 2004-...).
188

41. Enfin, la Cour estime que les inscriptions litigieuses ne sauraient être assimilées à la situation
incriminée dans l’affaire Rotaru c. Roumanie ([GC], no 28341/95, §44, CEDH 2000-V) où les
autorités roumaines avaient recueilli et mémorisé pendant plus de cinquante ans des renseignements
sur la vie du requérant, en particulier sur ses études, ses activités politiques et son casier judiciaire.
42. Il s’ensuit que ce grief est manifestement mal fondé et doit être rejeté en application de l’article
35 §§ 3 et 4 de la Convention.
[…]
189

47. Weber Gabriele Weber and Cesar Richard Saravia against Germany , judgment of 29 June
2006, Application no. 54934/00. Provisions of the Fight against Crime Act violating the
applicants’ right to respect for their private life and their correspondence.
THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 54934/00
by Gabriele WEBER and Cesar Richard SARAVIA
against Germany
The European Court of Human Rights (Third Section), sitting on 29 June 2006 as a Chamber
composed of:
MrB.M. Z UPANČIČ, President ,Mr L.CAFLISCH, MrC. BÎRSAN ,MrV.ZAGREBELSKY, MrE.
M YJER, MrDAVID T HÓR B JÖRGVINSSON , judges ,
MrA. Z IMMERMANN, ad hoc judge,
and Mr V. B ERGER , Section Registrar,
Having regard to the above application lodged on 10 January 2000,
Having regard to the observations submitted by the respondent Government and the observations in
reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Ms Gabriele Weber, is a German national. The second applicant, MrCesar
Richard Saravia, is a Uruguayan national. Both applicants live in Montevideo (Uruguay). They were
represented before the Court by Mr W. Kaleck, a lawyer practising in Berlin, and by Mr E. Schwan,
a university professor in Berlin. The German Government (“the Government”) were represented by
their Agents, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The case concerns several provisions of the Act of 13August 1968 on Restrictions on the
Secrecy of Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und
Fernmeldegeheimnisses ), also called “the G 10 Act”, as modified by the Fight against Crime Act of
28 October 1994 (Verbrechensbekämpfungsgesetz).
4. It notably concerns the extension of the powers of the Federal Intelligence Service
( Bundesnachrichtendienst) with regard to the recording of telecommunications in the course of socalled
strategic monitoring, as well as the use ( Verwertung) of personal data obtained thereby and
their transmission to other authorities. Strategic monitoring is aimed at collecting information by
intercepting telecommunications in order to identify and avert serious dangers facing the Federal
Republic of Germany, such as an armed attack on its territory or the commission of international
terrorist attacks and certain other serious offences (see in detail “Relevant domestic law and
practice” below, paragraphs 18 et seq. ). In contrast, so-called individual monitoring, that is, the
190

interception of telecommunications of specific persons, serves to avert or investigate certain grave
offences which the persons monitored are suspected of planning or having committed.
5. The first applicant is a freelance journalist who works for various German and foreign
newspapers, radio and television stations on a regular basis. In particular, she investigates matters
that are subject to the surveillance of the Federal Intelligence Service, notably armaments,
preparations for war, drug and arms trafficking and money laundering. Inorder to carry out her
investigations, she regularly travels to different countries in Europe and South and Central America,
where she also meets the persons she wants to interview.
6. The second applicant, an employee of Montevideo City Council, submitted that he took messages
for the first applicant when she was on assignments, both from her telephone and from his own
telephone. He then transmitted these messages to wherever she was.
7. On 19November 1995 the applicants lodged a constitutional complaint with the Federal
Constitutional Court.
8. They alleged that certain provisions of the Fight against Crime Act amending the G10 Act
disregarded their fundamental rights, notably the right to secrecy of telecommunications (Article10
of the Basic Law), the right to self-determination in the sphere of information (Article 2 §1 and
Article 1 § 1 of the Basic Law), freedom of the press (Article 5 § 1 of the Basic Law) and the right
to effective recourse to the courts (Article 19 § 4 of the Basic Law).
9. In the applicants’ submission, technological progress made it possible to intercept
telecommunications everywhere in the world and to collect personal data. Numerous
telecommunications could be monitored, in the absence of any concrete suspicions, with the aid of
catchwords which remained secret. Strategic monitoring could then be used in respect of
individuals, preventing the press from carrying out effective investigations into sensitive areas
covered by the Act.
10. The Federal Constitutional Court, having held a hearing, delivered its judgment on 14 July 1999
(running to 125 pages). It found that the constitutional complaint lodged by the second applicant
was inadmissible. The court noted that a constitutional complaint could be lodged directly against a
statute if the person concerned could not know whether there had actually been an implementing
measure applying the statute to him or her. The complainant, however, had to substantiate
sufficiently his or her argument that his or her fundamental rights were likely to be breached by
measures taken on the basis of the impugned statute.
11. The Federal Constitutional Court noted that it was irrelevant that the applicants did not reside in
Germany, because the impugned provisions were aimed at monitoring international
telecommunications. However, it held that, unlike the first applicant, the second applicant had failed
to substantiate sufficiently his claim that his rights under the Basic Law were likely to be interfered
with by measures based on the impugned provisions of the amended G10 Act. In the absence of any
further details, the mere fact that he dealt with the first applicant’s telecommunications in her
absence was not sufficient to demonstrate this.
12. Partly allowing the first applicant’s constitutional complaint, the Federal Constitutional Court
held that certain provisions of the Fight against Crime Act were incompatible or only partly
compatible with the principles laid down in the Basic Law (see in detail “Relevant domestic law and
practice” below, paragraphs 18 et seq. ). In particular section3(1), first and second sentence, point 5,
section 3(3), (4), (5), first sentence, (7), first sentence, (8), second sentence, and section 9(2), third
sentence of the Act were found to be incompatible with Article 10, Article 5 or Article 19 § 4 of the
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Basic Law (see paragraphs 26 et seq. ). It fixed a deadline until 30 June 2001 for the legislature to
bring the situation into line with the Constitution.
13. On 29June 2001 a new version of the G10 Act entered into force (BGBl. I 2001, pp. 1254, 2298)
and the G10 Act in its version as amended by the Fight against Crime Act of 28 October 1994 ceased
to apply.
B. Relevant domestic law and practice
1. The Basic Law
14. The Basic Law provides for the following fundamental rights, in so far as relevant:
Article5
Right to freedom of expression
“(1) Everyone shall have the right freely to express and disseminate his opinions in speech, writing and
pictures and freely to obtain information from generally accessible sources. Freedom of the press and
freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.
(2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by
statutory provisions aimed at protecting young people and to the obligation to respect personal honour.”
Article10
Secrecy of mail, post and telecommunications
“(1) Secrecy of mail, post and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to
protect the free democratic constitutional order or the existence or security of the Federation or of a
Land, the statute may provide that the person concerned shall not be notified of the restriction and that
review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies
appointed by the people’s elected representatives.”
Article19
Restriction on basic rights
“(4) If a person’s rights are violated by a public authority he may have recourse to the courts. If no other
jurisdiction has been established, the civil courts shall have jurisdiction. Article 10 § 2, second sentence,
remains unaffected by this paragraph.”
15. The separation of legislative powers between the Federation and the Länder is laid down in
Articles 70 et seq. of the Basic Law. Pursuant to Article 70 § 1 the Länder , in principle, have the
right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Such
legislative power is conferred on the Federation, in particular, in Article 73:
“The Federation shall have exclusive power to legislate (ausschließliche Gesetzgebungskompetenz ) on:
1. foreign affairs and defence, including the protection of civilians;
...”
2. The Act of 13 August 1968 on Restrictions on the Secrecy of Mail, Post and Telecommunications
16. Being the statute envisaged by Article 10 § 2, second sentence, of the Basic Law (cited above,
paragraph 14), which provides for exceptions to the general rule of inviolability of
telecommunications, the Act of 13August 1968 on Restrictions on the Secrecy of Mail, Post and
Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also
called “the G10 Act”, lays down the conditions under which the authorities may introduce the
restrictions referred to in that provision of the Basic Law.
17. In a judgment delivered on 6 September 1978 ( Klass and Others v. Germany, Series A no. 28)
the Court held that the provisions of the G 10 Act of 13August 1968, in its original version and as
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egards the monitoring of individuals, did not contravene the Convention. It found that the German
legislature was justified in considering that the interference resulting from the legislation in question
with the rights guaranteed by Article 8 § 1 of the Convention was necessary in a democratic society
within the meaning of paragraph 2 of that Article. The Court also considered that the remedies
provided for in the G 10 Act complied with the requirements of Article 13 of the Convention.
3. The Fight against Crime Act of 28October 1994 in the light of the Federal Constitutional
Court’s judgment of 14 July 1999
(a) Legislative background
18. The Federal Act of 28 October 1994 on the Fight against Crime amended the G10 Act. Among
other things, it extended the range of subjects in respect of which “strategic monitoring” (as opposed
to monitoring of individuals) could be carried out. In the original version of the G10 Act such
monitoring was permitted only in order to detect and avert the danger of an armed attack on the
Federal Republic of Germany and at that time was therefore merely focused on the States belonging
to the Warsaw Pact. Furthermore, owing to technical progress it had become possible to identify the
telephone connections (Anschlüsse) involved in an intercepted telecommunication.
19. Pursuant to the provisions of the G10 Act, which either remained unchanged by the Fight against
Crime Act or were not contested in the present case, the Offices for the Protection of the Constitution
of both the Federation and the Länder (Verfassungsschutzbehörden des Bundes und der Länder ), the
Military Counter-Intelligence Service ( Militärischer Abschirmdienst) and the Federal Intelligence
Service were entitled to monitor and record telecommunications within their own sphere of activities
(section1(1) of the G10 Act). Monitoring of individuals was limited to serious threats to national
security (for example, high treason or threatening the democratic order) and was permissible only if
less intrusive means of investigation had no prospect of success or were considerably more difficult
(section2 of the G10 Act). As to strategic monitoring, only the head of the Federal Intelligence
Service or his deputy were entitled to lodge an application for a surveillance order. The application
had to be lodged in writing, had to describe and give reasons for the nature, scope and duration of the
measure and had to explain that other means of carrying out the investigations either had no prospect
of success or were considerably more difficult (section4 of the G 10 Act).
20. Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister
assigned by the Chancellor or the highest authority of the Länder (in respect of applications by their
Offices for the Protection of the Constitution). The order was made in writing and specified the
exact nature, scope and duration of the monitoring measure. The duration of the measure was to be
limited to a maximum of three months; the execution of the measure could be prolonged for a
maximum of three months at a time as long as the statutory conditions for the order were met (see
section 5 of the G 10 Act).
21. The monitoring measures authorised were to be carried out under the responsibility of the
requesting authority and under the supervision of a staff member qualified to hold judicial office.
Monitoring had to be discontinued immediately if the conditions of the monitoring order were no
longer met or the measure was no longer necessary (section 7 of the G10 Act).
22. Section3(4) provided that the Federal Intelligence Service was to verify whether the personal
data obtained by measures taken under subsection 1 of section 3 were necessary to pursue the aims
laid down in that subsection.
23. The Federal Constitutional Court found that in its present version, section 3(4) was
incompatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It found that the
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provision did not contain sufficient safeguards to guarantee that personal data which were not
destroyed or deleted as being unnecessary for the purposes of the Federal Intelligence Service would
be used only for the purposes which had justified their collection. Furthermore, the provision also
failed to comply with the identification requirements flowing from Article 10. In addition, there
were insufficient safeguards to guarantee that the Federal Intelligence Service would only use such
data as were relevant for the dangers listed in section 3(1). Such safeguards should also ensure that
the Federal Intelligence Service would take into account the important concerns of non-disclosure of
sources and confidentiality of editorial work as protected by the freedom of the press under Article 5
§1 of the Basic Law. The court ruled that, pending the entry into force of legislation in compliance
with the Constitution, section 3(4) was to be applied only if the data were specially marked and were
not used for purposes other than those listed in section 3(1).
24. Monitoring measures were supervised by two bodies, the Parliamentary Supervisory Board and
the so-called G 10 Commission (see section9 of the G 10 Act). At the relevant time, the Parliamentary
Supervisory Board consisted of nine members of parliament, including representatives of the
opposition. The Federal Minister authorising monitoring measures had to inform the board at least
every six months about the implementation of the G10 Act (section9(1) of the G 10 Act).
25. The G10 Commission consisted of a president who was qualified to hold judicial office and
three additional members who were appointed by the Parliamentary Supervisory Board for the
duration of one legislative term and who were independent in the exercise of their functions
(see section9(4) of the G 10 Act). The Federal Minister authorising surveillance measures had to
inform the G10 Commission monthly about planned monitoring measures and had to obtain its
consent (section 9(2) of the G 10 Act; see in detail below, paragraphs 55-58). Moreover, the Federal
Minister had to inform the Commission whether or not persons concerned by such measures had
been notified of them. If the Commission decided that notification was necessary, the Federal
Minister had to arrange for it to be given without undue delay (section 9(3) of the G 10 Act).
(b) Section 3(1) of the amended G10 Act: Dangers for the avoidance of which monitoring of
telecommunications could be ordered
26. Section1(1), points1 and 2, in conjunction with section 3(1), first and second sentence,
authorised the monitoring of wireless telecommunications, that is, telecommunications which were
not effected via fixed telephone lines, but, for example, via satellite connections ( Überwachung
nicht leitungsgebundener Fernmeldeverkehrsbeziehungen ).
27. Section3(1), first sentence, provided that restrictions on the secrecy of telecommunications
could be ordered by the competent Federal Minister with the approval of the Parliamentary
Supervisory Board, on an application by the Federal Intelligence Service, for international wireless
telecommunications. Under the second sentence of that provision, such restrictions were permitted
only in order to collect information about which knowledge was necessary for the timely
identification and avoidance of certain dangers, namely
1. an armed attack on the Federal Republic of Germany;
2. the commission of international terrorist attacks in the Federal Republic of Germany;
3. international arms trafficking within the meaning of the Control of Weapons of War Act
and prohibited external trade in goods, data-processing programmes and technologies in cases
of considerable importance;
4. the illegal importation of drugs in substantial quantities into the territory of the Federal
Republic of Germany;
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5. the counterfeiting of money (Geldfälschung) committed abroad;
6. the laundering of money in the context of the acts listed under points 3 to 5. Pursuant to
section 3(1), third sentence, restrictions on the secrecy of telecommunications could also be
ordered for telecommunications via fixed telephone lines and for mail in order to identify and
avert the dangers listed in section 3(1), second sentence, point 1.
28. The Federal Constitutional Court found that, pursuant to Article 73, point 1, of the Basic Law
(see paragraph 15 above), the federal legislature had exclusive legislative power to regulate the
matters listed in section3(1) of the amended G10 Act, as they concerned foreign affairs.
29. However, the Federal Constitutional Court took the view that allowing the monitoring of
telecommunications in order to prevent the counterfeiting of money abroad, in accordance with
point 5 of section 3(1) in its present wording, constituted a disproportionate interference with the
secrecy of telecommunications as protected by Article 10 of the Basic Law. It argued that this
danger as such could not be considered to be as serious as an armed attack on the German State or
any of the other dangers listed in section 3(1). The counterfeiting of money should therefore be
included in section 3(1) only if it was restricted to cases in which it threatened the monetary stability
of the Federal Republic of Germany. The court ruled that, pending the entry into force of legislation
in compliance with the Constitution, section 3(1), second sentence, point 5, was to be applied only if
the counterfeiting of money abroad threatened monetary stability in Germany.
30. In practice, wireless telecommunications (as opposed to telecommunications via fixed telephone
lines) comprised some ten per cent of the total volume of telecommunications at the relevant time.
However, given technical progress, the volume of such telecommunications was expected to rise in
the future.
31. Technically, telecommunications via satellite links (with the satellites being positioned some
36,000 km above the equator) could be intercepted from sites in Germany if the signal reflected by
the satellite (the “downlink”) covered the area in which the station was located. The area covered by
the satellite beam depended on the satellite technology used. Whereas signals downlinked by older
satellites often “beamed” across one-third of the earth’s surface, more modern satellites could
concentrate their downlink on smaller areas. Signals could be intercepted everywhere within the area
covered by the beam. International radio relay links (Richtfunkstrecken) could be intercepted from
interception sites on German soil only if the radio relay transmission was effected within close
proximity of these sites.
(c) Section 3(2) of the amended G 10 Act: Monitoring through catchwords
32. Pursuant to section3(2), the Federal Intelligence Service was only authorised to carry out
monitoring measures with the aid of catchwords ( Suchbegriffe) which served, and were suitable for,
the investigation of the dangers described in the monitoring order (first sentence). The second
sentence of that provision prohibited the catchwords from containing distinguishing features
( Identifizierungsmerkmale ) allowing the interception of specific telecommunications. However, this
rule did not apply to telephone connections situated abroad if it could be ruled out that connections
concerning German nationals or German companies were deliberately being monitored (third
sentence). The catchwords had to be listed in the monitoring order (fourth sentence). The execution
of the monitoring process as such had to be recorded in minutes by technical means and was subject
to supervision by the G10 Commission (fifth sentence). The data contained in these minutes could
be used only for the purposes of reviewing data protection and had to be deleted at the end of the
year following their recording (sixth and seventh sentences).
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d. Section3(3) of the amended G 10 Act: Restrictions on the permitted use of personal data
33. Section3(3), first sentence, provided that personal data (personenbezogene Daten) obtained
through the interception of telecommunications could only serve the prevention, investigation and
prosecution of offences listed in section 2 of the Act and in certain other provisions, notably of the
Criminal Code. These offences included, in particular, high treason against the peace or security of
the State, crimes threatening the democratic order, the external security of the State or the security of
the allied forces based in the Federal Republic of Germany, the formation of terrorist associations,
murder, manslaughter, robbery, the forgery of payment cards or cheques, fraud relating to economic
subsidies, infiltration of foreigners and the production, importation and trafficking of illegal drugs.
Personal data thus obtained could be used only if the person concerned was either subject to
individual monitoring under section2 of the Act or if there were factual indications (tatsächliche
Anhaltspunkte) for suspecting a person of planning, committing or having committed one of the
offences mentioned above. This catalogue of offences for the investigation of which knowledge
obtained by strategic monitoring could be used was considerably enlarged by the amendment of the
G10 Act at issue.
34. Pursuant to section3(3), second sentence, the obligation on the Federal Intelligence Service to
inform the Federal Government of its findings obtained by strategic monitoring, including personal
data, under section 12 of the Act on the Federal Intelligence Service remained unaffected.
35. The Federal Constitutional Court found that section 3(3), second sentence, in its present version,
failed to comply with Article 10 and Article 5 § 1, second sentence, of the Basic Law. The provision
did not contain sufficient safeguards to guarantee that the duty of the Federal Intelligence Service to
report to the Federal Government, which included the transmission of personal data, would be
performed solely for the purposes which had justified the collection of the data ( Zweckbindung).
Furthermore, the provision failed to comply with the identification requirements
( Kennzeichnungspflicht ) flowing from Article 10. Ensuring that personal data were not used for
illegal purposes was possible only if it remained discernible that the data concerned had been
obtained by means of an interference with the secrecy of telecommunications. Likewise, there were
no safeguards ensuring that the Federal Government did not keep or use the personal data
transmitted to them for purposes other than those listed in section 3(1). The court ruled that, pending
the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence,
was to be applied only if the personal data contained in the report to the Federal Government were
marked and remained bound up with the purposes which had justified their collection.
(e) Section 3(5) of the amended G 10 Act: Transmission of data to other authorities
36. Section3(5), first sentence, provided that the data obtained in the circumstances described in
subsection 1 of section 3 had to be transmitted to the Offices for the Protection of the Constitution of
the Federation and of the Länder , to the Military Counter-Intelligence Service, to the Customs
Investigation Office ( Zollkriminalamt ), to the public prosecutor’s offices and to certain police
services for the purposes laid down in subsection3 of section3 in so far as this was necessary for
the recipient authorities to carry out their duties.
37. Pursuant to section3(5), second sentence, the decision to transmit data was to be taken by a
staff member who was qualified to hold judicial office.
38. The Federal Constitutional Court found that the federal legislature’s exclusive legislative power
under Article 73, point 1, of the Basic Law (see paragraph 15 above) to regulate matters concerning
foreign affairs also covered the transmission to other authorities of information obtained by the
Federal Intelligence Service in the performance of its tasks as provided for in section 3(5) of the
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amended G 10 Act. The federal legislature merely had to provide guarantees that the further use of
the data did not disregard the primary function of the monitoring measures.
39. The Federal Constitutional Court further found that section 3(5) was not fully compatible with
Article 10 and Article 5 §1, second sentence, of the Basic Law. It held that Article 10 did not
prohibit the transmission to the authorities listed in section 3(5), first sentence, of information which
was relevant for the prevention and investigation of criminal offences. This finding was not called
into question by the fact that the initial collection of data by means of the random interception of
telecommunications in order to prevent or investigate offences, without any prior suspicion of a
specific offence being planned or having been committed, would breach Article 10.
40. However, in the opinion of the Federal Constitutional Court, the transmission of data under
section 3(5), first sentence, in its present version, disproportionately interfered with the right to
secrecy of telecommunications and freedom of the press. The transmission of data constituted a
further serious interference with the secrecy of telecommunications, because criminal investigations
could be instituted against persons concerned by the interception of telecommunications which had
been carried out without any prior suspicion of an offence. Consequently, such transmission was
proportionate only if it served the protection of an important legal interest and if there was a
sufficient factual basis for the suspicion that criminal offences were being planned or had been
committed.
41. Section3(5), first sentence, read in conjunction with section 3(3), did not fully comply with
these requirements.
42. The catalogue of offences in respect of which the transmission of data was permitted also
included less serious offences such as fraud relating to economic subsidies. Moreover, the impugned
provision authorised the transmission of data in cases in which there were merely factual indications
for the suspicion that one of the offences listed in that provision had been committed or was even
only being planned. The transmission of data for the investigation of an offence which had already
been committed should be authorised only if the factual basis for the transmission was the same as
that required by section100a of the Code of Criminal Procedure. Section 100a provided, however,
that interferences with the secrecy of telecommunications in order to investigate crimes required the
presence of specific facts – as opposed to mere factual indications – warranting the suspicion that
the person concerned had committed an offence listed in that provision. As regards the transmission
of data for the prevention of crime, the combination of the elements that mere factual indications
were sufficient, that the mere planning of an offence could suffice and that transmission could also
be justified in the case of less serious offences led to a disproportionate interference with the
fundamental rights affected.
43. The Federal Constitutional Court further found that section 3(5), second sentence, was likewise
not compatible with the right to secrecy of telecommunications. It considered it unnecessary to
entrust the decision on transmission of data to an independent body. However, there was no
requirement to record in minutes the transmission or the destruction or deletion of the data. This
rendered effective supervision of the transmission of the data impossible.
44. The Federal Constitutional Court ruled that, pending the entry into force of legislation in
compliance with the Constitution, section 3(5), first sentence, could be applied provided that data
were only transmitted if specific facts aroused the suspicion that offences listed in section 3(3) had
been committed. Furthermore, the transmission had to be recorded in minutes.
(f) Section 3(6) and (7) and section 7(4) of the amended G10 Act: Destruction of data
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45. Section3(6) and (7) and section7(4) regulated the procedure for destruction of the data
obtained by strategic monitoring.
46. Section3(6) provided that if the data obtained in the circumstances set out in section 3(1) were
no longer necessary to achieve the purposes listed in that provision and if they did not have to be
transmitted to other authorities pursuant to section 3(5), they had to be destroyed and deleted from
the files under the supervision of a staff member who was qualified to hold judicial office (first
sentence). The destruction and deletion had to be recorded in minutes (second sentence). It was
necessary to verify every six months whether the conditions for destruction or deletion were met
(third sentence).
47. Section3(7) provided that the recipient authorities likewise were to verify whether they needed
the data transmitted to them in order to achieve the aims laid down in section 3(3) (first sentence). If
this was not the case, they also had to destroy the data immediately (second sentence).
The destruction could be dispensed with if separation of the data from other information which was
necessary for the fulfilment of the tasks set was impossible or could only be carried out through
unjustifiable effort; the use of such data was prohibited (third sentence).
48. Section7(4), first sentence, provided that personal data obtained by means of monitoring
measures pursuant to sections 2 and 3 about a person involved in the telecommunications monitored
had to be destroyed if they were no longer necessary for the purposes listed in the Act and could no
longer be of significance for an examination by the courts of the legality of the measure. The
destruction had to be carried out under the supervision of a person qualified to hold judicial office.
Pursuant to section 7(4), second sentence, the destruction had to be recorded in minutes. It was
necessary to examine every six months whether personal data obtained could be destroyed (third
sentence). Access to data which were merely kept for the purpose of judicial review of the
monitoring measure had to be blocked (fourth sentence). They could only be used for that purpose
(fifth sentence).
49. The Federal Constitutional Court found that the provisions on the destruction of data laid down
in section 3(6) and (7), second and third sentences, and section 7(4) complied with Article 19 § 4 of
the Basic Law. The provisions, however, had to be interpreted so as not to frustrate judicial review
of monitoring measures. This meant that data could only be destroyed six months after the person
concerned had been notified that monitoring measures had been taken.
50. However, the Federal Constitutional Court considered section 3(7) to be incompatible with
Article 10 of the Basic Law. It was necessary for the recipient authorities to mark the data as having
been obtained by means of the interception of telecommunications. Otherwise, following
verification that the information obtained was relevant for the tasks of the authorities concerned,
personal data could be saved in a manner which made it impossible to identify them as resulting
from the strategic monitoring of telecommunications. The restrictions on the permitted use of these
data pursuant to section3(3) would thereby be undermined. The court ruled that, pending the entry
into force of legislation in compliance with the Constitution, section 3(7) could be applied provided
that the data were marked as described.
(g) Section3(8) of the amended G 10 Act: Notification of the persons concerned by the monitoring
51. Section3(8), first sentence, provided that the Federal Intelligence Service or the recipient
authorities had to inform the persons monitored about the restriction imposed on the secrecy of
telecommunications as soon as such notification could occur without jeopardising the achievement
of the aim pursued by the restriction and the use of the data. Pursuant to section 3(8), second
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sentence, no notification was given if the data obtained had been destroyed within three months after
their receipt by the Federal Intelligence Service or the recipient authorities.
52. The Federal Constitutional Court considered the restriction on the duty of notification as such,
as laid down in section3(8), first sentence, to be compatible with the Basic Law. By virtue of
Article 10 §2, first and second sentences, taken in conjunction with Article 19 § 4, third sentence, of
the Basic Law, no notification had to be given if this served to protect the German State or its
democratic order or if disclosure of the information obtained or the methods used to this end
threatened the fulfilment of the tasks of the authorities concerned.
53. However, section 3(8), second sentence, violated Article 10 and Article 19 §4 of the Basic
Law. There were no safeguards precluding the data from being used before their destruction within
the three-month period. The mere destruction of the data within that period alone did not, however,
justify dispensing with the duty of notification irrespective of the prior use of the data.
54. The court ruled that, pending the entry into force of legislation in compliance with the
Constitution, section 3(8) could be applied provided that the data had not been used before their
destruction.
(h) Section 9(2) of the G 10 Act: Supervision of monitoring measures
55. Section9(2) provided for supervision of the monitoring measures by an independent body, the
so-called G 10 Commission.
56. Pursuant to section9(2), first sentence, the competent Federal Minister was to inform the G10
Commission on a monthly basis about the measures he had ordered to restrict the secrecy of
telecommunications before such measures were implemented.
57. The Federal Minister could, however, order the execution of the measure before having
informed the G 10 Commission if there was a risk that a delay might frustrate the purpose of the
measure (second sentence of section 9(2)). The Commission gave a decision of its own motion or
further to complaints contesting the legality and necessity of monitoring measures (third sentence).
Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately
revoked by the Minister (fourth sentence).
58. The Federal Constitutional Court considered that section 9(2), in its present wording, was
incompatible with Article 10 of the Basic Law. It failed to provide in a sufficiently clear manner that
supervision by the G10 Commission covered the whole process of obtaining and using the data
(including measures taken under section 3(3), (5), (6) and (8)), and not only the monitoring orders
by the competent Minister. The court ruled that, pending the entry into force of legislation in
compliance with the Constitution, the provision in question was only to be applied if the
Commission’s supervisory powers extended to measures taken under section 3(3), (5), (6) and (8).
(i) Section9(6) of the amended G 10 Act: Exclusion of judicial review
59. Section9(6) excluded the possibility of judicial review in the case of monitoring measures
ordered and executed to prevent an armed attack on the territory of the Federal Republic of Germany
within the meaning of section 3(1), second sentence, point 1.
60. Pursuant to section5(5) of the G 10 Act, which remained unchanged in substance, the person
concerned had to be notified of measures restricting the secrecy of telecommunications as soon as
these measures were discontinued, provided that such notification did not jeopardise the purpose of
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the restriction (first and second sentence). After notification the person concerned could have
recourse to the courts; section 9(6) did not apply (third sentence).
61. The Federal Constitutional Court found that section 9(6) constituted a justified restriction on the
secrecy of telecommunications in accordance with Article 10 §2, second sentence, of the Basic
Law. Moreover, a person concerned by a monitoring measure could have recourse to the courts
following notification of the restriction under section 5(5), third sentence, of the G10 Act. The same
applied if the person concerned had learned of the monitoring measure by another means, without
having been notified.
4. The new G10 Act
62. A new version of the G 10 Act, which takes into account the principles laid down by the Federal
Constitutional Court in its judgment dated 14 July 1999, entered into force on 26 June 2001.
COMPLAINTS
63. The applicants claimed that certain provisions of the Fight against Crime Act amending the
G10 Act, in their versions as interpreted and modified by the Federal Constitutional Court in its
judgment of 14July 1999, violated their right to respect for their private life and their
correspondence as protected by Article 8 of the Convention. They complained in particular about
section 3(1), (3), (5), (6), (7) and (8) of the amended G 10 Act.
64. The first applicant further argued that the same provisions of the Fight against Crime Act
infringed freedom of the press as guaranteed by Article 10 of the Convention.
65. The applicants also submitted that the destruction of data (section 3(6) and (7), read in
conjunction with section 7(4)), the failure to give notice of restrictions on the secrecy of
telecommunications (section 3(8)) and the exclusion of judicial review in certain cases (section 9(6))
in accordance with the Act breached Article 13 of the Convention.
THE LAW
A. The Government’s objections
1. The submissions of the parties
(a) The Government
66. The Government argued, firstly, that the application was incompatible ratione personae with
the provisions of the Convention. Both applicants resided in Uruguay and claimed that their
Convention rights had been infringed as regards telecommunications from their telephone
connections in that country. The monitoring of telecommunications made from abroad, however,
had to be qualified as an extraterritorial act. In accordance with the Court’s decision in the case of
Banković and Others v. Belgium and Others ([GC], no. 52207/99, ECHR 2001-XII), the applicants
therefore did not come within Germany’s jurisdiction within the meaning of Article 1 of the
Convention – a concept which was primarily territorial – on account of that act.
67. Secondly, in the Government’s submission, the second applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention. He had not sufficiently substantiated in
his constitutional complaint his argument that his rights under the Basic Law were likely to be
interfered with by measures taken on the basis of the impugned provisions of the amended G10 Act.
The Federal Constitutional Court had therefore dismissed his complaint as being inadmissible.
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Moreover, the first applicant had failed to exhaust domestic remedies in so far as she had
complained that section3(2), third sentence, of the amended G10 Act violated her Convention
rights. She had failed to show in her complaint to the Federal Constitutional Court that she was
affected by the provision in question and to what extent.
68. Thirdly, in the Government’s view, the applicants could not claim to be victims of a violation of
their Convention rights. They referred to their reasoning with regard to exhaustion of domestic
remedies in that connection. Moreover, in so far as the Federal Constitutional Court had already
declared the impugned provisions to be unconstitutional, the applicants could no longer claim to be
victims of a violation of their Convention rights. In particular, they did not have a legitimate interest
in obtaining a decision in so far as that court permitted the continued application of those provisions
on a provisional basis.
(b) The applicants
69. The applicants contested those submissions. As to the applications’ compatibility ratione
personae with the Convention, the first applicant argued that she came within German jurisdiction
within the meaning of Article 1 of the Convention as she was a German national. Both applicants
further argued that it could not be decisive that the impugned acts had taken effect abroad.
Otherwise a respondent State could circumvent its obligations under the Convention.
70. The applicants submitted that they had exhausted domestic remedies as they had both obtained a
judgment of the Federal Constitutional Court, delivered on 14 July 1999.
71. The applicants further argued that they had not lost their status as victims of violations of their
Convention rights in so far as they had not been granted the redress sought in their constitutional
complaints. They stressed that the powers of the Federal Intelligence Service had remained
unchanged in the new version of the G10 Act of 2001 in so far as the Federal Constitutional Court
had not objected to them. It was in the nature of secret monitoring that they could not prove that
they had actually been subjected to it. However, it was very likely that because of their activities,
they had used catchwords within the meaning of section 3(2) of the G10 Act, which had caused
their communications to be recorded and analysed.
2. The Court’s assessment
72. The Court does not consider it necessary in the present case to rule on the objections made by
the Government since, even assuming that the applications are compatible ratione personae with the
Convention, that domestic remedies have been exhausted and that both applicants can claim to be
victims of Convention violations, it considers that the applications are in any event inadmissible for
the reasons set out below.
B. Complaints under Article 8 of the Convention
73. The applicants submitted that certain provisions of the Fight against Crime Act amending the
G10 Act, in their versions as interpreted and modified by the Federal Constitutional Court, violated
their right to respect for their private life and their correspondence.
74. In particular, the applicants complained about five measures. Firstly, they complained about the
process of strategic monitoring (section 3(1), taken in conjunction with section 1(1), point 2, of the
G10 Act). Secondly, they contested the transmission and use of personal data pursuant to
section 3(3), second sentence, of the G10 Act. Thirdly, they complained about the transmission of
personal data to the Offices for the Protection of the Constitution and other authorities and its use by
them pursuant to section3(5) of the G 10 Act. Fourthly, they contested the destruction of personal
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data under section 3(6) and (7), taken in conjunction with section 7(4), of the G 10 Act. Fifthly, they
contested the provision authorising the refusal to give notice of restrictions on the secrecy of
telecommunications (section 3(8) of the G 10 Act).
75. The applicants invoked Article 8 of the Convention which, in so far as relevant, reads:
“1. Everyone has the right to respect for his private ... life, ... and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.”
1. Whether there was an interference
76. The Government conceded that the impugned provisions of the amended G 10 Act, in so far as
they authorised the monitoring of telecommunications and the use of data obtained thereby,
interfered with the secrecy of telecommunications as protected by Article 8. The applicants took the
same view.
77. The Court reiterates that telephone conversations are covered by the notions of "private life"
and "correspondence" within the meaning of Article 8 (see, inter alia, Klass and Others, cited
above, p. 21, §41; Malone v. the United Kingdom, judgment of 2August 1984 Series A no. 82,
pp. 30-31, §64; and Lambert v. France , judgment of 24August 1998, Reports of Judgments and
Decisions 1998-V, pp. 2238-39, § 21).
78. The Court further notes that the applicants, even though they were members of a group of
persons who were likely to be affected by measures of interception, were unable to demonstrate that
the impugned measures had actually been applied to them. It reiterates, however, its findings in
comparable cases to the effect that the mere existence of legislation which allows a system for the
secret monitoring of communications entails a threat of surveillance for all those to whom the
legislation may be applied. This threat necessarily strikes at freedom of communication between
users of the telecommunications services and thereby amounts in itself to an interference with the
exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against
them (see Klass and Others, cited above, p. 21, § 41, and Malone, cited above, pp. 30-31, § 64).
79. Consequently, the impugned provisions of the amended G10 Act, in so far as they authorise the
interception of telecommunications, interfere with the applicants’ right to respect for private life and
correspondence. Furthermore, the Court, like the Federal Constitutional Court, takes the view that
the transmission of data to and their use by other authorities, which enlarges the group of persons
with knowledge of the personal data intercepted and can lead to investigations being instituted
against the persons concerned, constitutes a further separate interference with the applicants’ rights
under Article 8 (see, mutatis mutandis, Leander v. Sweden, judgment of 26 March 1987, Series A
no. 116, p. 22, § 48; Amann v. Switzerland [GC], no. 27798/95, § 70, ECHR 2000-II; and Rotaru v.
Romania [GC], no. 28341/95, §46, ECHR 2000-V). Moreover, the impugned provisions interfere
with these rights in so far as they provide for the destruction of the data obtained and for the refusal
to notify the persons concerned of surveillance measures taken in that this may serve to conceal
monitoring measures interfering with the applicants’ rights under Article 8 which have been carried
out by the authorities.
2. Whether the interference was justified
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80. Such interferences are justified by the terms of paragraph 2 of Article 8 if they are “in
accordance with the law”, pursue one or more of the legitimate aims referred to in paragraph 2 and,
furthermore, are “necessary in a democratic society” in order to achieve them.
(a) Were the interferences “in accordance with the law”?
81. The Government took the view that the interferences were in accordance with the law. On the
one hand, they were not contrary to public international law because the monitoring of wireless
telecommunications did not interfere with the territorial sovereignty of foreign States. In any event,
the first applicant could not rely on an alleged violation of a State’s territorial sovereignty in the
context of an individual application to the Court. On the other hand, the interferences in question
were based on the amended provisions of the G 10 Act and, in so far as the Federal Constitutional
Court had declared some of the impugned provisions to be unconstitutional, on that court’s rulings
concerning the manner in which these provisions were to be applied during a transitional period.
In particular, section 3(5), as confirmed by the Federal Constitutional Court, constituted a sufficient
legal basis for the transmission of data by the Federal Intelligence Service to other authorities.
82. The Government further submitted that the circumstances in which telecommunications could
be monitored and the data thus obtained be used were set out in a precise manner in the amended
provisions of the G10 Act and in the Constitutional Court’s judgment. There were, in particular,
sufficient procedural safeguards against abuse of powers of surveillance.
83. The applicant argued that the interception of telecommunications interfered illegally with the
sovereignty of the foreign States in which the persons being monitored resided. Moreover,
section 3(5) of the amended G10 Act provided no valid legal basis for the transmission of
information obtained by means of the interception of telecommunications to the Offices for the
Protection of the Constitution of the Federation and of the Länder and to the Military Counter-
Intelligence Service. Contrary to the Federal Constitutional Court’s view, Article 73, point 1, of the
Basic Law did not authorise the federal legislature to enact such a regulation.
84. The Court reiterates that the expression “in accordance with the law” within the meaning of
Article 8 § 2 requires, firstly, that the impugned measure should have some basis in domestic law; it
also refers to the quality of the law in question, requiring that it should be accessible to the person
concerned, who must, moreover, be able to foresee its consequences for him, and compatible with
the rule of law (see, among other authorities, Kruslin v. France , judgment of 24 April 1990,
Series A no. 176-A, p.20, § 27; Huvig v. France , judgment of 24April 1990, Series A no. 176-B,
p. 52, § 26; Lambert, cited above, p. 2239, § 23; and Perry v. the United Kingdom, no. 63737/00,
§45, ECHR 2003-IX).
i. Whether there was a statutory basis in German law
85. The Court notes at the outset that in the present case, the interference with the applicants’ right
to respect for their private life and correspondence resulted from provisions of the amended G 10
Act, an Act passed by Parliament and applicable in the manner set out by the Federal Constitutional
Court in its judgment of 14 July 1999.
86. The Court further observes that the applicants considered the impugned provisions of the
amended G 10 Act not to constitute a valid statutory basis, in the first place because the interception
of telecommunications interfered illegally with the sovereignty of the foreign States in which the
persons monitored resided.
87. The Court reiterates that the term “law” within the meaning of the Convention refers back to
national law, including rules of public international law applicable in the State concerned (see, mutatis
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mutandis , Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, SeriesA
no. 173, p. 26, §68; Autronic AG v. Switzerland, judgment of 22 May 1990, Series A no. 178, p. 25,
§56; Stocké v. Germany , judgment of 19 March 1991, Series A no.199, p.19, §54; and Öcalan v.
Turkey [GC], no. 46221/99, §90, ECHR 2005-IV). Asregards allegations that a respondent State has
violated international law by breaching the territorial sovereignty of a foreign State, the Court requires
proof in the form of concordant inferences that the authorities of the respondent State have acted
extraterritorially in a manner that is inconsistent with the sovereignty of the foreign State and therefore
contrary to international law (see, in particular, Öcalan, cited above, § 90).
88. The Court observes that the impugned provisions of the amended G10 Act authorise the
monitoring of international wireless telecommunications, that is, telecommunications which are not
effected via fixed telephone lines but, for example, via satellite or radio relay links, and the use of
data thus obtained. Signals emitted from foreign countries are monitored by interception sites
situated on German soil and the data collected are used in Germany. In the light of this, the Court
finds that the applicants failed to provide proof in the form of concordant inferences that the German
authorities, by enacting and applying strategic monitoring measures, have acted in a manner which
interfered with the territorial sovereignty of foreign States as protected in public international law.
89. The Court further observes that the applicants disputed, secondly, that section 3(5) of the
amended G 10 Act provided a valid legal basis for the transmission of information. They argued that
the federal legislature had not been authorised vis-à-vis the Länder legislatures, by the relevant
provisions on legislative powers laid down in the Basic Law, in particular Article 73, to adopt such a
provision. They were, therefore, claiming in substance that the impugned provision of the amended
G10 Act failed to comply with domestic law of a higher rank, namely the provisions on legislative
powers laid down in the German Constitution.
90. The Court reiterates in this connection that, whilst it is true that no interference can be
considered to be “in accordance with law” unless the decision – or statutory provision – occasioning
it complied with the relevant domestic law – of a higher rank – the logic of the system of safeguards
established by the Convention sets limits on the scope of the power of review exercisable by the
Court in this respect. It is in the first place for the national authorities, notably the courts, to interpret
and apply the domestic law: the national authorities are, in the nature of things, particularly qualified
to settle the issues arising in this connection (see, mutatis mutandis , Kruslin, cited above, p. 21,
§29, and Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, pp. 22-23, §48). In a
sphere covered by written law, the “law” is therefore the enactment in force as the competent courts
have interpreted it in the light, if necessary, of any new practical developments, and the Court
cannot question the national courts’ interpretation except in the event of flagrant non-observance of,
or arbitrariness in the application of, the domestic legislation in question (see, inter alia, Kruslin,
cited above, p. 21, § 29; Société Colas Est and Others v. France , no. 37971/97, § 43, ECHR 2002-
III; and, mutatis mutandis, Lavents v. Latvia, no. 58442/00, §114, 28 November 2002; and Leyla
Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005-...).
91. The Court notes that the Federal Constitutional Court, in its judgment in the present case, found
that the exclusive legislative power vested in the federal legislature in the sphere of foreign affairs
pursuant to Article 73, point 1, of the Basic Law also authorised it to legislate in the matters laid
down in section 3(5) of the amended G10 Act. The Court considers that the national courts’
interpretation to the effect that the transmission to other authorities of information obtained by the
Federal Intelligence Service in the performance of its tasks was covered by the federal legislature’s
powers in the sphere of foreign affairs does not disclose any flagrant non-observance of the Basic
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Law or arbitrariness in its application. It is accordingly satisfied that there was a sufficient legal
basis for the impugned measure.
ii. Quality of the law
92. The second requirement which emerges from the phrase “in accordance with the law” – the
accessibility of the law – does not raise any problem in the instant case.
93. As to the third requirement, the law’s foreseeability, the Court reiterates that foreseeability in
the special context of secret measures of surveillance, such asthe 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 , cited
above, 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, cited above, § 55). It is therefore essential to have clear,
detailed rules oninterception of telephone conversations, especially as the technology available for
use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25March
1998, Reports 1998-II, pp.542-43, §72, and Valenzuela Contreras v. Spain, judgment of 30July
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 order; a definition of the categories of
people liable to have their telephones tapped; a limit on the duration of telephone tapping; the
procedure to be followed for examining, using and storing the data obtained; the precautions to be
taken when communicating the data to other parties; and the circumstances in which recordings may
or must be erased or the tapes destroyed (see, inter alia, Huvig , cited above, p. 56, § 34; Amann,
cited above, §76; Valenzuela Contreras, cited above, pp. 1924-25, §46; and Prado Bugallo v.
Spain , no. 58496/00, § 30, 18 February 2003).
96. Turning to the present case, the Court observes that section 3(1) of the amended G10 Act, as
interpreted by the Federal Constitutional Court, enumerated in its second sentence, points 1-6, the
exact offences for the prevention of which the strategic interception of telecommunications could be
ordered. The amended G10 Act therefore defined in a clear and precise manner the offences which
could give rise to an interception order.
97. The Court further observes that the conditions for strategic monitoring, as laid down in
section 3(1) and (2) of the amended G10 Act, in particular, indicated which categories of persons
were liable to have their telephone tapped: the persons concerned had to have taken part in an
international telephone conversation via satellite connections or radio relay links (or also via fixed
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telephone lines in the case of monitoring to avert an armed attack on Germany, in accordance with
section 3(1), point 1). In addition, the persons concerned either had to have used catchwords capable
of triggering an investigation into the dangers listed in section 3(1), points 1-6, or had be foreign
nationals or companies whose telephone connections could be monitored deliberately in order to
avoid such dangers (section 3(2)).
98. As to the limit on the duration of telephone tapping, the Court notes that pursuant to section5 of
the G10 Act (which was not amended by the 1994 Fight against Crime Act), the maximum duration
of monitoring measures to be fixed in the order was three months; the implementation of the
measure could be prolonged for a maximum of three months at a time as long as the statutory
conditions for the order were met.
99. Moreover, the procedure to be followed for examining and using the data obtained was
regulated in detail in section 3(3)-(5) of the amended G10 Act. In particular, section 3(3) and (5)
laid down limits and precautions concerning the transmission of data to other authorities; these were
further strengthened by the Federal Constitutional Court in its judgment in the instant case.
100. As to the circumstances in which recordings may or must be erased or tapes destroyed, the
Court observes that section 3 (6) and (7) and section 7(4) of the amended G10 Act set out in detail
the procedure for the destruction of data obtained by means of strategic monitoring. The authorities
storing the data had to verify every six months whether those data were still necessary to achieve the
purposes for which they had been obtained by or transmitted to them. If that was not the case, they
had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked;
the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and
section 7(4), had to be supervised by a staff member qualified to hold judicial office.
101. Having regard to the foregoing, the Court concludes that the impugned provisions of the G 10
Act, seen in their legislative context, contained the minimum safeguards against arbitrary
interference as defined in the Court’s case-law and therefore gave citizens an adequate indication as
to the circumstances in which and the conditions on which the public authorities were empowered to
resort to monitoring measures, and the scope and manner of exercise of the authorities’ discretion.
102. Therefore, the interferences with the applicants’ right to respect for private life and
correspondence as a result of the impugned provisions of the amended G10 Act were “in
accordance with the law” within the meaning of Article 8 § 2 of the Convention.
(b) Purpose and necessity of the interferences
103. The Government argued that the impugned interferences with the secrecy of
telecommunications for the various purposes listed in section 3(1), second sentence, points 1-6,
pursued a legitimate aim. They were necessary, in particular, in the interests of national security,
public safety, the economic well-being of the country, and of the prevention of crime. The applicants
did not comment on this issue.
104. The Court shares the Government’s view that the aim of the impugned provisions of the
amended G10 Act was indeed to safeguard national security and/or to prevent crime, which are
legitimate aims within the meaning of Article 8 §2. It does not, therefore, deem it necessary to
decide whether the further purposes cited by the Government were also relevant.
105. It remains to be ascertained whether the impugned interferences were “necessary in a
democratic society” in order to achieve these aims.
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106. The Court reiterates that when balancing the interest of the respondent State in protecting its
national security through secret surveillance measures against the seriousness of the interference
with an applicant’s right to respect for his or her private life, it has consistently recognised that the
national authorities enjoy a fairly wide margin of appreciation in choosing the means for achieving
the legitimate aim of protecting national security (see, inter alia, Klass and Others, cited above,
p. 23, §49; Leander , cited above, p. 25, §59; and Malone, cited above, pp. 36-37, §81).
Nevertheless, in view of the risk that a system of secret surveillance for the protection of national
security may undermine or even destroy democracy under the cloak of defending it, the Court must
be satisfied that there exist adequate and effective guarantees against abuse (see Klass and Others,
cited above, pp. 23-24, §§ 49-50; Leander , cited above, p. 25, §60; Camenzind v. Switzerland ,
judgment of 16December 1997, Reports 1997-VIII, pp. 2893-94, §45; and Lambert , cited above,
p. 2240, §31). This assessment depends onall the circumstances of the case, such as the nature,
scope and duration of the possible measures, the grounds required for ordering them, the authorities
competent to authorise, carry out and supervise them, and the kind of remedy provided by the
national law (see Klass and Others, cited above, pp. 23-24, § 50).
107. The Court, while not losing sight of the legislative context, will first examine whether the
interferences in question were proportionate to the legitimate aim pursued by each of the impugned
provisions in turn, and will then make an overall assessment.
i. Strategic monitoring pursuant to section 3(1), taken in conjunction with section1(1), point 2, of the
amended G 10 Act (as modified by the Fight against Crime Act of 28October 1994)
108. In the Government’s submission, the impugned provision was necessary in a democratic
society. It struck a proper balance between the public interest in averting the serious dangers listed
in points1-6 of section 3(1) and the interests of the persons concerned by the monitoring measures.
109. According to the Government, monitoring measures based on the G10 Act had notably been
necessary to combat international terrorism (point 2), by which democratic societies found
themselves increasingly threatened, for instance by uncovering the command structure of Al-Qaida
following the terrorist attacks of 11September 2001. As regards international arms trafficking
(point 3), it had, for example, been possible to prevent the export of dual-use goods into countries
subject to an embargo and to improve export control with the help of strategic monitoring. It was
impossible to counter these threats without resorting to strategic monitoring of telecommunications.
110. The Government argued that the way in which monitoring measures were taken and their
extent were likewise not excessive. At the relevant time, merely some ten per cent of all
telecommunications had been conducted by wireless means and had therefore been potentially
subject to monitoring. In practice, monitoring was restricted to a limited number of foreign
countries. By virtue of section3(2), third sentence, the telephone connections of German nationals
living abroad could not be monitored directly. The identity of persons telecommunicating could only
be uncovered in rare cases in which a catchword had been used.
111. The applicant submitted that the scope of automatic surveillance under section 3(1) of the
amended G 10 Act was far too wide, as there were no longer any geographical restrictions and as it
was possible to identify persons and, if they were using mobile telephones, to analyse their
movements. By virtue of section 3(2) of the amended G10 Act, the second applicant could even be
monitored deliberately. The Federal Intelligence Service was entitled to monitor all
telecommunications within its reach without any reason or previous suspicion. Its monitoring
powers therefore inhibited open communication and struck at the roots of democratic society. It was
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irrelevant whether or not it was already possible from a technical point of view to carry out
worldwide monitoring.
112. In the applicant’s view, these wide monitoring powers did not correspond to a pressing need
on the part of society for such surveillance. There was no longer a threat of an armed attack on the
Federal Republic of Germany by a foreign State possessing nuclear weapons, as there had been
during the “Cold War”. Nor was there any other comparable current danger to be averted. In
particular, drug trafficking, counterfeiting of money and money laundering or presumed dangers
arising from organised crime did not constitute a danger to public safety sufficient to justify such an
intensive interference with the telecommunications of individuals. The fact that interception was
limited to content of “relevance for the intelligence service” (“nachrichtendienstliche Relevanz”), as
a result of the decision of the Federal Constitutional Court, was not sufficient to constrain
effectively the monitoring powers of the Federal Intelligence Service.
113. Moreover, the duty to have the interception of telecommunications authorised by the highest
authorities of the Länder or a Minister of the Federal Government and the prior supervision of
monitoring measures by an independent parliamentary committee did not avert the danger of abuse.
It was likely that the interferences in question had been ordered in a result-oriented manner, notably
because the excessive use of such measures, which, as a rule, remained secret, was unlikely to entail
legal or political sanctions.
114. The Court is aware that the 1994 amendments to the G10 Act considerably extended the range
of subjects in respect of which so-called strategic monitoring could be carried out under
section 3(1), the central provision at issue here. Whereas initially such monitoring was permitted
only in order to detect and avert the danger of an armed attack on Germany, section3(1) now also
allowed strategic monitoring in order to avert further serious offences listed in points 2-6 of that
section. Moreover, technical progress now made it possible to identify the telephone connections
involved in intercepted communications.
115. While the range of subjects in the amended G10 Act is very broadly defined, the Court
observes that – just as under the G10 Act in its initial version, which was at issue in its Klass and
Others judgment – a series of restrictive conditions had to be satisfied before a measure entailing
strategic monitoring could be imposed. It was merely in respect of certain serious criminal acts –
which reflect threats with which society is confronted nowadays and which were listed in detail in
the impugned section 3(1) – that permission for strategic monitoring could be sought. As regards the
monitoring of telecommunications in order to avoid the counterfeiting of money abroad, the Federal
Constitutional Court raised the threshold for interception by finding that such an offence could be
serious enough to justify monitoring only if it was capable of threatening monetary stability in
Germany. Surveillance could be ordered only on a reasoned application by the President of the
Federal Intelligence Service or his deputy and if the establishment of the facts by another method
had no prospect of success or was considerably more difficult. The decision to monitor had to be
taken by the Federal Minister empowered for the purpose by the Chancellor or, where appropriate,
by the highest authority of the Länder with the authorisation of the Parliamentary Supervisory
Board. The Minister further had to obtain prior authorisation from the G10 Commission or, in
urgent cases, ex post facto approval. Consequently, under the amended G10 Act there was an
administrative procedure designed to ensure that measures were not ordered haphazardly, irregularly
or without due and proper consideration.
116. Moreover, the Court notes, with regard to the implementation of surveillance measures and the
processing of the data obtained, that safeguards against abuse were spelled out in detail. Monitoring
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measures remained in force for a fairly short maximum period of three months and could be
renewed only on a fresh application and if the statutory conditions for the order were still met.
Monitoring had to be discontinued immediately once the conditions set out in the monitoring order
were no longer fulfilled or the measures themselves were no longer necessary. As regards the
examination of personal data obtained by the Federal Intelligence Service, the Federal Constitutional
Court strengthened the existing safeguards by ordering that such data had to be marked as stemming
from strategic monitoring and were not to be used for ends other than those listed in section 3(1).
The transmission of data to the Federal Government and to other authorities under section 3(3) and
(5) was also subject to conditions (which will be examined in more detail below). Moreover, the
G10 Act contained strict provisions concerning the storage and destruction of data. The
responsibility for reviewing stored files on a six-month basis was entrusted to an official qualified to
hold judicial office. Data had to be destroyed as soon as they were no longer needed to achieve the
purpose pursued (see in more detail below, paragraphs 130-132).
117. As regards supervision and review of monitoring measures, the Court notes that the G 10 Act
provided for independent supervision by two bodies which had a comparatively significant role to
play. Firstly, there was a Parliamentary Supervisory Board, which consisted of nine members of
parliament, including members of the opposition. The Federal Minister authorising monitoring
measures had to report to this board at least every six months. Secondly, the Act established the
G10 Commission, which had to authorise surveillance measures and had substantial power in
relation to all stages of interception. The Court observes that in its judgment in the Klass and Others
case (cited above, pp. 24-28, §§ 53-60) it found this system of supervision, which remained
essentially the same under the amended G10 Act at issue here, to be such as to keep the interference
resulting from the contested legislation to what was “necessary in a democratic society”. It sees no
reason to reach a different conclusion in the present case.
118. Consequently, strategic monitoring under section 3(1) was embedded into a legislative context
providing considerable safeguards against abuse.
ii. Transmission and use of personal data pursuant to section3(3), second sentence, of the G10 Act,
taken in conjunction with section12 of the Federal Intelligence Service Act
119. The Government submitted that in a democratic society it was necessary for the Federal
Intelligence Service to report to the Federal Government on the results of its monitoring measures in
accordance with section3(3), second sentence, of the amended G10 Act, taken in conjunction with
section 12 of the Federal Intelligence Service Act. This included the transmission of personal data
which had to be marked as deriving from such measures. Otherwise, the Government would not be
in a position to take effective measures to avert the dangers listed in section 3(1).
120. The applicants argued that there was no reason for the Federal Government to receive nonanonymous
personal data obtained by the Federal Intelligence Service by means of the interception
of telecommunications. The criminal prosecution of individuals was the task of the judiciary alone,
and the transmission of such personal data could be abused for political aims.
121. The Court notes at the outset that in its judgment the Federal Constitutional Court found that
the impugned provisions did not contain sufficient safeguards to ensure that the duty of the Federal
Intelligence Service to report to the Federal Government, which included the transmission of
personal data, was performed only for the purposes which had justified the collection of the data.
That court ruled that, pending the entry into force of legislation in compliance with the Constitution,
section 3(3), second sentence, could only be applied if the personal data contained in the report to
209

the Federal Government were marked and remained connected to the purposes which had justified
their collection.
122. The Court finds that the impugned provision, as amended and applicable following the
judgment of the Federal Constitutional Court, laid down strict conditions with regard to the
transmission to the Federal Government of data obtained by means of strategic monitoring. It is
further convinced by the Government’s argument that, in order effectively to avert the dangers listed
in section 3(1), the transmission of personal – as opposed to anonymous – data might prove
necessary. The additional safeguards introduced by the Federal Constitutional Court are appropriate
for the purpose of limiting the use of the information obtained to what is necessary to serve the
purpose of strategic monitoring.
iii. Transmission of personal data to the Offices for the Protection of the Constitution and other
authorities and their use by these authorities in accordance with section3(5) of the G 10 Act
123. In the Government’s view, the transmission of the data in question was necessary in a
democratic society for the prevention and prosecution of crime. It was a suitable means of achieving
this aim, as it was the task of the recipient authorities to avert and investigate criminal offences.
Taking into account the stipulations of the Federal Constitutional Court (in particular to the effect
that transmission of data was permitted only if specific facts –as opposed to mere factual
indications – had aroused the suspicion that one of the offences listed in section3(3) was being
planned or had been committed), the powers to transmit data were also not unreasonably wide.
Moreover, there were sufficient procedural safeguards to guarantee that these requirements were
complied with. The decision to transmit data was taken by a staff member qualified to hold judicial
office and was reviewed by the G 10 Commission.
124. The applicants submitted that the transmission of personal data to, among other authorities, the
Offices for the Protection of the Constitution was a further interference with their rights, which was
not necessary in a democratic society. Despite the restrictions ordered by the Federal Constitutional
Court, the scope of the cases in which the transmission of data was permitted remained wide and
indeterminate. It was disproportionate to use information obtained by means of a serious
interference with the secrecy of communications to combat a multitude of offences – some of which
were rather petty – even if they were only in the planning stage. The obvious danger of abuse was
not counterbalanced by sufficient procedural safeguards. Even though the decision to transmit data
was taken by an official who was qualified to hold judicial office, there was no independent
scrutiny, as the official in question was a staff member of the Federal Intelligence Service.
125. The Court finds that the transmission of personal data obtained by general surveillance
measures without any specific prior suspicion in order to allow the institution of criminal
proceedings against those being monitored constitutes a fairly serious interference with the right of
these persons to secrecy of telecommunications. It observes in this connection that the catalogue of
offences for the investigation of which knowledge obtained by means of strategic monitoring could
be used was considerably enlarged by the amendment of the G 10 Act at issue.
126. However, it notes that the use of information obtained by strategic monitoring to these ends
was limited: personal data could be transmitted to other authorities merely in order to prevent or
prosecute the serious criminal offences listed in section 3(3) of the amended G 10 Act.
127. Moreover, the Court observes that the Federal Constitutional Court found that the impugned
section, in its version in force at the relevant time, interfered disproportionately with the secrecy of
telecommunications as protected by the Basic Law. That court therefore ordered that, pending the
entry into force of legislation in compliance with the Constitution, section 3(5) could only be
210

applied and data be transmitted if specific facts – as opposed to mere factual indications – aroused
the suspicion that someone had committed one of the offences listed in section 3(3). Furthermore,
the transmission had to be recorded in minutes. Accordingly, that court again considerably
strengthened the safeguards against abuse.
128. In addition, the decision to transmit data had to be taken by a staff member of the Federal
Intelligence Service qualified to hold judicial office, who was particularly well trained to verify
whether the conditions for transmission were met. Moreover, as clarified in the Federal
Constitutional Court’s judgment, the independent G 10 Commission’s powers of review extended to
verifying that the statutory conditions for data transmission were complied with.
129. In the light of the above, the Court takes the view that the interference with the secrecy of the
communications made by persons subject to monitoring in accordance with the impugned provision
was counterbalanced both by a reasonable limitation of the offences for which data transmission was
permitted and by the provision of supervisory mechanisms against abuse.
iv. Destruction of personal data pursuant to section 3(6) and (7), taken in conjunction with section7(4),
of the G 10 Act
130. The Government took the view that the destruction of data was necessary in a democratic
society because it limited interference with the secrecy of telecommunications to what was strictly
required. Furthermore, pursuant to the order of the Federal Constitutional Court, data which were
still needed for the purposes of court proceedings could not be destroyed immediately.
131. The applicants argued that destruction of data obtained by means of the interception of
telecommunications likewise infringed their right to respect for their private life. Leaving the
responsibility for the retention and destruction of files to the authorities involved entailed a great
danger of abuse. The persons concerned by strategic monitoring were entitled to be informed about
the destruction of personal data concerning them.
132. The Court notes in the first place that the impugned provisions, in providing for the destruction
of personal data as soon as they were no longer needed to achieve their statutory purpose, and for
the verification at regular, fairly short intervals of whether the conditions for such destruction were
met, constituted an important element in reducing the effects of the interference with the secrecy of
telecommunications to an unavoidable minimum. Moreover, the Federal Constitutional Court ruled
that data which were still needed for the purposes of court proceedings could not be destroyed
immediately and that the supervisory powers of the independent G10 Commission covered the
whole process of using data, including their destruction. The impugned provisions consequently
established further safeguards against abuse of the State’s powers of surveillance.
v. Failure to give notice of restrictions on the secrecy of telecommunications pursuant to section3(8) of
the G10 Act
133. In the Government’s view, the provisions on notification were compatible with Article 8. As
the purposes of strategic monitoring in accordance with section 3(1) would often be undermined if
the persons concerned were subsequently informed about the measure, it was justified in such cases
not to give any notification.
134. In the applicant’s submission, the impugned section provided that notification had to take
place only if it did not endanger the aim pursued by the restriction and the use of the data thus
obtained. This exclusion of notification was too broad and entitled the authorities concerned not to
give notification in order to avert dangers which were most unlikely to materialise.
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135. The Court reiterates that the question of subsequent notification of surveillance measures is
inextricably linked to the effectiveness of remedies before the courts and hence to the existence of
effective safeguards against the abuse of monitoring powers, since there is in principle little scope
for recourse to the courts by the individual concerned unless the latter is advised of the measures
taken without his or her knowledge and thus able to challenge their legality retrospectively (see
Klass and Others, cited above, pp. 26-27, § 57). However, the fact that persons concerned by secret
surveillance measures are not subsequently notified once surveillance has ceased cannot by itself
warrant the conclusion that the interference was not “necessary in a democratic society”, as it is the
very absence of knowledge of surveillance which ensures the efficacy of the interference. Indeed,
such notification might reveal the working methods and fields of operation of the Intelligence
Service (see Klass and Others, cited above, p. 27, § 58, and, mutatis mutandis , Leander , cited above,
p. 27, §66). As soon as notification can be carried out without jeopardising the purpose of the
restriction after the termination of the surveillance measure, information should, however, be
provided to the persons concerned (see, mutatis mutandis , Leander , cited above, p. 27, §66, and
Klass and Others, cited above, p. 27, § 58).
136. The Court notes that pursuant to section 3(8), any individuals monitored were to be informed
that their telecommunications had been intercepted as soon as notification could be carried out
without jeopardising the purpose of monitoring. Moreover, the Court observes that the Federal
Constitutional Court again strengthened the safeguards against abuse contained in the impugned
provision by preventing the duty of notification from being circumvented; it found that in cases in
which data were destroyed within three months there was justification for never notifying the
persons concerned only if the data had not been used before their destruction. The Constitutional
Court also clarified that the supervisory powers of the independent G 10 Commission extended to
measures taken on the basis of section 3(8). In particular, the G 10 Commission had the power to
decide whether an individual being monitored had to be notified of a surveillance measure
(section 9(3) of the amended G10 Act). The Court finds that the provision in question, as
interpreted by the Federal Constitutional Court, therefore effectively ensured that the persons
monitored were notified in cases where notification could be carried out without jeopardising the
purpose of the restriction of the secrecy of telecommunications. It therefore contributed to keeping
the interference with the secrecy of telecommunications resulting from the amended G10 Act within
the limits of what was necessary to achieve the legitimate aims pursued.
vi. Conclusion
137. In the light of the above considerations, the Court, having regard to all the impugned
provisions of the amended G 10 Act in their legislative context, finds that there existed adequate and
effective guarantees against abuses of the State’s strategic monitoring powers. It is therefore
satisfied that the respondent State, within its fairly wide margin of appreciation in that sphere, was
entitled to consider the interferences with the secrecy of telecommunications resulting from the
impugned provisions to have been necessary in a democratic society in the interests of national
security and for the prevention of crime.
138. Accordingly, the applicants’ complaints under Article8must be dismissed as being manifestly
ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaints under Article 10 of the Convention
139. In the first applicant’s submission, certain provisions of the Fight against Crime Act, as
interpreted and modified by the Federal Constitutional Court, amounted to a violation of freedom of
the press. She complained about the same provisions of the Act as under Article 8 of the Convention
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(see above, paragraph74). She relied on Article 10 of the Convention, which, in so far as relevant,
reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless
of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.”
1. The parties’ submissions
(a) The Government
140. In the Government’s view, the impugned provisions of the amended G10 Act did not interfere
with the first applicant’s freedom of expression. Strategic monitoring measures were not aimed at
restricting the expression of opinions or the receipt of information, which would in fact have
contravened the purposes of the surveillance. The secrecy of communications was protected by
Article 8 alone.
141. The Government further argued that, even assuming that there had been an interference with
the rights protected under Article 10, the interference had been justified within the meaning of
paragraph 2 of that Article. It had been prescribed by law and was necessary in a democratic society.
The Government referred to their submissions regarding Article 8 in that connection.
(b) The first applicant
142. The first applicant submitted, in particular, that the impugned monitoring powers under
section 3(1) of the amended G 10 Act prejudiced the work of journalists investigating issues targeted
by surveillance measures. She could no longer guarantee that information she received in the course
of her journalistic activities remained confidential. Section 3(1) of the amended G10 Act did not
sufficiently protect journalists’ communications and therefore disregarded the importance of a free
press in a democratic society.
2. The Court’s assessment
(a) Whether there was an interference
143. The Court reiterates that freedom of expression constitutes one of the essential foundations of
a democratic society and that the safeguards to be afforded to the press are of particular importance.
The protection of journalistic sources is one of the cornerstones of freedom of the press. Without
such protection, sources may be deterred from assisting the press in informing the public about
matters of public interest. As a result the vital public-watchdog role of the press may be undermined,
and the ability of the press to provide accurate and reliable information be adversely affected (see,
inter alia, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p.500,
§39, and Roemen and Schmit v. Luxembourg , no. 51772/99, § 46, ECHR 2003-IV).
144. The Court further refers to its above findings under Article 8 to the effect that legislation
permitting a system for effecting secret surveillance of communications involves a threat of
surveillance in respect of persons such as the first applicant, who sufficiently substantiated her
argument that that legislation could be applied to her. This threat necessarily strikes at the freedom
213

of communication between users of telecommunications services and therefore amounts in itself to
an interference with the exercise of the applicant’s rights under Article 8, irrespective of any
measures actually taken against her.
145. In the Court’s view, this finding must be applied, mutatis mutandis, to the first applicant’s
right, in her capacity as a journalist, to freedom of expression as guaranteed by Article 10 § 1. The
applicant communicated with persons she wished to interview on subjects such as drugs and arms
trafficking or preparations for war, which were also the focus of strategic monitoring. Consequently,
there was a danger that her telecommunications for journalistic purposes might be monitored and
that her journalistic sources might be either disclosed or deterred from calling or providing
information by telephone. For similar reasons to those set out in respect of Article 8, the
transmission of data to other authorities, their destruction and the failure to notify the first applicant
of surveillance measures could serve further to impair the confidentiality and protection of
information given to her by her sources.
146. The Court therefore accepts that the impugned provisions interfered with the first applicant’s
freedom of expression.
(b) Whether the interference was justified
147. The Court, for the reasons set out in connection with Article 8, finds that the interference with
the applicant’s right to freedom of expression was prescribed by law, since it resulted from the
impugned provisions of the amended G10 Act, an Act passed by Parliament and applicable in the
manner set out by the Federal Constitutional Court in its judgment of 14 July 1999.
148. The Court also finds that the interference pursued a legitimate aim, namely, the protection of
the interests of national security and/or the prevention of crime.
149. In examining whether the interference was “necessary in a democratic society”, the Court
reiterates that, having regard to the importance of the protection of journalistic sources for the
freedom of the press in a democratic society, an interference cannot be compatible with Article 10 of
the Convention unless it is justified by an overriding requirement in the public interest. In reviewing
the decisions taken – or provisions enacted – by national authorities exercising their power of
appreciation, the Court must look at the “interference” complained of in the light of the case as a
whole and determine whether it was proportionate to the legitimate aim pursued and whether the
reasons adduced by the national authorities to justify it were “relevant and sufficient” (see, inter
alia, Goodwin, cited above, pp. 500-01, §§ 39-40, and Roemen and Schmit, cited above, § 46).
150. The Court notes at the outset that the Federal Constitutional Court found that the two
impugned provisions concerning transmission to other authorities of data obtained by means of
strategic monitoring, namely section 3(3) and (5), infringed the freedom of the press as protected by
Article 5 § 1, second sentence, of the Basic Law. In order to ensure that data were used only for the
purpose which had justified their collection, it ordered, in particular, that section3(3) could be
applied only if the personal data transmitted to the Federal Government were marked and remained
connected to the purposes which had justified their collection. As regards the transmission of data to
the authorities listed in section 3(5), the court laid down stricter conditions for transmission by
ordering that there had to be specific facts arousing a suspicion that someone had committed one of
the offences listed in section 3(3) and that the transmission had to be recorded in minutes. It stressed
that such safeguards could also ensure that the Federal Intelligence Service took into account the
important concerns of non-disclosure of sources and confidentiality of editorial work protected by
the freedom of the press enshrined in Article 5 § 1 of the Basic Law.
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151. The Court observes that in the instant case, strategic monitoring was carried out in order to
prevent the offences listed in section 3(1). It was therefore not aimed at monitoring journalists;
generally the authorities would know only when examining the intercepted telecommunications, if at
all, that a journalist’s conversation had been monitored. Surveillance measures were, in particular,
not directed at uncovering journalistic sources. The interference with freedom of expression by
means of strategic monitoring cannot, therefore, be characterised as particularly serious.
152. It is true that the impugned provisions of the amended G10 Act did not contain special rules
safeguarding the protection of freedom of the press and, in particular, the non-disclosure of sources,
once the authorities had become aware that they had intercepted a journalist’s conversation.
However, the Court, having regard to its findings under Article 8, observes that the impugned
provisions contained numerous safeguards to keep the interference with the secrecy of
telecommunications – and therefore with the freedom of the press – within the limits of what was
necessary to achieve the legitimate aims pursued. In particular, the safeguards which ensured that
data obtained were used only to prevent certain serious criminal offences must also be considered
adequate and effective for keeping the disclosure of journalistic sources to an unavoidable
minimum. In these circumstances the Court concludes that the respondent State adduced relevant
and sufficient reasons to justify interference with freedom of expression as a result of the impugned
provisions by reference to the legitimate interests of national security and the prevention of crime.
Having regard to its margin of appreciation, the respondent State was entitled to consider these
requirements to override the right to freedom of expression.
153. The Court concludes that the first applicant’s complaints under Article 10 of the Convention
must be dismissed as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the
Convention.
D. Complaints under Article 13 of the Convention
154. In the applicants’ view, certain provisions of the Fight against Crime Act amending the G10
Act, as interpreted and modified by the Federal Constitutional Court, violated their right to an
effective remedy. They complained, in particular, about the destruction of personal data
(section 3(6) and (7), taken in conjunction with section 7(4), of the G10 Act), the failure to receive
notice of restrictions on the secrecy of telecommunications (section 3(8) of the G 10 Act), and the
exclusion of judicial review of monitoring measures (section 9(6), taken in conjunction with
section 3(1)). They submitted that these measures prevented them from lodging an effective
complaint with the national courts about violations of their rights under Articles 8 and 10 of the
Convention. They relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been committed by persons acting
in an official capacity.”
155. According to the Court’s case-law, Article 13 applies only where an individual has an
“arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the
United Kingdom, judgment of 27April 1988, Series A no. 131, p. 23, §52; Voyager Limited v.
Turkey (dec.), no. 35045/97, 4 September 2001; Ivison v. the United Kingdom (dec.), no. 39030/97,
16 April 2002; and Petersen v. Germany (dec.), nos. 38282/97 and 68891/01, 12 January 2006).
156. The Court has found that the substantive complaints under Articles 8and 10 of the Convention
are manifestly ill-founded. For similar reasons, the applicants did not have an “arguable claim” for
the purposes of Article 13, which is therefore not applicable to their case. It follows that this part of
215

the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention
and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Vincent Berger Boštjan M. Zupančič
Registrar President
216

48. Panteleyenko v. Ukraine (no. 11901 / 02), judgment of 29 June 2006. Violation of Article 8,
disclosure at a court hearing of confidential information regarding the applicant’s mental
state and psychiatric treatment
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
217
385
29.6.2006
Chamber judgments concerning Austria, Croatia, Germany, Italy, Romania, Russia, Slovenia
andUkraine
The European Court of Human Rights has today notified in writing the following 33 Chamber
judgments, none of which is final. 1
Repetitive cases 2 and length-of-proceedings cases, with the Court’s main finding indicated, can also
be found at the end of the press release.
[…]
Two violations of Article 8
Violation of Article 6 § 2
Panteleyenko v. Ukraine (no. 11901/ 02) Two violations of Article 13
The applicant, Oleksandr Sergiyovych Panteleyenko, is a Ukrainian national who was born in 1960
and lives in Chernigiv (Ukraine).
In May 1999 criminal proceedings were instituted against the applicant for abuse of power while
acting in his capacity as a private notary and for forgery of official documents. His office was
searched and a number of items seized. The applicant sued for compensation.
The case was opened and closed a number of times. On 26 June 2002 the Desniansky Court
indicated that the investigation case file contained sufficient evidence against the applicant, but that,
having regard to the insignificance of the offence, further criminal prosecution was impractical. The
applicant’s appeals were dismissed.
In August 2000 the Novozavodsky District Court of Chernigiv declared the search of the applicant’s
office illegal. Furthermore, the authorities, instead of collecting the evidence relating to the criminal
case, had seized all the official documents and certain personal items in the applicant’s office. That
judgment was subsequently quashed.
On 26 December 2001 the Novozavodsky Court found that the applicant had no standing to claim
compensation for any acts or omissions allegedly committed by the authorities in the course of the
investigation.

In December 2001 the applicant instituted proceedings in the Novozavodsky Court against the
Chernigiv Law College and its principal for defamation. The applicant alleged that the Principal had
made libellous and abusive statements about him, questioning his mental health. The applicant
demanded an apology and compensation. In March 2002 Chernigiv Regional Psycho-Neurological
Hospital submitted to the court a certificate to the effect that the applicant had been registered as
suffering from a mental illness. The information was read out by a judge at one of the subsequent
hearings although it was not included in the final judgment. In June 2002 the applicant’s claim was
rejected as unsubstantiated. The applicant appealed.
On 1 October 2002 the Court of Appeal ruled that the court’s request for information concerning the
applicant’s mental health was illegal and bore no relevance to the case.
The applicant complained about the unlawful search of his office and the disclosure at a court
hearing of confidential information regarding his mental state and psychiatric treatment. He also
complained about the authorities’ refusal to pay him damages. He relied on Articles 8 (right to
respect for private and family life), 6 § 2 (presumption of innocence) and 13 (right to an effective
remedy).
The Court observed that the Novozavodsky Court had found that the impugned search was
conducted unlawfully. The Government in their observations did not question those findings or
produce any evidence proving otherwise. The Court therefore concluded that the interference in
question has not been shown to be “in accordance with the law” and held unanimously that there had
been a violation of Article 8 on that ground.
The Court noted that the Court of Appeal, having reviewed the case, came to the conclusion that the
first instance judge’s treatment of the applicant’s personal information had not complied with the
special regime afforded to psychiatric data. That finding was also not contested by the Government.
Moreover, the Court noted that, the details in issue being incapable of affecting the outcome of the
litigation, the court’s request for information was redundant and was thus unlawful for the purposes
of Article 6 of the Psychiatric Medical Assistance Act 2000. For those reasons the Court held
unanimously that there had been a breach of Article 8.
The Court noted that the court decisions terminating the criminal proceedings against the applicant
were couched in terms which left no doubt as to their view that the applicant had committed the
offence with which he was charged. In the Court’s view, the language employed by the Desniansky
Court was in itself sufficient to constitute a breach of the presumption of innocence. The fact that the
applicant’s compensation claim was rejected on the basis of the findings reached in the criminal
proceedings merely exacerbated the situation. In view of the circumstances, the Court considered that
the reasons given by the Desniansky Court, as upheld on appeal, combined with the rejection of the
applicant’s compensation claim on the basis of those same reasons, constituted an infringement of the
presumption of innocence. It held unanimously that there had been a violation of Article 6 § 2.
The Court further noted that the applicant applying to a higher prosecutor in order to have the search
of his office declared unlawful could not have afforded him with any relief. The prosecutor did not
have any power to award damages to a defendant for wrongdoing on the part of the investigating
authorities. The Court therefore held unanimously that there had been a violation of Article 13 in that
the applicant had no domestic remedy whereby he could enforce his right to respect for his home.
218

The Court also noted that the applicant’s successful appeal did not result in the discontinuation of
the disclosure of confidential psychiatric data in the court case file or any award to the applicant of
compensation for damages suffered as a result of the unlawful interference with his private life. The
Court therefore held that there had also been a violation of Article 13 in that respect.
The Court awarded the applicant EUR 2,315 in respect of pecuniary damage and EUR 3,000 for
non-pecuniary damage. (The judgment is available only in English.)
[…]
***
These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are
accessible on its Internet site (http://www.echr.coe.int ).
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
2 In which the Court has reached the same findings as in similar cases raising the same issues under the European
Convention on Human Rights.
219

49. L.L. v. France (no. 7508/02), judgment of 10 October 2006. Non respect of medical secrecy.
Disclosure of personal medical data from the French Court of Appeal concerning the
applicant.
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
220
574
10.10.2006
Chamber judgments concerning Andorra, Hungary, Finland, France, Poland, Slovakia
andSweden and Turkey
The European Court of Human Rights has today notified in writing the following 28 Chamber
judgments, of which only the friendly-settlement judgments are final. 1
Repetitive cases 2 and length-of-proceedings cases, with the Court’s main finding indicated, can also
be found at the end of the press release.
Just satisfaction
…
L.L. v. France (no. 7508/02) Violation of Article 8
The applicant is a French national who was born in 1957 and lives in France.
In 1996 the applicant’s wife filed a petition for divorce on the grounds of his repeated acts of
domestic violence and chronic alcoholism. In 1998 the tribunal de grande instance , having noted in
particular that she had produced medical certificates in support of those allegations, granted the
divorce on grounds of fault by the applicant and confirmed the interim measures whereby the
mother had been given custody of the couple’s two children, who were born in 1985 and 1988.
The applicant appealed against that decision, claiming that his ex-wife had acted fraudulently in
obtaining a report of an operation that he had undergone to remove his spleen, and arguing that she
was therefore not entitled to use it in court proceedings. He further maintained that he had never
given her a copy of that report, nor had he released the doctor who signed it from his duty of
medical secrecy in that connection. In February 2000 the Court of Appeal upheld the judgment
under appeal. It found in particular that the medical certificates produced by the applicant’s ex-wife
confirmed that he was an alcoholic and that he was violent as a result. With a view to appealing on
points of law, the applicant lodged an application for legal aid with the Court of Cassation’s legal
aid office, but his request was denied.
In the meantime, following a report of ill-treatment filed by the applicant, the children’s judge
ordered a measure of educational assistance in an open environment for the couple’s children.

The applicant complained about the production and use in court proceedings of documents from his
medical records, without his consent and without a medical expert having been appointed in that
connection. He relied on Article 8 (right to respect for private and family life).
The Court noted that, by basing its decision on the details of the operation report and quoting the
passages that it found relevant, the Court of Appeal had disclosed and rendered public personal data
concerning the applicant.
The Court further observed that in their decisions the French courts had first referred to the witness
statements testifying to the applicant’s drink problem and to the “duly detailed” medical certificates
recording the “reality of the violence inflicted on the wife”, concluding that the conduct taken into
account had constituted a serious and repeated breach of marital duties and obligations and had led
to an irretrievable breakdown in the marriage. It was only on a subsidiary basis that the courts had
referred to the impugned medical report in support of their decisions, and it therefore appeared that
they could have reached the same conclusion without it. The Court therefore considered that the
impugned interference with the applicant’s right to respect for his private life, in view of the
fundamental importance of the protection of personal data, was not proportionate to the aim pursued
and was not “necessary in a democratic society”, “for the protection of the rights and freedoms of
others”. The Court further noted that domestic law did not provide sufficient safeguards as regards
the use in this type of proceedings of data concerning the parties’ private lives, thus justifying a
fortiori the need for a strict review as to the necessity of such measures. The Court accordingly
found, unanimously, that there had been a violation of Article 8. It considered that the finding of a
violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged by the
applicant. (The judgment is available only in French.)
***
These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are
accessible on its Internet site (http://www.echr.coe.int ).
1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber
judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand
Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting
the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which
case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the
request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the
three-month period or earlier if the parties declare that they do not intend to make a request to refer.
2 In which the Court has reached the same findings as in similar cases raising the same issues under the European
Convention on Human Rights.
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