Kruslin & Huvig v.

France (Article 8 of the convention)

1. Interference by a public authority
Although it was Mr. Terrieuxs line that they were tapping the police in consequence intercepted and recorded several of the
applicants conversations, and one of these led to proceedings being taken against him. The telephone tapping therefore
amounted to interference by a public authority with the exercise of the applicants right to respect for his correspondence
and private life (26).
2. In accordance with the law
The accordance with the law 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 more over be
able to foresee its consequences for him, and compatible with the rule of law. (27)
I. Basis in domestic law
By law as referred to in Article 8 par. 2 was meant the law in force in a given legal system, in this instance a combination of
the written law and the case law interpreting it. Admittedly the court had held that the word law covered not only statute but
also unwritten law (28).
For many years now, the courts have regarded Articles 81, 151 and 152 as providing a legal basis for telephone tapping carried
out by a senior police officer under a warrant by an investigating judge. Settled case law like this cannot be disregarded. It
would be wrong to exaggerate the distinction between common-law countries and continental countries. Statute law is of
course also of importance in common-law countries. Were it to overlook case-law, the Court would undermine the legal system
of the Continental States. In sum the interference complained of had a legal basis in French law. (29)
II. Quality of the law

a. Accesibility
The accessibility of the law doesnt raise any problems in the instant case (30)
b. Forseeability and rule of law
Article 8 par. 2 of the convention does not merely relate back to the domestic law, but also relates to the quality of
the law requiring it to be compatible with the rule of law. It thus implies that there must be measure of legal
protection in domestic law against arbitrary interferences by public authorities. The requirements of the convention,
notably in regard to forseeability, cannot be exactly the same in the special context of interception of communication.
In particular, the requirement of forseeability cannot mean that an individual should be enabled to foresee when the
authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the
law must be sufficient clear in its term to give citizens 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.
The implementation of secret surveillance of communications is not open to scrutiny by the individuals concerned or
the public at large, 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. (30)
Tapping and other forms of interception of telephone conversations represents a serious interference with private life
and correspondence and must accordingly be based on a law that is particularly precise. It is essential to have clear,
detailed rules on the subject, especially as the technology available for use is continually becoming more
sophisticated. (33)


The Court does not in any way minimize the value of several of the safeguards, in particular the need for a decision by
an investigating judge and the possible supervision of the judge by the indictment division and higher courts among
others. It has to be noted however that only some of these safeguards are expressly provided in the written law.
Others have been laid down in case law, a majority of which was given after the interference in this case occurred,
some have not been laid down at all but have been inferred either from general enactments or principles or else from
an analogical interpretation of legislative provisions. Although plausible in itself such extrapolation does not provide
sufficient legal certainty in the present context (34).
Above all the system does not for the time being afford adequate safeguards against various possible abuses. For
example:
The categories of people liable to have their telephones tapped by judicial order.
The nature of the offences which may give rise to such an order
The limit on the duration of the telephone tapping
Procedures for drawing up the summary reports containing intercepted communications
The precautions to be taken in order to communicate the recordings intact and in their entirety for possible
inspection by the judge.
The circumstances in which recordings may or must be erased or the tapes be destroyed.
The information provided by the government shows at best the existence of a practice but a practice lacking the
necessary regulatory control in the absence of legislation or case law. (35)
In short French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of
exercise of the relevant discretion conferred on the public authorities. (36)