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You are here: BAILII >> Databases >> European Court of Human Rights >> A. v. FRANCE - 14838/89 [1993] ECHR 52 (23 November 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/52.html Cite as: (1994) 17 EHRR 462, [1993] ECHR 52, 17 EHRR 462 |
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In the case of A. v. France*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Macdonald,
Mr C. Russo,
Mr J. De Meyer,
Mr J.M. Morenilla,
Sir John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 June and 26 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 40/1992/385/463. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 26 October 1992, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 14838/89) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a French national, Mrs A.,
on 15 February 1989. The applicant requested the Court not to disclose
her identity.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 8 (art. 8).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
she wished to take part in the proceedings and designated the lawyer
who would represent her (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 30 October 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr R. Macdonald,
Mr C. Russo, Mr J. De Meyer, Mr J.M. Morenilla and Sir John Freeland
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicant's memorial on 9 February 1993 and
the Government's memorial on 30 April. On 25 May the Secretary to the
Commission informed the Registrar that the Delegate would submit oral
observations.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 June 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department,
Ministry of Foreign Affairs, Agent,
Miss M. Picard, magistrat, on secondment to the
Legal Affairs Department, Ministry of
Foreign Affairs,
Mrs M. Pauti, Head of the Comparative Law and
International Law Office, Public Freedoms and
Legal Affairs Department, Ministry of the Interior,
Mr D. Kincher, magistrat, on secondment to the
Criminal Affairs and Pardons Department, Ministry
of Justice, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant
Mr H. Dussaud, avocat, Counsel.
The Court heard addresses by Mr Gain, by Mr Geus and by
Mr Dussaud.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mrs A., a French national, is a cardiologist and lives in
Paris.
7. On 23 July 1981 a Paris investigating judge charged her,
together with five other persons including Mr Serge Gehrling, with
attempted murder, infringement of the arms and ammunition legislation
and infringement of the Law of 25 July 1980 on the protection and
control of nuclear substances.
On the same day the investigating judge remanded Mrs A. in
custody. She was released, subject to court supervision, on
26 March 1982 by decision of the Indictment Division of the Paris Court
of Appeal.
On 7 March 1991 the judge made an order finding that the six
persons charged, including the applicant, had no case to answer, as
there was insufficient evidence against them.
A. The contested recording and the filing of the applicant's
complaint
8. In July or August 1980 Mr Gehrling went to the Paris police
headquarters. He informed Chief Superintendent (commissaire
divisionnaire) Aimé-Blanc, the Head of the Central Office for the
Prevention of Serious Crime, that Mrs A. had hired him to kill
Mr Pierre De Varga, who was himself facing charges in relation to the
attempted murder of Prince Jean de Broglie and was in custody in the
Santé prison in Paris. Mr Gehrling volunteered to make a telephone
call to Mrs A.'s home to discuss possible methods for carrying out the
crime and to record the telephone conversation.
The Chief Superintendent accepted Mr Gehrling's offer. Once
the recording was in his possession, he informed his superiors of the
threat to Mr De Varga, but did not reveal the identity of his informant
or the existence of the cassette.
9. When questioned on 22 September 1981 in connection with the
investigation into the attempted murder of Mr De Varga, Chief
Superintendent Aimé-Blanc told the investigating judge as follows:
"Gehrling called [Mrs A.] at 10.30 p.m. from my office. He
got her to talk about the case and the conversation lasted a
good quarter of an hour. I recorded this conversation with a
tape recorder. I have kept the tape recording in question,
which I hold at your disposal. ... I wish to make clear that
I did not report this tape recording to my superior officer."
The next day, on the instructions of the investigating judge,
he handed over the recording to the latter.
10. On 9 November 1981 Mrs A. laid a complaint, together with an
application to join the proceedings as a civil party (constitution de
partie civile), against Mr Gehrling and Chief Superintendent Aimé-Blanc
for invasion of privacy and breach of the confidentiality of telephone
communications. She relied on Articles 368, 369 and 378 of the
Criminal Code and on Article L.42 of the Post and Telecommunications
Code (see paragraphs 18 and 22 below).
B. The investigation of the complaint
1. Before the investigating judge
11. On 28 January 1985 the judge assigned to the investigation of
the case made an order finding that there was no case to answer. He
began by noting that the conversation recorded did not concern private
life:
"...
... the offences (délits) provided for and penalised under
[Articles 368-1° and 369 of the Criminal Code] require not
only an actual interference with another's private life, but
also the intention to infringe a fundamental individual right.
...
In this case, the transcript of the recording obtained by
Serge Gehrling shows that what [Mrs A.] said, apart from a few
spontaneous remarks unrelated to the general subject-matter of
the conversation, was extraneous to the complainant's
emotional or personal life."
On the question of the alleged violation of Article L.42 of the
Post and Telecommunications Code, the judge stated as follows:
"That provision expressly states that the protection of
secrecy is extended to the person making the call or its
recipient only if neither of them consents to the revelation
concerned.
As one of the participants in the conversation, Serge
Gehrling, had, by handing over the recording to Chief
Superintendent Aimé-Blanc, manifested the consent required by
the aforesaid provision, the offence was not made out."
2. In the Indictment Division of the Paris Court of Appeal
12. On Mrs A.'s appeal, the Indictment Division of the Paris Court
of Appeal upheld the above-mentioned order on 22 October 1985, on the
following grounds:
"...
... as one of [the participants in the conversation],
Gehrling, had consented to this disclosure [of the content of
a telephone communication] by voluntarily handing over to
Chief Superintendent Aimé-Blanc the tape recording, the
offence [of breach of the confidentiality of telephone
communications] is not made out and the relevant order must be
upheld in this respect.
...
... it appears that the conversation recorded between
Gehrling and Mrs [A.] is entirely extraneous to the emotional
or personal life of the woman concerned. On the contrary,
Gehrling deliberately steered the conversation towards two
matters, the preparation of the murder or a smuggling scheme,
thereby seeking to prompt the recipient of his call to confirm
the statements which he had made to Chief Superintendent
Aimé-Blanc ...
In these circumstances, it appears that at no time did
Gehrling try to make Mrs [A.] reveal a secret of her private,
emotional, family or physical life, as he sought only to
obtain statements concerning facts constituting serious
breaches of the criminal law, matters which could not be
classified as intimate."
3. In the Court of Cassation
13. Mrs A. appealed on points of law; she complained, inter alia,
of procedural irregularities in the designation of the members of the
Indictment Division.
On 11 May 1987 the Criminal Division allowed the appeal and
remitted the case to the Paris Indictment Division, composed
differently.
4. In the Indictment Division of the Paris Court of Appeal
14. On 13 January 1988 the Indictment Division again upheld the
order finding that there was no case to answer, on the following
grounds:
"The transcript of the tape recording made by Gehrling in
the office of Superintendent Aimé-Blanc reveals that, apart
from a few spontaneous remarks unrelated to the general
subject-matter of the conversation, the words spoken at her
home by [Mrs A.] allude to a plan to commit murder and to a
smuggling operation. Gehrling deliberately steered the
conversation towards these two subjects and systematically
brought [Mrs A.] back to them during the call. [Mrs A.] was
thus asked a series of questions through which Gehrling tried
to get her to confirm the allegations which he had made to the
superintendent;
The mutually corroborative statements of Lucien Aimé-Blanc
and Serge Gehrling establish that the latter agreed to the
disclosure of this conversation;
I. The alleged interference with the intimate side of the
civil party's private life
In the first place, the offence punishable under Article 368
of the Criminal Code requires an actual interference with the
intimate side of another person's private life. The unlawful
viewing or interception must involve situations, activities,
attitudes or words revealing states of mind, feelings,
opinions or occupations which there is a legitimate desire to
confine to a restricted circle, and which relate to family
life, personal relations, personal finances, thought, health
and leisure;
That is not the case of remarks relating to a criminal
conspiracy likely to lead to an attempt on the life of a third
person and to prejudice public order;
Consequently, in this case, the words spoken by [Mrs A.] at
her home and recorded without her knowledge by Gehrling, who
had called her with the sole purpose of talking about a plan
to murder Mr De Varga of which she was allegedly the
instigator, and who had systematically kept the conversation
on that subject and that of a smuggling operation, fall
outside the sphere of private life;
It follows that Gehrling is not guilty of the offence
(délit) of invasion of privacy;
Secondly, the retention and disclosure of recordings or
documents obtained by stealth or without the knowledge of
another person are punishable under the first paragraph of
Article 369 of the Criminal Code only when they relate to the
intimate side of that person's private life;
The tape recording of the conversation between the
complainant and Gehrling contains remarks which manifestly
have no connection whatsoever with the private lives of the
persons involved;
Consequently, Lucien Aimé-Blanc is not guilty of the offence
of which he is accused;
II. The alleged breach of the confidentiality of telephone
communications
While it is an offence under Article 42 of the Post and
Telecommunications Code for a third person to divulge the
content of telephone calls, the confidentiality of which the
provision is designed to protect, either of the interlocutors
may agree to disclosure, which then ceases to be criminal;
In the present case, it being noted that the complainant has
not criticised in this respect the decision that there was no
case to answer, Lucien Aimé-Blanc is not guilty of the offence
in question, since it was established during the proceedings
that Serge Gehrling had implicitly agreed to the possible
disclosure of the telephone conversation by handing over
voluntarily the recording made on his own initiative for that
very purpose;"
5. In the Court of Cassation
15. Mrs A. lodged a further appeal on points of law, which the
Court of Cassation dismissed on 8 November 1988.
16. The first ground of appeal was based on the violation of
Article 191 of the Code of Criminal Procedure and again related to the
composition of the Paris Indictment Division. The Court of Cassation
took the view that the submission was unfounded.
17. The second ground of appeal, based on the violation of
Articles 368 and 369 of the Criminal Code and Article 593 of the Code
of Criminal Procedure, related to the reasons given in the order
finding that there was no case to answer; the submission was worded as
follows:
"... the contested decision found that Aimé-Blanc and
Gehrling had no case to answer in respect of the charge of
invasion of Mrs [A.'s] privacy;
...
firstly, the act of invasion of another's privacy is
perpetrated by the recording of words spoken in a private
place and in the absence of the consent of the person who
pronounces them as regards the recording of his statements;
...
secondly, the decision, which ... recognises ... that the
alleged murder plot was not the sole subject of the telephone
conversation in question, but does not report the statements
extraneous to that purpose which could strictly concern the
private life of the complainant, does not make it possible for
the Court of Cassation to carry out its review and does not
satisfy the essential conditions for its legal validity;
and finally, the decision, which states that 'the words
spoken by Mrs [A.] at her home ... fall outside the sphere of
private life' whereas it notes elsewhere that the telephone
conversation included 'spontaneous remarks unrelated to the
general subject-matter of the conversation', and which thus
recognises that statements were made which were capable of
concerning the strictly private life of the complainant, is
vitiated by a contradiction and does not satisfy the essential
conditions for its legal validity;"
The Criminal Division declared the submission inadmissible, for
the following reasons:
"The wording of the impugned decision makes it possible for
the Court of Cassation to satisfy itself that, in order to
uphold the investigating judge's order, the Indictment
Division, after examining all the facts alleged by the
complainant, replied to the main arguments in the latter's
memorials and stated the reasons on the basis of which it
considered that it was able to infer that the constituent
elements of the offences of which the defendants were accused
had not been made out;
Under Article 575 of the Code of Criminal Procedure, in the
absence of an appeal by the prosecution, a civil party is
barred from contesting independently the merits of such
grounds in support of an appeal to the Court of Cassation
against a decision of that type, even if those grounds contain
errors of law or are contradictory;"
II. The relevant domestic law
A. The Criminal Code
18. Three provisions of the Criminal Code are relevant to this
case:
Article 368
"It is an offence punishable by a term of imprisonment of
not less than two months and not more than one year and by a
fine of not less than 2,000 francs and not more than
50,000 francs, or by one of the above penalties only,
intentionally to interfere with the intimate side of another
person's private life:
1° By intercepting, recording or transmitting with any
kind of device words spoken in a private place by another
person without that person's consent;
..."
Article 369
"It is an offence, punishable by the penalties set out in
Article 368, knowingly to keep, to bring, or intentionally to
allow to be brought, to the attention of the public or of a
third person, or to use publicly or otherwise any recording or
document obtained by means of one of the actions described in
that Article.
..."
Article 378
"... any person who reveals secrets entrusted to him by
reason of his status or profession, or of his temporary or
permanent duties, except in those cases where he is obliged or
authorised by law to lay an information, shall be liable to a
term of imprisonment of not less than one month and not more
than six months and to a fine of not less than 500 francs and
not more than 15,000 francs.
..."
19. Since the events in this case the relevant French case-law and
legislation have evolved.
20. By its Derrien judgment of 13 June 1989, the Criminal Division
of the Court of Cassation held that "although Articles 81 and 151 of
the Code of Criminal Procedure permit an investigating judge to order,
subject to certain conditions, the interception or recording of
telephone conversations, no statutory provision authorises officers of
the criminal investigation branch to carry out such operations in
connection with a preliminary police inquiry" (Bulletin criminel
(Bull.) no. 254; Recueil Dalloz Sirey (D.S.) 1989, informations
rapides, p. 219).
On 24 November 1989, the Court of Cassation, in plenary
session, declared void telephone tapping which had not been effected
as part of a judicial investigation:
"...
It appears from the impugned judgment and the evidence
produced in the proceedings that, having been informed that
Christian Baribeau was engaged in drug-trafficking and had in
particular had as a customer André Salmeron, the police, on
their own initiative, requested Salmeron to telephone Baribeau
with a view to fixing a rendez-vous for a drugs delivery and
recorded their conversation on cassette, then drew up a report
on this operation; at the time fixed for the rendez-vous, the
police were therefore able to follow Salmeron into Baribeau's
home, arrest the occupants and proceed with a search;
In order to refuse to annul the report describing the
interception and recording of this conversation, the Court of
Appeal held that the police had not used a technical device to
intercept and record all the telephone conversations conducted
from a subscriber's telephone;
In making this ruling, when, without having obtained a
warrant for this purpose from a judge, the police had, unknown
to Baribeau, intercepted and recorded statements made by him
on a telephone line which had been assigned to him, the Court
of Appeal disregarded the above-mentioned provisions." (Bull.
no. 440; D.S. 1990, case-law, p. 34)
21. Law no. 91-646 of 10 July 1991 concerning the confidentiality
of telecommunications did not amend Articles 368, 369 and 378 of the
Criminal Code, but introduced a new Article 186-1 which is worded as
follows:
"Any depository or agent of the public authorities, any
agent of the public telecommunications operator or any agent
of another operator of an authorised telecommunications
network or of another provider of telecommunications services
who, acting in the performance of his duties or on the
occasion of the performance of his duties, has ordered,
committed, or facilitated, in circumstances not covered by the
cases provided for by law, the interception or diversion of
communications issued, transmitted or received through
telecommunications technology, or the use or disclosure of
their content, shall be liable to a term of imprisonment of
not less than three months and not more than five years and to
a fine of not less than 5,000 francs and not more than
10,000 francs.
..."
B. The Post and Telecommunications Code
22. Under Article L.42 of the Post and Telecommunications Code,
"Any person who, without the authorisation of the person
making the communication or the recipient thereof, discloses,
publishes or uses the content of a communication transmitted
by radioelectric means or reveals its existence shall be
liable to the penalties prescribed in Article 378 of the
Criminal Code."
This provision was repealed by the above-mentioned Law of
10 July 1991.
C. The Civil Code
23. Article 9 of the Civil Code provides as follows:
"Everyone has the right to respect for his private life.
Judges may, without prejudice to a right to compensation for
the damage sustained, order any measures, such as seizure,
attachment and others, that may prevent or cause to cease an
interference with the intimate side of private life; in the
event of urgency such measures may be ordered on an
interlocutory application."
PROCEEDINGS BEFORE THE COMMISSION
24. Mrs A. applied to the Commission on 15 February 1989. She
claimed that the recording of one of her telephone conversations had
disregarded her right to respect for her private life and her
correspondence, guaranteed under Article 8 (art. 8) of the Convention.
25. The Commission declared the application (no. 14838/89)
admissible on 30 March 1989. In its report of 2 September 1992 (made
under Article 31) (art. 31), it expressed the opinion, by nine votes
to one, that there had been a violation of Article 8 (art. 8). The
full text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 277-B of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT
26. In their memorial the Government "ask the Court to find that
the application was submitted after the six-month period prescribed by
Article 26 (art. 26) of the Convention, in the alternative that the
domestic remedies have not been exhausted and in the further
alternative that the complaint is unfounded".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
27. Mrs A. claimed to be the victim of a violation of Article 8
(art. 8), according to which:
"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."
A. Government's preliminary objections
28. The Government raised two objections as to the admissibility
of the applicant's case, as they had already done before the
Commission.
1. Whether the application was out of time
29. They contended in the first place that the application had been
filed out of time. In their opinion, the second decision of the
Indictment Division of the Paris Court of Appeal (see paragraph 14
above) constituted, for the purposes of Article 26 (art. 26) in fine
of the Convention, the "final [domestic] decision" on the alleged
interference with Mrs A.'s private life. The appeal on points of law
had had no prospect of succeeding because the civil party had sought
to challenge the grounds of the decision finding no case to answer
(Article 575 of the Code of Criminal Procedure; Court of Cassation,
Criminal Division, 22 January 1960, 24 July 1961 and 20 June 1985,
Bull. nos. 338, 351 and 238). Accordingly, the six-month period for
filing an application with the Commission had begun to run on
13 January 1988, the date of the above-mentioned decision, and Mrs A.
had instituted the Strasbourg proceedings belatedly.
Mrs A. and the Commission's Delegate contested this objection.
30. The Court reiterates that an appeal to the Court of Cassation
is one of the remedies that should in principle be exhausted in order
to comply with Article 26 (art. 26). Even supposing that it was
probably bound to fail in this specific case, the filing of the appeal
was thus not a futile step. It consequently had the effect at the very
least of postponing the beginning of the six-month period (see the B.
v. France judgment of 25 March 1992, Series A no. 232-C, pp. 46-47,
para. 42). The objection that the application was out of time must
therefore be dismissed.
2. The failure to exhaust domestic remedies
31. In the alternative the Government pleaded the failure to
exhaust domestic remedies. Mrs A. had neglected to bring a civil
action in the ordinary courts against Mr Gehrling, and possibly Chief
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.
32. Like the applicant and the Commission, the Court notes that
Mrs A. laid a complaint, together with an application to join the
resulting criminal proceedings as a civil party, alleging invasion of
privacy and breach of the confidentiality of telephone communications
and pursued the said proceedings to their conclusion (see
paragraphs 10-17 above). She cannot 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 (see, mutatis mutandis, the Crémieux v. France judgment of
25 February 1993, Series A no. 256-B, p. 60, para. 30, and the decision
of the Commission of 29 October 1963 on the admissibility of
application no. 1727/62, Boeckmans v. Belgium, Convention Yearbook,
vol. 6, pp. 386-402). Accordingly, the objection alleging failure to
exhaust domestic remedies must also be dismissed.
B. Merits of the complaint
33. Mrs A. took the view that the recording of her telephone
conversation with Mr Gehrling was incompatible with her right to
respect for her private life and correspondence, guaranteed by
Article 8 (art. 8).
1. Whether there was an interference
34. The Government in substance contested the applicability of
Article 8 (art. 8); they maintained that there had been neither
invasion of privacy nor interference by a public authority.
On the first point, the Government drew attention to the fact
that the recording in question had been made on the initiative and with
the consent of one of the interlocutors; they argued further that the
conversation intercepted had dealt exclusively and deliberately with
matters - preparations of a criminal nature - which fell outside the
scope of private life.
As to the second, the Government affirmed that Mr Gehrling, who
bore sole responsibility for instigating and carrying out the contested
scheme, was not an official of the French State and was not acting on
the latter's behalf. The fact that the public authorities had provided
resources, such as premises and equipment, and had not opposed the
undertaking in question was not sufficient to render them responsible
for the interference.
35. The Commission and the applicant rejected this argument. They
considered that a telephone conversation did not lose its private
character solely because its content concerned or might concern the
public interest. In addition, the recording was made on police
premises with the assistance of a Chief Superintendent, who retained
in his possession the relevant tape.
36. The Court observes that the undertaking complained of by the
applicant depended on Mr Gehrling and Mr Aimé-Blanc working together.
They can hardly be dissociated from each other. The former played a
decisive role in conceiving and putting into effect the plan to make
the recording, by going to see the Chief Superintendent and then
telephoning Mrs A. Mr Aimé-Blanc, for his part, was an official of a
"public authority". He 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 did not inform 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 follows that the public
authorities were involved to such an extent that the State's
responsibility under the Convention was engaged.
In any event the recording represented an interference in
respect of which the applicant was entitled to the protection of the
French legal system.
37. Furthermore the interference in issue undoubtedly concerned
Mrs A.'s right to respect for her "correspondence" (see, inter alia,
the Kruslin v. France judgment of 24 April 1990, Series A no. 176-A,
p. 20, para. 26); the Government did not moreover dispute this.
In these circumstances it is not necessary to consider whether
it also affected her "private life".
2. Whether the interference was justified
38. The Government conceded that the interference - if interference
there had been - had not been "in accordance with the law". It had not
been consistent with the French law that had been in force at the
material time (1980) because it had not been effected pursuant to a
judicial procedure and had not been ordered by an investigating judge.
The subsequent legislation - the Law of 10 July 1991 (see paragraph 22
above) - made an interception of the type in question a punishable
offence.
39. Like the Commission, the Court notes that the contested
recording had no basis in domestic law; it therefore finds a breach of
Article 8 (art. 8).
This finding makes it unnecessary for the Court to rule on
compliance with the other requirements of paragraph 2 of the
aforementioned Article (art. 8-2) (see, inter alia, mutatis mutandis,
the Kruslin v. France judgment, cited above, Series A no. 176-A, p. 25,
para. 37).
II. APPLICATION OF ARTICLE 50 (art. 50)
40. Under Article 50 (art. 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."
A. Damage
41. Mrs A. claimed 250,000 French francs in respect of alleged
damage arising from the failure to comply with the requirements of the
Convention.
According to the Government, she could complain only of purely
non-pecuniary and symbolic damage.
The Delegate of the Commission suggested that the pecuniary
damage should be made good by reimbursing the costs incurred in having
the interference with private life established.
42. The Court is of the opinion that the applicant may have
sustained non-pecuniary damage, but considers that the present judgment
affords her sufficient just satisfaction in that respect.
B. Costs and expenses
43. Mrs A. also claimed the reimbursement of the costs and expenses
which she had incurred first before the French courts and then before
the Convention institutions (Mr Dussaud: 60,000 francs, plus value
added tax, for representing her before the investigation authorities
and in Strasbourg; Mr Lemaître: 9,000 francs for her two appeals to the
Court of Cassation).
The Delegate of the Commission supported her claim; the
Government did not express an opinion.
44. Having regard to the criteria which it applies in this field,
the Court awards the applicant 50,000 francs for all her costs and
expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objections;
2. Holds that there has been a violation of Article 8 (art. 8);
3. Holds that the finding of this violation constitutes
sufficient just satisfaction for any non-pecuniary damage
sustained;
4. Holds that the respondent State is to pay to the applicant,
within three months, 50,000 (fifty thousand) French francs in
respect of costs and expenses;
5. Dismisses the remainder of the applicant's claims.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 November 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar