Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The problems associated with the right to privacy will be examined in relation to wire tapping, searches and interference with correspondence, which are measures that are usually resorted to at an early stage of judicial investigations in order to prove suspicions of criminal activity, and which may or may not subsequently lead to the bringing of formal charges. 6.1.1 Wire tapping While neither the Human Rights Committee nor the Inter-American Court of Human Rights has as yet dealt with the question of interception of telephone conversations for the purpose of judicial investigation into crime, this issue has been to the fore in several cases dealt with by the European Court of Human Rights. The European Court has consistently held that such telephone tapping amounts to “an interference by a public authority” with the applicant’s right to respect for his or her correspondence and private life as guaranteed by article 8 of the European Convention, an interference which, in order to be justified, must, as seen above, be “in accordance with the law”, pursue one or more of the legitimate aims referred to in article 8(2), and lastly, must also be “necessary in a democratic society” for one or more of these legitimate aims.26 Without examining in detail the Court’s jurisprudence regarding the notion of “in accordance with the law”, it is sufficient in this context to point out that recourse to telephone tapping must have a basis in domestic law, a law which must not only be “accessible” but also “foreseeable” as to “the meaning and nature of the applicable measures”.27 In other words, article 8(2) “does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law”.28 This means, in particular, “that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by” article 8(1), because, especially “where a power of the executive is exercised in secret, the risks of arbitrariness are evident”.29 Although “the requirement of foreseeability 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”, the law must nevertheless “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 this secret and potentially dangerous interference with the right to respect for private life and correspondence”.30 26 See e.g. Eur. Court HR, Huvig Case v. France, judgment of 24 April 1990, Series A, No. 176-B, p. 52, para. 25. 27 Ibid., pp. 52-55, paras. 26-29; emphasis added. 28 Ibid., p. 54, para. 29; emphasis added. 29 See e.g. Eur. Court HR, Malone Case v. the United Kingdom, judgment of 2 August 1984, Series A, No. 82, p. 32, para. 67. 30 Ibid., loc. cit. 224 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers