Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The requirement of legal protection implies, in other words, that domestic law must provide adequate legal safeguards against abuse and that, for instance, where the law confers a power of discretion on the authorities concerned, the law must also “indicate the scope of that discretion”.31 The Huvig case In the Huvig case the applicants had been subjected to telephone tapping for about two days by the judge investigating charges of tax evasion and false accounting. The European Court accepted that the disputed measures had a legal basis in French law, namely the Code of Criminal Procedure, as interpreted by the French courts, and, furthermore, that the law was accessible. However, in terms of the quality of the law the Court concluded that it did “not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities”; consequently, the applicants “did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society”.32 In other words, the legal system did not “afford adequate safeguards against various possible abuses” in that, for instance, “the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order” were “nowhere defined”, and there was nothing obliging a judge “to set a time limit on the duration of telephone tapping”.33 Further, the law did not specify “the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court”.34 It followed that, since the applicants had not enjoyed the minimum degree of protection required under the rule of law in a democratic society, there had been a breach of article 8 in this case. The European Court has also found breaches of article 8 in other similar cases such as the Kruslin and Malone cases, judgments which, as in the Huvig case, were founded on the basis that the practices in question did not comply with the requirements flowing from the expression “in accordance with the law” in article 8(2) of the Convention.35 31 Ibid., para. 68 at p. 33. 32 Eur. Court HR, Huvig Case v. France, judgment of 24 April 1990, Series A, No. 176-B, p. 56-57, para. 35. 33 Ibid., p. 56, para. 34. 34 Ibid., loc. cit. 35 Eur. Court HR, Malone Case v. the United Kingdom, judgment of 2 August 1984, Series A, No. 82, and Eur. Court HR, Kruslin Case v. France, judgment of 24 April 1990, Series A, No. 176-A. In the case of Klass and Others, however, the Court found no breach of article 8: see Eur. Court HR, Case of Klass and Others, judgment of 6 September 1976, Series A, No. 28. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 225