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URL: http://www.bailii.org/eu/cases/ECHR/1993/52.html
Cite as: 17 EHRR 462, (1994) 17 EHRR 462, [1993] ECHR 52

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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

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