The right to respect for his correspondence belongs to the private sphere of rights and it is
laid down in the article 8 of the European Convention on Human Rights. In the final
conclusions of the Nordic Conference of Jurists on the right to Respect for Privacy the right
to correspondence is listed as one of the additional elements of the right to privacy.

The concept “correspondence” includes all forms of communications passing through such
systems, such as letters, telephone calls, telex messages, telegrams, computer data or
facsimile, all forms of message transmission such as radio waves, etc.

The correspondence interception is used as one of the efficient means to help on the
prevention and/or investigation of  different crimes. But, in case it is used without respecting
legal limits the interception of communications could be considered as one of the most
dangerous means which can easily infringe the right to privacy.

In order to minimise such consequences there must be a measure of  legal protection in
domestic law against arbitrary interference by public authorities with the right to
correspondence. The law must be sufficiently clear in its terms to provide to citizens
protection and give them 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. If the
law does not indicate with reasonable clarity the scope and manner of exercise of the
relevant discretion conferred on the public authorities, the minimum degree of legal
protection to which citizens are entitled under the rule of law in a democratic society is
lacking.

In other words the interference has to be lawful i.e. in any case “in accordance with the
law”. The expression “in accordance with the law”, within the meaning of  article 8/2,
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 moreover be able to foresee its consequences for him, and compatible
with the rule of law.

The law must provide not only the duty for the state to not interfere in the public
communications but also its right to give permission for the interception of postal and
telephonic communications “in the interests of national security and/or for “the prevention of
disorder or crime”. In the opinion of the European Human Rights Court some power of
interception are permissible to prevent espionage and terrorism and other crimes of this
kind.


Different countries have different systems of legal provisions on interception of
communications. Some countries such as Germany or United Kingdom have approved
special acts on interception of communications. Other countries, as France, have separate
provisions spread out in different codes, laws or other legal acts to protect   the right to
correspondence. The same system is adopted by our country but, one can easily identify
that the Albanian legislation lacks sufficient and detailed provisions. The overall international
practice helped to draw the conclusion that a special law on  interception of
Communications is needed not only by Civil Law countries but also by Common Law
countries as United Kingdom has it from 1985.

The special domestic law on interception of communication has to be applied to the
interception of  all forms of communications, whatsoever their nature.

Under the law provisions, regardless of the system,  permission to intercept communications
is usually given through a warrant by the appropriate government authority applying certain
criteria as to “reasonable suspicion”. A warrant may only be issued where the appropriate
government authority considers it necessary to do so:

a)  in the interest of national security
b) for the purpose of preventing or detecting serious crime; or
c) for the purpose of safeguarding the economic well-fare of the country.

A warrant may justify intercepts at more than one address but these must be specified in the
warrant and must be an address or addresses likely to be used for the transmission of
communications to or from one particular person specified in the warrant. In this sense the
warrant is specific as to the person and premises subject to the intercept. One warrant may
also authorise the tapping of more than one telephone line.

Each warrant lasts for a defined time, but it could be renewable. The law must also provide
the number of times a warrant may be renewed and no overall maximum period beyond
which warrants cannot be renewed.

With regard to interception of postal communications and telephone calls, by its nature,
recording of letters, parcels, etc and metering is to be respectively distinguished from
opening of postal communications and telephone tapping which are undesirable and
illegitimate in a democratic society unless justified:

The process known as “metering” involves the use of a system which registers the
numbers dialled on a particular telephone and the time and duration of each call, in
order to ensure that the subscriber is correctly charged or to investigate complaints
or possible abuses of the service. The records of metering contain information, in
particular the numbers dialled, which is an integral element in the communications
made by telephone. Consequently, release of the information to the authorities
without the consent of the subscriber also amounts, to an interference with the right
guaranteed by Article 8.
Opening of the postal communications and telephone tapping poses a threat to
privacy in terms of physical intrusion into a person’s private life.

Taking into account the said difference, a warrant must also specify the type of interception
of  postal communications and telephone calls.

Postal and telecommunications operators deal with the right to respect for the
correspondence. In cases they proceed with the opening of the postal communications and
telephone tapping they must apply very strictly the law provisions; the conflicts raised on the
interference to the right to correspondence are very clear. During the registration of  the
letters, parcels, etc, and metering is difficult to identify the slight difference between the
normal business and respectfulness of the individual right of correspondence; this difference
should be overpassed only in accordance to the law.

Submitted by Ardiana SHEHI
Albanian Mobile Communications