PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
surveillance where surveillance activities were growing in terms of their use
and invasiveness.
C. The Court’s assessment
41. According to the Court’s well-established case law, the rationale for
the exhaustion rule is to afford the national authorities, primarily the courts,
the opportunity to prevent or put right the alleged violations of the
Convention. It is based on the assumption, reflected in Article 13, that the
domestic legal order will provide an effective remedy for violations of
Convention rights. This is an important aspect of the subsidiary nature of
the Convention machinery (Selmouni v. France [GC], no. 25803/94, § 74;
Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000; and Andrášik and
Others v. Slovakia (dec.), nos. 57984/00 and 6 others). In a common law
system, where the courts may extend and develop principles through
case-law, it is generally incumbent on an aggrieved individual to allow the
domestic courts the opportunity to develop existing rights by way of
interpretation (see Upton v. the United Kingdom (dec.), no. 29800/04,
ECHR 11 April 2006). Article 35 § 1 has a special significance in the
context of secret surveillance given the extensive powers of the IPT to
investigate complaints before it and to access confidential information
(see Kennedy v. the United Kingdom, no. 26839/05, § 110, 18 May 2010.
42. The applicants complain about Equipment Interference conducted
under the power set out in section 7 of the ISA. The defining feature of that
power is that it relates to acts outside the British Islands. Accordingly, the
first question to be addressed in examining the compatibility of any act done
under that power with the Convention is that of jurisdiction. In the context
of the present case there is no doubt that addressing the question of
jurisdiction called for an assessment of a number of highly complex legal
and practical issues. However, the applicants appear to have conceded
before the IPT that there was no jurisdiction and the IPT indicated in its
“no determination” letter that it “has not been required to consider, and has
not considered” the question of jurisdiction (see paragraphs 32 and 39
above).
43. Taking into account the Court’s subsidiary role, the nature of the
common law system, the role of the IPT and the novelty of the issue before
it, the Court considers that there can be no question that the applicants
needed to argue the question of jurisdiction before the IPT in order to
exhaust their domestic remedies. The Court cannot accept the applicants’
explanation that they did not pursue the argument about jurisdiction before
the IPT in order that this Court would be able to decide the issue first
(see paragraph 39 above) as this takes the opposite approach to exhaustion
from that set out in Article 35, as identified in the Court’s well-established
11