PRIVACY INTERNATIONAL AND OTHERS v. THE UNITED KINGDOM DECISION
case-law and expressed in the principle of subsidiarity (see paragraph 41
above).
44. In light of its conclusion concerning the core nature of the question
of jurisdiction to issues under section 7, the Court does not need to consider
whether the applicants definitely invoked the specific issue of the need for
prior judicial authorisation under section 7 before the IPT
(see paragraphs 38-39 above).
45. The Court further notes the general arguments advanced by the
applicants and also underlined in the interventions of the third parties that
the surveillance complained of is particularly intrusive and that there is a
need for safeguards in this domain. In that respect, the Court recalls the
importance of examining compliance with the principles of Article 8 where
the powers vested in the State are obscure, creating a risk of arbitrariness
especially where the technology available is continually becoming more
sophisticated (see Catt v. the United Kingdom, no. 43514/15, § 114,
24 January 2019). However, that importance reinforces in the context of
exhaustion of domestic remedies the need to provide the domestic courts
with the possibility to rule on such matters where they have the potential to
do so.
46. As to the necessity of seeking judicial review in the circumstances
the Court recalls that extraordinary remedies cannot, as a general rule, be
taken into account for the purposes of applying Article 35 § 1 (see Tucka
v. the United Kingdom (No. 1) (dec.), no. 34586/10, § 15, 18 January 2011
with further references). It also considers that it was not fully clear at the
time the applicants made their application to this Court that pursuing a
judicial review of the IPT decision was possible. However, it cannot
overlook the fact that the first applicant did attempt such proceedings, was
successful and that as a result judicial review proceedings concerning the
complaint under section 5 of the ISA1 are currently pending
(see paragraph 21 above). As those developments concern the same case
and one of the applicants as in the present application, in the circumstances
the Court does not regard that attempt at judicial review as an extraordinary
remedy and concludes it was therefore a remedy to be exhausted by the
applicants.
47. In these circumstances, the Court finds that the applicants did not
provide the domestic courts, notably the IPT, with the opportunity which is
in principle intended to be afforded to a Contracting State by Article 35 § 1
of the Convention, namely the opportunity of addressing, and thereby
preventing or putting right, the particular Convention violation alleged
against it.
48. In light of the foregoing, the application must be rejected as
inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.
1
Rectified on 4 September 2020: “Investigatory Powers Act 2016” was replaced by “ISA”.
12