MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
United States, is an IT professional and independent researcher, again substantially
involved in intelligence and security matters.
12.
Of the four who form the remainder of the Ten listed for this hearing, none are
represented and none are therefore identified, save that it can be recorded that three
are resident in the United States and one in the United Kingdom. None of them have
given any additional information to supplement the standard form Statement of
Grounds. Of the total 663 (including the Ten), 294 are resident in the United
Kingdom, 191 are resident in other countries party to the ECHR (94 from Germany,
12 from Italy and Sweden and 11 from France), 145 are from the United States and 33
are from other countries (including 12 from Canada and 10 from Australia).
Seventeen have added some additional material into their T1 or T2 forms, but none of
that material appears to be relevant to whether they are or may be the subject of
interception, or information-sharing, and most is of no materiality at all. In any event
the decision in this judgment is being given by reference to the applications by the
Ten, being the first ten applications lodged pursuant to the Privacy International
Campaign, listed for the purpose of our consideration, with the assistance of counsel.
They are not strictly test cases or even sample cases, but cases on the basis of which it
was convenient to have inter partes legal argument as to whether any of the 663
applications should be considered, and if so what, if any, would be the test for the
Tribunal to apply as to whether they should be considered or not.
13.
There are effectively two issues before the Tribunal. The first has been loosely called
the “victim” issue, or perhaps more traditionally the question as to the locus of the
Ten and, because all of them rely on the same Statement of Grounds, of the other 653.
The second relates to the question of jurisdiction, namely, assuming any of them have
locus, whether any of the Claimants other than those resident or based in the UK are
entitled to pursue these claims.
The victim issue
14.
The question of locus has been dealt with by the Tribunal, encouraged by the
jurisprudence of the European Court of Human Rights (“ECtHR”) on a very openminded basis, and without requiring from its claimants the kind of arguable case
which they need in order to present a case in High Court: see Liberty/Privacy No 1 at
para 4 (ii), referring to Kennedy v UK [2011] 52 EHRR 4, Weber & Saravia v
Germany [2008] 46 EHRR SE5 and Liberty v UK [2009] 48 EHRR 1.
15.
The question has been addressed and explained recently by the ECtHR in Zakharov v
Russia 4/12/2015 Application no 47143/06, in which (as is clear from paragraph 152
of the Judgment of the Court), the Russian government submitted that “the applicant
could not claim to be a victim of the alleged violation of Article 8… and that there
had been no interference with his rights (because) he had not complained that his
communications had been intercepted.” At paragraph 163 the Court recorded that
“the applicant in the present case claims that there has been an interference with his
rights as a result of the mere existence of legislation permitting covert interception of
mobile telephone communications and a risk of being subjected to interception
measures, rather than as a result of any specific interception measures applied to
him.” The Court stated in paragraph 164 that “the Court has consistently held in its
case-law that the Convention does not provide for the institution of an actio popularis
and that its task is not normally to review the relevant law and practice in abstracto,