MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
but to determine whether the manner in which they were applied to, or effected, the
applicant gave rise to a violation of the Convention…. Accordingly, in order to be
able to lodge an application in accordance with Article 34, an individual must be able
to show that he or she was “directly affected” by the measure complained of. This is
indispensible for putting the protection mechanism of the Convention into motion
although this criterion is not to be applied in a rigid, mechanical and inflexible way
throughout the proceedings.”
16.
Thus at paragraph 165 the Court set out that it “has permitted general challenges to
the relevant legislative regime in the sphere of secret surveillance in recognition of
the particular features of secret surveillance measures and the importance of
ensuring effective control and supervision of them. In the case of Klass and Others v
Germany [1979-80] 2 EHRR 214 the Court held that an individual might, under
certain conditions, claim to be the victim of a violation occasioned by the mere
existence of secret measures or of legislation permitting secret measures, without
having to allege that such measures had been in fact applied to him. The relevant
conditions were to be determined in each case according to the Convention right or
rights alleged to have been infringed, the secret character of the measures objected
to, and the connection between the applicant and those measures.”
17.
However the Court continued:“166 Following the Klass and Others case, the case-law of the
Convention organs developed two parallel approaches to
victim status in secret surveillance cases.
167 In several cases the Commission and the Court held that
the test in Klass and Others could not be interpreted so broadly
as to encompass every person in the respondent State who
feared that the security services might have compiled
information about him or her. An applicant could not, however,
be reasonably expected to prove that information concerning
his or her private life had been compiled and retained. It was
sufficient, in the area of secret measures, that the existence of
practices permitting secret surveillance be established and that
there was a reasonable likelihood that the security services had
compiled and retained information concerning his or her
private life... In all of the above cases the applicants alleged
actual interception of their communications. In some of them
they also made general complaints about legislation and
practice permitting secret surveillance measures…
168 In other cases the Court reiterated the Klass and Others
approach that the mere existence of laws and practices which
permitted and established a system for effecting secret
surveillance of communications entailed a threat of
surveillance for all those to whom the legislation might be
applied. This threat necessarily affected freedom of
communication between users of the telecommunications
services and thereby amounted in itself to an interference with
the exercise of the applicants’ rights under Article 8,