BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
to the interception subject that there has been an interception of his or her
communications (see Roman Zakharov, cited above, § 234 and Kennedy,
cited above, § 167).
358. The Court considers that a remedy which does not depend on
notification to the interception subject could also be an effective remedy in
the context of bulk interception; in fact, depending on the circumstances it
may even offer better guarantees of a proper procedure than a system based
on notification. Regardless of whether material was acquired through
targeted or bulk interception, the existence of a national security exception
could deprive a notification requirement of any real practical effect. The
likelihood of a notification requirement having little or no practical effect
will be more acute in the bulk interception context, since such surveillance
may be used for the purposes of foreign intelligence gathering and will, for
the most part, target the communications of persons outside the State’s
territorial jurisdiction. Therefore, even if the identity of a target is known,
the authorities may not be aware of his or her location.
359. The powers and procedural guarantees an authority possesses are
relevant in determining whether a remedy is effective. Therefore, in the
absence of a notification requirement it is imperative that the remedy should
be before a body which, while not necessarily judicial, is independent of the
executive and ensures the fairness of the proceedings, offering, in so far as
possible, an adversarial process. The decisions of such authority shall be
reasoned and legally binding with regard, inter alia, to the cessation of
unlawful interception and the destruction of unlawfully obtained and/or
stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and
Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII and also Leander,
cited above, §§ 81-83 where the lack of power to render a legally binding
decision constituted a main weakness in the control offered).
360. In the light of the above, the Court will determine whether a bulk
interception regime is Convention compliant by conducting a global
assessment of the operation of the regime. Such assessment will focus
primarily on whether the domestic legal framework contains sufficient
guarantees against abuse, and whether the process is subject to “end-to-end
safeguards” (see paragraph 350 above). In doing so, it will have regard to
the actual operation of the system of interception, including the checks and
balances on the exercise of power, and the existence or absence of any
evidence of actual abuse (see Association for European Integration and
Human Rights and Ekimdzhiev, cited above, § 92).
361. In assessing whether the respondent State acted within its margin of
appreciation (see paragraph 347 above), the Court would need to take
account of a wider range of criteria than the six Weber safeguards. More
specifically, in addressing jointly “in accordance with the law” and
“necessity” as is the established approach in this area (see Roman Zakharov,
108