BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
reproach the practice of “interception authorisations which do not mention a
specific person or telephone number to be tapped but authorise interception
of all telephone communications in the area where a criminal offence has
been committed”28. In Szábo and Vissy v. Hungary29 the Court was even
more explicit in censuring the “unlimited surveillance of a large number of
citizens”30, for the purposes of anti-terrorism and rescuing Hungarian
citizens in distress abroad31. While admitting the need for bulk interception
to counter internal and external threats, the Court required an “individual
suspicion”32 for every surveillance measure in the light of the Weber and
Saravia criteria33. In the subsequent case of Mustafa Sezgin Tanrıkulu
v. Turkey34, the Court reproached the domestic court’s decision to allow the
interception of the telephone and electronic communications of anyone in
Turkey for the purpose of preventing criminal acts by terrorist
organisations, after having recalled and confirmed the Weber and Saravia,
Roman Zakharov and Szábo and Vissy case-law.
7. In addition to the claim that “both cases [Liberty and Others and
Weber and Saravia] are now more than ten years old”, and that the
surveillance activity considered in those cases was “much narrower”35, the
Court gave three reasons to abandon the previous case-law36, all factually
unsound.
8. The first argument is that the “stated purpose” of bulk interception is
“in many cases” to monitor the communications of persons outside the
State’s territorial jurisdiction “which could not be monitored by other forms
of surveillance”37. The Court did not provide, and could not provide, any
evidence that “in many cases” bulk interception was limited, in terms of the
“stated purpose”, still less of the real practice, to persons outside the State’s
territorial jurisdiction. On the contrary, all the available authoritative
documents on bulk interception, which the Court chose to ignore, tell a
different story. It is incomprehensible that, in view of the lack of evidence
provided by the respondent Government, the Court turned a blind eye to the
Council of Europe and European Union factual assessments publicly
available in a plethora of authoritative documents on bulk interception
published after the Snowden scandal erupted, such as for example the
Ibid., § 265. The cases of “area surveillance” authorisation clearly involved potential
bulk surveillance.
29 Szábo and Vissy, cited above.
30 Ibid., § 67.
31 Ibid., § 63.
32 Ibid., § 71.
33 Ibid., § 56.
34 Mustafa Sezgin Tanrıkulu, cited above, §§ 56 and 57.
35 Paragraph 341 of this judgment. This claim overlooks the Roman Zakharov and Szábo
and Vissy cases, already mentioned.
36 Paragraphs 344-346 of this judgment.
37 Paragraph 344 of this judgment.
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