BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
Parliamentary Assembly of the Council of Europe (PACE) Resolutions
1954 (2013) and 2045 (2015), and Recommendation 2067 (2015), the
Committee of Ministers Declaration of 11 June 2013, and its Reply to the
PACE Recommendation 2067 (2015), the European Commission against
Racism’s General Policy Recommendation no. 11, the Commissioner for
Human Rights’ Comments of 24 October 2013, his issue papers of
8 December 2014 and May 2015, and his Report on the shortcomings in the
oversight of German intelligence and security services of 1 October 2015,
the European Parliament Resolutions of 12 March 2014 and 29 October
2015, the European Data Protection Supervisor’s opinion of 20 February
2014, and the Article 29 Working Party opinion 4/2014. It also neglected
the United Nations General Assembly Resolution 68/167 of 18 December
2013, the United Nations Human Rights Committee (HRC) concluding
observations on the fourth report of the USA of 26 March 2014 and the
United Nations Special Rapporteur and the Inter-American Commission on
Human Rights Special Rapporteur for freedom of expression joint
declaration of 21 June 201338. Most astonishingly, the majority did not even
consider the available international authoritative documents on the British
bulk interception regime, such as the HRC Concluding observations on the
seventh period report of the United Kingdom of 17 August 201539, and the
Council of Europe Human Rights Commissioner’s Memorandum on
Surveillance and Oversight Mechanisms in the United Kingdom of
May 201640.
9. All these documents, as well as the recent Szábo and Vissy41 and
Mustafa Sezgin Tanrıkulu v. Turkey42 judgments of this Court and the
relevant case-law of the Court of Justice of the European Union (CJEU)43,
contradict the alleged prevalence of monitoring of persons outside the
For a detailed analysis of these documents see my opinion in Szábo and Vissy
v. Hungary, cited above.
39 UN doc. CCPR/C/GBR/CO/7.
40 CommDH (2016)20.
41 Szábo and Vissy, cited above, § 66: “it is possible for virtually any person in Hungary to
be subjected to secret surveillance”.
42 Mustafa Sezgin Tanrıkulu, cited above, § 7.
43 Paragraphs 209-241 of this judgment. I refer here to the cases Digital Rights Ireland Ltd
(on the Data Retention Directive 2006/24/EC which “entailed an interference with the
fundamental rights of practically the entire European population”), Maximilian Schrems
(reproaching legislation permitting the public authorities to have access “on a generalised
basis to the content of electronic communications”), Privacy International (on national
legislation requiring electronic communication services to disclose traffic and location data
to intelligence agencies by means of a general and indiscriminate transmission affecting
“all persons using electronic communications services”) and La Quadrature du Net and
Others (censuring legislation requiring service providers to retain “generally and
indiscriminately” traffic and location data). The first two cases concerned the processing of
personal data for law enforcement purposes, the last two cases the assessment of secret
surveillance conducted by intelligence services.
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