BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
interception may be authorised and the circumstances in which an
individual´s communications may be intercepted when the Court itself is not
sufficiently clear on what kind of “grounds” and “circumstances” it is
referring to?
15. Since Article 8 applies to all stages of bulk interception, including
the initial retention of communications and related communications data65,
the Court has correctly established “end-to-end safeguards”66. The problem
is that the Court is unclear regarding the legal nature of the “end-to-end
safeguards”. On the one hand, it has used imperative language (“should be
made”67, “should be subject”68, “should be authorised”69, “should be
informed”70, “must be justified”71, and “should be scrupulously recorded”72,
“should also be subject”73, “it is imperative that the remedy should”74) and
has called them “fundamental safeguards”75 and even “minimum
safeguards”76. But on the other hand, it has diluted these safeguards in “a
global assessment of the operation of the regime”77, allowing for a trade-off
among the safeguards78. It seems that at the end of the day each individual
safeguard is not mandatory, and the prescriptive language of the Court does
not really correspond to non-negotiable features of the domestic system. In
some corners of Europe, zealous secret services will be strongly tempted to
take advantage of the Court’s very lax fashion of formulating legal
standards and innocent people will pay the price sooner or later.
D. Preliminary conclusion
16. According to the Court, an independent authority79, i.e. one that is
independent from the executive, is required at the outset to assess the
purpose of the interception, the selection of the bearers80 and the categories
Paragraph 348 of this judgment.
Paragraph 330 of this judgment.
66 Paragraph 350 of this judgment.
67 Ibid.
68 Ibid.
69 Paragraph 351 of this judgment.
70 Paragraph 352 of this judgment.
71 Paragraph 355 of this judgment.
72 Ibid.
73 Paragraph 356 of this judgment.
74 Paragraph 359 of this judgment.
75 Paragraph 350 of this judgment.
76 Paragraph 348 of this judgment.
77 Paragraph 360 of this judgment.
78 See for example, paragraph 370, in fine, of this judgment.
79 Although the Court’s language is not uniform, sometimes referring to the concept of
independent authority and other times to that of independent body, it seems that there is no
substantial difference between these concepts.
80 Paragraph 352 of this judgment.
64
65
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