BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
of selectors81, against the backdrop of the principles of necessity and
proportionality. The choice of strong selectors linked to identifiable
individuals is particularly problematic, since the selection and “use of every
such strong selector”82 does not require a prior independent authorisation.
For the Court, internal authorisation suffices in this case, coupled with the
guarantees that the request for a strong selector is justified and the internal
process is “scrupulously” recorded83.
17. Furthermore, the execution of the interception order, including its
subsequent renewals, the use, storage, onward transmission and deletion of
the obtained data, should be supervised by an authority independent from
the executive, with detailed records being kept at each stage of the process
to facilitate this supervision84.
18. In the end, the ex post facto review of the entire process should be
performed by an authority independent from the executive, in a fair and
adversarial procedure, with binding powers to order the cessation of
unlawful interception and the destruction of unlawfully obtained or stored
data, as well as obsolete, equivocal or disproportionate data85.
III. CONSTRUCTION OF A PRO PERSONA REGIME OF BULK
INTERCEPTION
A. Bulk interception of communications
19. It appears to me that the above-mentioned regime does not amount
to a sufficient set of guarantees of the Articles 8 and 10 rights. In my view,
the time has come not to dispense with the fundamental guarantees of
judicial authorisation, supervision and ex post facto review in the field of
bulk interception86. As a matter of principle, the end-to-end judicial
oversight of bulk interception is warranted by the extremely intrusive nature
of this process. I do not see why a State governed by the rule of law should
not trust its serving judges, ultimately its more senior and experienced
judges, to decide on such matters. Unless the Court believes that
judicial-like bodies are more independent than ordinary courts ... In my
Paragraph 354 of this judgment.
Paragraph 355 of this judgment.
83 Ibid. As the Venice Commission report, cited above, p. 28, put it, “internal controls are
insufficient”. Thus paragraph 199 of the judgment misrepresents the position of the Venice
Commission.
84 Paragraph 356 of this judgment.
85 Paragraph 359 of this judgment.
86 Venice Commission Report, cited above, p. 32 (“For European states, ex ante judicial
approval in individual cases is to be preferred”). Thus paragraph 197 of the judgment
distorts the message of the Venice Commission. The Council of Europe Human Rights
Commissioner also suggested adopting ex ante judicial authorisation (Memorandum, cited
above, § 28).
81
82
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