BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
protected and confidential information, this can only be effectively
guaranteed by means of judicial authorisation of interception of such
communications when evidence is put forward that supports a reasonable
suspicion of serious offences or conduct damaging to national security
committed by these professionals92. In addition, any communications of
these categories of professionals covered by their professional secrecy, if
mistakenly intercepted, should be immediately destroyed. Domestic law
should also provide for the absolute prohibition of any interception of
communications covered by religious secrecy.
26. Judicial oversight should not stop at the start of the operation of the
interception. Were the actual operation of the system of interception hidden
from the judge’s oversight, the initial intervention of a judge could be easily
undermined and deprived of any real effect, rendering it a merely virtual,
deceptive safeguard. On the contrary, the judge should accompany the entire
process, with a regular and vigilant examination of the necessity and
proportionality of the interception order, in view of the intercept data
obtained. Unless he or she receives constant feedback from the intercepting
authority, the authorising judge will not know how the authorisation is in
fact being used. In case of non-compliance with the interception order, the
judge should be able to order its immediate cessation and the destruction of
the unlawfully obtained data. The same should apply in case of the lack of
necessity to proceed with the operation, for example because the data
obtained are of no interest for the purposes pursued by the interception
order. Only a judge vested with the power to take such binding decisions
can provide an effective guarantee of the lawfulness of the material that is
kept. In sum, the judge should be empowered to conduct a regular review of
the operation of the system, including of all records of interception and
accompanying classified documents93, with a view to avoiding unnecessary
and disproportionate interference with the rights under Articles 8 and 10.
27. Finally, ex post review of the use made of an interception order
should also be triggered by notification to the targeted person. When
nothing hinders the notification of the person whose communications have
been intercepted, it would allow him or her to contest in a fair and
adversarial judicial procedure the grounds for such interception94. It is
Venice Commission report, cited above, p. 26.
This is the universal and European standard as compiled respectively by the United
Nations Compilation, cited above (“Practice 25. An independent institution exists to
oversee the use of personal data by intelligence services. This institution has access to all
files held by the intelligence services and has the power to order the disclosure of
information to individuals concerned, as well as the destruction of files or personal
information contained therein”) and FRA, Surveillance by intelligence services, cited
above, p. 11 (“Member States should also grant oversight bodies the power to initiate their
own investigations as well as permanent, complete and direct access to necessary
information and documents for fulfilling their mandate”).
94 Szábo and Vissy, cited above, § 86. In the logic of Szábo and Vissy, this is a further
92
93
183