BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
JOINT PARTLY DISSENTING OPINION OF
JUDGES LEMMENS, VEHABOVIĆ, RANZONI
AND BOŠNJAK
1. We are in agreement with the present judgment, except for the
assessment of the complaint about the receipt by the respondent State’s
authorities of solicited intercept material from foreign intelligence services,
under Articles 8 and 10 of the Convention (see operative points 3 and 5 of
the judgment).
2. In the present judgment – as also in today’s judgment in Centrum för
rättvisa v. Sweden (no. 35252/08) – for bulk interception regimes the Grand
Chamber has established a system of effective “end-to-end” safeguards,
with three main pillars or cornerstones, in order to minimise the risk of such
power being abused. These fundamental pillars are: (1) the authorisation of
bulk interception at the outset, when the object and scope of the operation
are being defined, by a body independent of the executive; (2) prior internal
authorisation when strong selectors linked to identifiable individuals are
employed; and (3) the supervision of the operation by an independent
authority together with effective ex post facto review by a body independent
of the executive (see paragraphs 350-359 of the judgment).
3. The same “end-to-end” safeguards established for a bulk interception
regime should also apply to a regime where the authorities do not
themselves intercept cross-border communications and related
communications data, but rather ask foreign intelligence services to
intercept such data or to convey already intercepted data. However, while
upon receipt of the intercept material, the safeguards for its examination,
use and storage, its onward transmission, and its erasure and destruction, are
equally applicable (see paragraph 498 of the judgment), the first pillar, that
is the prior independent authorisation, completely disappears in the
majority’s view. Their reasoning in that regard is not convincing for us.
Why should a distinction be made according to the way the authorities have
come into possession of the intercepted data, whether they intercepted the
data themselves or had them intercepted by a foreign authority? Therefore,
to our mind, also as far as the first pillar is concerned, the same safeguards
as those established for bulk interception should apply.
4. We can fully subscribe to the Court’s assessment in paragraphs 496
and 497 of the judgment, in particular that an interference with Article 8
already lies in the initial request to the foreign authorities, and that the
protection afforded by the Convention would be rendered nugatory if States
could circumvent their Convention obligations by requesting such data from
non-Contracting States. Member States must, therefore, have clear and
detailed rules which provide effective guarantees against the use of their
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