KENNEDY v. THE UNITED KINGDOM JUDGMENT
31
contention that the applicant's complaint concerned only the specific
allegation that his communications were actually being intercepted. Further,
it can be inferred from the fact that the IPT issued a general public ruling on
the compliance of the RIPA provisions on external communications with
Article 8 in the British-Irish Rights Watch and others case (see
paragraphs 96 to 97 above) that, had a similar argument in respect of
internal communications been advanced by the applicant, a similar public
ruling would have been issued in his case. No such ruling was handed
down. The Court therefore concludes that the applicant failed to raise his
arguments as regards the overall Convention-compatibility of the RIPA
provisions before the IPT.
109. However, the Court recalls that where the Government claims nonexhaustion they must satisfy the Court that the remedy proposed was an
effective one available in theory and in practice at the relevant time, that is
to say, that it was accessible, was capable of providing redress in respect of
the applicant's complaints and offered reasonable prospects of success (see,
inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports
of Judgments and Decisions 1996-IV; and Sejdovic v. Italy [GC],
no. 56581/00, § 46, ECHR 2006-II). While the Government rely on the
British-Irish Rights Watch and others case to demonstrate that the IPT could
have issued a general ruling on compatibility, they do not address in their
submissions to the Court what benefit, if any, is gained from such a general
ruling. The Court recalls that it is in principle appropriate that the national
courts should initially have the opportunity to determine questions of the
compatibility of domestic law with the Convention in order that the Court
can have the benefit of the views of the national courts, as being in direct
and continuous contact with the forces of their countries (see Burden v. the
United Kingdom [GC], no. 13378/05, § 42, ECHR 2008-...; and A. and
Others v. the United Kingdom [GC], no. 3455/05, § 154, ECHR 2009-....).
However, it is important to note in this case that the applicant's challenge to
the RIPA provisions is a challenge to primary legislation. If the applicant
had made a general complaint to the IPT, and if that complaint been upheld,
the tribunal did not have the power to annul any of the RIPA provisions or
to find any interception arising under RIPA to be unlawful as a result of the
incompatibility of the provisions themselves with the Convention (see
paragraph 24 above). No submissions have been made to the Court as to
whether the IPT is competent to make a declaration of incompatibility under
section 4(2) of the Human Rights Act. However, it would appear from the
wording of that provision that it is not. In any event, the practice of giving
effect to the national courts' declarations of incompatibility by amendment
of offending legislation is not yet sufficiently certain as to indicate that
section 4 of the Human Rights Act is to be interpreted as imposing a
binding obligation giving rise to a remedy which an applicant is required to
exhaust (see Burden v. the United Kingdom, cited above, §§ 43 to 44).