32
KENNEDY v. THE UNITED KINGDOM JUDGMENT
Accordingly, the Court considers that the applicant was not required to
advance his complaint regarding the general compliance of the RIPA regime
for internal communications with Article 8 § 2 before the IPT in order to
satisfy the requirement under Article 35 § 1 that he exhaust domestic
remedies.
110. The Court takes note of the Government's argument that Article 35
§ 1 has a special significance in the context of secret surveillance given the
extensive powers of the IPT to investigate complaints before it and to access
confidential information. While the extensive powers of the IPT are relevant
where the tribunal is examining a specific complaint of interception in an
individual case and it is necessary to investigate the factual background,
their relevance to a legal complaint regarding the operation of the legislative
regime is less clear. In keeping with its obligations under RIPA and the
Rules (see paragraphs 83 to 84 above), the IPT is not able to disclose
information to an extent, or in a manner, contrary to the public interest or
prejudicial to national security or the prevention or detection of serious
crime. Accordingly, it is unlikely that any further elucidation of the general
operation of the interception regime and applicable safeguards, such as
would assist the Court in its consideration of the compliance with the
regime with the Convention, would result from a general challenge before
the IPT.
111. As regards the Government's second objection that there has been
no interference in the applicant's case, the Court considers that this raises
serious questions of fact and of law which cannot be settled at this stage of
the examination of the application but require an examination of the merits
of the complaint.
112. In conclusion, the applicant's complaint under Articles 8 cannot be
rejected for non-exhaustion of domestic remedies under Article 35 § 1 or as
manifestly ill-founded within the meaning of Article 35 § 3. The Court
notes, in addition, that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The existence of an “interference”
a. The parties' submissions
i. The applicant
113. The applicant insisted that his communications had been
intercepted. He maintained that there were reasonable grounds for believing
that he had been subject to interception and submitted that objectively