KENNEDY v. THE UNITED KINGDOM JUDGMENT
33
verifiable facts supported the possibility of interception, pointing to his long
campaign regarding the alleged miscarriage of justice in his case and the
allegation of police impropriety made at his re-trial.
114. Noting the Government's submission that neither preventing calls
from being put through nor hoax calls amounted to interception for the
purposes of RIPA, the applicant emphasised that such conduct clearly
amounted to an interference for the purposes of Article 8 of the Convention.
In the event that RIPA did not apply to such measures, he argued that the
Government had failed to indicate the alternative legal regime put in place
to prevent such interference with individuals' private lives as required by the
positive obligations under Article 8.
115. Finally, and in any event, relying on Weber and Saravia v. Germany
(dec.), no. 54934/00, § 78, ECHR 2006-XI, the applicant contended that he
was not required to demonstrate that the impugned measures had actually
been applied to him in order to establish an interference with his private life.
He invited the Court to follow its judgment in Liberty and Others v. the
United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008, and find that the
mere existence of a regime for surveillance measures entailed a threat of
surveillance for all those to whom the legislation could be applied.
ii. The Government
116. The Government accepted that if the applicant's complaint
regarding the general Convention-compatibility of the RIPA scheme was
admissible, then he could claim to be a victim without having to show that
he had actually been the subject of interception, However, they argued that
the Court had made it clear that, in a case argued on the basis that the
intelligence authorities had in fact been engaging in unlawful surveillance,
the principles set out in §§ 34 to 38 of the Court's judgment in Klass and
Others v. Germany, 6 September 1978, Series A no. 28 did not apply and,
instead, the applicant was required to substantiate his claim with evidence
sufficient to satisfy the Court that there was a reasonable likelihood that
unlawful interception had occurred (citing Halford v. the United Kingdom,
25 June 1997, § 57, Reports 1997-III; and Iliya Stefanov v. Bulgaria,
no. 65755/01, § 49, 22 May 2008). In their view, the applicant had not
established a reasonable likelihood of unlawful interception in his case, for
four reasons: (i) there was no evidence to support a claim that the applicant's
communications were being intercepted; (ii) the Government emphatically
denied that any unlawful interception had taken place; (iii) the rejection of
the applicant's complaint by the IPT supported this position (see paragraph
20 above); and (iv) the Commissioner's 2001 report also supported this
position (see paragraph 65 above).
117. The Government further argued that complaints regarding calls not
being put through or hoax calls did not show that there had been any
interception in the applicant's case. They pointed out that, under section 2(2)