KENNEDY v. THE UNITED KINGDOM JUDGMENT
35
36. The Court points out that where a State institutes secret surveillance the
existence of which remains unknown to the persons being controlled, with the effect
that the surveillance remains unchallengeable, Article 8 ... could to a large extent be
reduced to a nullity. It is possible in such a situation for an individual to be treated in a
manner contrary to Article 8 ..., or even to be deprived of the right granted by that
Article ..., without his being aware of it and therefore without being able to obtain a
remedy either at the national level or before the Convention institutions.
...
The Court finds it unacceptable that the assurance of the enjoyment of a right
guaranteed by the Convention could be thus removed by the simple fact that the
person concerned is kept unaware of its violation. A right of recourse to the
Commission for persons potentially affected by secret surveillance is to be derived
from Article 25 ..., since otherwise Article 8 ... runs the risk of being nullified.
37. As to the facts of the particular case, the Court observes that the contested
legislation institutes a system of surveillance under which all persons in the Federal
Republic of Germany can potentially have their mail, post and telecommunications
monitored, without their ever knowing this unless there has been either some
indiscretion or subsequent notification in the circumstances laid down in the Federal
Constitutional Court's judgment ... To that extent, the disputed legislation directly
affects all users or potential users of the postal and telecommunication services in the
Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this
menace of surveillance can be claimed in itself to restrict free communication through
the postal and telecommunication services, thereby constituting for all users or
potential users a direct interference with the right guaranteed by Article 8 ...
...
38. Having regard to the specific circumstances of the present case, the Court
concludes that each of the applicants is entitled to '(claim) to be the victim of a
violation' of the Convention, even though he is not able to allege in support of his
application that he has been subject to a concrete measure of surveillance ...
...
41. The first matter to be decided is whether and, if so, in what respect the contested
legislation, in permitting the above-mentioned measures of surveillance, constitutes an
interference with the exercise of the right guaranteed to the applicants under Article 8
para. 1 ....
...
In its report, the Commission expressed the opinion that the secret surveillance
provided for under the German legislation amounted to an interference with the
exercise of the right set forth in Article 8 para. 1 .... Neither before the Commission
nor before the Court did the Government contest this issue. Clearly, any of the
permitted surveillance measures, once applied to a given individual, would result in an
interference by a public authority with the exercise of that individual's right to respect
for his private and family life and his correspondence. Furthermore, in the mere
existence of the legislation itself there is involved, for all those to whom the
legislation could be applied, a menace of surveillance; this menace necessarily strikes