36
KENNEDY v. THE UNITED KINGDOM JUDGMENT
at freedom of communication between users of the postal and telecommunication
services and thereby constitutes an 'interference by a public authority' with the
exercise of the applicants' right to respect for private and family life and for
correspondence.”
121. Subsequently, in Malone v. the United Kingdom, 2 August 1984,
§ 64, Series A no. 82, the Court noted:
“Despite the applicant's allegations, the Government have consistently declined to
disclose to what extent, if at all, his telephone calls and mail have been intercepted
otherwise on behalf of the police ... They did, however, concede that, as a suspected
receiver of stolen goods, he was a member of a class of persons against whom
measures of postal and telephone interception were liable to be employed. As the
Commission pointed out in its report ..., the existence in England and Wales of laws
and practices which permit and establish a system for effecting secret surveillance of
communications amounted in itself to an 'interference ... with the exercise' of the
applicant's rights under Article 8 ..., apart from any measures actually taken against
him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the
Court, like the Commission ..., does not consider it necessary to inquire into the
applicant's further claims that both his mail and his telephone calls were intercepted
for a number of years.”
122. Following Klass and Others and Malone, the former Commission,
in a number of cases against the United Kingdom in which the applicants
alleged actual interception of their communications, emphasised that the test
in Klass and Others could not be interpreted so broadly as to encompass
every person in the United Kingdom who feared that the security services
may have conducted surveillance of him. Accordingly, the Commission
required applicants to demonstrate that there was a “reasonable likelihood”
that the measures had been applied to them (see, for example, Esbester
v. the United Kingdom, no. 18601/91, Commission decision of 2 April
1993; Redgrave v. the United Kingdom, no. 202711/92, Commission
decision of 1 September 1993; and Matthews v. the United Kingdom,
no. 28576/95, Commission decision of 16 October 1996).
123. In cases concerning general complaints about legislation and
practice permitting secret surveillance measures, the Court has reiterated the
Klass and Others approach on a number of occasions (see, inter alia, Weber
and Saravia, cited above, § 78; Association for European Integration and
Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58 to 60,
28 June 2007; Iliya Stefanov, cited above, § 49; Liberty and Others, cited
above, §§ 56 to 57; and Iordachi and Others v. Moldova, no. 25198/02,
§§ 30 to 35, 10 February 2009). Where actual interception was alleged, the
Court has held that in order for there to be an interference, it has to be
satisfied that there was a reasonable likelihood that surveillance measures
were applied to the applicant (see Halford, cited above, §§ 56 to 57). The
Court will make its assessment in light of all the circumstances of the case
and will not limit its review to the existence of direct proof that surveillance
has taken place given that such proof is generally difficult or impossible to
obtain (see Iliya Stefanov, cited above, § 50).