38
KENNEDY v. THE UNITED KINGDOM JUDGMENT
grounds listed in section 5(3) RIPA. However, in light of the applicant's
allegations that any interception is taking place without lawful basis in order
to intimidate him (see paragraph 7 above), the Court considers that it cannot
be excluded that secret surveillance measures were applied to him or that he
was, at the material time, potentially at risk of being subjected to such
measures.
129. In the circumstances, the Court considers that the applicant can
complain of an interference with his Article 8 rights. The Government's
objection concerning the applicant's lack of victim status is accordingly
dismissed.
2. The justification for the interference
130. Any interference can only be justified under Article 8 § 2 if it is in
accordance with the law, pursues one of more of the legitimate aims to
which paragraph 2 of Article 8 refers and is necessary in a democratic
society in order to achieve any such aim.
a. The parties' submissions
i. The applicant
131. The applicant did not dispute that the surveillance of internal
communications in the United Kingdom had a basis in domestic law,
namely the provisions of RIPA. Nor did he dispute that both the relevant
legislation and the Code were publicly available. However, he argued that
the RIPA provisions, and in particular sections 5, 8 and 15 on the issuing of
warrants and the relevant safeguards, were not in accordance with the law as
required by Article 8 § 2 of the Convention as they did not meet the
foreseeability requirement set out in the Court's jurisprudence. In particular,
he alleged that section 8(1) RIPA, which stipulated the basic contents of an
interception warrant, did not indicate with sufficient clarity how decisions
as to which individuals were to be put under surveillance were made; that
RIPA did not define the categories of persons who could have their
telephones tapped; and that it did not clarify the procedures in place to
regulate the interception and processing of intercept material. He contended
that the safeguards referred to in section 15 RIPA were inadequate as they
were subject to unknown “arrangements” considered necessary by the
Secretary of State. The other procedural safeguards in place including the
possibility of launching proceedings before the IPT, were, in the applicant's
view, also inadequate to protect against abuse.
132. The applicant relied on the Court's judgment in Liberty and Others,
cited above, as to the lack of clarity of the relevant provisions of RIPA's
predecessor, the Interception of Communications Act 1985, and argued that
the changes introduced to the surveillance regime by RIPA were inadequate