KENNEDY v. THE UNITED KINGDOM JUDGMENT
45
promptly corrected upon their discovery. As to the jurisdiction of the IPT,
the Government emphasised that a challenge could be brought at any time
by a person who suspected that his communications were being intercepted.
They contrasted this unlimited jurisdiction with the legal regime at issue in
Weber and Saravia where judicial oversight was limited to cases where an
individual had been notified that measures had been taken against him. The
applicant in the present case was able to bring his complaint before two
senior judges, who ruled that there was no unlawful interception in his case.
150. In conclusion, the Government invited the Court to find that there
had been no violation of Article 8 in the present case.
b. The Court's assessment
i. General principles
151. The requirement that any interference must be “in accordance with
the law” under Article 8 § 2 will only be met where three conditions are
satisfied. First, the impugned measure must have some basis in domestic
law. Second, the domestic law must be compatible with the rule of law and
accessible to the person concerned. Third, the person affected must be able
to foresee the consequences of the domestic law for him (see, among many
other authorities, Rotaru v. Romania, cited above, § 52; Liberty and Others,
cited above, § 59; and Iordachi and Others, cited above, § 37).
152. The Court has held on several occasions that the reference to
“foreseeability” in the context of interception of communications cannot be
the same as in many other fields (see Malone, cited above, § 67; Leander
v. Sweden, 26 March 1987, § 51, Series A no. 116; Association for
European Integration, cited above, § 79; and Al-Nashif, cited above, § 121).
In its admissibility decision in Weber and Saravia, cited above, §§ 93 to 95,
the Court summarised its case-law on the requirement of legal
“foreseeability” in this field:
“93. ... foreseeability in the special context of secret measures of surveillance, such
as the interception of communications, cannot mean that an individual should be able
to foresee when the authorities are likely to intercept his communications so that he
can adapt his conduct accordingly (see, inter alia, Leander [v. Sweden, judgment of
26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power
vested in the executive is exercised in secret, the risks of arbitrariness are evident (see,
inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and
Rotaru). It is therefore essential to have clear, detailed rules on interception of
telephone conversations, especially as the technology available for use is continually
becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998,
Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of
30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be
sufficiently clear in its terms to give citizens an adequate indication as to the
circumstances in which and the conditions on which public authorities are empowered
to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64;
Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).