54
KENNEDY v. THE UNITED KINGDOM JUDGMENT
174. The Government argued that although the applicant had a right, as a
matter of domestic law, to complain to the IPT while the alleged
interception was ongoing, the right at issue was not a “civil” right for the
purposes of Article 6 § 1 (relying on the Court's judgments in Klass and
Others, cited above, §§ 57 to 58 and 75; and Association for European
Integration and Human Rights, cited above, § 106). They contended that,
insofar as the use of interception powers remains validly secret, the
requirements of Article 6 could not apply to the dispute (referring to Klass
and Others, cited above, § 75). In the present case, the applicant's position
before the IPT was that the interception was continuing. As a result, the
Government considered that the validity of the “neither confirm nor deny”
stance taken by the authorities could not be impugned. The particular
position taken by the Court in interception cases (including Association for
European Integration and Human Rights) that rights in the field of secret
interception powers were not civil rights was, they argued, supported by the
Court's general jurisprudence on “civil rights” (citing Ferrazzini v. Italy
[GC], no. 44759/98, §§ 25, 28 and 30, ECHR 2001-VII; and Maaouia
v. France [GC], no. 39652/98, § 38, ECHR 2000-X).
175. The Government pointed to the Court's consistent case-law that the
concept of “civil rights and obligations” was autonomous and could not be
interpreted solely by reference to the domestic law of the respondent State
and concluded that the fact that RIPA offered the additional safeguard of an
application to the IPT at any time could not in itself make Article 6 § 1
apply to such disputes. As regards the applicant's argument that the Court
should be slow to interfere with the ruling of the IPT that Article 6 § 1 was
applicable, the Government contested that the question whether Article
6 § 1 was applicable was a matter of domestic law. In their view, Ferrazzini,
cited above, § 24, was support for the proposition that the applicability of
Article 6 § 1 was a matter of Convention law and fell within the competence
of the Court.
176. The Government finally noted that the IPT's ruling was issued
before the Court's judgment in Association for European Integration and
Human Rights, cited above, § 106, in which the Court reached the
conclusion that Article 6 § 1 did not apply to such proceedings. It was clear
that secret powers of interception which were used solely in the interests of
national security or in order to prevent and detect serious crime formed part
of the “hard core of public authority prerogatives”, such that it was
inappropriate to classify any related rights and obligations as “civil” in
nature (citing Ferrazzini, § 29; and Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, § 61, ECHR 2007-IV).
b. The Court's assessment
177. The Court in Klass and Others, cited above, did not express an
opinion on whether Article 6 § 1 applied to proceedings concerning a