SZABÓ AND VISSY v. HUNGARY JUDGMENT
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according to the Convention right or rights alleged to have been infringed, the secret
character of the measures objected to, and the connection between the applicant and
those measures.
...
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.”
34. Following Klass and Others (cited above) and Malone v. the United
Kingdom (2 August 1984, § 64, Series A no. 82), 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. 20271/92, Commission decision of
1 September 1993; and Matthews v. the United Kingdom, no. 28576/95,
Commission decision of 16 October 1996); subsequently, the Court applied
a similar approach (see Halford v. the United Kingdom, 25 June 1997, §§ 56
to 57, Reports of Judgments and Decisions 1997-III).
35. More pertinently with regard to the present application, in other
cases which concerned complaints about the 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 (dec.), no. 54934/00, § 78, ECHR 2006 XI; Association for
European Integration and Human Rights and Ekimdzhiev v. Bulgaria,
no. 62540/00, §§ 58 to 60, 28 June 2007; Iliya Stefanov v. Bulgaria,
no. 65755/01, § 49, 22 May 2008; Liberty and Others v. the United
Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008; and Iordachi and Others
v. Moldova, no. 25198/02, §§ 30 to 35, 10 February 2009).
36. In the case of Kennedy v. the United Kingdom (no. 26839/05, § 124,
18 May 2010) the Court held that in order to assess, in a particular case,
whether an individual can claim an interference as a result of the mere
existence of legislation permitting secret surveillance measures, the Court