274.
The Government fails to engage this starting point. Rather, it relies
entirely on pre-Kennedy jurisprudence. Thus, it cites the European
Commission of Human Rights Report in Klass, which found that “Art. 6
does not apply to this kind of State interference on security” (Observations
§7.1). The Government also makes reference to Association for European
Integration and Human Rights v Bulgaria, no.62540/00, 28 June 2007
(Observations §7.2).
275.
Neither of these cases is relevant. In Klass, the Applicants submitted that
Article 6(1) had been violated because “the legislation…does not require
notification to the person concerned in all cases after the termination of
surveillance measures and excludes recourse to the courts to test the
lawfulness of such measures.” (§74), Similarly, in Association for European
Integration, the Applicants’ Article 6(1) complaint was that “because by
law they were not to be apprised at any point in time of the use of special
means of surveillance against them, they could not seek redress against
that in the courts.” (§104). Both cases therefore challenged the absence of a
legal remedy against unlawful surveillance.
276.
In the present case, by contrast, a tribunal that offers Applicants
“recourse…to test the lawfulness” of surveillance and to “seek redress
against that” already exists.
277.
In Klass, this Court made clear that legal remedies of this nature “satisfy
the requirements of Article 6” (§75). Its reasoning, in full, was:
As long as it remains validly secret, the decision placing someone
under surveillance is thereby incapable of judicial control on the
initiative of the person concerned, within the meaning of Article 6;
as a consequence, it of necessity escapes the requirements of that
Article. The decision can come within the ambit of the said
provision only after discontinuance of the surveillance…[T]he
individual concerned, once he has been notified of such
discontinuance, has at his disposal several legal remedies against
107