the possible infringements of his rights; these remedies would
satisfy the requirements of Article 6 (§75).
278.
The Government erroneously cites this reasoning for the proposition that
“the requirements of Art. 6 cannot apply to a dispute concerning the
interception powers insofar as the use of such powers in the case at issue
remain validly secret” (Observations, §7.4). The UK, however, has
established a system of “judicial control” enabling a person to challenge
the lawfulness of surveillance and seek a legal remedy, without disclosing
the existence of such surveillance. It has thereby granted persons a legal
remedy “against the possible infringements of [their] rights” irrespective of
secrecy. The Court has made clear that “these remedies would satisfy the
requirements of Article 6”.
279.
The concept of “civil rights and obligations” is, of course, autonomous
under the Convention (Kennedy, §179). In this respect, the Applicants
observe, as set out in Ferrazzini v Italy, App. no. 44759/98, 12 July 2001,
“[t]he Convention is…a living instrument to be interpreted in the light of
present-day conditions” and the Court’s consideration of the scope of
Article 6(1) should assess “changed attitudes in society as to the legal
protection that falls to be accorded to individuals in their relations with the
State” (§26).138 As discussed above and as this Court has recognised in
Szabó, “[g]iven the technological advances since…Klass…, the potential
interferences with email, mobile phone and Internet services as well as
Further, the Court has taken an increasingly broad approach over the years to the
interpretation of the concept of “civil rights and obligations”. Thus, by way of example, it has
considered that the right to welfare (Fazia Ali v UK), prisoners’ detention arrangements (Enea v
Italy, App. no. 74912/01, 17 Sept. 2009), the right to a good reputation (Helmers v Sweden, App.
no. 11826/85, 29 Oct. 1991), and the right of access to administrative documents (Loiseau v
France, App. no. 46809/99, 18 Nov. 2003), all constitute “civil rights and obligations” for the
purposes of Article 6. In addition, although the Government seeks (Observations, §7.8) to rely on
Maaouia v France, App. no. 39652/98, 5 Oct. 2000, to the effect that “the fact that a dispute may
have major repercussions on an individual’s private life does not suffice to bring proceedings
within the scope of “civil” rights protected by Article 6(1)”, the Court’s jurisprudence has moved
on since the time of that decision. Thus in Alexandre v Portugal, App. no. 33197/09, 20 Feb. 2013,
the Court considered that Article 6 extends to proceedings which may unquestionably have a
direct and significant impact on the individual’s private life (§51). In that case, it was held that
proceedings relating to the applicant’s criminal record engaged Article 6 in view of the
incontestable consequences those proceedings would have on his private life.
138
108