III
VICTIM STATUS
251.
The first question posed by the Court is as follows:
Can the Applicants claim to be “victims”, within the meaning of Article 34
of the Convention, of violations of their rights under Articles 8 and 10?
252.
The Government contends the Applicants are not “victims” according to
the two-stage test in Zakharov. Under that test, first “the Court will take
into account the scope of the legislation…by examining whether the
applicant can possibly be affected by it.” Secondly, “the Court will take into
account the availability of remedies at the national level and will adjust
the degree of scrutiny depending on the effectiveness of such remedies”
(§170).
A.
Scope of the legislation
253.
In considering the scope of legislation permitting secret surveillance
measures, the Court has explained it will consider whether “the applicant
can possibly be affected by it, either because he or she belongs to a group of
persons targeted by the contested legislation or because the legislation
directly affects all users of communication services by instituting a system
where any person can have his or her communications intercepted.” (§171).
254.
By the Government’s own admission, the s8(4) Regime “intercepts
communications in ‘bulk’ – that is, at the level of communications cables –
pursuant to the lawful authority of warrants under s.8(4) RIPA”
(Observations, §1.21). Thus, s8(4) of RIPA “directly affects all users of
communications services by instituting a system where any person can have
his or her communications intercepted”. The Government does not attempt
to claim that the Applicants might not have had their communications
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