BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
107
THE LAW
I. EXHAUSTION OF DOMESTIC REMEDIES
237. The Government submitted that the applicants in the first and
second of the joined cases had not exhausted domestic remedies within the
meaning of Article 35 § 1 of the Convention, which provides as follows:
“1. The Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law, and within
a period of six months from the date on which the final decision was taken.”
A. The parties’ submissions
1. The Government
238. The Government argued that the applicants in the first and second
of the joined cases had not exhausted domestic remedies as they had failed
to raise their complaints before the IPT. The IPT was a bespoke domestic
tribunal set up for the very purpose of investigating, considering and ruling
on the issues now raised before this Court. In Kennedy v. the United
Kingdom, no. 26839/05, 18 May 2010 the Court held that the IPT was
Article 6 compliant and, as could be seen from the Liberty proceedings, it
was capable of providing redress. Furthermore, it was advantageous for the
Court to have the benefit of a detailed assessment of the operation of the
relevant domestic legal regime by a bespoke domestic tribunal with an
understanding of that system. That was especially so where, as in the case at
hand, domestic law was not only complex, but also involved an assessment
of issues of necessity and proportionality which would be particularly
difficult to undertake without a proper determination at national level of
facts material to the balance between the rights of the individual and the
interests of the community as a whole.
239. As for the effectiveness of the IPT as a domestic remedy, the
Government noted that it was “one of the most far-reaching systems of
judicial oversight over intelligence matters in the world”, with broad
jurisdiction and remedial powers. It produced open judgments to the extent
that it could do so consistently with the public interest. It could investigate
and consider in closed session any sensitive material that was relevant to the
complaints and produce decisions having regard to that material. On
account of its ability to assess and evaluate the adequacy of the internal
safeguards, it was in a “special position” to make a proper assessment of
proportionality. In the present case, the applicants’ complaints under
Articles 8 and 10 of the Convention focussed on the alleged lack of publicly
available safeguards and proportionality, and the IPT had the jurisdiction
and requisite powers to deal with all of those complaints. It could make