112
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
the applicants in the third of the joined cases (“the Liberty proceedings”),
the IPT used all of these powers for the benefit of the applicants.
251. The Court considered the role of the IPT in secret surveillance
cases in Kennedy (cited above), decided in 2010. In that case the applicant
complained that his communications had been intercepted pursuant to a
targeted warrant authorised under section 8(1) of RIPA (the specific
complaint), and that the targeted interception regime under section 8(1) was
not compliant with Article 8 of the Convention (the general compliance
complaint). The Court held that the proceedings before the IPT had been
Article 6 compliant, since any procedural restrictions were proportionate to
the need to keep secret sensitive and confidential information and did not
impair the very essence of the applicant’s right to a fair trial. With regard to
the IPT’s effectiveness as a remedy, it acknowledged that Article 35 § 1 had
“a special significance in the context of secret surveillance given the
extensive powers of the IPT to investigate complaints before it and to access
confidential information”. It considered these extensive powers to be
relevant to the applicant’s specific complaint as it had required a factual
investigation into whether his communications had been intercepted.
However, it was not persuaded of their relevance to the general compliance
complaint, since it was a legal challenge and, having already decided the
specific complaint, it was unlikely that the IPT could further elucidate the
general operation of the surveillance regime and applicable safeguards, such
as would assist the Court in its consideration of the compliance of the
regime with the Convention. While it accepted that the IPT could consider a
complaint about the general compliance of a surveillance regime with the
Convention and, if necessary, make a finding of incompatibility, the
Government had not addressed in their submissions how such a finding
would benefit the applicant, given that it did not appear to give rise to a
binding obligation on the State to remedy the incompatibility.
252. Although in Kennedy the Court distinguished between a specific
and general complaint, it is clear from its more recent case-law that while
the two complaints are indeed distinct, they are nevertheless connected. In
Roman Zakharov the Court identified the availability of an effective
domestic remedy to a person who suspects that he or she was subjected to
secret surveillance (in other words, an effective domestic remedy for a
specific complaint) as a relevant factor in determining whether that person
was a “victim” in respect of a complaint challenging the general legal
framework for secret surveillance, since, in the absence of such a remedy,
widespread suspicion and concern among the general public that secret
surveillance powers were being abused might be justified
(Roman Zakharov, cited above, § 171). In view of the significance the Court
has attached to the existence of such a domestic remedy, it would be
problematic if applicants were not required to use it before making either a
specific or general complaint to this Court. The Court should not have to