116
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
the incompatibility of domestic law with the Convention is sufficiently
certain for it to be satisfied as to the effectiveness of the remedy.
263. The effectiveness of the IPT is further underlined by the fact that it
can, as a matter of EU law, make an order for reference to the CJEU where
an issue arises that is relevant to the dispute before it (see Privacy
International v. Secretary of State for Foreign and Commonwealth Affairs,
Secretary of State for the Home Department, Government Communications
Headquarters, Security Service and Secret Intelligence Service, at
paragraph 236 above). The Court has held that the protection of
fundamental rights by Community law can be considered to be “equivalent”
to that of the Convention system (see Bosphorus Hava Yolları Turizm ve
Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 165
ECHR 2005-VI) and it would therefore be surprising if applicants were
permitted to bypass a court or tribunal which could have such a significant
role in the enforcement of Community law and its fundamental rights
guarantees.
264. Insofar as the applicants rely on the fact that the IPT cannot issue a
Declaration of Incompatibility (see paragraph 242 above), it is sufficient to
note that the Court has not yet accepted that the practice of giving effect to
the national courts’ Declarations of Incompatibility by amendment of
legislation is “so certain as to indicate that section 4 of the Human Rights
Act is to be interpreted as imposing a binding obligation” (see Burden
v. the United Kingdom [GC], no. 13378/05, § 43, ECHR 2008).
Consequently, the relevant question is not whether the IPT can issue a
Declaration of Incompatibility, but whether the practice of giving effect to
its findings is sufficiently certain.
265. In light of the foregoing considerations, the Court finds that as a
general rule the IPT has shown itself to be a remedy, available in theory and
practice, which is capable of offering redress to applicants complaining of
both specific incidences of surveillance and the general Convention
compliance of surveillance regimes. As a result, the complaints made by the
applicants in the first and second of the joined cases must be declared
inadmissible for non-exhaustion unless they can show that there existed
special circumstances absolving them from the requirement to exhaust this
remedy.
266. In this regard, they contend that precisely such circumstances
existed; namely, that at the time they lodged their applications with this
Court they were entitled to rely on Kennedy as authority for the proposition
that the IPT was not an effective remedy for a complaint about the general
Convention compliance of a surveillance regime.
267. Although, at first glance, there would appear to be significant
differences between the present case and that of Kennedy (for example, as
the applicant in Kennedy had brought a specific complaint to the IPT the
Court was not required to consider the more general complaint entirely in