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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Roman Zakharov, cited above, § 258; see also Klass and Others, cited
above, §§ 51 and 56; Weber and Saravia, cited above, § 115; Kennedy, cited
above, § 167; and Szabó and Vissy, cited above, § 77). There would appear
to be good reason for this. The Court has found it “desirable to entrust
supervisory jurisdiction to a judge” because, as a result of the secret nature
of the surveillance, the individual will usually be unable to seek a remedy of
his or her own accord (see Roman Zakharov, cited above, § 233). However,
that is not the case in every contracting State. In the United Kingdom, for
example, any person who thinks that he or she has been subject to secret
surveillance can lodge a complaint with the IPT (see paragraph 250 above).
Consequently, in Kennedy the Court accepted that regardless of the absence
of prior judicial authorisation, the existence of independent oversight by the
IPT and the Interception of Communications Commissioner provided
adequate safeguards against abuse (see Kennedy, cited above, §§ 167-169).
In this regard, the Venice Commission also noted that independent oversight
may be able to compensate for an absence of judicial authorisation (see
paragraph 212 above).
319. Secondly, the Court has acknowledged that “the possibility of
improper action by a dishonest, negligent or over-zealous official can never
be completely ruled out whatever the system” (see Klass and Others, cited
above, § 59), and one need only look at its most recent jurisprudence to find
examples of cases where prior judicial authorisation provided limited or no
protection against abuse. For example, in Roman Zakharov, any interception
of communications had to be authorised by a court and the judge had to give
reasons for the decision to authorise interceptions. However, as judicial
scrutiny was limited in scope and the police had the technical means to
circumvent the authorisation procedure and to intercept any
communications without obtaining prior judicial authorisation, the Court
found that Russian law was incapable of keeping the “interference” to what
was “necessary in a democratic society”. Similarly, in Association for
European Integration and Human Rights and Ekimdzhiev the relevant law
required judicial authorisation before interception could take place.
Nevertheless, the Court found that numerous abuses had taken place
(according to a recent report, more than 10,000 warrants were issued over a
period of some twenty‑four months). More recently, in Mustafa Sezgin
Tanrıkulu v. Turkey, no. 27473/06, § 64, 18 July 2017 the Court found a
violation of Article 8 where an assize court had granted the National
Intelligence Agency permission to intercept all domestic and international
communications for a month and a half with a view to identifying terrorist
suspects.
320. Therefore, while the Court considers judicial authorisation to be an
important safeguard, and perhaps even “best practice”, by itself it can
neither be necessary nor sufficient to ensure compliance with Article 8 of
the Convention (see Klass and Others, cited above, § 56). Rather, regard