BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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must be had to the actual operation of the system of interception, including
the checks and balances on the exercise of power, and the existence or
absence of any evidence of actual abuse (see Association for European
Integration and Human Rights and Ekimdzhiev, cited above, § 92).
Accordingly, the Court will examine the justification for any interference in
the present case by reference to the six minimum requirements, adapting
them where necessary to reflect the operation of a bulk interception regime.
It will also have regard to the additional relevant factors which it identified
in Roman Zakharov, but did not classify as “minimum requirements”;
namely, the arrangements for supervising the implementation of secret
surveillance measures, any notification mechanisms and the remedies
provided for by national law (see paragraph 307 above).
(α) The existence of an interference
321. The Government do not dispute that there has been an interference
with the applicants’ Article 8 rights.
(β) Justification for the interference
322. As already noted, an interference can only be justified under
Article 8 § 2 if it is in accordance with the law, pursues one or more
legitimate aims and is necessary in a democratic society in order to achieve
any such aim (see paragraph 303 above). In cases where the legislation
permitting secret surveillance is contested before the Court, the lawfulness
of the interference is closely related to the question whether the “necessity”
test has been complied with and it is therefore appropriate for the Court to
address jointly the “in accordance with the law” and “necessity”
requirements (see Roman Zakharov, cited above, § 236 and Kennedy, cited
above, § 155). The “quality of law” in this sense implies that the domestic
law must not only be accessible and foreseeable in its application, but it
must also ensure that secret surveillance measures are applied only when
“necessary in a democratic society”, in particular by providing for adequate
and effective safeguards and guarantees against abuse.
323. The parties do not dispute that the section 8(4) regime had a basis
in domestic law; nor do they dispute that the regime pursued the legitimate
aims of the protection of national security, the prevention of crime and the
protection of the economic well-being of the country. The applicants do,
however, contest the quality of domestic law and, in particular, its
accessibility and foreseeability.
324. The Court will therefore assess in turn the accessibility of the
domestic law, followed by its foreseeability and necessity, having regard to
the six minimum requirements established in its case law, before turning its
attention to the arrangements for supervising the implementation of secret
surveillance measures, any notification mechanisms and the remedies
provided for by national law (see paragraph 307 above).