BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
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PARTLY CONCURRING, PARTLY DISSENTING OPINION
OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ
1. I have voted, and agree, with the majority as regards points 1 to 3 of
the operative provisions of the judgment, which concern the admissibility of
the complaints. I have also joined the majority in finding a violation of
Article 8 in respect of both the section 8(4) regime and the Chapter II
regime. As regards the section 8(4) regime, however, I am not able in all
respects to subscribe to the reasons given by the majority. As far as the
intelligence sharing regime is concerned, unlike the majority, I have voted
for finding a violation of Article 8.
I. The RIPA section 8(4) regime
2. The present case concerns legislation providing for secret
surveillance, by means of bulk interception, of electronic communications
which qualify as “external” (for an understanding of the concept of
“external” communications see paragraphs 69-71 of the judgment). It is
important to note that this type of secret surveillance of communications is
not limited to certain already known or identified targets but is aimed at the
discovery of threats and hitherto unknown or unidentified targets which
might be responsible for threats (see paragraph 284 of the judgment). The
relevant threats are broadly framed and comprise threats to national security
or to the economic well-being of the country as well as threats arising from
serious crime (see §§ 57-59).
3. It is obvious that such an activity – an untargeted surveillance of
external communications with a view to discovering and exploring a wide
range of threats – by its very nature takes on a potentially vast scope, and
involves enormous risks of abuse. The safeguards against those risks, and
the standards which under the Convention should apply in this regard,
therefore raise questions of the highest importance. I am not convinced, in
the light of present-day circumstances, that reliance on the Court’s existing
case-law provides an adequate approach to the kind of surveillance regimes
like the one we are dealing with here. A more thorough reconsideration
would be called for. I acknowledge that this would be a task for the Court’s
Grand Chamber. I will only raise some concerns which, in my view, require
attention in this regard.
(i) The context of earlier case-law
4. Apart from the recent Chamber judgment in Centrum för Rättvisa
v. Sweden (no. 35252/08, 19 June 2018), which is not yet final, the Court’s
case-law has not dealt with the present kind of surveillance but with regimes
which, as a matter of either law or fact, have been narrower in scope.
Furthermore, in the light of current developments, I consider that reliance