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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
on the line of existing case-law is no longer an adequate basis for assessing
the standards which under the Convention should govern this particular
domain.
5. The Court’s case-law on secret surveillance of communications
essentially dates back to Klass and Others v. Germany (cited in the
judgment) which was decided by the Plenary Court four decades ago, and
the admissibility decision in Weber and Saravia v. Germany (also cited in
the judgment), which concerned an amended version of the same German
legislation and was decided twelve years ago, in response to a complaint
lodged in the year 2000.
6. As the Court noted in Klass and Others, the German legislation then
at issue (the G 10) laid down a series of limitative conditions which had to
be satisfied before a surveillance measure could be imposed. Thus, the
permissible restrictive measures were confined to cases in which there were
factual indications for suspecting a person of planning, committing or
having committed certain serious criminal acts; measures could only be
ordered if the establishment of the facts by another method was without any
prospect of success or considerably more difficult; even then, the
surveillance could cover only the specific suspect or his presumed “contactpersons”. Thus, the Court observed, “so-called exploratory or general
surveillance [was] not permitted by the contested legislation” (see Klass
and Others, § 51).
7. In this regard, the RIPA section 8(4) regime which is at issue in the
present case is different from that in Klass and Others in that the
section 8(4) regime does encompass what the Court then referred to as
“exploratory” surveillance and which in fact constitutes an essential and
critical feature of this particular regime. Consequently, the scope and
purpose of the surveillance regime now at issue is wider than that addressed
in Klass and Others.
8. In Weber and Saravia, the complaint concerned a revised version,
adopted in 1994, of the German G 10, whereby the scope of permissible
surveillance was extended to cover the monitoring of international wireless
telecommunications (see Weber and Saravia, § 88) in order to allow a
“strategic surveillance” of such communications by means of catchwords.
According to the Government’s submissions in that case, at the relevant
time merely some ten per cent of all telecommunications were conducted by
wireless means, and thus potentially subject to monitoring. In practice,
monitoring was restricted to a limited number of foreign countries. The
telephone connections of the State’s own (i.e. German) nationals living
abroad could not be monitored directly. The identity of persons
telecommunicating could only be uncovered in rare cases in which a
catchword had been used (ibid., § 110).
9. The surveillance regime at issue in Weber and Saravia covered
international wireless communications traffic, i.e. traffic transmitted via