BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
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by the Secretary of State appear to be formulated in very broad and general
terms (see paragraphs 156 and 342). Furthermore, the concrete search and
selection criteria which are applied to filter intercepted communications for
reading of their content are determined by the analysts conducting the
surveillance (see paragraphs 157, 340 and 345-46 of the present judgment).
As indicated by the domestic findings, the latter are not even subject to any
meaningful subsequent oversight by independent bodies (see
paragraphs 157 and 340).
18. Ever since Klass and Others, the Court has indeed held that in view
of the risk that a system of secret surveillance for the protection of national
security may undermine or even destroy democracy under the cloak of
defending it, the Court must be satisfied that there exist adequate and
effective guarantees against abuse (see Klass and Others, §§ 49-50). This
assessment depends on all the circumstances of the case, such as the nature,
scope and duration of the possible measures, the grounds required for
ordering them, the authorities competent to authorise, carry out and
supervise them, and the kind of remedy provided by the national law (ibid.,
§ 50).
19. As discussed above, in the light of the changes in both the nature and
scope of surveillance and in the prevailing factual realities, the
circumstances have indeed evolved in such a way and to such an extent that
I find it difficult to accept that the adequacy of safeguards should
nevertheless be assessed simply by relying on the case-law that has arisen
under different legal and factual framework conditions.
20. In particular, given the present overall context, I question the
approach according to which prior independent control by a judicial
authority should not be a necessary requirement in the system of safeguards.
21. Already in Klass and Others, when considering the initial stage of
control, the Court stated that, in a field where abuse was potentially so easy
in individual cases and could have such harmful consequences for
democratic society as a whole, it was in principle desirable to entrust
supervisory control to a judge (see Klass and Others, § 56). Under the G 10
legislation, judicial control was replaced by an initial control effected by an
official qualified for judicial office and by the control provided by the
Parliamentary Board and the G 10 Commission. In that case the Court
concluded that, having regard to the nature of the supervisory and other
safeguards provided for by the G 10, the exclusion of judicial control did
not exceed the limits of what might be deemed necessary in a democratic
society. The Court noted that the Parliamentary Board and the G 10
Commission were independent of the authorities carrying out the
surveillance and vested with sufficient powers and competence to exercise
an effective and continuous control. Furthermore, the democratic character
was reflected in the balanced membership of the Parliamentary Board, on
which the opposition was represented and was thus able to participate in the