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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
control of the measures ordered by the competent Minister, who was
accountable to the Bundestag. The Court found that the two supervisory
bodies could, in the circumstances of the case, be regarded as enjoying
sufficient independence to give an objective ruling (ibid.).
22. As indicated above, in my view the legal and factual circumstances
of that case, which go back four decades, cannot be considered comparable
to the situation now under consideration. It is somewhat striking that in
Weber, despite the important changes in the legislative and factual
framework, the Court succinctly stated that it saw no reason to reconsider
the conclusion in Klass and Others (see Weber and Saravia, § 117). In any
event, in the light of the circumstances prevailing at the present time, such
reconsideration seems to me to be indispensable.
23. Where, as in the present case, the interception (as a matter of
technical necessity) encompasses vast volumes of communications traffic in
an indiscriminate manner, without being linked to any kind of prior
elements of suspicion related to the threats by reason of which the
surveillance is conducted, everything in terms of the protection of
individuals and their rights depends on whether and how the subsequent
stages of the treatment of the intercepted communications provide effective
and reliable safeguards for those rights, and against any abuse of the
surveillance. Under such circumstances, given the potential intrusiveness of
the surveillance and the abundant risks of abuse, I consider that it cannot be
appropriate that all the ex ante safeguards remain in the hands of the
executive. I think the applicants are right to argue that there is a need for an
“updating” of the standards as regards prior independent judicial
authorisation. It seems to me to be important that the authorities of the
executive branch should be required to explain and justify before an
independent judicial authority the grounds on which a particular
surveillance should be authorised, and to account for the search criteria on
the basis of which the intercepted communications will be filtered and
selected for a review of their content.
24. In this respect, I am not convinced by the arguments advanced by the
majority in support of the position that prior judicial control is unnecessary
(paragraphs 318-20). The majority acknowledge that judicial authorisation
is not inherently incompatible with the effective functioning of bulk
interception (paragraph 318). Indeed, the recent case of Centrum för
Rättvisa v. Sweden (cited above) offers an illustration, as it deals with
Swedish legislation under which prior judicial authorisation is required.
25. The main argument against imposing such a requirement appears to
be that it would not entail a sufficient safeguard, and that even in the
absence of prior judicial authorisation the existence of independent
oversight by the IPT and the Interception of Communications
Commissioner provide adequate safeguards against abuse. In my view, it is
obvious that prior judicial authorisation cannot in itself be sufficient and