BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT SEPARATE OPINIONS
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that further, robust safeguards such as those in place in the UK are indeed
required. However, the fact that a given safeguard would not be sufficient is
not enough to support a conclusion that it should not be considered
necessary. In my opinion, it is quite essential to have in place an adequate
system of safeguards, including controls exercised by independent bodies,
both ex ante and ex post.
26. While the safeguards ex post that are provided for in the UK
legislation and practice appear to set a good model in this domain, this does
not in my view suffice to remedy the fact that the authorisation and
implementation of the surveillance are wholly in the hands of the executive
authorities, without any independent control ex ante. In this respect, the
system of safeguards is even weaker than that considered by the Court in
both Klass and Others and Weber and Saravia, in that under the German
G 10 regime, although the surveillance was not subject to prior
authorisation by a court, it had to be authorised by the G 10 Commission
(see Weber and Saravia, cited above, § 115), which was not an executive
branch body (ibid., § 25). Moreover, according to the judgment of the
Federal Constitutional Court of 14 July 1999 (cited above, Rn 87), a list of
search concepts was part of each restriction order, whereas in the present
case it has transpired that the search and selection criteria are determined by
the analysts operating the surveillance and are not subject to any prior
supervision, nor any meaningful subsequent oversight (see paragraphs 157,
340 and 345-46 of the present judgment).
27. In sum, what we have before us now is a regime of secret
surveillance, the reach of which under the prevailing factual circumstances
is unprecedented, and under which a very wide operational latitude is left to
the services operating the surveillance, without any independent ex ante
control or constraint, and under which the search and selection criteria are
not even ex post subject to any robust independent control. I find such a
situation highly problematic. An independent ex ante control is all the more
important because of the secret nature of the surveillance, which in practice
reduces the possibility that individuals will have recourse to the safeguards
available ex post.
28. I also consider that the remarks made by the majority in
paragraph 319 of the judgment are not capable of supporting a conclusion
according to which prior independent judicial authorisation should not be
required. Rather, the argument that even judicial scrutiny may fail its
function serves to underline the crucial importance which attaches to the
requirement that such control must have effective guarantees of
independence, in order to meet the proper standards of the necessary
safeguards.
29. In short, while I agree with the conclusions set out in paragraph 387
of the judgment, I do not consider those shortcomings to be the only ones
that justify a finding of a violation of Article 8 in the present case. In