BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
195
JOINT PARTLY DISSENTING AND PARTLY
CONCURRING OPINION OF JUDGES PARDALOS AND
EICKE
Introduction
1. For the reasons set out in more detail below, we are unfortunately, not
able to agree with the majority in relation to two aspects of the judgment in
this case; namely
(a) that the applicants in the first and second of the joined cases had
shown “special circumstances absolving them from the requirement to
exhaust” domestic remedies by first bringing proceedings before the IPT
(§§ 266-268 and operative part § 3; “admissibility”); and
(b) that there has been a breach of Article 8 of the Convention in
respect of the section 8(4) regime (§ 388 and operative part § 4; “the
section 8(4) regime”).
2. In relation to the latter issue our position is reinforced by the contrast
between the conclusions reached by the majority in this case and that
reached in the judgment in Centrum För Rättvisa v. Sweden, no. 35252/08
(not yet final); a judgment adopted by the Third Section of this Court on
19 June 2018, a mere two weeks before the final deliberations in this case.
In that case, the Court concluded, unanimously, that, despite having
identified “some areas where there is scope for improvement” (§ 180) and
“making an overall assessment and having regard to the margin of
appreciation enjoyed by the national authorities in protecting national
security” (§ 181), the Swedish system of signals intelligence provided
adequate and sufficient guarantees against arbitrariness and the risk of
abuse; as a consequence, it was held that the relevant legislation met the
“quality of law” requirement, that the “interference” established could be
considered as being “necessary in a democratic society” and that the
structure and operation of the system were proportionate to the aim sought
to be achieved.
3. That said, we agree both with:
(a) the underlying general principles identified by the Court both in
this case and in Centrum För Rättvisa to be applied in relation to these
aspects of the case; as well as
(b) the conclusion of the majority in this case that, for the reasons
given in the judgment, there has been no breach of Article 8 of the
Convention in relation to the intelligence sharing regime (§§ 447-448
and operative part § 6) and that there is no need to examine the
remaining complaints made by the applicants in the third of the joined
cases under Article 10 of the Convention.