196
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
4. In relation to the findings that there has been a breach of the
Convention in relation to the Chapter II regime (§§ 468 and 500, operative
part §§ 5 and 7) as well as the conclusions under Article 41 of the
Convention (operative part § 9), one of us (Judge Pardalos) considered that
her conclusion on the admissibility of the first and second of the joined
cases invariably determined the related substantive issues against the
applicants in those cases. By contrast, Judge Eicke considered that, the
Court having decided that the first and second cases were, contrary to his
view, admissible he was required, as a member of that Court, to go on and
decide those cases on the merits by reference to the evidence and pleadings
before the Court.
Admissibility
5. As indicated above, we agree with the majority that, for the reasons
they give, the IPT is and has been an effective remedy “since Kennedy was
decided in 2010” (§ 268); i.e. a remedy which is “available in theory and
practice” and “capable of offering redress to applicants complaining of both
specific incidences of surveillance and the general Convention compliance
of surveillance regimes” (§ 265). Consequently, applicants before this Court
will be expected to have exhausted this domestic remedy before the Court
has jurisdiction to entertain their application under Article 35 § 1 of the
Convention.
6. In addition to the purely legal point that, under Article 35 § 1, the
Court “may only deal with the matter after all domestic remedies have been
exhausted”, we would underline what the majority says in § 256 about the
invaluable assistance derived by the Court, in examining a complaint before
it, from the “elucidatory” role played by the domestic courts (in this case the
IPT) both generally as well as in the specific context of considering the
compliance of a secret surveillance regime with the Convention.
7. For the reasons set out below, however, we disagree with the
conclusion reached by the majority (§ 268) that there existed, in this case,
“special circumstances” absolving the applicants in the first and second of
the joined cases from satisfying this requirement.
8. Firstly, as the majority implicitly accepts (§ 267), the case of Kennedy
is clearly distinguishable on its facts from the present case. After all, the
applicant in that case had already brought a specific complaint about the
section 8(1) regime before the IPT before applying to this Court.
Consequently, unlike the applicants in the first and second of these joined
cases, Mr Kennedy was not inviting the Court to consider his general
complaint entirely in abstracto. Furthermore, in its judgment in that case,
the Court considered it “important” that his challenge was (consequently)
exclusively a challenge to primary legislation. By contrast, in the present
cases the scope of each of the regimes complained of (bulk interception,