WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
communications interferes both with the privacy of the sender and/or
recipient, and with the privacy of the communications themselves. Under the
section 8(4) regime the interference with the privacy of communications
clearly takes place where those communications are intercepted, searched,
examined and used and the resulting injury to the privacy rights of the sender
and/or recipient will also take place there.
95. Accordingly, the Court considers that the interference with the
applicants’ rights under Article 8 of the Convention took place within the
United Kingdom and therefore fell within the territorial jurisdiction of the
respondent State. As such, it is not necessary to consider whether any of the
exceptions to the territoriality principle are applicable.
(c) Victim status
96. Although the Government have made no objection based on lack of
victim status, the Court can examine this question ex officio, since it concerns
a matter which goes to its jurisdiction (see, for example, Buzadji v. the
Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016).
97. In determining victim status the Court must first have regard to the
scope of the legislation permitting secret surveillance measures by examining
whether applicants could possibly be affected by it, either because they
belong to a group of persons targeted by the contested legislation or because
the legislation directly affects all users of communication services by
instituting a system where any person can have his or her communications
intercepted. Where domestic law provides an effective remedy for persons
who believe that their communications have been intercepted, such persons
may claim to be victims of a violation occasioned by the mere existence of
secret measures or of legislation permitting secret measures only if they are
able to show that, due to their personal situation, they are potentially at risk
of being subjected to such measures (see Roman Zakharov v. Russia [GC],
no. 47143/06, § 171, ECHR 2015).
98. It follows that, in a case such as the present, where domestic law
provided a remedy for all persons who believed that their communications
had been intercepted (see paragraphs 28-30 above; see also Big Brother
Watch and Others, cited above, § 271), potential applicants may claim to be
a victim of a violation occasioned by the mere existence of the section 8(4)
regime only if they are able to substantiate their claim that they belonged to
a group of people who could have been directly affected by the surveillance
regime, and that, due to their personal situation, their electronic
communications were potentially at risk of being intercepted, stored and
searched by the United Kingdom intelligence agencies pursuant to the
section 8(4) regime.
99. For the purposes of the Article 8 complaint the level of persuasion
necessary to establish victim status cannot be unreasonably high. The
section 8(4) regime is a bulk interception regime and communications may
29
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents