WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
extraterritorial exercise of its jurisdiction, the suggested bases of such jurisdiction
(including nationality and flag) are, as a general rule, defined and limited by the
sovereign territorial rights of the other relevant States. The Court has recognised that,
as an exception to the principle of territoriality, acts of the States Parties performed, or
producing effects, outside their territories can constitute an exercise of jurisdiction
within the meaning of Article 1 of the Convention. In each case, with reference to the
specific facts, the Court has assessed whether the existence of special features justifies
the finding that the State concerned was exercising jurisdiction extraterritorially (see
M.N. and Others v. Belgium [(dec.) [GC], no. 3599/18, §§ 98-99 and 101-02, 5 May
2020], and the references therein, and Georgia v. Russia (II) [[GC], no. 38263/08, § 82,
21 January 2021]).”
(β) Application of the general principles to the facts of the present case
88. To date, the Court has not had the opportunity to consider the question
of jurisdiction in the context of a complaint concerning an interference with
an applicant’s electronic communications. In Bosak and Others v. Croatia
(nos. 40429/14 and 3 others, 6 June 2019) the Court did not consider whether
the interception of the communications of the two applicants who were living
in the Netherlands fell within Croatia’s jurisdiction for the purposes of
Article 1 of the Convention, perhaps because those applicants’ telephone
conversations were intercepted and recorded by the Croatian authorities on
the basis of secret surveillance orders lawfully issued against another
applicant, who lived in Croatia and with whom they had been in contact.
While the question of jurisdiction was alluded to in Weber and Saravia
v. Germany (dec.), no. 54934/00, § 72, ECHR 2006-XI and in Big Brother
Watch and Others (cited above, § 272), in neither case was it necessary to
decide the issue.
89. The applicants in the present case have not suggested that they were
themselves at any relevant time in the United Kingdom or in an area over
which the United Kingdom exercised effective control. Rather, they contend
either that the acts complained of – being the interception, extraction,
filtering, storage, analysis and dissemination of their communications by the
United Kingdom intelligence agencies pursuant to the section 8(4) regime
(see paragraph 56 above) – nevertheless fell within the respondent
Government’s territorial jurisdiction, or, in the alternative, that one of the
exceptions to the principle of territoriality applied.
90. In Big Brother Watch and Others the Court identified four stages to
the bulk interception process: the interception and initial retention of
communications and related communications data; the searching of the
retained communications and related communications data through the
application of specific selectors; the examination of selected
communications/related communications data by analysts; and the
subsequent retention of data and use of the “final product”, including the
sharing of data with third parties (ibid, § 325). Although it did not consider
that the interception and initial retention constituted a particularly significant
interference, in its view the degree of interference with individuals’ Article 8
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