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Article

A Voice of the European Court of Human Rights in Our ‘Panoptical’ Reality

ESIL Newsletter (on-line journal). 2019.

A cross-cutting theme of two judgments rendered by the ECHR Chambers in 2018: Big Brother Watch and Others v. the UK and Centrum för Rättvisa v. Sweden is that mass surveillance per se does not violate the Convention on the Protection of Human Rights and Fundamental Freedoms. These judgments have been recently referred to the Grand Chamber, thus giving hope that the approach taken in respect of the launch of mass interception of communications and metadata may be revisited. In this Guest Editorial, the author summarizes critique of this approach from the different points of view. It is argued that this stance neglects a previous progressive development of the ECtHR’s case law, misuses a concept of the ‘margin of appreciation’, and is based on the application of the test of proportionality by exploiting unproven logical links. Moreover, a comprehensively profiled individual can hardly maintain his or her personal autonomy, which is a keystone of the Convention.