National Security as Exception: The European Court of Human Rights and the Proceduralisation of Privacy in the Age of Mass Surveillance

This paper critically analyses European Court of Human Rights jurisprudence on bulk data collection, situating it within the Court’s broader turn to proceduralism. We argue that, in cases concerning mass surveillance, the Court has effectively abandoned structured proportionality review and transformed national security from a prima facie legitimate aim into a de facto exception to Article 8. Placing this caselaw in the long shadow of 9/11 and the Court’s legitimacy concerns, we assess its coherence and theoretical limitations against foundational principles of international human rights law. We then trace the detrimental consequences of the Court’s proceduralist approach for the EU legal order, surveillance methods legalised by states, and the right to privacy. However, through the Court’s judgment in Podchasov v. Russia (2024), the paper also argues for the recognition and functioning of an inviolable essential core of Article 8 as regards privacy, allowing for cautiously optimistic conclusions concerning a viable alternative to proceduralism.