BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
measures, especially as the technology available for use is continually
becoming more sophisticated. The domestic law must be sufficiently clear
to give citizens an adequate indication as to the circumstances in which and
the conditions on which public authorities are empowered to resort to any
such measures (see Roman Zakharov, cited above, § 229; see also Malone,
cited above, § 67; Leander, cited above, § 51; Huvig, cited above, § 29;
Kruslin, cited above, § 30; Valenzuela Contreras v. Spain, 30 July 1998,
§ 46, Reports of Judgments and Decisions 1998-V; Rotaru, cited above,
§ 55; Weber and Saravia, cited above, § 93; and Association for European
Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00,
§ 75, 28 June 2007). Moreover, the law must indicate the scope of any
discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity to give the individual adequate protection
against arbitrary interference (see Roman Zakharov, cited above, § 230; see
also, among other authorities, Malone, cited above, § 68; Leander, cited
above, § 51; Huvig, cited above, § 29; Kruslin, cited above, § 30; and Weber
and Saravia, cited above, § 94).
334. In cases where the legislation permitting secret surveillance is
contested before the Court, the lawfulness of the interference is closely
related to the question whether the “necessity” test has been complied with
and it is therefore appropriate for the Court to address jointly the “in
accordance with the law” and “necessity” requirements. The “quality of
law” in this sense implies that the domestic law must not only be accessible
and foreseeable in its application, it must also ensure that secret surveillance
measures are applied only when “necessary in a democratic society”, in
particular by providing for adequate and effective safeguards and guarantees
against abuse (see Roman Zakharov, cited above, § 236; see also Kennedy,
cited above, § 155).
335. In this regard it should be reiterated that in its case-law on the
interception of communications in criminal investigations, the Court has
developed the following minimum requirements that should be set out in
law in order to avoid abuses of power: (i) the nature of offences which may
give rise to an interception order; (ii) a definition of the categories of people
liable to have their communications intercepted; (iii) a limit on the duration
of interception; (iv) the procedure to be followed for examining, using and
storing the data obtained; (v) the precautions to be taken when
communicating the data to other parties; and (vi) the circumstances in which
intercepted data may or must be erased or destroyed (see Huvig, cited
above, § 34; Kruslin, cited above, § 35; Valenzuela Contreras, cited above,
§ 46; Weber and Saravia, cited above, § 95; and Association for European
Integration and Human Rights and Ekimdzhiev, cited above, § 76). In
Roman Zakharov (cited above, § 231) the Court confirmed that the same six
minimum safeguards also applied in cases where the interception was for
reasons of national security; however, in determining whether the impugned
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