46
KENNEDY v. THE UNITED KINGDOM JUDGMENT
94. Moreover, since the implementation in practice of measures of secret
surveillance of communications is not open to scrutiny by the individuals concerned
or the public at large, it would be contrary to the rule of law for the legal discretion
granted to the executive or to a judge to be expressed in terms of an unfettered power.
Consequently, the law must indicate the scope of any such 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, among other
authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51;
and Huvig, cited above, pp. 54-55, § 29).
95. In its case-law on secret measures of surveillance, the Court has developed the
following minimum safeguards that should be set out in statute law in order to avoid
abuses of power: the nature of the offences which may give rise to an interception
order; a definition of the categories of people liable to have their telephones tapped; a
limit on the duration of telephone tapping; the procedure to be followed for
examining, using and storing the data obtained; the precautions to be taken when
communicating the data to other parties; and the circumstances in which recordings
may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above,
p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above,
pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February
2003).”
153. As to the question whether an interference was “necessary in a
democratic society” in pursuit of a legitimate aim, the Court recalls that
powers to instruct secret surveillance of citizens are only tolerated under
Article 8 to the extent that they are strictly necessary for safeguarding
democratic institutions. In practice, this means that there must be adequate
and effective guarantees against abuse. The assessment depends on all the
circumstances of the case, such as the nature, scope and duration of the
possible measures, the grounds required for ordering them, the authorities
competent to authorise, carry out and supervise them, and the kind of
remedy provided by the national law (see Klass and Others, cited above,
§§ 49 to 50; and Weber and Saravia, cited above, § 106).
154. The Court has acknowledged that the Contracting States enjoy a
certain margin of appreciation in assessing the existence and extent of such
necessity, but this margin is subject to European supervision. The Court has
to determine whether the procedures for supervising the ordering and
implementation of the restrictive measures are such as to keep the
“interference” to what is “necessary in a democratic society”. In addition,
the values of a democratic society must be followed as faithfully as possible
in the supervisory procedures if the bounds of necessity, within the meaning
of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia,
no. 72094/01, § 80, 9 June 2009).
ii. Application of the general principles to the facts of the case
155. The Court recalls that it has found there to be an interference under
Article 8 § 1 in respect of the applicant's general complaint about the RIPA
provisions and not in respect of any actual interception activity allegedly