ROMAN ZAKHAROV v. RUSSIA JUDGMENT
57
necessary in a democratic society in order to achieve any such aim
(see Kennedy, cited above, § 130).
228. The Court notes from its well-established case-law that the wording
“in accordance with the law” requires the impugned measure both to have
some basis in domestic law and to be compatible with the rule of law, which
is expressly mentioned in the Preamble to the Convention and inherent in
the object and purpose of Article 8. The law must thus meet quality
requirements: it must be accessible to the person concerned and foreseeable
as to its effects (see, among many other authorities, Rotaru v. Romania
[GC], no. 28341/95, § 52, ECHR 2000-V; S. and Marper v. the United
Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; and
Kennedy, cited above, § 151).
229. The Court has held on several occasions that the reference to
“foreseeability” in the context of interception of communications cannot be
the same as in many other fields. Foreseeability in the special context of
secret measures of surveillance, such as the interception of communications,
cannot mean that an individual should be able to foresee when the
authorities are likely to intercept his communications so that he can adapt
his conduct accordingly. However, especially where a power vested in the
executive is exercised in secret, the risks of arbitrariness are evident. It is
therefore essential to have clear, detailed rules on interception of telephone
conversations, 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 Malone, cited above, § 67; Leander v. Sweden,
26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990,
§ 29, Series A no. 176-B; Valenzuela Contreras v. Spain, 30 July 1998,
§ 46, Reports 1998-V; Rotaru, cited above, § 55; Weber and Saravia, cited
above, § 93; and Association for European Integration and Human Rights
and Ekimdzhiev, cited above, § 75).
230. 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 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, § 68; Leander, cited above, § 51;
Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).
231. In its case-law on secret measures of surveillance, the Court has
developed the following minimum safeguards that should be set out in law
in order to avoid abuses of power: the nature of offences which may give