58
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
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
destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC],
no. 27798/95, §§ 56-58, ECHR 2000-II; Valenzuela Contreras, cited above,
§ 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber
and Saravia, cited above, § 95; and Association for European Integration
and Human Rights and Ekimdzhiev, cited above, § 76).
232. As to the question whether an interference was “necessary in a
democratic society” in pursuit of a legitimate aim, the Court has
acknowledged that, when balancing the interest of the respondent State in
protecting its national security through secret surveillance measures against
the seriousness of the interference with an applicant’s right to respect for his
private life, the national authorities enjoy a certain margin of appreciation in
choosing the means for achieving the legitimate aim of protecting national
security. However, this margin is subject to European supervision
embracing both legislation and decisions applying it. In view of the risk that
a system of secret surveillance set up to protect national security may
undermine or even destroy democracy under the cloak of defending it, the
Court must be satisfied that there are 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 national law. 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” (see Klass and
Others, cited above, §§ 49-50 and 59; Weber and Saravia, cited above,
§ 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy,
cited above, §§ 153-54).
233. Review and supervision of secret surveillance measures may come
into play at three stages: when the surveillance is first ordered, while it is
being carried out, or after it has been terminated. As regards the first two
stages, the very nature and logic of secret surveillance dictate that not only
the surveillance itself but also the accompanying review should be effected
without the individual’s knowledge. Consequently, since the individual will
necessarily be prevented from seeking an effective remedy of his own
accord or from taking a direct part in any review proceedings, it is essential
that the procedures established should themselves provide adequate and
equivalent guarantees safeguarding his rights. 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