LEANDER v. SWEDEN JUGDMENT
19
49. The aim of the Swedish personnel control system is clearly a
legitimate one for the purposes of Article 8 (art. 8), namely the protection of
national security.
The main issues of contention were whether the interference was "in
accordance with the law" and "necessary in a democratic society".
2. "In accordance with the law"
(a) General principles
50. The expression "in accordance with the law" in paragraph 2 of
Article 8 (art. 8-2) requires, to begin with, that the interference must have
some basis in domestic law. Compliance with domestic law, however, does
not suffice: the law in question must be accessible to the individual
concerned and its consequences for him must also be foreseeable (see,
mutatis mutandis, the Malone judgment of 2 August 1984, Series A no. 82,
pp. 31-32, § 66).
51. However, the requirement of foreseeability in the special context of
secret controls of staff in sectors affecting national security cannot be the
same as in many other fields. Thus, it cannot mean that an individual should
be enabled to foresee precisely what checks will be made in his regard by
the Swedish special police service in its efforts to protect national security.
Nevertheless, in a system applicable to citizens generally, as under the
Personnel Control Ordinance, the law has to be sufficiently clear in its terms
to give them an adequate indication as to the circumstances in which and the
conditions on which the public authorities are empowered to resort to this
kind of secret and potentially dangerous interference with private life (ibid.,
p. 32, § 67).
In assessing whether the criterion of foreseeability is satisfied, account
may be taken also of instructions or administrative practices which do not
have the status of substantive law, in so far as those concerned are made
sufficiently aware of their contents (see the Silver and Others judgment of
25 March 1983, Series A no. 61, pp. 33-34, §§ 88-89).
In addition, where the implementation of the law consists of secret
measures, not open to scrutiny by the individuals concerned or by the public
at large, the law itself, as opposed to the accompanying administrative
practice, must indicate the scope of any discretion conferred on the
competent authority with sufficient clarity, having regard to the legitimate
aim of the measure in question, to give the individual adequate protection
against arbitrary interference (see the above-mentioned Malone judgment,
Series A no. 82, pp. 32-33, § 68).