LEANDER v. SWEDEN JUGDMENT
21
3. "Necessary in a democratic society in the interests of national
security"
58. The notion of necessity implies that the interference corresponds to
a pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November
1986, Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy a
margin of appreciation, the scope of which will depend not only on the
nature of the legitimate aim pursued but also on the particular nature of the
interference involved. In the instant case, the interest of the respondent State
in protecting its national security must be balanced against the seriousness
of the interference with the applicant’s right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting
national security, for the Contracting States to have laws granting the
competent domestic authorities power, firstly, to collect and store in
registers not accessible to the public information on persons and, secondly,
to use this information when assessing the suitability of candidates for
employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leander’s
legitimate interests through the consequences it had on his possibilities of
access to certain sensitive posts within the public service. On the other hand,
the right of access to public service is not as such enshrined in the
Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series
A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his
own choosing.
In these circumstances, the Court accepts that the margin of appreciation
available to the respondent State in assessing the pressing social need in the
present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.
60. Nevertheless, in view of the risk that a system of secret surveillance
for the protection of national security poses of undermining or even
destroying democracy on the ground of defending it, the Court must be
satisfied that there exist adequate and effective guarantees against abuse
(see the Klass and Others judgment of 6 September 1978, Series A no. 28,
pp. 23-24, §§ 49-50).
61. The applicant maintained that such guarantees were not provided to
him under the Swedish personnel control system, notably because he was
refused any possibility of challenging the correctness of the information
concerning him.
62. The Government invoked twelve different safeguards, which, in
their opinion, provided adequate protection when taken together:
(i) the existence of personnel control as such is made public through the
Personnel Control Ordinance;