34
SZABÓ AND VISSY v. HUNGARY JUDGMENT
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 the 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; Kennedy, cited above,
§§ 153 and 154; and Roman Zakharov, cited above, § 232).
58. The Court has found an interference under Article 8 § 1 in respect of
the applicants’ general complaint about the rules of “section 7/E (3)
surveillance” and not in respect of any actual interception activity allegedly
taking place. Accordingly, in its examination of the justification for the
interference under Article 8 § 2, the Court is required to examine this
legislation itself and the safeguards built into the system allowing for secret
surveillance, rather than the proportionality of any specific measures taken
in respect of the applicants. In the circumstances, the lawfulness of the
interference is closely related to the question whether the “necessity” test
has been complied with in respect of the “section 7/E (3) surveillance”
regime and it is therefore appropriate for the Court to address jointly the “in
accordance with the law” and “necessity” requirements (see Kvasnica, cited
above, § 84).
59. The expression “in accordance with the law” in Article 8 § 2
requires, first, that the impugned measure should have some basis in
domestic law; it also refers to the quality of the law in question, requiring
that it should be compatible with the rule of law and accessible to the person
concerned, who must, moreover, be able to foresee its consequences for him
(see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series
A no. 176-A; Huvig, cited above, § 26; Lambert v. France, 24 August 1998,
§ 23, Reports 1998-V; Perry v. the United Kingdom, no. 63737/00, § 45,
ECHR 2003-IX (extracts); Dumitru Popescu v. Romania (no. 2),
no. 71525/01, § 61, 26 April 2007; Association for European Integration,
cited above, § 71; and Liberty, cited above, § 59). The “quality of law” in
this sense implies that the domestic law must not only be accessible and
foreseeable in its application, it must also ensure that secret surveillance
measures are applied only when “necessary in a democratic society”, in
particular by providing for adequate and effective safeguards and guarantees
against abuse (see Roman Zakharov, cited above, § 236).
60. It is not in dispute that the interference in question had a legal basis.
The relevant rules are contained in statute law, that is, in the Police Act and