CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
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2. The temporal scope of the Court’s examination
96. As already mentioned, the applicant has complained about three
different time periods, arguing that each period is characterised by a
different legal regime.
97. In other cases where the law has been reviewed in abstracto and
amendments have been made to the legislation while the application was
pending, the Court has limited itself to reviewing Convention compliance of
the law in force at the time of its examination (see, for example, Association
for European Integration and Human Rights and Ekimdzhiev, cited above;
Iordachi and Others v. Moldova, no. 25198/02, 10 February 2009; and
Roman Zakharov, cited above).
98. As stated above, the Court’s task is not to examine measures that
have “directly affected” the applicant, but to review the relevant Swedish
law and practice in abstracto. The Swedish legislation has been amended on
many occasions since the application was lodged with the Court, also since
the start of the third time period on 1 December 2009. It cannot be the task
of the Court, when reviewing the law in abstracto, to examine compatibility
with the Convention before and after every single legislative amendment.
The review will therefore focus on the Swedish legislation as it stands at the
time of the present examination.
3. The justification of the interference
(a) General principles
99. The Court reiterates that any interference can only be justified under
Article 8 § 2 if it is in accordance with the law, pursues one or more of the
legitimate aims to which paragraph 2 of Article 8 refers and is necessary in
a democratic society in order to achieve any such aim. The following
general principles have been collated in Roman Zakharov (see §§ 228-236
of that judgment and the further references listed therein).
100. 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 (Roman Zakharov, § 228).
101. The Court has held on several occasions that the reference to
“foreseeability” in the context of interception of telephone communications
cannot be the same as in many other fields. Foreseeability in the special
context of secret measures of surveillance cannot mean that an individual
should be able to foresee when the authorities are likely to intercept
communications so that he or she can adapt his or her conduct accordingly.
However, especially where a power vested in the executive is exercised in
secret, the risk of arbitrariness is evident. It is therefore essential to have