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CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
clear, detailed rules on interception of telephone communications, especially
as the technology available for use is continually becoming more
sophisticated. The domestic law must be sufficiently clear to give citizens
an adequate indication as to the circumstances and conditions which give
public authorities the power to resort to such measures (Roman Zakharov,
§ 229).
102. Moreover, since the implementation in practice of measures of
secret surveillance of communications is not open to scrutiny by the
individuals concerned or the public at large, it would be contrary to the rule
of law for the discretion granted to the executive or to a judge to be
expressed in terms of an unfettered power. Consequently, the law must
indicate the scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient clarity to give the
individual adequate protection against arbitrary interference (Roman
Zakharov, § 230).
103. In its case-law on secret measures of surveillance in criminal
investigations, the Court has developed the following minimum safeguards
that should be set out in law in order to avoid abuses of power: a description
of the nature of offences which may give rise to an interception order; a
definition of the categories of people liable to have their communications
intercepted; a limit on the duration of the measures; 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
(Roman Zakharov, § 231).
104. As to the question whether an interference has been “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 rights under Article 8,
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 the national law. It has
to be determined whether the procedures for supervising the ordering and
implementation of the restrictive measures are such as to keep the