CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
33
“interference” to what is “necessary in a democratic society” (Roman
Zakharov, § 232).
105. Review and supervision of secret surveillance measures may come
into play at three stages: when the surveillance is first ordered, while it is
being carried out, or after it has been terminated. As regards the first two
stages, the very nature and logic of secret surveillance dictate that not only
the surveillance itself but also the accompanying review should be effected
without the individual’s knowledge. Consequently, since the individual will
necessarily be prevented from seeking an effective remedy of his or her own
accord or from taking a direct part in any review proceedings, it is essential
that the procedures established should themselves provide adequate and
equivalent guarantees safeguarding his or her rights. In addition, the values
of a democratic society must be followed as faithfully as possible in the
supervisory procedures if the bounds of necessity, within the meaning of
Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so
easy in individual cases and could have such harmful consequences for
democratic society as a whole, it is in principle desirable to entrust
supervisory control to a judge, judicial control normally offering the best
guarantees of independence, impartiality and a proper procedure (Roman
Zakharov, § 233).
106. As regards the third stage, after the surveillance has been
terminated, the question of subsequent notification of surveillance measures
is inextricably linked to the effectiveness of remedies and hence to the
existence of effective safeguards against the abuse of monitoring powers.
There is in principle little scope for recourse to a remedy by the individual
concerned unless he or she is advised of the measures taken without his or
her knowledge and thus able to challenge their legality retrospectively or, in
the alternative, that any person who suspects that his or her communications
are being or have been intercepted can apply to an appropriate body, so that
the latter’s jurisdiction does not depend on a notification having been given
to the subject who has had communications intercepted (Roman Zakharov,
§ 234).
107. Having found an interference of the applicant’s rights under
Article 8 § 1, in examining the justification for the interference under
Article 8 § 2, the Court needs to determine whether the contested legislation
itself is in conformity with the Convention (Roman Zakharov, § 235). In
cases where the legislation permitting secret surveillance is contested, the
matter of the lawfulness of the interference is closely related to the question
whether the “necessity” requirement has been complied with and it is
therefore appropriate to address these two issues jointly. The “quality of
law” in this sense implies that the domestic law must not only be accessible
and foreseeable in its application, but must also ensure that secret
surveillance measures are applied only when “necessary in a democratic