CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
Court is in line with the finding of the Venice Commission, which in its
report on the Democratic Oversight of Signals Intelligence Agencies
considered that in bulk interception the main interference with privacy
occurred when stored personal data were processed and/or accessed by the
agencies (see paragraphs 86-91 above).
245. Thus, the degree of interference with privacy rights will increase as
the process moves through the different stages. In examining whether this
increasing interference was justified, the Court will carry out its assessment
of the relevant Swedish regime on the basis of this understanding of the
nature of the interference.
(c) Whether the interference was justified
(i) General principles relating to secret measures of surveillance, including the
interception of communications
246. Any interference with an individual’s Article 8 rights 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 that paragraph refers and is
necessary in a democratic society in order to achieve any such aim (see
Roman Zakharov, cited above, § 227; see also Kennedy, cited above, § 130).
The wording “in accordance with the law” requires the impugned measure
to have some basis in domestic law (as opposed to a practice which does not
have a specific legal basis – see Heglas v. the Czech Republic, no. 5935/02,
§ 74, 1 March 2007). It must also 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 therefore be accessible to
the person concerned and foreseeable as to its effects (see Roman Zakharov,
cited above, § 228; see also, among many other authorities, Rotaru v.
Romania [GC], no. 28341/95, ECHR 2000-V, § 52; S. and Marper, cited
above, § 95; and Kennedy, cited above, § 151).
247. The meaning of “foreseeability” in the context of secret
surveillance is not the same as in many other fields. In the special context of
secret measures of surveillance, such as the interception of communications,
“foreseeability” cannot mean that individuals should be able to foresee
when the authorities are likely to resort to such measures so that they can
adapt their conduct accordingly. However, especially where a power vested
in the executive is exercised in secret, the risks of arbitrariness are evident.
It is therefore essential to have clear, detailed rules on secret surveillance
measures, 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 in which and
the conditions on which public authorities are empowered to resort to any
such measures (see Roman Zakharov, cited above, § 229; see also Malone v.
the United Kingdom, 2 August 1984, § 67, Series A no. 82; Leander, cited
above, § 51; Huvig v. France, 24 April 1990, § 29, Series A no. 176-B;
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