CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments
and Decisions 1998-V; Rotaru, cited above, § 55; Weber and Saravia, cited
above, § 93; and Association for European Integration and Human Rights
and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007). Moreover,
the law must indicate the scope of any discretion conferred on the
competent authorities and the manner of its exercise with sufficient clarity
to give the individual adequate protection against arbitrary interference (see
Roman Zakharov, cited above, § 230; see also, among other authorities,
Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above,
§ 29; and Weber and Saravia, cited above, § 94).
248. In cases where the legislation permitting secret surveillance is
contested before the Court, the lawfulness of the interference is closely
related to the question whether the “necessity” test has been complied with
and it is therefore appropriate for the Court to address jointly the “in
accordance with the law” and “necessity” requirements. 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; and Kennedy, cited
above, § 155).
249. In this regard it should be reiterated that in its case-law on the
interception of communications in criminal investigations, the Court has
developed the following minimum requirements that should be set out in
law in order to avoid abuses of power: (1) the nature of offences which may
give rise to an interception order; (2) a definition of the categories of people
liable to have their communications intercepted; (3) a limit on the duration
of interception; (4) the procedure to be followed for examining, using and
storing the data obtained; (5) the precautions to be taken when
communicating the data to other parties; and (6) the circumstances in which
intercepted data may or must be erased or destroyed (see Huvig, cited
above, § 34; Valenzuela Contreras, cited above, § 46; Weber and Saravia,
cited above, § 95; and Association for European Integration and Human
Rights and Ekimdzhiev, cited above, § 76). In Roman Zakharov (cited
above, § 231) the Court confirmed that the same six minimum safeguards
also applied in cases where the interception was for reasons of national
security; however, in determining whether the impugned legislation was in
breach of Article 8, it also had regard to the arrangements for supervising
the implementation of secret surveillance measures, any notification
mechanisms and the remedies provided for by national law (see Roman
Zakharov, cited above, § 238).
250. 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