CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
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 a field where abuse
in individual cases is potentially so easy and could have such harmful
consequences for democratic society as a whole, the Court has held that it is
in principle desirable to entrust supervisory control to a judge, judicial
control offering the best guarantees of independence, impartiality and a
proper procedure (see Roman Zakharov, cited above, § 233; see also Klass
and Others, cited above, §§ 55 and 56).
251. As regards the third stage, after the surveillance has been
terminated, the question of subsequent notification of surveillance measures
is a relevant factor in assessing the effectiveness of remedies before the
courts and hence to the existence of effective safeguards against the abuse
of surveillance powers. There is in principle little scope for recourse to the
courts by the individual concerned unless the latter is advised of the
measures taken without his or her knowledge and thus able to challenge
their legality retrospectively (see Roman Zakharov, cited above, § 234; see
also Klass and Others v, cited above, § 57; and Weber and Saravia, cited
above, § 135) or, in the alternative, unless any person who suspects that he
or she has been subject to surveillance can apply to courts, whose
jurisdiction does not depend on notification to the surveillance subject of the
measures taken (see Roman Zakharov, cited above, § 234; see also Kennedy,
cited above, § 167).
252. As to the question whether an interference was “necessary in a
democratic society” in pursuit of a legitimate aim, the Court has recognised
that the national authorities enjoy a wide margin of appreciation in choosing
how best to achieve the legitimate aim of protecting national security (see
Weber and Saravia, cited above, § 106).
253. 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 (and other essential
national interests) may undermine or even destroy the proper functioning of
democratic processes under the cloak of defending them, 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. The
Court has to determine whether the procedures for supervising the ordering
and implementation of the restrictive measures are such as to keep the
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