BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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305. According to the Court’s well established case-law, 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, § 52, ECHR 2000‑V; S. and Marper, cited
above, § 95, and Kennedy, cited above, § 151).
306. The Court has held on several occasions that the reference to
“foreseeability” in the context of secret surveillance cannot be the same as
in many other fields. Foreseeability in the special context of secret measures
of surveillance, such as the interception of communications, cannot mean
that an individual should be able to foresee when the authorities are likely to
resort to such measures so that he can adapt his 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, cited above, § 67,
Leander, cited above, § 51; Huvig v. France, 24 April 1990, § 29, Series A
no. 176‑B; 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; 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).
307. 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:
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 interception; the procedure to be
followed for examining, using and storing the data obtained; the precautions