24
DRAGOJEVIĆ v. CROATIA JUDGMENT
them, and the kind of remedy provided by the national law (see Klass and
Others v. Germany, 6 September 1978, § 50, Series A no. 28; Weber and
Saravia, cited above, § 106; Association for European Integration and
Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 77, 28 June
2007; and Kennedy v. the United Kingdom, no. 26839/05, § 153, 18 May
2010).
84. This in particular bears significance as to the question whether an
interference was “necessary in a democratic society” in pursuit of a
legitimate aim, since the Court has held that powers to instruct secret
surveillance of citizens are only tolerated under Article 8 to the extent that
they are strictly necessary for safeguarding democratic institutions (see
Kennedy, cited above, § 153). In assessing the existence and extent of such
necessity the Contracting States enjoy a certain margin of appreciation but
this margin is subject to European supervision. The Court has to determine
whether the procedures for supervising the ordering and implementation of
the restrictive measures are such as to keep the “interference” to what is
“necessary in a democratic society”. 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 (see Kvasnica, cited above, § 80; and Kennedy, cited
above, § 154).
(b) Application of these principles to the present case
(i) Whether there was an interference
85. The Court notes that it is not in dispute between the parties that by
tapping the applicant’s telephone and covertly monitoring him there was an
interference with his right to respect for “private life” and
“correspondence”, guaranteed under Article 8 of the Convention. The Court
sees no reason to hold otherwise (see, for example, Malone, cited above,
§ 54; Khan v. the United Kingdom, no. 35394/97, § 25, ECHR 2000-V; and
Drakšas v. Lithuania, no. 36662/04, §§ 52-53, 31 July 2012).
(ii) Whether the interference was justified
86. The Court observes that in the instant case the applicant did not
complain in general about the existence of legislation allowing measures of
covert surveillance. The basis of his complaint was a specific instance of
such surveillance which took place in connection with criminal proceedings
against him. As the Court must first ascertain whether the interference
complained of was “in accordance with the law”, it must inevitably assess
the relevant domestic law in force at the time in relation to the requirements
of the fundamental principle of the rule of law. Such a review necessarily
entails some degree of abstraction (see Kruslin, cited above, § 32).
Nevertheless, in cases arising from individual applications, the Court must
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