26
AL-NASHIF v. BULGARIA JUDGMENT
119. The Court reiterates that the phrase “in accordance with the law”
implies that the legal basis must be “accessible” and “foreseeable”. A rule's
effects are “foreseeable” if it is formulated with sufficient precision to
enable any individual – if need be with appropriate advice – to regulate his
conduct.
In addition, there must be a measure of legal protection in domestic law
against arbitrary interferences by public authorities with the rights
safeguarded by the Convention. It would be contrary to the rule of law for
the legal discretion granted to the executive in areas affecting fundamental
rights to be expressed in terms of an unfettered power. Consequently, the
law must indicate the scope of any such discretion conferred on the
competent authorities and the manner of its exercise with sufficient clarity,
having regard to the legitimate aim of the measure in question, to give the
individual adequate protection against arbitrary interference (see
Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-II, §§ 55 and 56,
Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, §§ 55-63,
Hasan and Chaush v. Bulgaria [GC], no. 30985/96, ECHR 2000-XI, and
the Klass and Others v. Germany judgment of 6 September 1978, Series A
no. 28).
120. The Government's position was that although the Aliens Act did
not circumscribe the cases in which a person might be considered a threat to
national security so as to warrant his deportation, the term “national
security” was clarified in the Framework National Security Concept (see
paragraph 83 above).
121. The Court reiterates that as regards the quality of law criterion,
what is required by way of safeguards will depend, to some extent at least,
on the nature and extent of the interference in question (see
P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX, § 46).
It considers that the requirement of “foreseeability” of the law does not
go so far as to compel States to enact legal provisions listing in detail all
conduct that may prompt a decision to deport an individual on national
security grounds. By the nature of things, threats to national security may
vary in character and may be unanticipated or difficult to define in advance.
122. There must, however, be safeguards to ensure that the discretion
left to the executive is exercised in accordance with the law and without
abuse.
123. Even where national security is at stake, the concepts of lawfulness
and the rule of law in a democratic society require that measures affecting
fundamental human rights must be subject to some form of adversarial
proceedings before an independent body competent to review the reasons
for the decision and relevant evidence, if need be with appropriate
procedural limitations on the use of classified information (see the
judgments cited in paragraph 119 above).