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CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
legislation permitting such measures, if the following conditions are
satisfied.
91. Firstly, regard will be had to the scope of the legislation permitting
secret surveillance measures through an examination of whether the
applicant can possibly be affected by it, either because he or she belongs to
a group of persons targeted by the contested legislation or because the
legislation directly affects all users of communication services by instituting
a system where any person can have his or her communications intercepted.
92. Secondly, the availability of remedies at the national level will be
taken into account; the degree of scrutiny will depend on the effectiveness
of such remedies. Where the domestic system does not afford an effective
remedy to the person who suspects that he or she was subjected to secret
surveillance, widespread suspicion and concern among the general public
that secret surveillance powers are being abused cannot be said to be
unjustified. In such circumstances, the menace of surveillance can be
claimed in itself to restrict free communication through postal and
telecommunication services, thereby constituting for all users or potential
users a direct interference with the right guaranteed by Article 8. There is
therefore a greater need for scrutiny by the Court and an exception to the
rule, which denies individuals the right to challenge a law in abstracto, is
justified. In such cases the individual does not need to demonstrate the
existence of any risk that secret surveillance measures were actually applied
to him or her.
93. By contrast, if the national system provides for effective remedies, a
widespread suspicion of abuse is more difficult to justify. In such cases, the
individual may claim to be a victim of a violation occasioned by the mere
existence of secret measures or of legislation permitting secret measures
only if he or she is able to show that, due to the specific personal situation,
he or she is potentially at risk of being subjected to such measures.
94. The Court considers that the contested legislation on signals
intelligence institutes a system of secret surveillance that potentially affects
all users of, for example, mobile telephone services and the internet, without
their being notified about the surveillance. Also, as concluded above (see
paragraph 84), no domestic remedy provides detailed grounds in response to
a complainant who suspects that he or she has had his communications
intercepted. In these circumstances, the Court considers an examination of
the relevant legislation in abstracto to be justified.
95. The applicant is therefore entitled to claim to be the victim of a
violation of the Convention, even though it is unable to allege that it has
been subjected to a concrete measure of interception. For the same reasons,
the mere existence of the contested legislation amounts in itself to an
interference with the exercise of the applicant’s rights under Article 8. The
Court therefore dismisses the Government’s objection concerning the
applicant’s lack of victim status.