CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
35
Furthermore, the Court considers it clear that the measures permitted by
Swedish law pursue legitimate aims in the interest of national security by
supporting Swedish foreign, defence and security policy and identifying
external threats to the country. It therefore remains to be ascertained
whether the domestic law is accessible and contains adequate and effective
safeguards and guarantees to be considered “foreseeable” and “necessary in
a democratic society”.
112. The Court has expressly 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). In Weber and Saravia and Liberty and Others the Court
accepted that bulk interception regimes did not per se fall outside this
margin. Given the reasoning of the Court in those judgments and in view of
the current threats facing many Contracting States (including the scourge of
global terrorism and other serious crime, such as drug trafficking, human
trafficking, sexual exploitation of children and cybercrime), advancements
in technology which have made it easier for terrorists and criminals to evade
detection on the internet, and the unpredictability of the routes via which
electronic communications are transmitted, the Court considers that the
decision to operate a bulk interception regime in order to identify hitherto
unknown threats to national security is one which continues to fall within
States’ margin of appreciation.
113. Nevertheless, it is evident from the Court’s case-law over several
decades that all interception regimes (both bulk and targeted) have the
potential to be abused, especially where the true breadth of the authorities’
discretion to intercept cannot be discerned from the relevant legislation (see,
for example, Klass and Others v. Germany, 6 September 1978, Series A
no. 28; Kennedy, cited above; Roman Zakharov, cited above, and Szabó and
Vissy v. Hungary, no. 37138/14, 12 January 2016). Therefore, while States
enjoy a wide margin of appreciation in deciding what type of interception
regime is necessary to protect national security, the discretion afforded to
them in operating an interception regime must necessarily be narrower. In
this regard, the Court has identified six minimum safeguards that both bulk
interception and other interception regimes must incorporate in order to be
sufficiently foreseeable to minimise the risk of abuses of power (see
paragraph 103 above).
114. Accordingly, adapting these minimum safeguards where necessary
to reflect the operation of a bulk interception regime dealing exclusively
with national security issues, the following assessment of the interference
established (see paragraph 95 above) will address, in turn, the accessibility
of the domestic law, the scope and duration of signals intelligence, the
authorisation of the measures, the procedures to be followed for storing,
accessing, examining, using, communicating and destroying the intercepted