36
CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
data, the arrangements for supervising the implementation of the measures,
any notification mechanisms and the remedies provided for by national law.
(i) Accessibility of domestic law
115. The Court finds that all legal provisions relevant to signals
intelligence have been officially published and are accessible to the public, a
fact that has not been questioned by the applicant.
(ii) Scope of application of signals intelligence
(α) The parties’ submissions
116. The applicant submitted that, whereas the conduct against which
signals intelligence could be directed had clear affinities to various criminal
offences, for instance crimes against the security of the nation, the same
could not be said for the FRA’s development activities. The latter activities
allegedly permitted bulk collection of data, including large amounts of
communications data, without regard to the requirement that interception be
ordered only in regard to certain specific offences. The applicant further
emphasised that, since 1 January 2013, the Security Police and the NOA
have been given a mandate to issue more detailed tasking directives for
signals intelligence. Since the general tasks of these two authorities were
crime prevention and investigation there was a risk that signals intelligence
was being conducted outside the scope of foreign intelligence activities.
117. The Government submitted that the FRA’s development activities
were as rigorously regulated – and subject to supervision to the same extent
– as signals intelligence in general. The Government also opposed the claim
that signals intelligence could be used to investigate crimes, as the law did
not permit such use of signals intelligence.
(β) The Court’s assessment
118. The Court reiterates that the national law must define the scope of
application of secret surveillance measures by giving citizens an adequate
indication as to the circumstances in which public authorities are
empowered to resort to such measures (see paragraph 103 above).
119. 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 subject an individual to secret surveillance 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. At the same time, it must be emphasised that in matters
affecting fundamental rights it would be contrary to the rule of law for a
discretion granted to the executive in the sphere of national security to be
expressed in terms of unfettered power. Consequently, the law must indicate
the scope of any such discretion conferred on the competent authorities and