CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
47
and fields of operation of the intelligence services and even possibly to
identify their agents. Therefore, the fact that persons concerned by secret
surveillance measures are not subsequently notified once surveillance has
ceased cannot by itself warrant the conclusion that the interference was not
“necessary in a democratic society”, as it is the very absence of knowledge
of surveillance which ensures the efficacy of the interference. As soon as
notification can be carried out without jeopardising the purpose of the
restriction after the termination of the surveillance measure, information
should, however, be provided to the persons concerned (see Roman
Zakharov, cited above, § 287, with further references).
165. The Court, mindful of the fact that the applicant is not a natural
person, notes that, in theory, the FRA is obliged to inform a natural person,
if search terms directly related to him or her have been used, about when
and why the collection took place. The person shall be notified as soon as it
can be done without detriment to the foreign intelligence activities, but at
the latest one month after the signals intelligence mission was concluded.
However, the obligation to notify does not apply where secrecy applies. The
parties, as well as the Data Protection Authority in its report of
6 December 2010 (see paragraph 59 above) and the Signals Intelligence
Committee in its report of 11 February 2011 (paragraph 64), have confirmed
that in practice a notification has never been made, due to secrecy. Thus, the
Court agrees with the applicant that the obligation on the FRA to notify
individuals lacks practical significance.
166. The Court has previously found that the absence of a requirement
to notify the subject of interception of postal and telephone communications
at any point in time or in any circumstances was incompatible with the
Convention, in that it deprived the subject of the interception an opportunity
to seek redress for unlawful interferences with his or her rights under Article
8 and rendered the remedies available under national law theoretical and
illusory rather than practical and effective (see Association for European
Integration and Human Rights and Ekimdzhiev, cited above, §§ 90 and 91).
By contrast, in the case of Kennedy, the absence of a requirement to notify
the subject of interception at any point in time was compatible with the
Convention, because in the United Kingdom any person who suspected that
his or her communications were being or had been intercepted could
complain about an unlawful interception to a tribunal, whose jurisdiction
did not depend on notification to the subject that there had been an
interception of his or her communications (Kennedy, cited above, § 167).
167. Taking into account that the requirement to notify the subject of
secret surveillance measures is not applicable to the applicant and is, in any
event, devoid of practical significance, the Court accordingly finds it
pertinent to examine the issue of notification together with the remedies
available in Sweden; two issues that are inextricably linked (see Roman
Zakharov, cited above, § 286).