CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
CONCURRING OPINION
OF JUDGE PINTO DE ALBUQUERQUE
1. I voted with the majority, but for very different reasons. The Swedish
legal framework of bulk interception is problematic in many aspects which
the majority either disregarded or downplayed. The domestic practice is
even worse. In fact, the domestic practice is highly opaque, even more so
than in the United Kingdom. Yet the European Court of Human Rights (the
Court) chose to adjudicate the case without being cognisant of important
features of this practice, such as the actual practice regarding the keeping of
logs and detailed records of each step in the bulk interception operations.
Astonishingly, the Government was dispensed from the burden of
presenting evidence of what they pleaded, because the Court simply
assumed the veracity of the Government’s pleadings1. Even more baffling is
the fact that the Court did not even have access to the relevant case-law of
the competent domestic court in the field of bulk interception, ignoring for
instance the actual interpretation of section 3 of the Signals Intelligence Act
by the Foreign Intelligence Court (FIC)2. Just as in the Big Brother Watch
and Others v. the United Kingdom case (applications nos. 58170/13,
62322/14 and 24960/15), the Court’s biased methodology, coupled with
vague language, has led to a defective regime of safeguards in the present
case3.
Legal purposes of bulk interception
2. The lack of foreseeability with regard to the legal purposes of bulk
interception, as set out in the Signals Intelligence Act, stands out as the first
major flaw of the Swedish regime. The purpose related to external military
threats to the country may include “not only imminent threats, such as
threats of invasion, but also phenomena that may in the long term develop
into security threats”4. This is a highly undefined purpose, in terms both of
its temporal and its spatial dimensions, allowing for profiling of foreigners,
minorities and legitimate businesses that may be considered as long-term
potential threats.
See paragraph 311 of this judgment: “there is no reason to consider that detailed logs and
records are not kept in practice or that the FRA could proceed to changing its internal
instructions arbitrarily and removing its obligation in that regard”.
2 See paragraph 300 of this judgment: “The interpretation of section 3 of the Signals
Intelligence Act in the practice of the Foreign Intelligence Court has not been explained to
the Court ......”. I will return to this point below.
3 For a critique of the Court’s pro autoritate regime of bulk interception, I refer to my
opinion in the Big Brother Watch and Others case.
4 See paragraph 23 of this judgment.
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