CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT – SEPARATE OPINIONS
3. The purpose related to strategic circumstances concerning
international terrorism or other serious cross-border crime that may threaten
essential national interests, including “drug or human trafficking of such
severity that it may threaten significant national interests”5, does not delimit
serious cross-border crime sufficiently. The concept of serious crime as it
exists in international law encompasses offences punishable with
imprisonment for a term of four or more years6. Hence, to be foreseeable,
the concept of serious offences that may trigger bulk interception must be
linked either to a list of specific serious offences or, generally, to offences
punishable by four or more years’ imprisonment. That is not the case in
Sweden.
4. The purpose related to the development and proliferation of weapons
of mass destruction, military equipment and other similar specified products
may include, “among other things, activities relevant to Sweden’s
commitments in regard to non-proliferation and export control, even in
cases where the activity does not constitute a crime or contravenes
international conventions”7. According to information officially provided by
the Government,8,“similar specified products” includes munitions and
military and civil dual-use products and even technical assistance, as
provided for in Law no, 1064 (2000) on control of products with dual uses
and technical assistance. However, the monitored activities (“among other
things”) are not sufficiently defined. Is economic and trade espionage for
the benefit of the Swedish arms, aerospace, electronics, petrochemical and
other manufacturing industry included in this purpose?
5. The purpose related to serious external threats to societal
infrastructure “includes, among other things, serious IT-related threats
emanating from abroad. That the threats should be of a serious nature means
that they, for example, should be directed towards vital societal systems for
energy and water supply, communication or monetary services.”9 Neither
the types of threats (“among other things”) nor the societal infrastructure
systems that may be threatened (“for example”) are sufficiently delimited.
Does this purpose mean, for example, that a general strike in a neighbouring
country that might ultimately disturb and derail the Swedish energy or
petroleum distribution system may justify surveillance of the trade unions
involved in the strike, and of their members? What if the supposed “threat”
is directed against the Swedish public transportation and sports systems?
Ibid.
Article 2 (b) of the UN Convention against Transnational Organized Crime defines
“serious crime” as conduct punishable by a maximum deprivation of liberty of at least four
years or by a more serious penalty. The Explanatory Report on Recommendation
Rec(2005)10 of the Committee of Ministers of the Council of Europe follows that approach
(see its paragraph 20).
7 See paragraph 23 of this judgment.
8 https://www.loc.gov/law/help/foreign-intelligence-gathering/sweden.php#Signal
9 See paragraph 23 of this judgment.
5
6
99