CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT – SEPARATE OPINIONS
gathering of such an unlimited amount of data represents per se a
disproportionate interference with Articles 8 and 10 of the European
Convention on Human Rights (the Convention).
8. Finally, it is also a matter of concern that the ever-increasing powers
of law-enforcement agencies (such as the Security Policy and the National
Operative Department of the Police Authority) to commission signals
intelligence and access collected data or intelligence reports endangers the
finality principle underlying the Swedish bulk interception regime, that is,
that data must be collected and processed for one or more legal purposes,
and may not be used in a way inconsistent with that or those purposes,
namely they may not be used for law-enforcement purposes in ongoing
criminal proceedings. As a matter of fact, the FII itself warned recently that
law-enforcement agencies would not be able to keep information received
from the FRA separate from their law-enforcement activities17.
Authorisation of bulk interception
9. Swedish law entrusts the authorisation of bulk surveillance to a court.
But the FIC is not an ordinary court. Herein lies the second major
shortcoming in the Swedish system. The FIC’s composition consists of one
president, one or two vice-presidents and two to six lay members, mainly
former politicians18, all of whom are appointed by the Government for a
four-year mandate. Their appointment is renewable, which strengthens their
political bond to the Government. Even the privacy protection
representative, who is supposed to act in the public interest, but not in the
interest of any affected individual, is a Government appointee, with a
renewable mandate. Furthermore, his or her intervention can be dispensed
with. If the matter is so urgent that a delay would seriously jeopardize the
purpose of the application, a meeting may be held, and a decision taken,
without a privacy protection representative having been present or otherwise
given an opportunity to comment. The highly politicised status of the FIC’s
members is consonant with the fact that it has never held a public hearing
and its decisions are final and confidential19. In view of these characteristics
the FIC is more akin to a political body than to a truly independent judicial
authority20.
See the reference to the FII’s position in the applicant’s observations before the Grand
Chamber of 3 May 2019, p. 24, not disputed by the Government.
18 See the Venice Commission Report on the democratic oversight of signals intelligence
agencies, 2015, p. 33.
19 It is beyond my understanding that the majority reproach the FII (which is not a court)
for not delivering public decisions but are ready to accept that the FIC (which is a court)
does not deliver public decisions (compare and contrast paragraphs 297 and 372 of this
judgment).
20 The Venice Commission considered it a “hybrid body” (Venice Commission Report,
cited above, p. 33). That is why the HRC asked the Swedish State to ensure that “effective
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