CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT – SEPARATE OPINIONS
sua, in that it is asked to review its own overseeing conduct, without even
having to inform the complainant of its findings or provide any reasons for
its decisions34. The FII’s working methods are not far from the dark
tenebrous process described by Franz Kafka.
18. Furthermore, individuals can make requests to the FRA for
disclosure and correction in regard to processed personal data, and the
FRA’s decisions to disclose information may be appealed against to the
Administrative Court. Yet domestic rules on secrecy may hamper the
individual’s access to that information35, not to mention the Administrative
Court’s de facto powers to review the FRA’s own secrecy assessment. This
“Catch 22” situation is evidenced by the fact that this possibility has never
been used36. In any event, this legal avenue is not available to legal persons
such as the applicant.
19. Finally, neither the Parliamentary Ombudsmen nor the Chancellor of
Justice provide any effective scrutiny, since they are not entitled to produce
legally binding decisions to cease any interception activities or to destroy
any intercepted material. As a matter of fact, neither of them has ever found
it necessary to act within their remit, for example by triggering criminal or
disciplinary proceedings against FRA officials37 or, in the case of the
Chancellor, by awarding compensation.
Transfer of intercept data to foreign intelligence services
20. Regarding the transfer of intercept material to foreign third parties,
the sole guarantee provided by law is that it should be in the national
interest. There is no requirement to consider privacy rights or to guarantee
that the receiving State has similar safeguards to those applicable in
Sweden. Where the remit of the intercepting authority is framed in such
broad terms in the legislation, and oversight is limited to checking if the
authority remains within its statutory remit, the oversight is of very limited
use38.
This has nothing to do with the European Union standard as stated in FRA of the EU,
Surveillance by intelligence services, cited above, p. 14: “EU Member States should ensure
that judicial and non-judicial bodies with remedial powers have the powers and
competences to effectively assess and decide on individuals’ complaints related to
surveillance… In particular, the remedial body should have access to the premises of
intelligence services and the data collected; be given the power to issue binding decisions;
and inform complainants on the outcome of its investigations. The individual should be
able to appeal the body’s decision.”
35 As the chamber itself admitted (see § 175 of the Chamber judgment).
36 See paragraph 64 of this judgment.
37 See paragraphs 66-8 of this judgment.
38 Swedish law is very far from the universal standard described by the United Nations
Compilation of good practices on legal and institutional frameworks and measures that
ensure respect for human rights by intelligence agencies while countering terrorism,
including on their oversight, 17 May 2010 (A/HRC/14/46): “Practice 31. Intelligence34
105