CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT – SEPARATE OPINIONS
Conclusion
23. In sum, the Swedish oversight bodies either do not meet the
requirement of sufficient independence or provide effective scrutiny, or
both. With its concealed procedure and unappealable and secret decisions,
the FIC is not a court administering justice in the name of the Swedish
people and accountable to it. It is a secretive commission of political
appointees which produces a restricted diktat that cannot be appealed
against. It serves one sole purpose: to whitewash the FRA’s choices, which
in reality means , the Government’s own surveillance policy choices, giving
the Swedish people the deceitful impression that there is a court in
Stockholm taking care of privacy rights.
24. The FII is no better. When asked to investigate whether interception
and processing of communications have taken place in accordance with the
law, it decides in causa sua, without even being under an obligation to
inform the complainant of its findings or to provide reasons for its
decisions. The complainant is treated as a subject, deprived of privacy
rights, in the hands of the Kafkian all-mighty State, not as a person
empowered with rights before and against the State.
25. The Swedish full-take approach to the international exchange of
intercept data between intelligence services is more dangerous to civil rights
and democratic government than a targeted one.
26. Instead of the proliferation of oversight bodies with virtual powers, it
would be wiser to have a fully-fledged independent court of law, composed
of senior judges, with the power to provide effective, end-to-end control of
the interception process, that is, to authorise and supervise on a regular basis
the implementation of suspicion-based, targeted bulk interception measures
and to stop unlawful collection and retention of the intercepted data, with
the necessary access to classified documents pertaining to the exercise of
their function42.
27. Arguments about the impracticality of the above-mentioned standard
ought to be dismissed outright: the issue at stake is not a matter of practical
effectiveness but of the rule of law. It is the law that sets the boundaries of
effective public service, not the other way around. But that can only be
discerned when, like Caspar David Friedrich’s Wanderer, one rises above
the sea of fog enveloping the Government’s discourse.
See my separate opinion in Big Brother Watch and Others v. the United Kingdom, where
the requirements for a Convention-compatible bulk interception regime are discussed.
42
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