CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
measures. Those criteria were formulated as follows in Roman Zakharov
(cited above, § 171):
“Firstly, the Court will take into account the scope of the legislation permitting
secret surveillance measures by examining whether the applicant can possibly be
affected by it, either because he belongs to a group of persons targeted by the
contested legislation or because the legislation directly affects all users of
communication services by instituting a system where any person can have his
communications intercepted.
Secondly, the Court will take into account the availability of remedies at the national
level and will adjust the degree of scrutiny depending on the effectiveness of such
remedies. ...[W]here the domestic system does not afford an effective remedy to the
person who suspects that he was subjected to secret surveillance, widespread
suspicion and concern among the general public that secret surveillance powers are
being abused cannot be said to be unjustified... In such circumstances the threat of
surveillance can be claimed in itself to restrict free communication through the postal
and telecommunication services, thereby constituting for all users or potential users a
direct interference with the right guaranteed by Article 8. There is therefore a greater
need for scrutiny by the Court, and an exception to the rule denying individuals the
right to challenge a law in abstracto is justified. In such cases the individual does not
need to demonstrate the existence of any risk that secret surveillance measures were
applied to him.
By contrast, if the national system provides for effective remedies, a widespread
suspicion of abuse is more difficult to justify. In such cases, the individual may claim
to be a victim of a violation occasioned by the mere existence of secret measures or of
legislation permitting secret measures only if he is able to show that, due to his
personal situation, he is potentially at risk of being subjected to such measures.”
168. Applying those criteria to the present case, the Court agrees with the
Government that the applicant does not belong to a group of persons or
entities targeted by the Swedish signal intelligence legislation and measures.
Indeed, the applicant has not made such a claim.
169. It must be seen, therefore, whether, as alleged by the applicant,
the impugned legislation institutes a system of secret surveillance that
potentially affects all persons communicating over the telephone or using
the internet.
170. In this regard, it is clear that communications or communications
data of any person or entity in Sweden may happen to be transmitted via
intercepted communications bearers and may thus be subject to at least the
initial stages of automatic processing by the FRA under the contested
legislation.
171. The Government’s arguments that signals intelligence is restricted
to foreign threats and circumstances and that therefore there is virtually no
risk of the applicant’s communications being retained for further scrutiny
beyond the automatic processing stage in bulk interception are relevant in
the assessment of the intensity and proportionality of the interference with
Article 8 rights, including the safeguards built into the impugned signals
interception regime, but are not decisive with regard to the applicant’s
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