CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
of law” requirement and the interference could be considered as being
“necessary in a democratic society”. Furthermore, the structure and
operation of the system were proportionate to the aim sought to be achieved.
The Chamber pointed out, however, that its examination had been made in
abstracto and did not preclude a review of the State’s liability under the
Convention where, for example, the applicant has been made aware of an
actual interception (see paragraphs 179-81 of the Chamber judgment).
2. The parties’ submissions
(a) The applicant
(i) The applicant’s view on the standard to be applied
182. According to the applicant, bulk interception regimes are inherently
incompatible with the Convention. In Klass and Others v. Germany
(6 September 1978, § 51, Series A no. 28) and Association “21 December
1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 174-75,
24 May 2011), the Court had considered “exploratory” or “general
surveillance” as problematic. As regards untargeted interception, solely
regimes far more confined in scope than the Swedish regime had been found
to be compatible with the Convention. Seeing that FRA could gain access to
virtually all cable-based communisations crossing the Swedish border, the
amount of intimate, private and privileged data that could be surveyed under
the Swedish signals intelligence regime was far greater. Therefore, the
applicant considered that only targeted and smaller-scale untargeted
interception regimes could fall within the State’s margin of appreciation.
Any other approach risked leading to inconsistent case-law having regard to
the Court’s approach to other Convention issues, such as blanket retention
of fingerprints and DNA profiles, dealt with in S. and Marper v. the United
Kingdom ([GC], nos. 30562/04 and 30566/04, § 115, ECHR 2008).
183. If the Court considered that bulk interception activities may be
justified under the Convention, the applicant submitted that robust
minimum safeguards were imperative. The factors outlined in Roman
Zakharov (cited above, § 238) could serve as an initial framework, but
untargeted surveillance entailed elevated privacy risks and required these
standards to be adapted.
184. In particular, the main elements of the regime should be set out in
sufficient detail in statute law. That would ensure that it is the representative
of the people who strike the balance between the competing interests.
185. As regards prior authorisation, while it accepted that the body
entrusted with this task in Sweden is a judicial one, the applicant invited the
Court to move one step further in its case-law and hold that prior
authorisation must always be judicial.