CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
where material not containing personal data may be kept forever and used
for purposes incompatible with the original purpose of collection.
198. The applicant criticised the following features of the existing
supervision system. First, while the Inspectorate may decide that an
operation shall cease or that the collected intelligence must be destroyed if it
finds incompatibility with a warrant granted by the Foreign Intelligence
Court, it does not have the power to issue binding decisions where the
warrant is deemed unlawful. The Inspectorate cannot grant compensation or
seek the liability of those responsible for breaches. Second, neither the Data
Protection Authority, nor the Chancellor of Justice or the Ombudsmen may
issue legally binding decisions. The Data Protection Authority may only
apply to the Administrative Court in Stockholm to have illegally processed
data destroyed. Furthermore, none of the complaints that have been
submitted to the Chancellor and the Ombudsmen in relation to the FRA’s
activities has been successful. Those bodies are not specialised in the FRA’s
activities and do not possess the knowledge and capacity to supervise them
effectively.
199. The applicant made the following submissions as regards the
remedies available under the impugned Swedish regime.
First, in its view the notification provided for under section 11(a) of the
Signals Intelligence Act only concerns natural persons, not organisations,
and may be disapplied if required for reasons of secrecy, which has
happened invariably in practice. This remedy was therefore “theoretical and
illusory”. The possibility to request the FRA to inform an individual
whether personal data concerning him or her had been processed was also
subject to the secrecy rule and the Administrative Court that examines
ensuing appeals would not have access to secret documents and would be
unable to review the FRA’s assessment on whether secrecy applies. This
remedy too is unavailable to legal persons as the applicant.
Second, the applicant referred to powers of the IPT in the United
Kingdom to hear complaints of unlawful interception without the need for
the complainant to prove that they had been subject to surveillance. The
IPT, an independent judicial body, had access to secret documents, could
take binding decisions and award compensation. Its decisions were
published. The applicant submitted that a similar remedy was lacking in
Sweden.
Third, as regards the possibility under Swedish law to ask the
Inspectorate to investigate whether an individual’s communications have
been intercepted, the applicant noted that the Inspectorate did not inform the
individual concerned of its findings and only sent standardised replies that
no unlawful surveillance had taken pace. The applicant reiterated their view
that the Inspectorate had no power to control compliance with the law and
the Constitution and could not order the payment of compensation.
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