CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
against abuse. In the applicant’s view, the arrangements described above
cannot constitute a practice compatible with the Convention as they allow to
simply outsource otherwise unlawful activities without appropriate limits
safeguarding fundamental rights.
(b) The Government
202. The Government submitted that the purpose of signals intelligence
was to obtain information and identify phenomena of relevance for foreign
intelligence. Foreign intelligence was essential for Sweden’s national
security and also relevant with regard to Sweden’s positive obligations
under the Convention to protect the lives and safety of the public.
203. In the Government’s view, owing to the fact that the Court’s caselaw setting out minimum safeguards for secret surveillance measures
concerns, with the exception of the present case and Big Brother Watch,
criminal investigations, some of the minimum safeguards required by the
Court presuppose a link to a certain individual or to a certain place. This is
very different from signals intelligence, which cannot be used to investigate
criminal offences and one of the duties of the Foreign Intelligence Court is
to ensure that it is not so used. Signals intelligence as part of foreign
intelligence may in many cases target specific individuals’ communications
but the individuals are most often not of interest per se: they are only
carriers of information.
204. It was necessary, therefore, to adapt the relevant requirements,
including by reformulating some of the criteria set out in the Court’s caselaw as follows: introducing the criterion “the circumstances in which the
measures may be used” instead of “the nature of the offences” and
“categories of persons targeted”. Also, account must be taken of the fact that
national security threats are by their nature variable and difficult to define in
advance.
205. The Government strongly disagreed with the applicant who had
claimed, on the basis of Roman Zakharov (cited above) and Szabó and Vissy
v. Hungary (no. 37138/14, 12 January 2016), that the existence of a
reasonable suspicion was required at least when selectors linked to a
specific individual were used. In the Government’s view no such
requirement could be deducted from the above-cited case-law. The
Government supported the Chamber’s reasoning in paragraph 317 in Big
Brother Watch, where the Court held that the requirements of “reasonable
suspicion” and “subsequent notification” are incompatible with bulk
interception regimes.
206. The Government further asserted that bulk interception in Sweden
was regulated by a comprehensive legal regime that was based on published
legal provisions and provided for significant safeguards, including
independent supervision, covering both surveillance activities related to
communications data and to the content of communications. The law clearly
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