CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
increasing degrees of intrusion into the Article 8 rights of individuals as the
operation moves through the stages identified in paragraph 239 above.
(iii) The approach to be followed in bulk interception cases
262. It is clear that the first two of the six “minimum safeguards” which
the Court, in the context of targeted interception, has found should be
defined clearly in domestic law in order to avoid abuses of power (that is,
the nature of offences which may give rise to an interception order and the
categories of people liable to have their communications intercepted: see
paragraph 249 above), are not readily applicable to a bulk interception
regime. Similarly, the requirement of “reasonable suspicion”, which can be
found in the Court’s case-law on targeted interception in the context of
criminal investigations is less germane in the bulk interception context, the
purpose of which is in principle preventive, rather than for the investigation
of a specific target and/or an identifiable criminal offence. Nevertheless, the
Court considers it imperative that when a State is operating such a regime,
domestic law should contain detailed rules on when the authorities may
resort to such measures. In particular, domestic law should set out with
sufficient clarity the grounds upon which bulk interception might be
authorised and the circumstances in which an individual’s communications
might be intercepted. The remaining four minimum safeguards defined by
the Court in its previous judgments — that is, that domestic law should set
out a limit on the duration of interception, the procedure to be followed for
examining, using and storing the data obtained, the precautions to be taken
when communicating the data to other parties, and the circumstances in
which intercepted data may or must be erased or destroyed — are equally
relevant to bulk interception.
263. In its case-law on targeted interception, the Court has had regard to
the arrangements for supervising and reviewing the interception regime (see
Roman Zakharov, cited above, §§ 233-34). In the context of bulk
interception the importance of supervision and review will be amplified,
because of the inherent risk of abuse and because the legitimate need for
secrecy will inevitably mean that, for reasons of national security, States
will often not be at liberty to disclose information concerning the operation
of the impugned regime.
264. Therefore, in order to minimise the risk of the bulk interception
being abused, the Court considers that the process must be subject to “endto-end safeguards”, meaning that, at the domestic level, an assessment
should be made at each stage of the process of the necessity and
proportionality of the measures being taken; that bulk interception should be
subject to independent authorisation at the outset, when the object and scope
of the bulk operation are being defined; and that the operation should be
subject to supervision and independent ex post facto review. In the Court’s
view, these are fundamental safeguards which will be the cornerstone of any