CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
270. Each stage of the bulk interception process – including the initial
authorisation and any subsequent renewals, the selection of bearers, the
choice and application of selectors and query terms, and the use, storage,
onward transmission and deletion of the intercept material – should also be
subject to supervision by an independent authority and that supervision
should be sufficiently robust to keep the “interference” to what is
“necessary in a democratic society” (see Roman Zakharov, cited above,
§ 232; see also Klass and Others, cited above, §§ 49, 50 and 59; Weber and
Saravia, cited above, § 106; and Kennedy, cited above, §§ 153 and 154). In
particular, the supervising body should be in a position to assess the
necessity and proportionality of the action being taken, having due regard to
the corresponding level of intrusion into the Convention rights of the
persons likely to be affected. In order to facilitate this supervision, detailed
records should be kept by the intelligence services at each stage of the
process.
271. Finally, an effective remedy should be available to anyone who
suspects that his or her communications have been intercepted by the
intelligence services, either to challenge the lawfulness of the suspected
interception or the Convention compliance of the interception regime. In the
targeted interception context, the Court has repeatedly found the subsequent
notification of surveillance measures to be a relevant factor in assessing the
effectiveness of remedies before the courts and hence the existence of
effective safeguards against the abuse of surveillance powers. However, it
has acknowledged that notification is not necessary if the system of
domestic remedies permits any person who suspects that his or her
communications are being or have been intercepted to apply to the courts; in
other words, where the courts’ jurisdiction does not depend on notification
to the interception subject that there has been an interception of his or her
communications (see Roman Zakharov, cited above, § 234; and Kennedy,
cited above, § 167).
272. The Court considers that a remedy which does not depend on
notification to the interception subject could also be an effective remedy in
the context of bulk interception; in fact, depending on the circumstances it
may even offer better guarantees of a proper procedure than a system based
on notification. Regardless of whether material was acquired through
targeted or bulk interception, the existence of a national security exception
could deprive a notification requirement of any real practical effect. The
likelihood of a notification requirement having little or no practical effect
will be more acute in the bulk interception context, since such surveillance
may be used for the purposes of foreign intelligence gathering and will, for
the most part, target the communications of persons outside the State’s
territorial jurisdiction. Therefore, even if the identity of a target is known,
the authorities may not be aware of his or her location.