CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
273. The powers and procedural guarantees an authority possesses are
relevant in determining whether a remedy is effective. Therefore, in the
absence of a notification requirement it is imperative that the remedy should
be before a body which, while not necessarily judicial, is independent of the
executive and ensures the fairness of the proceedings, offering, insofar as
possible, an adversarial process. The decisions of such authority shall be
reasoned and legally binding with regard, inter alia, to the cessation of
unlawful interception and the destruction of unlawfully obtained and/or
stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and
Others v. Sweden, no. 62332/00, § 120, ECHR 2006-VII and also Leander,
cited above, §§ 81-83 where the lack of power to render a legally binding
decision constituted a main weakness in the control offered).
274. In the light of the above, the Court will determine whether a bulk
interception regime is Convention compliant by conducting a global
assessment of the operation of the regime. Such assessment will focus
primarily on whether the domestic legal framework contains sufficient
guarantees against abuse, and whether the process is subject to “end-to-end
safeguards” (see paragraph 264 above). In doing so, it will have regard to
the actual operation of the system of interception, including the checks and
balances on the exercise of power, and the existence or absence of any
evidence of actual abuse (see Association for European Integration and
Human Rights and Ekimdzhiev, cited above, § 92).
275. In assessing whether the respondent State acted within its margin of
appreciation (see paragraph 256 above), the Court would need to take
account of a wider range of criteria than the six Weber safeguards. More
specifically, in addressing jointly “in accordance with the law” and
“necessity” as is the established approach in this area (see Roman Zakharov,
cited above, § 236; and Kennedy, cited above, § 155), the Court will
examine whether the domestic legal framework clearly defined:
1. The grounds on which bulk interception may be authorised;
2. The circumstances in which an individual’s communications may be
intercepted;
3. The procedure to be followed for granting authorisation;
4. The procedures to be followed for selecting, examining and using
intercept material;
5. The precautions to be taken when communicating the material to
other parties;
6. The limits on the duration of interception, the storage of intercept
material and the circumstances in which such material must be
erased and destroyed;
7. The procedures and modalities for supervision by an independent
authority of compliance with the above safeguards and its powers to
address non-compliance;
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