CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
359. However, while it is true that the Inspectorate is an independent
body, the Court observes that, having regard to that body’s duty to supervise
and monitor the FRA’s activities, which includes taking or authorising
operational decisions such as those concerning access to the signal carriers,
use of selectors, analysis, use and destruction of intercept material (see
paragraphs 50-53 above), the Inspectorate’s additional role of ex post facto
review on request from individuals may lead to situations where it will have
to assess its own activities in supervising bulk interception by the FRA. In
the conditions of secrecy, which legitimately characterise the relevant
procedures, and failing a legal obligation for the Inspectorate to provide
reasons to the individual concerned, there may be doubts as to whether the
Inspectorate’s examination of individual complaints in such situations
affords adequate guarantees of objectivity and thoroughness. It cannot be
excluded that the dual role of the Inspectorate may generate conflicts of
interest and, therefore, the temptation to overlook an omission or
misconduct in order to avoid criticism or other consequences.
360. The Court does not disregard in this respect the fact that the
Inspectorate is itself subject to audits (paragraph 54 above), which could in
principle be seen as a relevant safeguard. It notes, however, that the
Government have not provided any information demonstrating that the
audits conducted so far covered the Inspectorate’s investigations undertaken
at the requests of individuals seeking information as to whether their
communications had been intercepted by the FRA. It appears that there is no
legal obligation for the National Audit Office – which is responsible for
auditing a significant number of administrative bodies in various sectors –
to conduct such specific audits and to do so regularly. In these
circumstances and having regard to the structural issue noted in the
preceding paragraph, the Court is not convinced that the potential possibility
of the National Audit Office examining the Inspectorate’s handling of
individuals’ complaints is sufficient.
361. Furthermore, in the Court’s view, a system of ex post facto review
that does not produce reasoned decisions in response to complaints
submitted by individuals, or at least decisions that contain reasons
accessible to security-cleared special counsel, is too dependent on the
initiative and perseverance of appointed officials operating away from the
public eye. With regard to the Swedish system, the Court notes that no
details are communicated to the complainant as to the content and outcome
of the investigation conducted by the Inspectorate and, hence, the
Inspectorate seems to be afforded wide discretion. A reasoned decision has
the undeniable advantage of providing publicly available guidance on the
interpretation of the applicable legal rules, the limits to be observed and the
manner in which the public interest and individual rights are to be balanced
in the specific context of bulk interception of communications. As noted by
the Court in Kennedy (cited above, § 167), the publication of such legal