CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
rulings enhanced the level of scrutiny in this area. These observations lead
the Court to consider that the above-mentioned features of the Swedish
system do not offer a sufficient basis for public confidence that abuses, if
they occur, will be unveiled and remedied.
362. It is true that individuals can turn to the Parliamentary Ombudsmen
and the Chancellor of Justice, who can scrutinise the authorities’ actions for,
inter alia, lawfulness and possible encroachment upon fundamental rights
and freedoms. The Chancellor and the Ombudsmen have the power to
initiate criminal or disciplinary proceedings (see paragraphs Error!
Reference source not found.-68 above). While these are relevant
complaint mechanisms, the Court notes that they do not seem to have been
used frequently in the context of bulk interception of communications (see
above, paragraph Error! Reference source not found. in fine). In any
event, it is of the view that a legal procedure before an independent body,
which in so far as possible offers an adversarial process resulting in
reasoned and legally binding decisions, is an essential element of an
effective ex post facto review. However, these conditions were met neither
by the Chancellor not the Ombudsmen.
363. Finally, the Court agrees with the applicant that the remedy
available in the United Kingdom before the IPT (see Big Brother Watch and
Others, cited above, §§ 413-15), illustrates that it is possible to reconcile
legitimate security concerns and the need to ensure a reliable ex post facto
control of bulk interception activities.
364. In sum, the Inspectorate’s dual role and the absence of a possibility
for members of the public to obtain reasoned decisions in some form in
response to inquiries or complaints regarding bulk interception of
communications, elements that are not in line with the requirements of an
effective ex post facto review, must be seen as a shortcoming of the Swedish
regime, to be taken into account in the Court’s assessment of its
compatibility with Article 8 of the Convention. In the Court’s view, the
above-mentioned shortcoming is particularly relevant having regard to the
fact that the Court has insufficient information about the practice of the
Foreign Intelligence Court on judicial pre-authorisation of strong selectors
or categories of selectors (see paragraph 300 above) and on the manner in
which the legal requirements on destruction of intercept material are applied
in practice (see paragraph 343 above). This undoubtedly exacerbates the
uncertainty for the individuals concerned as to whether arbitrariness or
abuse concerning them might have occurred.
(10) Conclusion
365. The Court is in no doubt that bulk interception is of vital
importance to Contracting States in identifying threats to their national
security. This has been recognised, in particular, by the Venice Commission
(see paragraph 86 above). It appears that, in present-day conditions, no
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