CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
alternative or combination of alternatives would be sufficient to substitute
for the bulk interception power.
366. The Court further reiterates that it is not its role to prescribe an ideal
model for signals intelligence but rather to review for Convention
compliance the existing legal and practical arrangements, which vary
conceptually and functionally from one Contracting Party to another. In this
exercise, the Swedish signals intelligence model and its safeguards against
abuse must be seen as one whole.
367. The review of the Swedish bulk interception system in the present
case has revealed that it is based on detailed legal rules, is clearly delimited
in scope and provides for safeguards. The grounds upon which bulk
interception can be authorised in Sweden are clearly circumscribed, the
circumstances in which communications might be intercepted and examined
are set out with sufficient clarity, its duration is legally regulated and
controlled and the procedures for selecting, examining and using intercepted
material are accompanied by adequate safeguards against abuse. The same
protections apply equally to the content of intercepted communications and
communications data.
368. Crucially, the judicial pre-authorisation procedure as it exists in
Sweden and the supervision exercised by an independent body in Sweden
serve in principle to ensure the application of the domestic legal
requirements and the Convention standards in practice and to limit the risk
of disproportionate consequences affecting Article 8 rights. Notably, regard
must be had to the fact that in Sweden the limits to be observed in each bulk
interception mission, as well as its lawfulness and proportionality in
general, are the subject matter of judicial pre-authorisation proceedings
before the Foreign Intelligence Court, which sits in the presence of a
privacy protection representative defending the public interest.
369. The Court noted three shortcomings in the Swedish bulk
interception regime: the absence of a clear rule on destroying intercepted
material which does not contain personal data (see paragraph 342 above);
the absence of a requirement in the Signals Intelligence Act or other
relevant legislation that, when making a decision to transmit intelligence
material to foreign partners, consideration is given to the privacy interests of
individuals (see paragraphs 326-330 above); and the absence of an effective
ex post facto review (see paragraphs 359-364 above).
370. As regards the first of these shortcomings, its potential for causing
adverse consequences on Article 8 rights is limited by the fact that Swedish
law provides for clear rules on the destruction of intercept material in a
number of circumstances and, above all, when it contains personal data.
371. However, the Court considers that the second shortcoming may
potentially lead to very significant adverse consequences for affected
individuals or organisations. As noted, the above-mentioned shortcoming
may allow information seriously compromising privacy rights or the right to