Hemlig dataavläsning och Europakonventionen : Den svenska lagen om hemlig dataavläsning i förhållande till rätten till privatlivenligt artikel 8 Europakonventionen

Sammanfattning: Article 8 of the European Convention on Human Rights prescribes that everyone has the right to respect for his or her private life. A restriction of this right presupposes that the law of the Contracting State achieves certain requirements which include the need for the restrictive measure to be necessary in a democratic society. This thesis examines the case law of the European Court of Human Rights regarding secret surveillance. The thesis concludes that the European Court has established further requirements regarding these particularly intrusive measures, which consist of various minimum safeguards concerning the substantive national law. Sweden introduced a new method of secret surveillance, hemlig dataavläsning, in April 2020. This new covert surveillance measure enables the authorities to breach the systems of different types of technical equipment, to retrieve stored personal information within. The main purpose of this thesis is to analyse and determine if the Swedish law of secret data interception meets the requirement set out in the case law. The thesis concludes that the Swedish law does not meet all the requirements set out by the European Court of Human Rights. The Swedish law does not with sufficient clarity define the offences which justifies the application of the covert surveillance. The law also prescribes an authorization procedure which lack sufficient safeguards regarding the independence of the decision-making authority. Furthermore, the law does not regulate the technology and methods used for the action, and there is no legal requirement for the national court to take these into account in its decision-making. Lastly, the Swedish legislation stipulates that the individual does not need to be notified about the surveillance if there is any confidentiality regarding the information about the surveillance one year after the preliminary investigation. In these cases, the supervisory authority must safeguard the interests of the individual, which due to the lack of legally binding decisions, are not sufficient. Finally, the thesis outlines various solutions to address these problems, which consist of inter alia: that the Swedish law should set higher requirements for the severity of crimes that can justify the use of the secret coercive measure; the removal of the interim decisions of prosecutors; a legal requirement that the court in its assessment must consider and decide on the technology used to execute the surveillance; and lastly, a legal requirement that the individual should be notified about the surveillance as soon as this is possible, or alternatively, an increase of power to the supervisory authority.