Surveillance by intelligence services – Volume II: field perspectives and legal update
10.3. Exceptional situations
and special protection
Two circumstances need to be considered separately
because they derogate from the general framework
of ordering and overseeing surveillance operations.
These involve urgent operations, and surveillance
of specific professional groups that benefit
from enhanced protection.
Exceptional situations
ECtHR case law: safeguards for the use of
urgent procedures
“[W]here situations of extreme urgency are concerned,
the law contains a provision under which the director of
the service may himself authorise secret surveillance
measures for a maximum of 72 hours […]. For the Court,
this exceptional power should be sufficient to address
any situations in which external, judicial control would
run the risk of losing precious time. Such measures must
however be subject to a post factum review, which is
required, as a rule, in cases where the surveillance was
authorised ex ante by a non-judicial authority.”
ECtHR, Szabo and Vissy v. Hungary, No. 37138/14, 12 January 2016, para. 81
“[T]he Russian ‘urgent procedure’ does not provide for
sufficient safeguards to ensure that it is used sparingly
and only in duly justified cases. […] The domestic law
does not limit the use of the urgency procedure to cases
involving an immediate serious danger to national, military, economic or ecological security. It leaves the authorities an unlimited degree of discretion in determining
in which situations it is justified to use the non-judicial
urgent procedure, thereby creating possibilities for abusive recourse to it […]. Furthermore, although Russian law
requires that a judge be immediately informed of each
instance of urgent interception, his or her power is limited
to authorising the extension of the interception measure beyond forty-eight hours. He or she has no power
to assess whether the use of the urgent procedure was
justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed […]. Russian law does therefore not provide for
an effective judicial review of the urgency procedure.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 266
Member States’ laws define cases of urgency as cases
where undertaking the usual authorisation/approval
procedures might irreversibly affect or undermine
the purpose of the measures. This can occur because
standard approval processes may take days. In urgent
cases, safeguards are adapted to the extraordinary
circumstances at issue, usually by way of a special
ex ante approval procedure or via ex post approval.
For example, Belgium provides for special ex ante
approval in cases of “extreme urgency”. In such cases,
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the head of the service may, with the approval of the
Administrative Commission’s president, authorise
exceptional surveillance measures for up to 48 hours.
The authorisation has to justify the use of the urgent
procedure and has to be communicated to the members
of the commission immediately.393
Examples of ex post approval can be found in France
and the United Kingdom. In France, in case of “absolute
emergency”, the prime minister may authorise
surveillance measures without the CNCTR’s opinion. The
prime minister is required to inform the CNCTR within
24 hours of giving the authorisation and justify the
use of the urgent procedure.394 Recourse to the urgent
procedure was made only once between October 2015
and October 2016.395 In the United Kingdom, in urgent
cases, the Investigatory Powers Act foresees that
a warrant can be issued for targeted interception and
equipment interference as well as for bulk equipment
interference and specific bulk personal datasets without
the Judicial Commissioner’s prior approval.396 The Judicial
Commissioner has to be notified and has three working
days after the day the warrant was issued to decide
whether or not they approve the warrant, and notify the
authorising person. If the Judicial Commissioner refuses
to approve then warrant, the implementing authority
must, “so far as is reasonably practicable, secure that
anything in the process of being done under the warrant
stops as soon as possible”.397 In addition, the Judicial
Commissioner may decide to request the destruction
of any material collected or impose conditions on its
use or retention.398
Similarly, in Germany, a reform of the G 10 Law aligned the
approval procedures in cases of emergency. While the
competent federal ministry can provisionally approve
393 Belgium, Organic Law of 30 November 1998 on intelligence
and security services (Loi organique du 30 Novembre 1998
des services de renseignement et de sécurité),
30 November 1998, as amended, Art. 18 (10)(4).
394 France, Interior Security Code, Art. L. 821-5. The urgent
procedure cannot be used when the services wish to use
the so-called algorithm: France, Interior Security Code,
Art. L. 851-3 V.
395 France, CNCTR (2016), p. 56.
396 United Kingdom, Investigatory Powers Act 2016, ss. 24
and 109 for targeted interception and examination, and
equipment interference warrants respectively. S. 180 for
bulk equipment interference, s. 209 for bulk personal
datasets. Ss. 24, 109, 180, and 209 were not into force at
the time of writing and will be brought into force in due
course by means of regulations made by the Secretary of
State (See United Kingdom, Investigatory Powers Act 2016,
Explanatory Note).
397 Ibid. ss. 25 (2); 110 (2); 181 (2); 210 (2) respectively. Ss. 25,
110, 181 and 210 were not into force at the time of writing
and will be brought into force in due course by means of
regulations made by the Secretary of State (See United
Kingdom, Investigatory Powers Act 2016, Explanatory Note).
398 Ibid. s. 25 (3). Not yet into force and will be brought into
force in due course by means of regulations made by the
Secretary of State (See United Kingdom, Investigatory
Powers Act 2016, Explanatory Note).