Surveillance by intelligence services – Volume II: field perspectives and legal update
KEY FINDINGS
Remedial avenues
nn FRA’s research shows that, in the context of surveillance, individuals’ right to seek remedy is limited but not
absent. A limited number of individuals seek remedies. On average, according to the experts interviewed, 10
to 20 complaints are filed a year.
nn Non-judicial remedies are more accessible to individuals than judicial mechanisms. The procedural rules are
less strict, and proceedings are faster and cheaper. Three EU Member States do not provide individuals with
the possibility to lodge a complaint related to surveillance with non-judicial bodies. In ten of the 25 EU Member States that do provide that possibility, one single non-judicial body is entrusted with remedial powers,
and in the remaining 15, individuals may lodge a complaint with two or more bodies with remedial powers.
nn In 10 of the 16 Member States that have expert bodies, these bodies have the most powers to offer an
effective remedy. They are also independent and enjoy full access to classified information and premises.
nn Remedial bodies’ effectiveness depends foremost on their binding decision making powers. In 18 Member
States, remedial bodies can issue binding decisions. Most of them are expert bodies and data protection
authorities.
nn The effectiveness of remedies available to individuals has been questioned – predominantly by representatives from civil society organisations, lawyers and academia. Various factors hamper their effectiveness,
including low levels of awareness about the existence of remedies and non-implementation of the right to
access information and/or the notification obligation.
Limits to effective remedies
nn FRA’s findings show that EU Member States’ laws limit individuals’ rights to notification and access to information on various grounds linked to national security. Imposing limitations is in line with relevant ECtHR case
law.
nn In nine Member States, individuals may exercise the right to access their own data indirectly – through the
DPAs who have competences in this area or through expert bodies.
nn EU Member States address the judiciary’s lack of expertise in secrecy and technical matters relating to intelligence services’ work in various ways, including:
- the development of alternative adversarial procedures to allow for the use of classified information;
- cooperation mechanisms between remedial expert bodies to tackle the lack of expertise of judicial and
non-judicial bodies; and
- the establishment of quasi-judicial bodies.
nn In four Member States, an expert body’s decision or preliminary assessment can be appealed before a judge.
Arrangements on access to sensitive information are then prescribed by law.
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