12
The remedial route
UN good practice on complaints and
effective remedy
Practice 9. Any individual who believes that her or his
rights have been infringed by an intelligence service
can bring a complaint to a court or oversight institution,
such as an ombudsman, human rights commissioner or
national human rights institution. Individuals affected by
the illegal actions of an intelligence service have recourse
to an institution that can provide an effective remedy,
including full reparation for the harm suffered.
The 2015 FRA report recalled that the right to an effective
remedy is an essential component of access to justice,
and allows individuals to seek redress for violations of
their rights. For a remedy to be ‘effective’ in practice
and in law, judicial or non-judicial bodies need to have
a number of specific powers (both from institutional
and procedural perspectives)471 offering individuals
proper redress. In Roman Zakharov v. Russia, the ECtHR
outlined the elements of an effective remedy and noted
the challenges posed specifically by secret surveillance.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin Scheinin
ECtHR case law: effective remedy in cases of surveillance
“Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is
first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature
and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be
effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that
the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights.
In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if
the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. In a field where abuse is potentially
so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle
desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure […] As regards the third stage, after the surveillance has been terminated, the question of
subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts
and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope
for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her
knowledge and thus able to challenge their legality retrospectively or, in the alternative, unless any person who suspects
that his or her communications are being or have been intercepted can apply to courts, so that the courts’ jurisdiction does
not depend on notification to the interception subject that there has been an interception of his communications. […] [E]
ffectiveness [of remedies] is therefore undermined by the absence of a requirement to notify the subject of interception at
any point, or an adequate possibility to request and obtain information about interceptions from the authorities. ”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 4 December 2015, paras. 233, 234 and 298
471 Gajdošová, J., in Dietrich/Sule (eds), forthcoming.
111