The remedial route
The 2015 FRA report showed that the availability
of various remedies does not necessarily help
to ensure effectiveness.472
“The average citizen does not even know where to address
a complaint.” (Data protection authority)
The fieldwork interviews473 addressed the availability
of remedies in case of alleged unlawful data processing
by intelligence services. Two dominating opinions
emerged. Most respondents representing public
authorities or institutions (such as expert oversight,
executive control and judiciary) tended to list the
avenues available and confirm their sufficiency,
adequacy and satisfactory availability. Their existence
appears to be seen as proof of their efficiency. Very
few respondents from public authorities questioned
the effectiveness of the remedies offered. These
findings were also related to the generally low level
of knowledge among the interviewees of practical
implementation of the remedies in the Member
States, the number of complaints, and little knowledge
about their outcomes, unless the institution itself had
a remedial function.
“Yes, the avenues available for individuals to complain are
enough. Yes, I think the websites of the governments are
quite good at this, they always have a page on this, send the
letter to this address and online application for filing your
complaints.” (Expert body)
“[A] signed letter [is] enough to submit a request, with
details on what is allegedly affected, such as a mobile
number, bank account, or email account.” (Expert body)
Representatives from civil society organisations,
academia, and practicing lawyers acknowledged that it
is positive that complaints against intelligence services
do not need to be strongly substantiated for remedial
bodies to consider them. However, they tended to
be critical about available remedies and questioned
their efficiency. Notably, a majority of the interviewed
civil society representatives were lawyers who have
been involved in lodging both judicial and non-judicial
complaints, challenging the lawfulness of intelligence
surveillance on behalf of individuals. Most respondents
who were critical considered available remedies
ineffective for safeguarding the right to privacy. Some
respondents did not even consider them as remedies.
Respondents indicated that several factors make the
remedial process cumbersome or complicated. These
include: low awareness among individuals about the
possibility to seek remedies; that complaints are based
on assumptions or suspicions when the notification
requirement is not prescribed by law; and the types
of responses given by remedial bodies. Respondents
also mentioned poor capacities of remedial bodies
in terms of staff and technical expertise. Moreover,
they noted that, even though no costs are involved in
seeking remedies through non-judicial avenues, the
subject matter can be complex and complainants could
benefit from legal advice – but legal aid is not available.
“There is already an existing complaints procedure. Even
though it is not a formalised one, if you were to complain,
these complaints would have to be taken seriously.”
(Academia)
“A limited number of remedies is available for persons.
For national surveillance measures, the procedure requires
the person to file a complaint with the [expert body]
before being granted recourse to the [judge], without any
information required to be disclosed to the person on the
existence of surveillance measures.” (Civil society organisation)
“What will be the point of an individual lodging a complaint if
he can base his arguments only on rumours? ‘The direct and
personal interest’ of the law is difficult to demonstrate.”
(National human rights institution)
Figure 9 illustrates the different challenges individuals
and remedial bodies may confront when seeking, and
seeking to provide, effective remedies. For individuals,
the first issue is the lack of awareness of surveillance
measures. Various tools can help enhance individuals’
awareness: notification that they have been under
surveillance or right to access to their own data serve
as rights’ enablers and open the way to a complaint.
Remedial bodies are also confronted with several
challenges. They can be denied access to classified
information or they may lack the necessary expertise.
As analysed in the following sections, these hindrances
are addressed in various ways at Member State level.
472 FRA, (2015a), p. 59.
473 Annex 1, Section 2, Social fieldwork methodology, presents
information about the interviewees, number of interviews
during which specific thematic headlines were discussed,
quoting conventions, and other related information.
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