Surveillance by intelligence services – Volume II: field perspectives and legal update
Figure 9: Implementing effective remedies: challenges and solutions
Awareness
challenge
Enabling rights
Remedies
challenges
Freedom of
Information
Mechanisms
Alternative
access
mechanisms
Complaint
Right to access
Judicial/
Nonjudicial
bodies
Access to classified
information
Expertise
and/or
Non-judicial and
quasi-judicial
expert bodies
FRA, 2017
12.1. Investigative and
decisional powers
Non-judicial avenues generally offer greater expertise
than judicial mechanisms. However, non-judicial and
quasi-judicial bodies lack effectiveness if they do not
have full investigative and decisional powers. These
include, but are not limited to, the competence to issue
binding decisions, to access all relevant data (including
through hearings or visits to intelligence services’
premises), to inform complainants about decisions
and for individuals to appeal the final decision. Table 7
shows the powers attributed to non-judicial bodies in
EU Member States.
Expert bodies have the widest powers. In 22 Member
States, at least one non-judicial body has full access
to the data collected. In 11 Member States, nonjudicial bodies inform complainants that a control
was performed – without specifying the outcome.
Such competence is mainly granted to expert bodies
including DPAs. Across the EU, only in a few cases can
decisions of non-judicial bodies be reviewed by a judge
(for instance, following an oversight body decision in
Austria and France).
Effectiveness depends on capacity to issue
binding decisions
“Equipping complaint-handling bodies with mere powers
of recommendation is insufficient and does not constitute
an ‘effective remedy’. Instead, these bodies should be
given quasi-judicial remedy powers, such as the power to
award financial compensation.”
Born, H. and Wills, A. (2012), p. 195
The authority to issue binding decisions is a key
element of an effective remedy. Binding decisions
should include, at minimum, the ability to order (1) the
termination of the surveillance, (2) the destruction of
the data collected, and (3) the payment of appropriate
compensation. 474 In 18 Member States, remedial
bodies – mainly expert bodies and DPAs – may issue
binding decisions on complaints relating to surveillance.
In Belgium, for instance, the Standing Committee I may
order intelligence services to terminate surveillance and
destroy the data. In the Netherlands, the complaints
sub-committee of the CTIVD may decide that an
investigation by the services has to stop; that the exercise
of a power by the intelligence services has to stop;
474 Born, H., and Leigh, I. (2005), p. 120.
114
Binding
Published
Notification
Source:
Investigatory
powers
Decision