The remedial route
Figure 10: DPAs’ remedial competences over intelligence services
DPAs with limited powers and
limited remedial competence
(indirect access right)
BE DE FR IE
DPAs with limited powers
but full remedial competence
CY EL IT
DPAs with same
powers including full
remedial competence
AT BG FI HR HU SE SI
Source:
FRA, 2017
In Belgium, France and Italy, individuals can request
the DPA to check whether their data are processed
by intelligence services. The DPA proceeds with the
necessary check, informs the individual that the
control took place but not whether and which data
were processed, if such information would affect
national security. Should any irregularities be noted,
the DPA can request the intelligence service to
redress the situation.476
Finally, in eight Member States – Bulgaria, Croatia,
Germany, Hungary, Lithuania, Romania, Slovakia and
Slovenia – parliamentary committees function as
complaints-handling bodies in cases of surveillance.
Only in Romania can the parliamentary committee
resolve complaints through binding decisions. In
Germany, the complaint forms part of a petition to
parliament. 477 Over a two-year reporting period, the
PKGr received 65 petitions, 40 of which dealt with
alleged surveillance measures. 478 The more serious
476 See for example Italy, Data Protection Code, Art. 160(2).
477 Huber, B., in: Schenke, W. et al. (eds.) (2014), p. 1485 and
Singer, J. (2016), p. 145.
478 Germany, Federal Parliament (Deutscher Bundestag) (2016a),
p. 13.
ones were forwarded to the G 10 Commission. These
complaints, in fact, serve to inform the PKGr.479
The extent to which parliamentary committees can
provide an effective remedy depends on a number of
factors. These include whether members of these special
parliamentary committees are properly independent,
have experience in the field of intelligence, as well as
whether qualified supporting staff is available. 480 In
Bucur and Toma v. Romania,481 the ECtHR highlighted that
a lack of independence can preclude the effectiveness
of remedies. According to the Committee of Ministers
of the Council of Europe, the situation in Romania has
479 Bartodziej, P., in: Dietrich, J.-H. and Eiffler, S. (eds) (2017),
p. 1561.
480 Romania, Decision no. 30/1993 of the Romanian Parliament
concerning the Organization and Functioning of the Joint
Permanent Commission of the Senate and the Chamber of
Deputies for the Exercise of Parliamentary Control over the
Activity of the Romanian Intelligence Service, 23 June 1993,
Art. 5 (b) and (c), and Romania, Decision no. 44/1998 of
the Romanian Parliament concerning the Organization
and Functioning of the Joint Permanent Commission of
the Senate and the Chamber of Deputies for the Exercise
of Parliamentary Control over the activity of the External
Intelligence Service, 28 October 1998, Art. 6 (e) and (f).
481 ECtHR, Bucur and Toma v. Romania, No. 40238/02,
8 January 2013, para. 98.
117