Surveillance by intelligence services – Volume II: field perspectives and legal update
acknowledged that these pose a problem – and that the
sensitivity of the work can discourage individuals from
seeking external expertise.
The power to issue binding decisions is also vital. While
all EU Member States have at least one independent
body in their oversight framework, some lack such
decision-making powers. The importance of public
scrutiny was also highlighted, with some interviewees
deeming insufficiently informative the reports issued
by oversight bodies. In addition, the respondents
underlined the importance of countering the
fragmentation of oversight through cooperation among
the various actors involved in the oversight process,
both nationally and internationally.
FRA’s research revealed that oversight of international
intelligence cooperation is less fully developed –
17 Member States do not require oversight of such
activity, while others limited its scope. Some Member
States have introduced safeguards specifically tailored
to international intelligence sharing, but only requiring
prior approval from the executive has been embraced
in significant numbers (27 Member States).
Towards accessible and
effective remedies
The need for secrecy in the intelligence field can affect
both the effectiveness of oversight and individuals’
abilities to seek remedies for violations. While the right
to seek remedy is not absent in the context of secret
surveillance, it is inherently limited. Interviewed experts
indicated that individual remedial bodies receive about
10 to 20 complaints a year.
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Non-judicial remedies are generally more accessible
than judicial mechanisms because they are cheaper,
faster and involve less strict procedural rules. Twentyfive Member States do allow individuals to lodge
complaints regarding surveillance with such bodies.
To be effective, remedial bodies also require certain
powers – specifically, to access classified information and
issue binding decisions. Expert bodies or data protection
authorities have such powers in most Member States.
Nonetheless, lawyers, civil society representatives and
academics consulted during FRA’s research tended to
question the effectiveness of existing remedies.
They noted that few individuals are even aware that
remedies are available. In addition, the rights to access
information on individual files and to be notified about
surveillance are not consistently implemented. Both of
these can be curtailed based on various grounds linked
to national security.
The lack of expertise in dealing with secrecy and
with technical matters is also an issue, both with
judicial and non-judicial actors. In the judicial context,
Member States have found several ways to address this
issue, including by developing alternative adversarial
procedures to allow for the use of classified information;
creating cooperation mechanisms, including with
intelligence services, to tackle the lack of expertise;
and establishing quasi-judicial bodies.
Such solutions underline that hurdles to obtaining
effective remedies can be overcome. Similarly,
establishing truly clear legal frameworks, developing
appropriate safeguards, and ensuring potent oversight
is feasible – and the best way to ensure that enhanced
security measures made possible by surveillance fully
comply with fundamental rights.