Surveillance by intelligence services – Volume II: field perspectives and legal update
not evolved since 2013, when the case was decided.482
In Bulgaria and Romania, the parliamentary committee
can investigate complaints; both must forward their
positions, either to the relevant ministry (in Romania)
or the public prosecutor (in Bulgaria).483
numbers per year, their outcomes and other specific
details, if this information was available for discussion.
For example, the average number of complaints received
was discussed during approximately one third of the
interviews. The content of the complaints is confidential.
Individuals may lodge complaints relating to surveillance
with their national ombuds institutions in 11 Member
States; however, their mandate may explicitly exclude
the issue of national security or the work of intelligence
services. Only the Finnish Data Protection Ombuds
institution is entitled to issue binding decisions, and
only one Member State – Estonia – provides the ombuds
institution with remedial powers via the relevant
intelligence law. 484 Most ombuds institutions are
denied access to classified information and often lack
expertise in this field.485 Consequently, in some Member
States – such as Belgium – the ombuds institution will
forward the question to the expert body. In Germany,
the ombuds institution works in cooperation with
the parliamentary oversight committee: its role
is to assess the validity of the complaints before
transmitting them to the parliamentary committee.
Thus, the ombuds institutions’ powers can be limited
in this area. Complaints are typically concluded
with non-binding recommendations that aim to put
matters right and guide future action, rather than with
binding, enforceable decisions.
“Very few citizens’ complaints relate to intelligence work,
and this is for two reasons: the real ‘bad guys’ don’t attach
any importance to it, or if the work is done well, they don’t
know about it.” (Expert body)
The FRA 2015 report highlighted the importance of
remedial bodies’ adherence to general requirements of
fairness, impartiality and independence.486 In Hungary,
for example, ‘oversight’ and complaints-handling
functions relating to ‘extraordinary measures’ (such
as the surveillance of telecommunications) are both
performed by one executive institution: the government
and its different ministries.487
12.2. Processing of complaints
Representatives from the institutions with remedial
powers were asked specific questions about complaints
received in the preceding three years, including the
482 Council of Europe, Department for the Execution of
Judgments of the ECtHR (2016), Case of Bucur and
Toma v. Romania, H/Exec(2016)6, 20 October 2016, para. 25.
483 Hungary, Act CXXV of 1995 on the National Security
Services (A nemzetbiztonsági szolgálatokról szóló 1995.
Évi CXXV. törvény), 28 December 1995, as amended,
Section 14 (4).
484 Estonia, Chancellor of Justice Act (Õiguskantsleri seadus),
Art. 1(9).
485 FRA (2014c), p. 34.
486 FRA (2015a), pp. 70-72.
487 Hungary, Governmental Decree No. 185/2016 on the
cooperation between the service providers providing
encrypted communications and the authorities entitled to
conduct secret surveillance operations, 185/2016 (VII. 13.),
17 July 2016.
118
Respondents referred to ‘very rare cases’ or very low
numbers of complaints from individuals regarding
allegedly unlawful activities by intelligence services.
The average across different institutions in the selected
Member States ranges from 10 to 20 complaints per year,
with certain rare deviations in some Member States in
relation to specific occurrences, such as the Snowden
revelations, cases that became publicly-known due
to disclosure by the media, or in response to terrorist
attacks. In some cases, the number of complaints
received is not publicly available and is confidential –
for example, in Italy, the DPA does not publish the
number of the complaints; this information can only
be communicated to the parliamentary committee
COPASIR. Some respondents said they never received
any complaints and have no practical experience
in handling complaints (or usually receive very few
complaints per year). A few respondents expressed
concern about abuses of complaint procedures – for
example, a DPA noting that ‘[T]here are people who
exercise this right creatively’. However, the relatively
low numbers can hardly qualify as abuse. On the
other hand, no complaints being received may raise
questions regarding the effectiveness and quality of
the working system.
“Three or four appeals can reasonably be expected per year,
which will not be enough to establish precedents.”
(Expert body)
In terms of meeting the admissibility criteria (formal
requirements) of complaints, the ratio between
well-founded and ill-founded complaints differs per
Member State and per type of institution presented.
The interviews suggest there is a general tendency
of complaints from individuals being ill-founded more
often than being well-founded. No details or specific
examples were disclosed during the interviews and
very limited information was provided about the
content of the complaints. The respondents described
complaints as the ‘usual’, but acknowledged that
these can be complex. They insisted that complaints
are treated seriously, stating that investigating them
requires expertise and access to the sources of
the intelligence services.