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Raising individuals’ awareness
Surveillance measures are characterised by secrecy. This
is a key impediment to seeking a remedy. Surveillance
must be in accordance with the law. However, in such
a confidential context, the legality of a measure is
not sufficient to ensure individuals’ awareness of
a potential breach. Several rights, though, may enable
individuals to access information, and, where relevant,
challenge wrongdoings or unlawful surveillance
by intelligence services.
Fieldwork interviews addressed the reasons individuals
have for lodging complaints. Respondents’ comments
mostly related to the implementation of the obligation
to inform and the right of access. As one respondent
from a national human rights institution put it: ‘What
will be the point of an individual lodging a complaint if
she or he can base their arguments only on rumours?’
Clear views on the issues did not emerge from the
fieldwork. A variety of opinions and understandings
were expressed. These are not particularly specific or
well-elaborated, and include contradictory views among
respondents from the same Member State. For example,
some respondents considered notification or access to
information to be a main prerequisite for learning about
being subject to surveillance; others considered the
provision as a dead letter in the legal framework; while
others saw non-application to be problematic. In terms
of the duty to notify, taking into account the different
practices in the implementation of this obligation and
the lack of systematic application in practice, this issue
remains unclear, open to interpretation in terms of how
to deal with it (‘grey area’), not widely discussed in
terms of its application, and sometimes questioned if
necessary at all in the national legal framework. On the
other hand, the limited information collected during the
fieldwork shows that notifying individuals that they had
been under surveillance has no significant impact on
the abuse of complaint procedures.
Access to information and notification
obligations
“The legislation should emphasize that transparency and
access to information are fundamental principles of democracy and that classification of information must be
used sparingly. The criteria for classification should indicate a sufficient degree of harm and certainty to warrant
non-disclosure. The legislation should enable a person
charged with unlawful disclosure of classified information to raise a public interest defence. The executive
should be obliged to promote and facilitate public access
to state-held information, including information on the
intelligence services.”
Born H. and Wills A., (2012), p. 64
“The overall legal framework concerning surveillance of
all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance,
and using, sharing, storing, and destroying intercepted
material, should be accessible to the public. The public
should also have access to information about entities authorized to conduct surveillance, and statistics about the
use of such surveillance. In addition, the public should be
fully informed of the fact of any illegal surveillance. Information about such surveillance should be disclosed to the
maximum extent without violating the privacy rights of
those who were subject to surveillance. These Principles
address the right of the public to access information and
are without prejudice to the additional substantive and
procedural rights of individuals who have been, or believe that they may have been, subject to surveillance.”
The Tshwane Principles, Principle 10 E
“Experience shows, however, that in the majority of
notifications the persons concerned do not bring legal
action.” (Expert body)
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