FRA opinions
Providing for a clear legal
framework
Intelligence services help protect national security.
To do this successfully, they often need to work in
secrecy. However, international and European human
rights standards require the mandate and powers of
intelligence services to be clearly defined in a legal
framework, and for this framework to establish
safeguards against arbitrary action to counterbalance
secrecy. The European Court of Human Rights (ECtHR)
has held that national legal frameworks must be clear,
accessible and foreseeable. It obliges Member States to
enshrine minimum safeguards in law, such as specifying
the nature of offences that may lead to interception
orders and defining the categories of people who
may be put under surveillance. FRA’s fieldwork shows
that surveillance legislation is considered complex
and that a clearer legal framework with meaningful
definitions is needed.
FRA opinion 1
EU Member States should have clear, specific and
comprehensive intelligence laws. National legal
frameworks should be as detailed as possible
on intelligence services’ mandates and powers,
and on the surveillance measures they can use.
Fundamental rights safeguards should feature
prominently in intelligence laws, with privacy and
data protection guarantees for collecting, retaining,
disseminating and accessing data.
Ensuring broad consultation
and openness during the
legislative process
The preparation of intelligence legislation should
involve an open debate among key stakeholders. During
discussions on draft intelligence laws, governments
should take the time to clarify the needs of intelligence
services and to explain which fundamental rights
guarantees the bill has established. FRA data show
that most EU Member States have reformed their
intelligence and counter-terrorism legislation in
recent years. Some of these legislative processes
unfolded during FRA’s fieldwork. The interviewed
experts emphasised the need for a broader inclusion
of key actors and stakeholders in the development of
intelligence legislation. In some Member States, online
public consultations and lively parliamentary discussions
are taking place instead of new legislation being
fast-tracked. FRA’s Fundamental Rights Report 2017
underlined the need for such an approach.
FRA opinion 2
EU Member States should undertake broad public
consultations with a full range of stakeholders,
ensure transparency of the legislative process, and
incorporate relevant international and European
standards and safeguards when introducing reforms
to their legislation on surveillance.
Providing independent
intelligence oversight with
sufficient powers and
competences
Setting up a strong oversight mechanism is an essential
part of an intelligence accountability system. The
oversight framework should reflect the powers of
the intelligence services. European Court of Human
Rights case law provides that oversight bodies should
be independent and have adequate powers and
competences. FRA’s research findings show that all
EU Member States have at least one independent body
in their oversight framework. However, the findings
also identified limits to full independence, with some
oversight bodies remaining strongly dependent on the
executive: the law does not grant them binding decisionmaking powers, they have limited staff and budget, or
their offices are located in government buildings.
FRA opinion 3
EU Member States should establish a robust
oversight framework adequate to the powers
and capacities that intelligence services have.
The independence of oversight bodies should
be enshrined in law and applied in practice.
EU Member States should grant oversight bodies
adequate financial and human resources, including
diverse and technically-qualified professionals.
Member States should also grant oversight bodies
the power to initiate their own investigations as
well as permanent, complete and direct access to
necessary information and documents for fulfilling
their mandate. Member States should ensure that
the oversight bodies’ decisions are binding.
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