Surveillance by intelligence services – Volume II: field perspectives and legal update
all such documents and information as the Tribunal
may require for the purpose of enabling them (a) to
exercise the jurisdiction conferred on them by or under
section 65; or (b) otherwise to exercise or perform any
power or duty conferred or imposed on them by or
under this Act.” In such cases, only the judges and
security-cleared ’special advocates’ may access secret
information. Finally, the IPT may decide to hold open
inter-partes hearings for cases involving classified
information, either on the basis of agreed or assumed
facts. The practice to hold open hearings have been
increasingly used by the IPT, reaching a quarter of all
the complaints decided by the Tribunal in 2015.538
It has been the long-standing policy of the United
Kingdom government to give a NCND response to
questions about matters sensitive to national security.
The IPT recognised the legitimate purpose and value
of such a response in several cases. It held that “if
allegations of interception or surveillance are made,
but not denied, then, in the absence of the NCND policy,
it is likely to be inferred by a complainant that such acts
are taking place”,539 and that it does not interfere with
the right to privacy in cases where there is no relevant
information held on the complainant.540
Similarly, in France, the 2015 intelligence law significantly
enhanced the remedies available to individuals.541
Complainants can now bring a case before a specialised
chamber (formation spécialisée) of the Council of State,
the highest administrative court. Judges sitting on the
specialised chamber are security cleared ex officio.
The procedure requires first that either the CNCTR or
the CNIL – depending on the object of the complaint –
performs initial checks (see section on quasi-judicial
bodies). To safeguard the secrecy of the documents
handled while at the same time ensuring effective
remedies, asymmetric adversarial proceedings are
prescribed by law. The complainant, who can be
heard, does not see any confidential documents
communicated by the services or the CNCTR and/or CNIL
to the specialised chamber. The chamber sits in camera
when dealing with secret documents. If no surveillance
measure was implemented against the complainants,
the chamber informs them that no illegality was
observed after verification, without stating whether
a surveillance measure was implemented. If an illegality
is found, the complainant is informed and the chamber
annuls the authorisation of the intelligence measure and
orders the deletion of the collected data.
538
539
540
541
130
United Kingdom, IPT, (2016), p. 23.
Ibid. p. 10.
United Kingdom, IPT (2014).
France, Interior Security Code, Art. L. 841-1 and L. 841-2
as well as Administrative Justice Code, Art. L. 311-4-1 and
L. 773- to L. 773-8.
The specialised chamber of the Council of State also
applies a policy where no confirmation nor denial is
provided to the complainant, although only in cases
where no illegality has been established. In such
cases, the decision of the panel will not state whether
a surveillance technique has or has not been implemented,
nor will it assert whether the complainant is or is not
included in a database managed by intelligence services.
On the other hand, where unlawful surveillance – either
in the application of a surveillance technique or in
the processing of data – has been established by the
Council of State, it informs the complainant and requests
the annulment of the authorisation to implement
a surveillance technique or the rectification, update or
deletion of the data illegally processed. In May 2017, the
specialised chamber issued for the first time a deletion
order addressed to the Ministry of Defence, because it
illegally processed personal data.542
Some states may use additional protection by bringing
classified information as evidence through testimonies
of anonymous witnesses. This is the case in Germany,
Spain and the Netherlands. In the Netherlands, the Act
on Shielded Witnesses allows members of the security
services to disclose anonymously classified information
during a specific procedure. Such procedure must be held
before the trial, in closed session, and the information is
only disclosed to the judge and security-cleared special
advocates.543 In Spain and Germany, courts may rely
on ‘second-hand’ evidence, consisting of declarations
made by officials who did not have direct access to the
classified information but have received a description of
such information. The information remains ‘confidential’
and should therefore be disclosed only to a limited
and security-cleared number of persons.544 These
mechanisms, though, still present some limits, as they
imbalance the adversarial procedure, in which the
defendant, excluded from the hearings, will not have
the possibility to challenge the evidence.
Some Member States allow judicial bodies to declassify
information – for example, in France and Poland. In
Poland, the Prosecutor General is entitled to challenge
the secrecy clause (klauzula tajności) of classified
information by either modifying or completely
declassifying it.545 In France, in cases where the
specialised chamber considers the illegality to constitute
an offence, it will forward all information to the prime
minister, who will decide whether to declassify all or
part of the confidential information.546
542 France, Council of State (Conseil d’Etat), M. A.B., No. 396669,
5 May 2017.
543 Bigo, D., Carrera, et al. (2014), pp. 25-26
544 Ibid. pp. 28 and 30.
545 Poland, Law on Prosecutor Office (Prawo o prokuraturze),
28 January 2016, Art. 57.5.
546 France, Administrative Justice Code (Code de justice
administrative), Art. L773-7.