Surveillance by intelligence services – Volume II: field perspectives and legal update
Cooperation and complementarity
between remedial and expert bodies
Some expert bodies, although not able to issue binding
decisions, play an essential complementary role within
the remedial landscape. Their expert understanding of
both the technicalities and the legal framework put
them in a good position to review complaints. Thus,
when such experts are allowed to communicate with
judicial or non-judicial bodies entitled to issue binding
decisions, such cooperation can fill the expertise gap.
In France, individuals can ask the CNCTR to check
whether a domestic or international surveillance
technique was illegally implemented against them.549
The commission follows the same verification
procedure as for ex post controls launched on its own
initiative.550 Once completed, individuals are informed
that a verification procedure took place. No further
information is provided. Should the verification reveal
an illegality, the CNCTR can address a recommendation
to the prime minister, the relevant minister and the
intelligence service requesting the suspension of
the surveillance measure and the destruction of the
data collected.551 When the recommendations are not
followed, the president or three members of the CNCTR
can bring the case before the Council of State.552 The
CNCTR received 51 such verification requests during the
first year since its establishment.553 The Danish Oversight
Board (TET) proceeds in a similar manner. However, in
very specific cases with special circumstances, it can
grant individuals full or partial access to information
held by the services.554
In the Netherlands, the Intelligence and Security
Services Act adopted in 2017 modifies the remedial
mechanism available to individuals. While until the new
law comes into force, the Dutch expert body (CTIVD) acts
as an “independent complaints advisory committee”555
in the sense that individuals are not able to complain
directly to the CTIVD and the latter is not able to issue
binding decisions, the 2017 Act creates a sub-committee
within the CTIVD, responsible for handling complaints
and issuing binding decisions.556
549
550
551
552
553
554
France, Interior Security Code, Art. L. 833-4 and L. 854-9.
France, CNCTR (2016), p. 90.
France, Interior Security Code, Art. L. 833-6.
Ibid. Art. L. 833-8.
France, CNCTR (2016), p. 90.
Denmark, Act on the Danish Security and Intelligence
Service, Consolidated Act no. 1600 of 19 December 2014
with amendments, Section 13 (2) and Denmark, Act on the
Danish Defence Intelligence Service, Consolidated Act no 1
of 4 January 2016, Section 10 (2). See also TET’s website.
555 The Netherlands, CTIVD (2015), p. 19.
556 The Netherlands, Act on the Intelligence and Security
Services 2017 (Wetsvoorstel Wet op de inlichtingen- en
veiligheidsdiensten 2017), Arts. 97, 114 and 126.
132
The FRA 2015 report highlighted existing cooperation
between some DPAs and the courts, and in particular
the Schrems v. Data Protection Commissioner case.557
Complementarity is also crucial at an earlier stage,
where some non-judicial bodies act as a filter to assess
the legitimacy of the complaints to transfer only wellfounded ones to the competent remedial body. This is the
case, for instance, in Belgium, where citizens’ petitions
submitted to the Belgium Ombudsman (Médiateurs)
and referring to the intelligence services can be
forwarded to the Belgian expert body, the Standing
Committee I. Before transferring a complaint to the
Standing Committee I, the Ombudsman will assess the
complaint and preselect relevant petitions from those
that are deemed irrelevant because, for example, they
are based on ‘paranoia’. Such partnership among bodies
is an important tool to enhance remedies’ effectiveness,
as it enables the competent remedial body to focus its
assessment only on well-grounded complaints.
This trend was confirmed during the interviews FRA
conducted in selected Member States. In France, for
example, the members of the specialised chamber of the
Council of State (Conseil d’Etat) have been trained on the
techniques used by the intelligence services. In Sweden,
the integrity protection counsels (some of whom are
former judges) – who are appointed by the government
to protect the interest of the people before the Foreign
Intelligence Court (Försvarsunderrättelsedomstolen) –
noted that the court provides them with training on the
legal framework and substance to facilitate their work.
Representatives of the United Kingdom’s Investigatory
Power Tribunal arranged visits of judges to the premises
of the intelligence services or law enforcement
institutions to permit them to gain direct knowledge
of general surveillance of communication.
Quasi-judicial bodies
Four Member States – France, Germany, Ireland and the
United Kingdom – introduced a system of specialised
judges or courts to deal with cases in the area of
surveillance. In addition, oversight bodies in Germany
and Belgium (the G10 Commission and the Standing
Committee I) are given powers similar to those of
a court, qualifying them as quasi-judicial mechanisms.
The composition, competences and procedures
followed by the British IPT, the Irish Complaints
Referee, the Belgian Standing Committee I and the
German G10 Commission are detailed in the FRA
2015 report.558 In France, the 2015 law on intelligence
557 FRA (2015a), p. 68.
558 FRA (2015a), pp. 68-69.