General conclusions
ECtHR case law: using oversight to enhance
citizens’ trust
“[T]he external, preferably judicial, a posteriori control of
secret surveillance activities, both in individual cases and
as general supervision, gains its true importance […] by
reinforcing citizens’ trust that guarantees of the rule of
law are at work even in this sensitive field and by providing redress for any abuse sustained. The significance of
this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should
he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks.”
ECtHR, Szabo and Vissy v. Hungary, No. 37138/14, 12 January 2016, para. 79
While this report shows that most EU Member States
have enacted intelligence laws and have tasked
independent expert bodies with overseeing the
work of their intelligence services, it also reveals
that opinions of these bodies’ efficiency are mixed.
Similarly, although diverse remedies are provided for
in law, critics contend that actually accessing them is
a less straightforward matter. Failing to confront these
flaws carries the risk of undermining the public’s trust
in their governments’ pledges to uphold the rule of law
even when confronted with challenges that may make
short-cuts look tempting.
With international intelligence cooperation as an
absolute must in light of today’s myriad threats,
accountability, too, has to take on cross-border
dimensions. Introducing safeguards specifically tailored
to international cooperation would both ensure that
intelligence sharing is conducted in a fundamental
rights-compliant manner and reinforce the credibility
of any data received. This would ultimately strengthen
trust among partners – in turn encouraging more
cooperation efforts, which have the potential to bring
widespread benefits to the European public and beyond.
Effective cooperation among oversight entities in
different Member States could play an important role
in fostering such trust.
“We want to strengthen our ties with the [other] European
oversight committees, parliamentary, non-parliamentary,
expert bodies, does not matter, everybody is welcome here
and we do visits to them, and not only to say ‘hello, how are
you’, but we also are trying to set up a system that we can
work together.” (Expert body)
Effective accountability systems involve a plurality
of actors and require continuity, i.e., provide for
oversight before, during and after any surveillance
measures are utilised. As the European Court of
Human Rights has emphasised, and as outlined in
this report, certain safeguards are indispensable for
ensuring accountability, particularly given the need
for secrecy to carry out effective surveillance work.
These include providing for reviews of the legality
of measures deployed, and ensuring that entities
overseeing the work are independent, have adequate
resources (including expert knowledge), are accorded
sufficient competences (including access to classified
data), and are transparent.
Data protection rules and other rule of law principles
should not be seen as potential hurdles to protecting
the security of Europe’s citizens, but instead as sources
of mutual benefits for individuals and intelligence
services. Respecting these rights and principles paves
the way for more accurate data collection and analysis,
renewed trust among European citizens towards their
intelligence services and, as a result, a more effective
defence of national security.
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