Surveillance by intelligence services – Volume II: field perspectives and legal update
Providing for effective
remedies before independent
bodies with remedial powers
Allowing for awareness
of completed surveillance
measures
The European Court of Human Rights has held that an
effective remedy is characterised by investigative and
decisional powers granted to judicial and non-judicial
bodies. In particular, the remedial body should have
access to the premises of intelligence services and the
data collected; be given the power to issue binding
decisions; and inform complainants on the outcome
of its investigations. The individual should be able
to appeal the body’s decision. FRA’s data show that
22 EU Member States have at least one non-judicial
body with remedial powers. In six Member States,
though, these bodies lack the powers to issue binding
decisions and access classified data.
FRA’s comparative legal analysis shows that all
EU Member States have a national security exception
in their freedom of information laws. FRA’s findings also
show that all Member States limit either individuals’
right to be notified or their right to access their own
data based on the confidentiality of intelligence data
and protection of national security or of on-going
surveillance operations. Some Member States’ laws
provide for alternative ways to make individuals aware
of surveillance measures and so enable them to seek
an effective remedy.
FRA opinion 12
EU Member States should ensure that judicial and
non-judicial bodies with remedial powers have
the powers and competences to effectively assess
and decide on individuals’ complaints related to
surveillance.
Ensuring availability of nonjudicial bodies with remedial
powers
FRA’s data show that non-judicial oversight mechanisms
are more accessible to individuals than judicial
remedies as they are simpler, cheaper and faster.
FRA’s comparative legal analysis shows that in the
area of surveillance, individuals can lodge a complaint
with a non-judicial body in 25 EU Member States. In
ten Member States, one single non-judicial body
has remedial powers, while in most Member States,
individuals can lodge a complaint with two or more
bodies with remedial powers.
FRA opinion 13
EU Member States should ensure that both judicial
and non-judicial remedial bodies are accessible
to individuals. Notably, Member States should
identify what potential gaps prevent individuals
from having their complaints effectively reviewed,
and ensure that non-judicial expert bodies can
complement the remedial landscape where
needed.
14
FRA opinion 14
EU Member States should ensure that the legitimate
aim and proportionality tests are conducted by
intelligence services before limiting access to
information based on national security. A competent
authority should assess the confidentiality level.
Alternatively, controls should be carried out by
oversight bodies in the name of complainants when
notification or disclosure are not possible.
Ensuring a high level of
expertise among remedial
bodies
Remedial bodies need to have a good understanding of
surveillance techniques. FRA’s fieldwork has identified
ways to informally address shortcomings in technical
expertise. Exchanges between remedial bodies, expert
bodies, and intelligence services, while respecting each
other’s role and independence, have proven to deepen the
technical understanding of reviewers and foster mutual
trust. National practices of appointing specialised judges
or establishing specialised courts or chambers to hear
complaints about surveillance by intelligence services
contribute to the development of judicial expertise
in the area. Such systems can also facilitate different
arrangements on judicial access to classified information.
FRA opinion 15
EU Member States should ensure that where
judicial or non-judicial remedial bodies lack
relevant expertise to effectively assess individuals’
complaints, specific systems are established to
address these gaps. Cooperation with expert
oversight bodies, technical experts or members
of the intelligence services can support effective
remedial systems.