Surveillance by intelligence services – Volume II: field perspectives and legal update
in countering defined threats, such as organised crime,
corruption or the fight against terrorism.
In France, for example, implementing regulations of
the 2015 intelligence law established two intelligence
‘circles’. The ‘first circle’ (premier cercle) is composed of
six so-called specialised intelligence services (services
spécialisés de renseignement), such as the Direction
générale de la sécurité interieure (DGSI) and the
Direction générale de la sécurité exterieure (DGSE). 42
The six services have access to most intelligence
techniques prescribed by the Interior Security Code.43
The ‘second circle’ (second cercle) services have access
to a number of intelligence techniques depending
on their mandate. 44 These are police,gendarmerie
and security services that are not part of the French
intelligence community. Since 2017, the ‘second circle’
has been widened to include two offices placed under
the authority of the director of prison administration
(directeur de l’administration pénitentiaire), under the
minister of justice. These can be authorised to use
certain intelligence techniques to prevent terrorism,
crime and organised crime in prisons.45
A state’s constitutional organisation also plays a role
in the organisation of the services. In Germany, for
example, aside from the federal services, each regional
state (Land) has an intelligence service.
Another key element is the extent of the relationship
between security services and law enforcement. Indeed,
an organisational separation between intelligence
services and law enforcement authorities is commonly
considered a safeguard against the concentration of
powers in one service and the risk of arbitrary use of
information obtained in secrecy.
Maintaining a separation between police
and intelligence services
“[I]nternal security services should not be authorised to
carry out law enforcement tasks such as criminal investigations, arrests, or detention. Due to the high risk of
abuse of these powers, and to avoid duplication of traditional police activities, such powers should be exclusive
to other law enforcement agencies.”
PACE (1999), p. 2
42
See France, Interior Security Code (Code de la sécurité
intérieure), Art. R. 811-1. See also France, Adam, P.,
Parliamentary Delegation on Intelligence (2017), p. 40.
43 See France, Interior Security Code (Code de la sécurité
intérieure), Art. L. 811-2.
44 Ibid. See also France, Adam, P., Parliamentary Delegation on
Intelligence (2017), p. 51.
45 See France, Interior Security Code (Code de la sécurité
intérieure), Art. R. 811-2 III. See also France, Adam, P.,
Parliamentary Delegation on Intelligence (2017), p. 54. See
for critical views on this widening of the intelligence circles:
France, DPR & CNCTR (2017), p. 49 and 60 and following.
28
The majority of intelligence services in the EU Member
States have their own structure, organisation and
accountability, independent of the police and other law
enforcement authorities. Calls for enhanced cooperation
between police and intelligence services in the fight
against terrorism sometimes make it difficult to see
the dividing lines between the two entities. The wave
of terrorist attacks across Europe in the past few years
has brought law enforcement and intelligence services
closer together, with security professionals widely
regarding joint investigations of terrorist networks and
suspects as constituting best practice.
Differences between surveillance by police
and by intelligence services
“[Surveillance by intelligence services] differs in a number of ways from surveillance in law enforcement or more
traditional internal security operations. It does not necessarily start with a suspicion against a particular person
or persons. It can instead be proactive: finding a danger
rather than investigating a known danger. Herein lay both
the value it can have for security operations, and the risk
it can pose for individual rights. Prosecution is not the
main purpose of gathering intelligence. The intelligence
is, however, stored and used in a number of ways which
can affect human rights.”
Council of Europe (2016), p. 64
Since publication of the 2015 FRA report, Cyprus
has established its intelligence services in law. The
law provides for strict organisational separation
between the police and the intelligence services. 46
Few Member States make exceptions to this rule.
Those that do include Austria, Denmark, Finland and
Ireland, where the body responsible for conducting
intelligence activities is officially part of the police and/
or law enforcement authorities.
Organisational separation in law does not necessarily
mean that the exchange of information and personal
data between law enforcement and intelligence
services is prohibited by law, given increasingly
common fields of competence, such as the fight
against terrorism. Indeed, national legislation may
provide for data transfers between these authorities,
in accordance with the rights to private life and personal
data protection.47 In Germany, for instance, the police
and intelligence services have used shared databases
frequently since 2004.48
46 Cyprus, Law providing for the establishment and functioning
of the Cyprus Intelligence Service (Νόμος που προβλέπει
για τη θέσπιση και τη λειτουργία της Κυπριακής Υπηρεσίας
Πληροφοριών) Ν. 75(Ι)/2016, Art. 3.
47 Sule, S. (2006), pp. 128 and 236.
48 Töpfer, E. (2013), pp. 5 and following.