Legality in case of international intelligence cooperation
Latvia.195 Three Member States – Austria,196 Bulgaria197
and Hungary198 – apply the rules of police international
collaboration to the procedures for establishing
intelligence international cooperation. But, interestingly,
not all Member States in which intelligence services
are part of law enforcement authorities use police
cooperation procedures. In Finland and Ireland,
intelligence services legislation does not specify the
procedures to be followed.
The scope of the collaboration is also not clearly
detailed in law. For most Member States, international
cooperation explicitly refers to both the transfer and the
receipt of data, and no distinction is drawn between the
two in the laws. Few Member States make an exception
to this rule. In the United Kingdom, in a landmark
decision, the Investigatory Powers Tribunal held, among
others, that the law must specify the conditions for the
receipt of data: “any request for, or receipt of, intercept
or communications data pursuant [to international
intelligence sharing arrangements] is ordinarily subject
to the same safeguards as in a case where intercept or
communication data are obtained directly”199 by the
government. In Germany, reforms of the intelligence
services acts in 2015 and 2016 introduced detailed
conditions for Germany’s participation in shared
databases and the transmission of intelligence data
to foreign partners.200
UN good practices on external review
of international intelligence cooperation
agreements
Practice 34. Independent oversight institutions are able to
examine intelligence-sharing arrangements and any information sent by intelligence services to foreign entities.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
195 Latvia, Law on the State Secrets (Par valsts noslēpumu),
17 October 1997, Art. 9, para. 7.
196 Austria, International Police Cooperation Act (Bundesgesetz
über die internationale polizeiliche Kooperation,
Polizeikooperationsgesetz - PolKG), BGBl. I Nr. 104/1997,
and, Austria, EU Police Cooperation Act (Bundesgesetz
über die polizeiliche Kooperation mit den Mitgliedstaaten
der Europäischen Union und dem Europäischen Polizeiamt
(Europol), EU – Polizeikooperationsgesetz, EU-PolKG),
BGBl. I Nr. 132/2009.
197 Bulgaria, Special Intelligence Means Act (Закон за
специалните разузнавателни средства),
21 October 1997, Art. 34м.
198 Hungary, Act LIV of 2002 on the international cooperation of
law enforcement bodies (2002. évi LIV. törvény a bűnöldöző
szervek nemzetközi együttműködéséről), 1 April 2003.
199 United Kingdom, IPT, Liberty & Others vs. the Security
Service, SIS, GCHQ, IPT/13/77/H, 5 December 2014, para 53.
200 Germany, BNDG, S. 26-30. See Kutschbach,
G. in Dietrich, J.-H. and Eiffler, S. (eds) (2017),
p. 1415 and following.
Very few Member States allow expert bodies to assess
international agreements and/or cooperation criteria
establishing international intelligence collaboration,
either a priori or a posteriori. Belgium,201 Luxembourg202
and the Netherlands do so. 203 In Germany, the
Parliamentary Control Panel (PKGr) is informed about
the declaration of intent (Absichtserklärung) drafted
by the services before conducting international
cooperation. This declaration of intent, which clearly
identifies the objectives, scope, duration and specific
guarantees of the cooperation, must be approved by the
Federal Chancellery before the cooperation begins.204
The DPA must also be heard before the establishment
of any new databases that share intelligence data
with foreign partners.205
“There is an accountability gap. You know that all oversight
bodies are looking at their national services, no one is
looking at how the cooperation of secret services as a whole
works out. When our services send the information we look
at the ways they apply the rules, we do not know what the
other intelligence service will do with it, we always follow
one end of the string and the other end is not known.”
(Expert body)
Some interviewees critically noted the absence of
regulation of international cooperation between
intelligence services, both on national and international
levels, and its impact on oversight. The exclusion of
international cooperation from national legislation
was also deemed an ‘abnormal situation’, an example
of under-regulation, and as lacking a legal basis (e.g.
‘the [national] framework is satisfactory but lacking
an international dimension’). Respondents noted that
it also prevents individuals from seeking remedies and
reinforces an ‘accountability gap’ with regard to the
use of collection techniques, purposes and use of data.
Even when international cooperation is mentioned in
national legislation, procedures governing international
cooperation and the exchange of intelligence remains
vague and unclear. Some respondents stated that
international cooperation currently mostly involves
bilateral agreements, and that such agreements are
the most efficient option.
“It is not at all normal that international cooperation on
intelligence is not included in the law. This cooperation not
only exists but is desired by the executive. The law should
therefore include this in order to enable political control and
proportionality, including for reasons of national sovereignty,
as this cooperation could lead to a transfer of sovereignty.”
(Academia)
201
202
203
204
205
Belgium, Standing Committee I (2015), p. 24.
Luxembourg, CNPD, Rapport Annuel 2015, pp. 36-37.
Netherlands, CTIVD (2016a).
Germany, BNDG, S. 13 (5) and Germany, G10 Act, S. 7a (1).
Germany, BNDG, S. 28.
51