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Features of oversight bodies
ECtHR case law
Qualities required for supervisory control
“It is in principle desirable to entrust supervisory control
to a judge, judicial control offering the best guarantees of
independence, impartiality and a proper procedure […] supervision by non-judicial bodies may be considered compatible with the Convention, provided that the supervisory
body is independent of the authorities carrying out the
surveillance, and is vested with sufficient powers and competence to exercise an effective and continuous control.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 275
Public scrutiny
“The Court must also examine whether the supervisory
body’s activities are open to public scrutiny (see, for example, L. v. Norway, cited above, where the supervision
was performed by the Control Committee, which reported annually to the Government and whose reports were
published and discussed by Parliament; Kennedy, cited
above, § 166, where the supervision of interceptions was
performed by the Interception of Communications Commissioner, who reported annually to the Prime Minister,
his report being a public document laid before Parliament; and, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88,
where the Court found fault with the system where neither the Minister of Internal Affairs nor any other official
was required to report regularly to an independent body
or to the general public on the overall operation of the
system or on the measures applied in individual cases).”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para 283
The ECtHR favours oversight settings involving judges.
The 2015 FRA report highlighted that a majority of
EU Member States provide for such oversight. 276
However, ‘non-judicial bodies’ – which this report refers
to as oversight bodies in an encompassing manner or
as expert bodies in a narrower sense – can be ECHR
compliant. They should however have two essential
qualities: be independent and have enough powers
and competence to carry out continuous control that
is subject to public scrutiny.
The interviewed oversight body experts were
asked to identify what they consider to be the main
features of effective oversight. Effective oversight
was associated with the following five interrelated
features: (1) cooperation among key actors in the area;
(2) full access to intelligence information; (3) sufficient
resources; (4) transparency (specifically through
reporting), and (5) independence. These elements
are listed based on the frequency with which they
were mentioned during the interviews; however, this
varied among respondents.
The respondents’ views regarding what the most
important elements of effective oversight are largely
overlap with the main features of effective oversight
identified in European case law. This is directly reflected
with regard to independence, and partly with regard
to public scrutiny, which is mainly considered through
the issue of transparency. In this regard, reporting –
mainly via reports produced, preferably published on
a regular basis – plays an important role. The issues
raised while discussing resources of oversight bodies,
full access to intelligence information, and cooperation
among key actors fall under the label of powers and
competences. Table 3 presents the overlap between
interviewed experts’ views regarding features that
make for effective oversight and the main features
identified in ECtHR case law.
276 FRA (2015a), p. 51 and following.
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