Surveillance by intelligence services – Volume II: field perspectives and legal update
Table 3:
Effective oversight: legal standards and
views of key actors
ECtHR standards
Independence
FRA fieldwork findings
Independence
Full access
Powers and
competence
Sufficient resources
and expertise
Cooperation of key actors
Public scrutiny
Source:
Transparency
FRA, 2017
The following sections describe oversight bodies’
features in detail, as formulated by the ECtHR and
discussed in relevant fieldwork findings.
9.1. Independence
Basic requirements for independence
“In determining whether a body can be considered to
be ‘independent’ – notably of the executive and of the
parties to the case […], the Court has had regard to the
manner of appointment of its members and the duration
of their term of office […], the existence of guarantees
against outside pressures […] and the question whether
the body presents an appearance of independence.”
ECtHR, Campbell and Fell v. the United Kingdom, No. 7819/77 and 7878/77,
28 June 1984, para. 78
The ECtHR has confirmed that an institution’s legal
obligation to act independently and impartially is
not sufficient to meet the minimum standard of
independence; independence from the executive must
be ensured both in functioning and institutionally.277
The ECtHR requirement of independence entails
organisational, operational and aspects relating to the
members of the institution. Key questions in addressing
the independence of an oversight body thus relate to its
appointing authority; the body’s composition and who
chairs the body; rules on conflicts of interest; whether
the law foresees its independent functioning and
whether the body (in fact) operates without hindrance.
Finally, independence is also a matter of perception:
the body also needs to appear independent; the way
it functions needs to be perceived as independent. In
this context, the location of the body’s offices may be
relevant, for example – such as when an expert body is
located within a ministry or in the intelligence service
building. This is a particularly problematic matter given
277 ECtHR, Campbell and Fell v. the United Kingdom,
No. 7819/77 and 7878/77, 28 June 1984, para. 77.
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the data to which the oversight body has access. The
need to be perceived as independent has to be balanced
against practical security concerns.
Determining the optimal distance between the
controlled and the controllers is a complex exercise,
since providing up-to-date expertise requires oversight
bodies to work side-by-side with the intelligence
services. Therefore, while ties that are too close may
lead to a conflict of interest, too much separation might
result in oversight bodies that, while independent,
are poorly informed.
“The oversight body must be able to work independently,
full-time, it must be able to specialise and choose its own
staff.” (Expert body)
Oversight body representatives were asked about
safeguards for their institutions to carry out tasks
independently and the measures implemented to
sustain their independence. Almost all respondents
stated that their institutions were independent,
impartial, and resistant to any external influence,
including by politicians or the intelligence services.
Independence is said to be guaranteed by institutional
and operational procedures. The institutional procedures
mentioned by the respondents include statutory
recruitment procedures, methods of appointment (or
the standing of the members), fixed terms of office,
seniority of staff, and allocated budgets (independent
budgets). The operational procedures that ensure
independence in oversight actions were related to
security clearance requirements, the staff’s duty
of absolute secrecy, access to data/information of
the intelligence services, and their power to initiate
investigations. In addition, some interviewees noted
that their independence improved while moving
their offices outside the premises of, for example,
executive or other governmental bodies. Still, some
interviewees pointed to a lack of independence due to
being integrated into the hierarchies and structures of
the institutions they were meant to monitor.
The oversight representatives attributed less
importance to oversight bodies’ independence than
to other aspects when discussing their effectiveness.
This might be related to their view that they currently
exercise their functions in full independence.
As with other issues, representatives from civil
society organisations and academia were more critical
regarding oversight bodies’ independence. They
emphasised the importance of independent oversight,
voicing the opinion that such bodies are currently
‘only independent because they call themselves
independent’. They noted that staff of oversight
bodies lack knowledge on independence. In addition,
some operational features make it difficult to sustain