Features of oversight bodies
their independence – such as not being able to issue
binding decisions, or having overlapping functions
(e.g. being independent from the executive while, at
the same time, participating in functions closely linked
to the executive). They also highlighted the lack of
transparency in nomination procedures and budgets
being part of general ministerial budgets. These factors
were also described as feeding into oversight bodies’
lack of transparency and accountability.
ECtHR case law: requirements for
independence
“As to the independence requirement, in previous cases
the Court has taken into account the manner of appointment and the legal status of the members of the supervisory body. In particular, it found sufficiently independent
the bodies composed of members of parliament of both
the majority and the opposition, or of persons qualified
to hold judicial office, appointed either by parliament or
by the prime minister […]. In contrast, a Minister of Internal Affairs – who not only was a political appointee and
a member of the executive, but was directly involved in
the commissioning of special means of surveillance – was
found to be insufficiently independent […]. In contrast to
the supervisory bodies cited above, in Russia prosecutors
are appointed and dismissed by the Prosecutor General
after consultation with the regional executive authorities […].This fact may raise doubts as to their independence from the executive. Furthermore, it is essential that
any role prosecutors have in the general protection of
human rights does not give rise to any conflict of interest […]. The Court observes that prosecutor’s offices do
not specialise in supervision of interceptions […]. Such
supervision is only one part of their broad and diversified functions, which include prosecution and supervision of criminal investigations. In the framework of their
prosecuting functions, prosecutors give their approval to
all interception requests lodged by investigators in the
framework of criminal proceedings […]. This blending of
functions within one prosecutor’s office, with the same
office giving approval to requests for interceptions and
then supervising their implementation, may also raise
doubts as to the prosecutors’ independence.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 278
Regarding parliament, the 2015 FRA report emphasised
that the question of independence should be understood
in terms of pluralism, which many Member States ensure
by including mandatory proportional representation
rules on membership. 278 By contrast, the executive
appoints the members of some expert bodies. This
is the case, for instance, in Sweden and the United
Kingdom. In the United Kingdom, the Investigatory
Powers Commissioner and the Judicial Commissioners
are appointed for three years, by the prime minister,
upon joint recommendation by the Lord Chancellor,
278 FRA (2015a), p. 41.
the Lord Chief Justice of England & Wales, the Lord
President of the Court of Session and the Lord Chief
Justice of Northern Ireland.279 In the case of the Judicial
Commissioners, recommendation by the Investigatory
Powers Commissioner is also necessary.
While some aspects of independence need to be
enshrined in law, others can be re-affirmed in codes
of ethics at institutional level. The French law on
intelligence integrated specific ethical rules into the
legal framework, including on CNCTR members’
independence, specifying that they should not receive
any instructions from any authority, and that members
should not have incompatible mandates, links to the
intelligence services, or perform any other professions
or elective mandates.280
The CJEU has emphasised that DPAs shall act in full
independence, particularly from government. 281
The same requirement is prescribed by the General
Data Protection Regulation.282
9.2. Powers and competence
The ECtHR’s requirements for an oversight body to
have ‘sufficient powers and competence’ to exercise
its control continuously is linked not only to a strong
mandate but also to the means put at its disposal to
perform its oversight role.
UN good practices on sufficient resources
Practice 7. Oversight institutions have the […] resources and expertise to initiate and conduct their own
investigations.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
Oversight bodies may wield a variety of powers,
a diverse combination of which may allow for adequate
oversight of intelligence activity, including surveillance
measures. These powers relate, on the one hand, to the
appropriate review of the measures and, on the other,
to the oversight bodies’ ability to ensure that effective
action is taken in case they find irregularities. What may
be considered sufficient powers depends on a specific
oversight body’s function.
279 United Kingdom, Investigatory Powers Act, s. 227 (3)-(4).
280 France, Interior Security Code, Art. L. 832–1 and Art. L. 832–2.
281 CJEU, C-518/07, European Commission v. Federal Republic
of Germany [GC], 9 March 2010, paras. 23 and 30, CJEU,
C-614/10, Commission v. Austria, 16 October 2012,
paras. 36–37; CJEU, C-288/12, Commission v. Hungary,
8 April 2014, paras. 47–48; CJEU, Joined cases C-293/12 and
C-594/12, Digital Rights Ireland and Seitlinger and Others,
8 April 2014, para. 68.
282 GDPR, Art. 52.
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