Surveillance by intelligence services – Volume II: field perspectives and legal update
UN good practices on oversight institutions
Practice 8. Oversight institutions take all necessary
measures to protect classified information and personal
data to which they have access during the course of their
work. Penalties are provided for the breach of these requirements by members of oversight institutions.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
One of the most important powers of oversight bodies
is their ability to initiate investigations on their own. The
Belgian Standing Committee I can start investigations
on its own initiative, on the request of the Chamber of
Representatives or the competent minister or authority,302
or on the request of a citizen or a civil servant who
lodges a complaint or files a denunciation.303 In a judicial
capacity, the Standing Committee I is also responsible
for the ex post control of ‘specific and exceptional
data collection methods’ used by the intelligence and
security services.304 The term ‘specific and exceptional
data collection methods’ is relatively broad, covering
all forms of collection of communications data relevant
to this report, since they interfere with individual
privacy.305 Moreover, the Standing Committee I may,
on request, advise on bills and regulatory acts or any
other document expressing the political orientations
of the competent ministers regarding the functioning
of the intelligence services or the Coordination Unit for
Threat Assessment.306 Belgium has a second expert
body referred to as the Administrative Commission. It
is responsible for monitoring specific and exceptional
data collection methods used by the intelligence and
security services. It controls the legality, subsidiarity
and proportionality of these data collection methods.307
In Germany, the Independent Committee (Unabhängiges
Gremium) is an expert body, at the Federal Court of
Justice, consisting of two judges and a prosecutor.308
Its task is to review the legality and necessity of the
BND’s strategic foreign-foreign communications data
surveillance. It is involved in the ex ante approval of
302 Belgium, Organic Law on the control of police and
intelligence services and the Coordination Union for Threat
Assessment (Loi organique du contrôle des services de
police et de renseignement et de l’Organe de coordination
pour l’analyse de la menace), 18 July 1991, Art. 32.
303 Ibid. Art. 34.
304 Belgium, Organic Law on intelligence and security services
(Loi organique des services de renseignement et de
sécurité), 30 November 1998, Art. 43/2, as amended.
305 Ibid. Arts. 18/4 to 18/8 and 18/9 to 18/17, as amended.
306 Belgium, Organic Law on the control of police and
intelligence services and the Coordination Union for Threat
Assessment (Loi organique du contrôle des services de
police et de renseignement et de l’Organe de coordination
pour l’analyse de la menace), 18 July 1991, Art. 33.
307 Belgium, Organic Law on intelligence and security services
(Loi organique des services de renseignement et de
sécurité), 30 November 1998, Art. 43/1, as amended.
308 Germany, BNDG, S. 16.
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strategic surveillance measures when they relate to
EU institutions and Member States’ authorities. The
Independent Committee is also granted ex post review
powers when the surveillance measures are deployed
on EU or other foreign citizens. The investigative
powers available to the Independent Committee are
not specified in the law.309
ECtHR case law: binding interventions of
oversight institutions
“The supervisory body’s powers with respect to any
breaches detected are also an important element for the
assessment of the effectiveness of its supervision (see,
for example, Klass and Others, cited above, § 53, where
the intercepting agency was required to terminate the
interception immediately if the G10 Commission found
it illegal or unnecessary; and Kennedy, cited above, §
168, where any intercept material was to be destroyed
as soon as the Interception of Communications Commissioner discovered that the interception was unlawful).”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 282
Give an external oversight body the power to quash surveillance warrants and discontinue surveillance measures undertaken without the need for a warrant when
such activities are deemed to have been unlawful, as
well as the power to require the deletion of any information obtained from the use of such measures.
Council of Europe, Commissioner for Human Rights (2015), Democratic and
effective oversight of national security services, p. 13
Whether an oversight body has the power to quash
warrants, stop surveillance measures and require the
rectification or erasure of collected data is also an
important factor in assessing the effectiveness of the
oversight system. To do so, it is granted continuous
access to the gathered intelligence and is informed
about any modifications. In France, if the CNCTR
considers a surveillance measure to be carried out
unlawfully, it can recommend to the prime minister,
the relevant minister and the intelligence service
that the surveillance be interrupted and the collected
data destroyed. The prime minister must immediately
inform the CNCTR about how the recommendation was
followed up on.310 If the recommendation is not followed
appropriately, the CNCTR can bring the case before the
Council of State.311 In the United Kingdom, the Judicial
Commissioner, once established, will be able to reject
warrants or quash those in operation.
309 Wetzling, T. (2017), p. 8.
310 France, Interior Security Code (Code de la sécurité
intérieure), Art. L. 833-6.
311 Ibid., Art. L. 833-8.