Features of oversight bodies
9.3. Openness to public
scrutiny
The ECtHR puts great emphasis on the liability for
the executive but also the oversight body to give
account on their respective work in the area of
intelligence services oversight.
ECtHR case law: executive and oversight
bodies subject to public scrutiny
“The Court notes at this juncture the liability of the executive to give account, in general terms rather than
concerning any individual cases, of such operations to
a parliamentary committee. However, it cannot identify
any provisions in Hungarian legislation permitting a remedy granted by this procedure during the application of
measures of secret surveillance to those who are subjected to secret surveillance but, by necessity, are kept
unaware thereof. The Minister is under an obligation to
present a general report, at least twice a year, to the responsible parliamentary committee about the functioning of national security services, which report, however,
does not seem to be available to the public and by this
appears to fall short of securing adequate safeguards in
terms of public scrutiny […]. The committee is entitled, of
its own motion, to request information from the Minister
and the directors of the services about the activities of
the national security services. However, the Court is not
persuaded that this scrutiny is able to provide redress to
any individual grievances caused by secret surveillance
or to control effectively, that is, in a manner with a bearing on the operations themselves, the daily functioning
of the surveillance organs, especially since it does not appear that the committee has access in detail to relevant
documents. The scope of their supervision is therefore
limited […].”
ECtHR, Szabo and Vissy v. Hungary, No. 37138/14, 12 January 2016, para. 82
Oversight bodies need to be transparent and provide
adequate information to the public about their activities
and those of intelligence services. This is because
oversight systems serve the ultimate goal of protecting
the public against abuse in the implementation of
surveillance measures. Due to their independent status,
the various bodies of oversight systems are ideally
placed to provide credible and reliable information
to educate the public about the activities and role
of intelligence services.343
343 Council of Europe Commissioner for Human Rights (2015),
p. 65.
Member States and oversight bodies take very
divergent approaches when it comes to the regulations
and/or practices aiming to provide for the transparent
functioning of the oversight system. Considering the
secret nature of the techniques and operations, it is
beyond dispute that full transparency of oversight
is neither possible nor desirable. However, as high
a degree of transparency as possible is indispensable for
ensuring that citizens can understand and thus trust the
functioning of the oversight system and, consequently,
that of the secret services.
In the United Kingdom, for example, the Investigatory
Powers Commissioner must report “as soon as
reasonably practicable after the end of each calendar
year”344 or at any time requested by the prime minister345
or where the commissioner considers it appropriate.346
With respect to the commissioner’s annual reports, the
prime minister has an obligation to publish them, and
lay a copy thereof before parliament together with
a statement on any matter that has been excluded.347
Therefore, the prime minister has the power to exclude
matters from the published report but may do so
only after consultation with the commissioner.348 The
grounds on which some matters can be excluded are
laid down in law.349
Representatives of oversight bodies were asked how
their institutions contribute to the implementation
of transparency in oversight. Issues relating to
transparency were raised by the respondents while
addressing accountability and the effectiveness
of oversight, too.
In general, according to the interviewees, transparency
is a relatively recent topic in the area of intelligence
collection and its oversight. The Snowden revelations
have significantly contributed to transparency – for
example, several oversight bodies indicated that,
‘in reaction to the Snowden leaks afterwards many
governments all of the sudden published information
that beforehand was considered secret.’ The effects are
reflected in publications, increased efforts to improve
general communications, information exchanges and
institutional cooperation. To a certain extent, the issues
relating to transparency were mentioned in the context
of upholding fundamental rights during the collection
of intelligence and its oversight.
344
345
346
347
348
349
United Kingdom, Investigatory Powers Act, s. 234 (1).
Ibid. s. 234 (3).
Ibid. s. 234 (4).
Ibid. s. 234 (6).
Ibid. s. 234 (7).
Ibid.
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