10
Stages of intelligence
service oversight
Effective oversight of surveillance operations requires
potentially being present at every stage. The ECtHR refers
to this as ‘continuous control’ in the Roman Zakharov
case. Factors that have a bearing on the effectiveness
of oversight include: the independence of the relevant
body, the scope of measures requested (targeted or
general surveillance of communications; content or
metadata; domestic or foreign), its powers to access or
request information, and its resources – in terms of staff,
time and expertise, including with a view to the number
of warrant requests received. For ex ante oversight,
the level of required detail in a warrant and the time
period for which the warrant is provided is also relevant,
especially in cases where ongoing oversight is weak.
This report’s discussion of the implementation of the
standards gives particular attention to ongoing and
ex post oversight. A more detailed treatment of such
oversight is given below, because it is at the stage
of implementation of surveillance measures that
safeguards on general surveillance of communications
operations are most relevant.
ECtHR case law: stages of oversight
“Review and supervision of secret surveillance measures
may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after
it has been terminated. As regards the first two stages,
the very nature and logic of secret surveillance dictate
that not only the surveillance itself but also the accompanying review should be effected without the individual’s
knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy
of his or her own accord or from taking a direct part in any
review proceedings, it is essential that the procedures
established should themselves provide adequate and
equivalent guarantees safeguarding his or her rights.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, para. 233
10.1. Ex ante authorisation
and oversight
ECtHR case law: ex ante authorisation
“The Court will take into account a number of factors in
assessing whether the authorisation procedures are capable of ensuring that secret surveillance is not ordered
haphazardly, irregularly or without due and proper consideration. These factors include, in particular, the authority competent to authorise the surveillance, its scope of
review and the content of the interception authorisation.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 257
“The Court recalls that […] it expressed the view that either
the body issuing authorisations for interception should be
independent or there should be control by a judge or an
independent body over the issuing body’s activity.”
ECtHR, Szabo and Vissy v. Hungary, No. 37138/14, 12 January 2016, para. 77
UN good practice on intelligence collection
and oversight
Practice 22. […] Intelligence collection measures that impose significant limitations on human rights are subject
to a multilevel process of authorization that includes approval within intelligence services, by the political executive and by an institution that is independent of the intelligence services and the executive.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
Continuity of oversight of surveillance operations
requires, among others, that independent oversight be
present at the stage when the surveillance measures are
first ordered. The overseers must therefore be informed
at once of the issuance of warrants. ‘Authorisation’
entails the issuing of a warrant, while ‘approval’ refers
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