CJEU noted that Directive 2006/24 did not contain sufficient
substantive and procedural safeguards governing the access and
use of retained data. In particular, it highlighted that “the access by
the competent national authorities is not made dependent on a prior
review carried out by a court or by an independent administrative
body” (§62).
(2)
In Watson & Others the Advocate General stated: “I see no reason to
take a flexible attitude to this requirement for prior review by an
independent body, which indisputably emerges from the language
used by the Court in paragraph 62 of Digital Rights Ireland ” (para
234). Because “[c]ompetent law enforcement authorities have every
interest in requesting the broadest possible access,” the Advocate
General reasoned that “the intervention of an independent body
prior to the consultation of retained data, with a view to protecting
persons whose data are retained from abusive access by the
competent authorities, is to my mind imperative” (para 236).
(3)
The 2013 report by the United Nations Special Rapporteur on the
promotion and protection of the right to freedom of expression
stated that: “Legislation must stipulate that State surveillance of
communications must only occur under the most exceptional
circumstances
and
exclusively
under the
supervision of an
independent judicial authority.”116
(4)
A
system
of
prior
judicial
authorisation
would
minimise
unnecessary or disproportionate interferences with privacy. As the
CoE HR Commissioner has noted, “there is an obvious advantage of
requiring prior judicial authorisation for special investigative
techniques, namely that the security agency has to go “outside of
Szabó (§23) and Zakharov (§147), indicating that it is not, as the Government asserts, a radical
departure from this Court’s case law on Article 8.
116 Cited and quoted in Szabó, para 24.
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