CHAPTER 8: COMPARISONS – INTERNATIONAL
8.47.
As is clear from the above, the UK is unique in the Five Eyes in making no use of
judges for the prior authorisation of interception warrants. But there is no single
standard applied by the other members.
8.48.
In Europe, judicial authorisation is not universal:
8.49.
(a)
In Germany, the position of the security services remains essentially as it was
described by the ECtHR in the case of Klass v Germany. After an initial control
by “an official qualified for judicial office”, interception warrants are approved by
the G-10 Commission, a committee of present and former members of
parliament which meets monthly. The ECtHR, whilst noting that “it is in principle
desirable to entrust supervisory control to a judge”, rejected the submission that
this was an unacceptable “form of political control”.10 Law enforcement
agencies require a court order before they are entitled to carry out interception.
(b)
The situation in the Netherlands is in flux. As outlined at 5.50-5.74 above, the
Dutch Data Retention Law was declared unlawful by the District Court of the
Hague in March 2015. A previously-proposed draft bill, which would require
police and public prosecutors to obtain judicial authorisation before securing
access to communications data retained by CSPs, may be relied upon by the
Dutch Government to remedy the position.11 The Dutch Security Services
currently have the power to intercept communications without judicial
authorisation, on the authority of either the Minister of Interior or the Minister of
Defence.12
(c)
In France, a new Intelligence Bill, introduced in March 2015 will if passed put
the powers of the security services to carry out interception and gain access to
communications data on a statutory footing.13 Currently the exercise of security
service powers in that area is subject to review by a 3-person interception
committee. The new Bill will allow for intelligence service warrants to be
authorised by a Minister but scrutinised by an independent oversight committee
of nine people including judges, MPs and IT specialists. That body would have
the power to refer authorisations to the Conseil d’État if it considered they were
irregular.14
A 2011 European Commission evaluation of the Data Retention Directive (Directive
2006/24/EC) set out the various routes by which access to communications data might
be secured in different countries:15
(a)
10
11
12
13
14
15
16
Purely judicial (magistrate or judge): Denmark, Greece, Spain, Netherlands;16
Paras 20 and 54-56.
See however the open advice of the Dutch Data Protection Authority, available online in Dutch
https://cbpweb.nl/nl/publicaties/wetgevingsadviezen.
State Security Act (Wet op de inlichtingen – en veiligheidsdiensten) 2002, Article 25.
Draft Police and Security: Information Bill, published on 19 March 2015.
Ibid., para 2.
Com(2011) 255 final, 18 April 2011, pp. 9-10.
The position in Finland is that no authorisation is required for subscriber information but judicial
authorisation is required for traffic data.
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