National intelligence authorities and surveillance in the EU: Fundamental rights safeguards and remedies
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1 National intelligence authorities and surveillance in the EU: Fundamental rights safeguards and remedies Dr Mario Oetheimer Brussels, 28 May 2015 Opening session The repercussions on intelligence oversight of a rapidly changing world
2 Key issues Detailed and up-to-date legal frameworks: precondition for safeguarding fundamental rights. Remedies ensure the effectiveness of fundamental rights safeguards: individuals should be able to obtain proper redress. Effective and comprehensive oversight systems. 2
3 Standards: UN and ECHR converging human rights standards In accordance with the law (quality of law) o Safeguards: - Adequate oversight (incl. approval) - Effective remedies Principles of necessity and proportionality Discrimination UN 3
4 Remedies - overview of avenues Judicial o National courts (across EU 28) o Specialised courts/tribunals Non-judicial o Parliamentary committees o Executive bodies o Expert bodies, incl. DPAs o Other bodies (e.g. ombudsperson institutions) 4
5 Oversight of intelligence services EXECUTIVE CONTROL INTERNATIONAL ECtHR MEDIA NGOs ACCOUNTABILITY of Intelligence Services PARLIAMENTARY EXPERT BODIES JUDICIAL Ex-ante & ex-post 5
6 Approval of targeted surveillance measures - Different surveillance measures require different approval procedures across the EU. - Judiciary: 17 MS - Alternatives: Expert bodies: 3 MS The executive: 7 MS - None: No prior approval certain surveillance measures: 2 MS. Szabo and Vissy v Hungary compliant with ECtHR standards? Disclaimer: this data is based on current FRA research and might be subject to modifications. 6
7 Approval of signals intelligence - Germany: strategic interception of international communication: Parliamentary Control Panel /G10 Commission authorisation. - Sweden: monitoring and collecting signals intelligence over the airways and by fibre optic cables: Foreign Intelligence Court authorisation. - The Netherlands: untargeted interception of non-cable bound telecoms: no authorisation. applying keywords or selectors : ministerial approval. - The United Kingdom: interception of external communications via telecommunications during transmission: Secretary of State authorisation. Disclaimer: this data is based on current FRA research and might be subject to modifications. 7
8 Parliamentary oversight 24 MS have parliamentary committees that oversee intelligence services. Of these, 21 MS are specialised committees. Basic powers: - receiving reports from the intelligence services - reporting to parliament Enhanced powers: - receiving complaints - issuing recommendations/issuing binding decisions Not all committees are given unrestricted access to classified information. Disclaimer: this data is based on current FRA research and might be subject to modifications. 8
9 Specialised expert bodies - Expert bodies must have adequate powers, expertise, resources, and independence MS have specialised expert bodies. - Powers: Advising parliament and/or the executive Supervising intelligence operations/measures Investigating complaints Disclaimer: this data is based on current FRA research and might be subject to modifications. 9
10 Competences of data protection authorities over intelligence services Disclaimer: this map is based on current FRA research and might be subject to modifications. 10
11 Specialised expert bodies and DPAs across the EU Disclaimer: this diagram is based on current FRA research and might be subject to modifications. 11
12 Next steps: qualitative social fieldwork Interviewing representatives of key actors. Assessing whether the legal frameworks are fundamental-rights compliant: Day-to-day work of oversight bodies Effectiveness of remedies 12
13 Key issues Detailed and up-to-date legal frameworks: precondition for safeguarding fundamental rights. Remedies ensure the effectiveness of fundamental rights safeguards: individuals should be able to obtain proper redress. Effective and comprehensive oversight systems. 13
14 Thank you for your attention! Mario fra.europa.eu
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