Opinion 12: Providing for effective remedies before independent bodies with remedial powers
EU Member States should ensure that judicial and non-judicial bodies with remedial powers have the powers and competences to effectively assess and decide on individuals’ complaints related to surveillance.
Opinion 13: Ensuring availability of non-judicial bodies with remedial powers
EU Member States should ensure that both judicial and non-judicial remedial bodies are accessible to individuals. Notably, Member States should identify what potential gaps prevent individuals from having their complaints effectively reviewed, and ensure that non-judicial expert bodies can complement the remedial landscape where needed.
Opinion 14: Allowing for awareness of completed surveillance measures
EU Member States should ensure that the legitimate aim and proportionality tests are conducted by intelligence services before limiting access to information based on national security. A competent authority should assess the confidentiality level. Alternatively, controls should be carried out by oversight bodies in the name of complainants when notification or disclosure are not possible.
Opinion 15: Ensuring a high level of expertise among remedial bodies
EU Member States should ensure that where judicial or non-judicial remedial bodies lack relevant expertise to effectively assess individuals’ complaints, specific systems are established to address these gaps. Cooperation with expert oversight bodies, technical experts or members of the intelligence services can support effective remedial systems.
Source: FRA, 2017
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In line with the well-established European case law, any individual may claim to be a victim of an interference with their privacy rights based on the existence of intelligence laws prescribing secret surveillance.[110] ECtHR, Ekimdzhiev and Others v. Bulgaria, No. 70078/12, 11 January 2022, para. 262; and Centrum för rättvisa v. Sweden, No. 35252/08, 25 May 2021, para. 167.
Individuals should have recourse to remedies that are effective in law and practice for reviewing the lawfulness and proportionality of any surveillance of them and redressing any violations of their rights. While such remedies do not need to be of a judicial nature, they need to be effective.
The courts have an important role to play in reviewing surveillance ex post at the remedial stage, either when directly handling complaints against intelligence services or when examining appeals against the decisions of non-judicial oversight bodies.[111] CJEU, Joined cases C-511/18, C-512/18 and C-520/18, La Quadrature du Net and Others v. Premier ministre and Others and Ordre des barreaux francophones et germanophone and Others v. Conseil des ministres, 6 October 2020, para. 190; and ECtHR, Centrum för rättvisa v. Sweden, No. 35252/08, 25 May 2021, paras. 166–167, 249, 251, 271, 273, 275 and 362; and Big Brother Watch and Others v. the United Kingdom, Nos. 58170/13, 62322/14 and 24960/15, 25 May 2021, paras. 413, 415 and 425.
While in principle all Member States provide the opportunity for individuals to complain about privacy and other rights violations before a judge, judicial avenues are not necessarily effective, as the 2017 FRA report highlighted.
Strict procedural rules on evidence and legal standing may hinder recourse to courts. The ECtHR has acknowledged the common ineffectiveness of judicial recourse in surveillance cases. It affords a much broader meaning to the term ‘victim’ based on the European Convention on Human Rights. It therefore has not required the prior exhaustion of domestic judicial remedies in a number of cases regarding surveillance by intelligence services.[112] ECtHR, Ekimdzhiev and Others v. Bulgaria, No. 70078/12, 11 January 2022, paras. 264–277.
At the same time, recourse to non-judicial bodies raises issues relating to power, independence and expertise.[113] FRA (2017), Surveillance by intelligence services: Fundamental rights safeguards and remedies in the EU – Volume II: Field perspectives and legal update, Luxembourg, Publications Office, p. 60.
In this regard, the ECtHR has repeatedly found the notification of surveillance measures, or, at least, an adequate opportunity to request and obtain information about interceptions from the authorities, to be a relevant factor in assessing the effectiveness of remedies and hence the existence of effective safeguards against the abuse of surveillance powers.[114]ECtHR,Centrum för rättvisa v. Sweden, No. 35252/08, 25 May 2021, para. 271.
“As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is a relevant factor in assessing the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of surveillance powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively or, in the alternative, unless any person who suspects that he or she has been subject to surveillance can apply to courts, whose jurisdiction does not depend on notification to the surveillance subject of the measures taken.”
ECtHR, Centrum för rättvisa v. Sweden[GC], No. 35252/08, 25 May 2021, paragraph 251
Providing individuals with the necessary information, although crucial, is not sufficient and is only a precondition for effective access to remedies. Excessive formal requirements, for example short time frames within which a complaint can be brought, would severely undermine the effectiveness of any available remedies.[115] ECtHR, Ekimdzhiev and Others v. Bulgaria, No. 70078/12, 11 January 2022, paras. 264–275, 354–355, 356 (h) and 380–382; and Marie Ringler v. Austria, No. 2309/10, 12 May 2020, para. 73.
In the case of Centrum för rättvisa v. Sweden, the ECtHR stressed the need for guarantees that exclude any conflicts of interest of remedial bodies with the body authorising the surveillance or exercising regular oversight of intelligence services.[116] ECtHR, Centrum för rättvisa v. Sweden, No. 35252/08, 25 May 2021, paras. 359 and 372.
In addition, in the case of Ekimdzhiev and Others v. Bulgaria, the court highlighted other challenges to the effectiveness of remedies and notably the ability of any remedial body to take binding decisions, including on the destruction of collected information.
“[S]everal shortcomings undermine its [the special parliamentary committee’s] effectiveness. First, its members need not be persons with legal qualifications or experience. Secondly, it has no power to order remedial measures in concrete cases, such as the destruction of retained or accessed communications data; it can only give instructions designed to improve the relevant procedures. If it detects irregularities, it can only bring the matter to the attention of the prosecuting authorities, or inform the heads of the relevant access-requesting authorities and communications service providers. In view of the shortcomings outlined above, the system of overseeing the retention of communications data and [their] subsequent accessing by the authorities in Bulgaria, as currently organised, does not appear capable of providing effective guarantees against abusive practices in this respect.”
ECtHR, Ekimdzhiev and Others v. Bulgaria, No. 70078/12, 11 January 2022, pp. 414–415.
As Table 3 shows, in most EU Member States, different models exist in terms of non-judicial bodies such as DPAs, expert bodies, executive bodies, parliamentary committees and ombuds institutions that can offer remedies. Only three Member States (Czechia, Latvia and Poland) do not offer non-judicial remedial avenues but only provide individuals with judicial avenues to lodge a complaint. In these Member States, neither DPAs nor any other oversight bodies have remedial powers over intelligence services. In this regard, the situation remains unchanged compared with 2017.
Table 3 – Non-judicial bodies with remedial powers in the context of surveillance: different models in the EU-27
Member State
|
Executive (ministry)
|
Expert body (or bodies)
|
DPA
|
Parliamentary committee(s)
|
Ombuds
institution
|
AT
|
|
✓
|
✓
|
|
✓
|
BE
|
|
✓
|
|
|
✓
|
BG
|
|
✓
|
|
✓
|
|
CY
|
|
|
✓
|
|
|
CZ
|
|
|
|
|
|
DE
|
|
✓
|
✓
|
✓
|
|
DK
|
|
✓
|
|
|
|
EE
|
|
|
|
|
✓
|
EL
|
|
✓
|
|
|
|
ES
|
|
|
|
|
✓
|
FI
|
|
✓
|
✓
|
|
✓
|
FR
|
|
✓
|
✓
|
|
✓
|
HR
|
|
✓
|
|
✓
|
✓
|
HU
|
✓
|
|
✓
|
✓
|
✓
|
IE
|
|
✓
|
✓
|
|
|
IT
|
|
|
✓
|
|
|
LT
|
|
✓
|
|
✓
|
|
LU
|
|
|
✓
|
|
|
LV
|
|
|
|
|
|
MT
|
|
✓
|
|
|
|
NL
|
|
✓
|
|
|
|
PL
|
|
|
|
|
|
PT
|
|
✓
|
|
|
✓
|
RO
|
|
|
|
✓
|
|
SE
|
|
✓
|
✓
|
|
|
SI
|
|
|
✓
|
✓
|
✓
|
SK
|
|
|
|
✓
|
|
Source: FRA, 2023