CM(2003)109 Addendum 4 27 August 2003
853 Meeting, 24 September 2003
10 Legal questions
10.1 European Committee on Crime Problems (CDPC) -
52nd plenary session (Strasbourg, 16-20 June 2003)
a. Group of Specialists on Internal Security Services (PC-S-SEC)
Final Activity Report
Report on the feasibility of recommendations on internal security services
adopted by the PC-S-SEC at its second meeting (9 - 11 October 2002)
1. Terms of reference
At their 733rd meeting on 7 December 2000 the Ministers' Deputies adopted the following specific terms of reference1 for the PC-S-SEC:
The PC-S-SEC will undertake a study on the role and responsibilities of internal security services with a view to preparing a report detailing, inter alia, the feasibility of recommendations in this regard.
In the execution of its terms of reference the committee shall bear in mind Parliamentary Assembly Recommendation 1402 (1999) and take account of:
· the relevant case-law of the European Court of Human Rights
· the relevant Council of Europe instruments
· the work of the Committee of Experts on Police Ethics and Problems of Policing (PC-PO).
These terms of reference were complemented (composition of the Group) by the CDPC at its 50th plenary session (June 2001).
2. Working methods
At its first meeting (17-19 April 2002) the PC-S-SEC decided to draft a questionnaire and send it to all member States of the Council of Europe so as to be able to dispose of an inventory of the principles applied to internal security services.
Based on the replies to the questionnaire and the discussions at the second meeting of the PC-S-SEC
(9-11 October 2002), and taking into account existing Council of Europe instruments, the case-law of the European Court of Human Rights and the work of the Committee of Experts on Police Ethics and Problems of Policing (PC-PO), the PC-S-SEC came to the conclusion that general characteristics with regard to the internal security services can be identified.
3. General principles on internal security services
The general principles are categorised as follows:
· The raison d'être of internal security services (par. 3.1)
· the objectives and functions of internal security services (par. 3.2)
· the legal basis for internal security services (par. 3.3.)
· the relationship between law enforcement and intelligence-gathering functions (3.4.)
· parliamentary oversight on internal security services (par. 3.5.)
· intrusive measures of internal security services (par. 3.6.)
· a priori authorisation mechanisms on intrusive measures (par. 3.7.)
· ex post facto control mechanisms on intrusive measures (par. 3.8.)
3.1. The raison d'être of internal security services
The existence of an internal security service is based on the fundamental principle of international law that a state is entitled to protect its national security, which in turn is justified by the principle that the national sovereignty requires protection. National security is considered as the backbone of national sovereignty.
The internal security services contribute to the protection of human rights; they are part of the constitutional state and operate under the legal system.
The Venice Commission in its report on Internal Security Services in Europe, adopted on 7 March 1998 (CDL-INF (98) 6), stated that not only from the viewpoint of the State there is an interest in protecting the territorial integrity and internal security and stability, but also from the viewpoint of the individual who has an interest and a right to enjoy his fundamental rights and freedoms that should only be limited in the interests of the common good of the society of which he forms part, and for a valid and just reason.
This means that the functioning of an internal security service is not just aimed at defending the national security but also at protecting and guaranteeing the human rights of its citizens.
It is clear from the case-law of the European Court of Human Rights (hereafter referred to as: the Court) that the establishment of internal security services is permitted as such. This may be inferred, for instance, from the judgment of the Court in the case of Klass and others of 6 September 1978 (paragraph 48). This principle has been repeated in the Rotaru judgment of 4 May 2000 (paragraph 47).
It is clear from this that the first consideration of Recommendation 1402 which the Parliamentary Assembly adopted on 26 April 1999 concerning the justification of the mere existence of internal security services is sustained by the Court's case-law.
3.2. Objectives and functions of internal security services
“National security” is referred to in Article 8 of the Convention on Human Rights (hereafter referred to as: the Convention): it is recognised as one of the objectives for allowing certain restrictions to the right to respect for privacy as provided for in paragraph 1 of Article 8.
Article 8 states as follows:
1. Everyone has the right to respect for private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The PC-S-SEC concludes that “national security” may be defined in national legislation. But in any case the primary objectives and functions of member States' internal security services are the protection of national security, including elements such as the free democratic order.
As there is no ruling expressly defining what “national security” is, the question arose whether a definition of “national security” can be derived from the Court's case-law.
There are indeed cases where the notion of national security was considered. Based on the case-law of the Court the following activities – among others – can be considered threats to national security:
· espionage (for example the above-mentioned Klass judgment, paragraph 48)
· terrorism (idem)
· incitement to / approval of terrorism (the Zana judgment of 19 December 1997, paragraphs 48-50)
· subversion of Parliamentary democracy (the Leander judgment of 26 March 1987, paragraph 59)
· separatist extremist organisations which threaten the unity or security of the State by violent or undemocratic means (the judgment in the case of United Communist Party of Turkey and others of 30 January 1998, paragraphs 39-41)
· inciting disaffection of military personnel (Application N° 7050/75 Arrowsmith against United Kingdom - Report of the European Commission of Human Rights adopted on 12 October 1978).
However, in its judgments the Court tends to put emphasis on the second paragraph of Article 8: the necessity to restrict the human rights of Article 8, paragraph 1. So the focus is the interface between the restriction of the human rights and what is necessary in a democratic society to sustain among others national security.
It has to be stressed that it is not “national security” as such which is at stake in the case-law, but the consequences when security services perform operational activities which infringe the human rights as provided for in Article 8, paragraph 1, of the Convention.
A requirement limiting the purpose of paragraph 2 of Article 8 of the Convention to “clear and present dangers to national security” is neither sustained by the Convention nor by the Court's judgments. The internal security services must be able to collect information at a time when the plans of those who intend to threaten the national security have not yet been clear or have not been realised yet.
Other matters which may be considered threats to national security are:
· external threats to the economic well-being of the State
· money laundering on a scale likely to undermine the banking and monetary system
· interference with electronic data relating to defence, foreign affairs or other matters affecting the vital interests of the State
· organised crime on a scale that may affect the security or well-being of the public or a substantial section of it.
It must be emphasised that this is not an exhaustive list of threats to national security but mere examples.
What amounts to such threats will change from time to time and will vary from country to country. Each country has to determine whether the actions with which it is concerned are on such a scale or of such significance as to amount to a threat to the national security of the State, bearing in mind that the security of the State is not the same thing as the continuance in power of a particular government.
Other functions which are generally undertaken by security services are:
· ensuring protection of State secrets
· conducting security clearance investigation including security vetting of personnel with access to classified information or employed in sensitive places of a vital or defence-related interest
· protecting specifically designated persons such as Heads of State.
· supporting law enforcement agencies in the prevention and detection of serious crime.
The first three functions may be considered to be related to the protection of national security.
3.3 The legal basis for internal security services
On the basis of the replies to the questionnaire, the PC-S-SEC notes that all internal security services are embedded in their national legal frameworks, either in the constitution, or in specific laws, or in laws regulating also other governmental bodies.
It is recognised as a general principle that internal security services should be embedded in the legal framework of a State in order to safeguard the application of the rule of law. They should be organised and operate on rules laid down by statute.
In this respect it is considered as a general principle that all laws should go through the normal parliamentary law-making process, which is by its nature a public procedure. This means that any statute establishing internal security services should be in accordance with the principle of legality.
That the activities of internal security services can and may intrude upon the privacy of the citizens is acknowledged by the Court (see paragraph 48 of the aforementioned judgment of Klass and others).
But it is also clear from the Court's rulings that intrusions upon the privacy of the citizens are permissible only under strict conditions. The Court allows national legislators a certain margin of appreciation (Klass and others, paragraph 49).
3.4. The relationship between law enforcement and intelligence-gathering functions
It follows from the replies to the questionnaire that one of the functions of internal security services can be to prevent threats of a serious criminal nature.
The information internal security services obtain may be of great assistance to law enforcement agencies. Since one of the functions of an internal security service can be to assist law enforcement agencies, it is justified – as is the case in some member States – that internal security services are organised within a law enforcement agency.
It is recognised that the functions and powers of law enforcement and intelligence gathering are separate but complementary. It is a matter for each member State to decide how best to protect its national security and to structure its internal security services. However, whatever structure is adopted, it must be legal.
Where the functions are carried out by different bodies, the legislation should build in safeguards to find a proper balance between the necessity to keep information confidential, if and when necessary for national security reasons, and, if required by law, a proper mechanism to inform law enforcement agencies, when necessary in a specific case or required by law.
Where documentation containing information on persons gathered by internal security services is subsequently used in court as evidence by a public prosecutor, the equality of arms principle requires that this information be accessible to the defendant.
3.5 Parliamentary oversight of internal security services
The internal security services are managed by a head or a director. However, the political responsibility is attributed directly or indirectly to the Head of State, the government or an individual minister.
With regard to accountability, in all member States the internal security services are accountable to the government, to a minister or to Parliament, or a combination of these three.
Priority setting of objectives is considered part of the performance of the tasks and duties of internal security services and is therefore an element of their accountability.
The PC-S-SEC considers effective democratic control of internal security services an essential safeguard. Parliamentary oversight should oversee policy, expenditure and administration. However, Parliamentary oversight of operations is not appropriate.
3.6. Intrusive measures
Internal security services are obliged to operate in an effective way in order to achieve the objectives set by their supervising authorities in accordance with the tasks and duties as determined by law. Without effective instruments and powers, such as intrusive measures, an internal security service cannot function and loses its raison d'être.
The internal security services therefore have operational powers at their disposal. A part of these powers are identified as intrusive measures. By their nature intrusive measures could infringe the fundamental human rights as provided for in Article 8, paragraph 1, of the Convention. Another feature is the covert nature of these measures.
In their replies to the questionnaire, all member States recognise the principle that mechanisms set by law should establish the basis of legitimacy for operational activities, if these activities infringe the rights as set out in Article 8, paragraph 1, of the Convention.
In the Court's case-law there is no precise indication which category of operational measures are to be considered as infringements of the rights under Article 8, paragraph 1 of the Convention. However, with regard to paragraph 2 of Article 8 the Court has provided clear guidance.
In its Malone judgment (2 August 1984, paragraph 66), for example, the Court identified common principles:
- the law must be adequately accessible: the citizen must have an indication what is adequate in the circumstances of a given case;
- a norm cannot be regarded as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail;
- “prescribed by law” in Article 8 of the Convention means not only written law but also unwritten law.
The Court has made clear that the requirement of foreseeability depends on the circumstances of the case. This depends among other factors on the objective of the legislation.
In the Leander case (paragraph 51), the Court introduced certain qualifications to the requirement of foreseeability in the context of secret activities related to national security:
“However, the requirement of foreseeability in the special context of secret controls of staff in sectors affecting national security cannot be the same as in many other fields. Thus, it cannot mean that an individual should be enabled to foresee precisely what checks will be made in his regard…Nevertheless, in a system applicable to citizens generally…the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life. In assessing whether the criterion of foreseeability is satisfied, account may be taken also of instructions or administrative practices which do not have the status of substantive law, in so far as those concerned are made sufficiently aware of their contents.”
The Court had previously observed, in the Malone case, that in the event of secret surveillance, the executive authorities' scope for discretion should be defined in the statutory regulations (paragraph 68).
As regards the requirement that, in order to be justifiable, interference with someone's right to privacy must be necessary in a democratic society, the Court observed in the Leander case that the interference must be based on a pressing social need, and must be in due proportion to the - legitimate - objective of national security (paragraph 58). In this case, the Court acknowledged (paragraph 59) that national authorities have a margin of appreciation, and it accepted that the margin of appreciation in assessing the pressing social need, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one.
In conclusion, it can be stated that the principle of legitimacy requires a legal basis for any intrusive measures, and that the principle of foreseeability is recognised as a general principle governing intrusive measures.
3.7 A priori authorisation for intrusive measures
It follows from the replies to the questionnaire that a priori authorisation procedures differ widely among the member States: a priori authorisation is given by judicial authorities, by the prosecutor or by a minister.
The PC-S-SEC considers that a priori authorisation is necessary to strike a careful balance between the right to defend national security on the one hand and the protection of the human rights of the individual, on the other.
A clearly identifiable entity should examine whether the request to apply an intrusive measure in a particular case is permitted by law. An assessment of proportionality and subsidiarity should be part of the a priori mechanism. This means that the intrusive measure in a particular case should be proportional, and that it would be neither adequate nor effective to apply another operational measure of a non-intrusive or less intrusive nature.
The separation of the legislative, executive and judicial powers requires that the executive power, i.e. the internal security service, should take full responsibility for the decision to apply an intrusive measure in a specific case.
The national legislator should entrust a priori authorisation to an authority independent of the internal security service. Taking into account the great variety of a priori authorisation mechanisms, it is recognised that such authorisation by a public prosecutor, judicial, ministerial or parliamentary authority fully guarantees independent oversight.
Whatever system of a priori authorisation is applied, there should be clear guarantees as to the integrity and the confidentiality with regard to the decision-maker. The nature of the intrusive measures requires that the decision cannot automatically be notified to the individual because the measure would become ineffective. Moreover, to safeguard effectiveness the authority responsible for the decision to apply an intrusive measure must be able to take its decision speedily.
Save in the case of emergency, all applications for authorisation of intrusive measures should be in writing; emergency applications should be confirmed in writing. The application should contain a full, accurate description of the facts that support the application and the assessment of the internal security service as to necessity, proportionality and subsidiarity, so as to enable the decision on an application for an intrusive measure to be well motivated and sufficiently precise.
3.8 Ex post facto control mechanisms with regard to intrusive measures
It emerges from the replies to the questionnaire that in all member States ex post facto control mechanisms are in place.
As the Court emphasised in the Klass case (paragraph 49), member States do not have unlimited scope to subject individuals within their jurisdiction to secret surveillance: there should be "adequate and effective guarantees against abuse", a requirement that was repeated in the Leander case (paragraph 60). In the Klass case (paragraph 50), the Court stated:
“This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law.”
The question arises, whether the person who has been under surveillance should be informed about it. It might be argued that only if a member of the public is at least aware that he has been under surveillance should he have an opportunity to request the intervention of the courts. In the Klass case (paragraph 58), the Court ruled on this point:
“The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore…such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court's view, insofar as the 'interference' resulting from the contested legislation is in principle justified under Article 8 par. 2. [of the Convention] [...] the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the 'interference'.”
In the Leander case, similarly, the person concerned was not notified of the information that had been gathered about him and passed on to the military authorities. But according to the Court this fact “cannot by itself warrant the conclusion that the interference was not 'necessary in a democratic society in the interests of national security', as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure.” (paragraph 66).
Article 8 of the Convention does not require that the person whose right to privacy has been interfered with be informed of this interference at any moment in time. This was confirmed by the Commission in the case of Hope, Hewitt and Harman v. the United Kingdom II. In this context, the Commission, referring to paragraph 58 of the Klass judgment, stated:
“ Similarly, as found in the Leander case [... par. 66] the absence of communication to the applicant of the information recorded may ensure the efficacy of the procedure and cannot in itself warrant the conclusion that the interference was not 'necessary' ” (para. 15).
The activities of an internal security service should not be immune from the jurisdiction of a national court or special tribunal established by law. Article 13 of the Convention provides that anyone whose rights and freedoms as set forth in the Convention are violated is entitled to an effective remedy before a national authority, even if this violation has been committed by persons acting in an official capacity.
In the Golder case of 21 February 1975 (paragraph 33) the Court ruled that the "national authority" referred to in Article 13 need not necessarily, in every case, be a judicial authority in the strict sense of the word. Nevertheless, the Court was of the opinion that the competence of, and the procedural safeguards in respect of, an authority are relevant to the assessment of whether an effective remedy, within the meaning of Article 13, exists (Klass case, paragraph 67).
If the person concerned is informed that he has been subject to surveillance, he can take his case to court, in accordance with Article 13 of the Convention (as may be inferred from paragraphs 71 and 72 of the judgment in the Klass case). This leaves the case in which the person concerned cannot be apprised of the surveillance operation, or not for some time after its conclusion.
In this connection the Court recalled, in the Klass case (paragraph 68), that the absence of communication to the person concerned after the intrusive measure is ended is not in itself incompatible with Article 8, paragraph 2, of the Convention, because the very lack of notification ensures the efficacy of the measure.
The Court went on to observe (Klass case, paragraph 68):
“The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 in order to ensure the efficacy of surveillance measures. Consequently, the Court, consistently with its conclusions concerning Article 8, holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13”.
In the Leander case (paragraph 78), the Court reached the same conclusion: even if the possibility, in itself, of submitting a complaint to the government - which Leander had done - was insufficient to ensure compatibility with Article 13 of the Convention, the combination of this complaint option together with the scope for complaining to the Chancellor (Kanselier) of Justice and the Ombudsman, as well as the parliamentary controls of the system of security checks, in particular through the Members of Parliament who sit on the National Police Board, satisfied in the circumstances of the present case, the requirements of Article 13 (Leander case, paragraph 84).
From the replies to the questionnaire it appears that several complaints procedures are open to individuals in member States: internal investigation, ombudsman, data protection authorities, judicial authorities, or tribunals.
It can be derived from the case-law of the Court and the common practice of member States that it is recognised as a general principle that individuals have a right to complain.
On the basis of the Court's case-law on Articles 8 and 13 of the Convention it can be concluded that whether the requirement of an effective remedy is satisfied, does not depend only on the mere existence of access to a court, but on the entire arsenal of oversight mechanisms and their effectiveness.
The PC-S-SEC concludes that the following principles should be recognised:
- the establishment and the functioning of internal security services should be based on the principle of legality;
- internal security services should be able to function effectively taking into account the checks and balances enshrined in the European Convention on Human Rights;
- control and oversight mechanisms should be integrated in the institutional framework of the national security services.
In view of the great differences existing between the national legislations on the application of the aforementioned principles, and notwithstanding the safeguards provided by the European Court of Human Rights in ensuring that the duties and functions of internal security services are exercised in accordance with respect for human rights and fundamental freedoms, the PC-S-SEC concludes that it is feasible to make a Recommendation on certain fundamental and general principles concerning internal security services.
Specific terms of reference
1. Name of the Committee:
Group of Specialists on Internal Security Services (PC-S-SEC)
2 Type of Committee:
Committee of Experts
3. Source of terms of reference:
Committee of Ministers (733rd meeting, 7 December2000)
4. Terms of reference:
The committee will undertake a study on the role and responsibilities of internal security services with a view to preparing a report detailing, inter alia, the feasibility of recommendations in this regard.
In the execution of its terms of reference the committee shall bear in mind Parliamentary Assembly Recommendation 1402 (1999) and take account of:
- the relevant case-law of the European Court of Human Rights;
- the relevant Council of Europe instruments;
- the current work of the Committee of Experts on Police Ethics and Problems of Policing (PC-PO).
5. Membership of the committee:
a. All member states are entitled to appoint one or more experts (preferably no more than two).
b. Two scientific experts shall be appointed by the Secretariat.
c. The Council of Europe budget will bear the travel and subsistence expenses of one expert in respect of: Cyprus, Denmark, Estonia, Ireland, Italy, Latvia, Lithuania, Malta, Portugal, Sweden, Switzerland, Romania, Russia, Ukraine and United Kingdom, and of the two scientific experts.
d. Qualifications required of Committee members: experts on the legal aspects of the organisation, role, duties and mode of functioning of internal security services; public prosecutors and judges versed in the relevant case-law.
e. The European Commission and the Secretariat General of the Council of the European Union may send representatives to the committee's meetings, without voting rights or defrayal of expenses.
f. The CDPC Bureau may authorise observers to attend the committee's meetings.
6. Working structures and methods:
On completion of its work, the committee will transmit its results to the Committee of Ministers through the CDPC.
7. Committee(s) informed of the terms of reference for action:
European Committee on Crime Problems (CDPC).
8. Committee(s) informed of the terms of reference for information:
- European Committee on Legal Co-operation (CDCJ)
- Steering Committee for Human Rights (CDDH)
- Project Group on Data Protection (CJ-PD)
- Committee of Experts on Police Ethics and Problems of Policing (PC-PO).
These terms of reference will expire on 31 December 2002.