Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.

Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

CoE Secretary General Speech on the right to privacy

In his speech the SG stressed the importance of new social media, but he said that they have ‘changed our understanding of privacy’.

The fact is that the line between public life and private life is on the move, and if we do not act, this line will disappear.

Today, privacy is challenged, more than ever before in the history of mankind. Information and Communication Technologies have developed in such a way that information about us is constantly being recorded, communicated, stored and analysed, often without our knowledge, let alone our consent.

We easily overlook the fact that every action involving technology is recorded somewhere. We should remind ourselves that our way of life interferes with privacy. There is a “Big Brother” watching you almost everywhere you go!

Reflecting on this phenomenon, a statement from the Ministers of Justice from the 47 member states of the Council of Europe last year concluded that: “Modern information and communication technologies enable observation, storage and analysis of most day-to-day human activities, more easily, rapidly and invisibly than ever before”, but it also warned that this potentially creates a feeling of being permanently watched, which may impair the free exercise of human rights and fundamental freedoms.

Council of Europe: need for a global consideration of the human rights implications of biometrics

The CoE’s Committee on Legal Affairs and Human Rights is “increasingly concerned about the rapid and uncontrolled development of biometric technologies”. It stresses the need to strike an appropriate balance between security and the protection of human rights and fundamental freedoms, especially the right to privacy. In its report, the Commitee says:

Given that at European level the legal framework regarding the use of biometric data remains vague, Council of Europe member states should take further measures to improve it. In particular, they should adopt specific legislation in this area, produce a standardised definition of “biometric data”, put in place supervisory bodies and promote multi-disciplinary research.

The Committee of Ministers could, amongst other things, revise the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data in order to adapt it to the challenges stemming from the development of biometric technologies.

Council of Europe ministers resolution on data protection and privacy in the third millenium

MJU-30 (2010) RESOL. 3 E: THE MINISTERS participating in the 30th Council of Europe Conference of Ministers of Justice (Istanbul, Turkey, 24 – 26 November 2010), adopted a “resolution on data protection and privacy in the third millenium” in which they supported the modernisation of Convention 108 “in order to find appropriate solutions to the new challenges posed by technology and globalisation of information to guarantee effective protection of human rights and fundamental freedoms as well as the exercise of these rights, in particular the right to respect for private and family life while processing personal data, and the enforcement of basic data protection principles, in particular to resolve issues of transparency, data security breaches, jurisdiction, applicable law and liability arising from the use of ICTs.”

Council of Europe upcoming work on human rights and the fight against terrorism

The Council of Europe’s Committee on Legal Affairs and Human rights is currently preparing two reports in the context of human rights and counterterrorism. One report is entitled “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations” and it will address some of the legal and policy issues which the Rapporteur, Mr Marty, encountered in the course of preparing his reports on renditions and secret detentions. It shall primarily focus on the question of accountability for human rights violations committed by members of special services.

Mr. Tomlinson will write a more general report on to examine the compatibility of counter-terrorism legislation and its application with the Council of Europe standards applicable to human rights.

In this context, it aims to look at the way in which member states may encroach upon the human rights of suspected terrorists or even of journalists or members of the public at large, who suffer restrictions of different kinds in the name of the fight against terrorism.

It appears that Mr. Tomlinson will mainly focus on detention, fair trial and expulsion issues. He will also focus on states’ activities such as surveillance, interception, hearing of anonymous witnesses, the installation and (ab)use of closed-circuit television and monitoring of monetary movements. Also, it would be interesting to look into how member states may or may not use information obtained by secret services as legally admissible evidence and how they can resort to data from, e.g., ID cards and SWIFT operations.

The report intends to build on a previous memorandum by Mr Grebennikov of 2006.

Council of Europe assesses UK implementation of S & Marper judgment

In its Programme for Government of 20/05/2010 the new UK government stated that “We will adopt the protections of the Scottish model for the DNA database”. A more detailed proposal, including whether to bring into force any aspects of the Crime and Security Act as an interim measure is being considered. (see below)I t is anticipated that the coalition government will submit legislation to Parliament on DNA retention (based on the Scottish model) in Autumn 2010, anticipating that it will be brought into force by Autumn 2011. T

The Council of Europe notes however that information is awaited on the detail of the new legislation and any  interim measures envisaged. Given that the legislation criticised by the Court at the time of the judgment remains in force and the size of the  database and number of individuals possibly affected, information on the implementation of interim measures is of particular importance in  relation to both the current situation and the treatment of “legacy  profiles”.

1) Crime and Security Act 2010: The new provisions envisaged the following powers of retention:

– Cellular samples: samples should not be retained beyond a  six-month maximum, which is needed to ensure satisfactory loading of the profile taken from the sample onto the NDNAD (section 64ZA).

– Adults: six-year retention period for the fingerprints and DNA profiles of adults arrested but not ultimately convicted of an  offence, irrespective of the seriousness of the crime for which they  were arrested (section 64ZD).

– Minors:

– 16 and 17 year-olds: six-year retention period for the  fingerprints and DNA profiles of minors aged 16 and 17 years arrested  but not ultimately convicted of a serious offence (section 64ZG). For  other recordable offences (lesser offences) the retention period shall  be three years (section 64ZE).

– Under 16 year-olds: three-year retention period for the  fingerprints and profiles of minors aged under 16 years arrested but not ultimately convicted of an offence, irrespective of the seriousness of the crime for which they were arrested (section 64ZE and 64ZF). Although not evident in the text of the Act, the United Kingdom authorities have confirmed that steps have been taken to remove the records of children  under 10 from the NDNAD, and such material will not be retained in the  future

– Terrorism and national security: If the responsible Chief Officer determines that fingerprints or DNA profiles are to be retained for national security purposes, they need not be destroyed in  accordance with the above retention periods for as long as the determination has effect (section 64ZK, see also clauses 17 and 18 of  the Crime and Security Bill amending Schedule 8 of the Terrorism Act  2000). Such a determination has effect for a maximum of two years  beginning with the date on which the material would otherwise be required to be destroyed, but may be renewed.

– Volunteers: Material which has been given voluntarily is to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless, among other reasons, the individual consents to its retention under section 64ZL (section 64ZB). Consent to retention of  material under section 64ZL may be withdrawn at any time.

– Legacy profiles: Section 22 requires the Secretary of State to make provision for the destruction of material taken prior to the commencement of the relevant provisions of the Bill which would have been destroyed had those provisions been in force when the material was obtained.

– Review procedure: Under section 64ZI(5), material falling within sections 64ZD to 64ZH must be destroyed if it appears to the  Chief Officer that (a) the arrest was unlawful; (b) the taking of the  fingerprints, impressions of footwear or DNA sample concerned was  unlawful; (c) the arrest was based on mistaken identity, or (d) other  circumstances relating to the arrest or the alleged offence mean that it is appropriate to destroy the material. Section 23 requires the  National DNA Database Strategy Board to issue guidance to chief officers on the early destruction of samples and DNA profiles.

Venice commission report on counter-terrorism measures and human rights

Adopted by the Venice Commission at its 83rd Plenary Session (Venice, 4 June 2010). Read it here.

Subjects covered:
A. Terrorist offences and principle of legality
B. Surveillance powers
C. Requiring disclosure of information
D. Arrest, interrogations and length of detention
E. Treatment of detainees
F. Military and special tribunals
G. Modifications of ordinary judicial procedures
H. Targeted sanctions against individuals or groups (“Blacklists”)
I. Asylum, return (“refoulement”), expulsion and extradition

In 2009, the Venice Commission, in co-operation with PACE and the European University Institute, organised a Round Table on “Fight against Terrorism: Challenges for the Judiciary”, which took place in Florence from 18 to 19 September 2009.

Hammamberg: Duty to investigate over torture allegations

Thomas Hammamberg, the Council of Europe Commissioner for Human Rights has a comment on the recent decision of the UK government, authorising a a judge-led inquiry into allegations that British officials were complicit in the mistreatment of suspects held by the United States, Pakistan and others.

According to the Commissioner, “this is a proper response to a request from twelve former detainees who have all credibly claimed that they became victims of the ‘war on terror’ and were severely tortured”, and he invites other European governments to initiate investigations.

The time has certainly come to break the conspiracy of silence around the complicity of European governments in the human rights violations which have taken place during the counter-terrorism actions since September 2001, he writes in his comment.

In this respect, several states are mentioned as those who need to set up an indipendent inquiry. Among others, Sweden (for the rendition to CIA of two asylum-seeking Egyptians), successive governments in “the former Yugoslav Republic of Macedonia” (for the co-operation of their intelligence services with the CIA in the case of Khaled El-Masri), Poland and Romania (for their role in the CIA’s system of secret detentions, transfers and interrogations of terrorist suspects), and Lithuania(for the allegations that the CIA had operated a secret prison on national territory).

Hammamberg also reiterates that States have the duty under ECHR to conduct effective investigations into arguable claims of torture and other ill-treatment. More importantly, in this context he highlights that confidentiality does not excuse silence about human rights violations; in this regard, the Commissioner mention the case of Maher Arar – a Canadian citizen who was mistaken for another person, stopped at a US airport, handed over to the Syrian security police and badly tortured. Canada set up a thorough and fair investigation, without endangering the intelligence nerve system.

Hammamberg concludes with a strong condemnation of the methods used in the war on terror:

Effective action is needed to prevent and punish terrorist acts. The tragic mistake after September 11 was not the determination to respond, but the choice of methods: terrorism must not be fought with terrorist means. During the ‘war on terror’ core principles of human rights have been violated – also in Europe. It has victimized thousands of individuals, many of them totally innocent. It is urgent that the damage now be repaired and steps be taken to prevent such violations in the future.

Council of Europe reports

• Islam, Islamism and Islamophobia in Europe, Report by Mr Mogens Jensen, Committee on Culture, Science and Education, 25 May 2010. Summary: Intolerance towards Islam and Muslims has been increasing in recent years alongside “Islamism”, a religiously disguised form of political extremism. The Council of Europe should serve as the pan-European forum for discussing common strategies for strengthening democratic stability faced with Islamism and Islamophobia. Social exclusion and cultural discrimination of Muslims must not be tolerated. Islamism cannot be combated by banning symbols of extremism and gender inequality. Inter-religious education should be supported by member states. Institutions of higher education and research in Europe should provide Islamic studies. Contacts between Muslim and non-Muslim Europeans and Muslims in North Africa, the Middle East and Asia should be facilitated, in particular among young people, students and teachers.

• Legal remedies for human rights violations in the North-Caucasus Region,  Report by Mr Dick Marty, Committee on Legal Affairs and Human Rights, 4 June 2010. Summary:  The Committee on Legal Affairs and Human Rights notes that the situation in the North Caucasus region, particularly in the Chechen Republic, Ingushetia and Dagestan, constitutes the most serious situation in the entire geographical area encompassed by the Council of Europe in terms of human rights protection and the affirmation of the rule of law.
  In the Chechen Republic, the current authorities continue to maintain a generalised climate of fear, notwithstanding the undeniable successes in the sphere of reconstruction and the distinct improvement of the region’s infrastructures, which had been laid to waste by two cruel and devastating wars. Nevertheless, the human rights situation and the functioning of justice and democratic institutions continue to give cause for the gravest concern: successive disappearances of the government’s opponents and human rights defenders still remain widely unpunished and are not elucidated with due diligence.
  In Ingushetia, constructive dialogue has been forged between the authorities and civil society since the new President came to power. It must nevertheless be pointed out that there has been a worrying resurgence of violence since 2009, resulting in some cases in assassinations and disappearances of opponents to the government and journalists, without any prosecutions to date.
  Dagestan has also recently experienced a resurgence of acts of terrorism, prompting responses from the security forces that, unfortunately, are not always lawful and productive. The admirable tradition of peaceful secular cohabitation between Muslim, Christian and Jewish communities founded on mutual tolerance could be jeopardised by the rise of extremism and inappropriate responses from the authorities.
  The Committee notes that the European Court of Human Rights has condemned the Russian Federation for serious human rights violations in the region in over 150 judgments and stresses the importance of the prompt and complete implementation of these judgments.

  The Committee is making a number of proposals aimed at putting a stop to the impunity enjoyed by the perpetrators of human rights violations and restoring the people’s trust in the law enforcement agencies, without which it will not be possible to defeat the rise of extremism and terrorism, which the Committee condemns in the most resolute terms, expressing its solidarity with the victims on all sides.

Interesting CoE parliamentary assembly documents

• Islam, Islamism and Islamophobia in Europe, Report 1 by Committee on Culture, Science and Education, 25 May 2010; Rapporteur: Mr Mogens JENSEN, Denmark, Socialist Group.
• Effective implementation of the European Convention on Human Rights: the Interlaken process,  Report by Committee on Legal Affairs and Human Rights, 27 April 2010; Rapporteur: Mrs Marie-Louise BEMELMANS-VIDEC, The Netherlands, Group of the European People’s Party.
• The protection of human rights in emergency situations, Recommendation 1865 (2009), Reply from the Committee of Ministers adopted at the 1081st meeting of the Ministers’ Deputies (31 March 2010), 16 April 2010.