Doc. 8301 23 March 1999
Control of internal security services in Council of Europe member states
Committee on Legal Affairs and Human Rights
(Rapporteur: Mr György FRUNDA, Romania, Group of the European People’s Party)
Internal security services are valuable to democratic societies because they protect national security and the free order of the democratic state. However, these services often put the interests of what they perceive as those of national security and their country above respect for the rights of the individual. Since, in addition, these services are often inadequately controlled, there is a high risk of abuse of power and violations of human rights. This is a cause of concern for the rapporteur.
In order to remedy this he proposes that internal security services should not be allowed to run criminal investigations, arrest or detain people, or be involved in the fight against organised crime, except in very specific cases when organised crime poses a clear danger to the free order of a democratic state. Effective democratic control of the internal security services, both a priori and ex post facto, by the executive, the legislative and the judiciary, is especially vital in this regard.
It is thus necessary that each individual country provide for its own internal security requirements while fully respecting fundamental freedoms and ensuring proper avenues of control in conformity with a common uniform democratic standard. Thus, the report recommends that the Committee of Ministers draw up a framework convention on internal security services incorporating the guidelines which form an integral part of the recommendation.
I. Draft recommendation
The Assembly recognises that internal security services perform a valuable service to democratic societies in protecting national security and the free order of the democratic state.
2. However, the Assembly is concerned that member countries’ internal security services often put the interests of what they perceive as those of national security and their country above respect for the rights of the individual. Since, in addition, internal security services are often inadequately controlled, there is a high risk of abuse of power and violations of human rights, unless legislative and constitutional safeguards are provided.
3. The Assembly finds this situation potentially dangerous. While internal security services should be empowered to fulfil their legitimate objective of protecting national security and the free order of a democratic state against clear and present dangers, they should not be given a free hand to violate fundamental rights and freedoms.
4. Instead, a careful balance should be struck between the right of a democratic society to national security and individual human rights. Some human rights (such as the right to be protected from torture or inhuman treatment) are absolute, and should never be interfered with by state authorities, including internal security services. In other cases, however, which right should have priority – the individual human right or the right of a democratic society to national security – will have to be established using the principles of proportionality and legality, as laid down in the European Convention on Human Rights.
5. The risk of abuse of powers by internal security services, and thus the risk of serious human rights violations, rises when internal security services are organised in a specific fashion, when they wield certain powers such as preventive and enforcement methods which involve forcible means (for example the power to search private property, run criminal investigations, arrest and detain), when they are inadequately controlled (by the executive, legislative and the judiciary), and also when there are too many of them.
6. The Assembly thus proposes that internal security services should not be allowed to run criminal investigations, arrest or detain people, nor should they be involved in the fight against organised crime, except in very specific cases, when organised crime poses a clear danger to the free order of a democratic state. Any interference of operative activities of internal security services with the exercise of human rights and fundamental freedoms as protected in the European Convention on Human Rights should be authorised by law, and preferably by a judge, before the activity is carried out. Effective democratic control of the internal security services, both a priori and ex post facto, by all three branches of power, is especially vital in this regard.
1. 7. The Assembly considers it necessary that each individual country provide efficiently for its own internal security requirements while ensuring proper avenues of control in conformity with a uniform democratic standard. This common standard should ensure that internal security services act only in the national interest and in full respect of fundamental freedoms, and cannot be used as a means of oppression or undue pressure.
Thus, the Assembly recommends that the Committee of Ministers draw up a framework convention on internal security services incorporating the guidelines below which form an integral part of this recommendation.
A. as regards the organisation of internal security services:
i. All internal security services must be organised and must operate on a statutory basis, that is on the basis of national laws which have gone through the normal law-making process in parliament, and which are completely public.
ii. The sole task of the internal security services must be to protect national security. Protecting national security is defined as combating clear and present dangers to the democratic order of the state and its society. Economic objectives, or the fight against organised crime per se, should not be extended to the internal security services. They should only deal with economic objectives or organised crime when it presents a clear and present danger to national security.
iii. These objectives should instead be laid down by law, to be interpreted by the judiciary in case of conflicting interpretations (and not by successive governments). The executive must not be allowed to extend objectives to the internal security services. Internal security services should not be used as a political tool to oppress national minorities, religious groups or other particular groups of the population.
iv. Internal security services should preferably not be organised within a military structure. Nor should civilian security services be organised in a military or semi-military way.
v. Member states should not resort to non-governmental financing sources to support their internal security services, but finance them exclusively from the state budget. The budgets submitted to parliament for approval should be detailed and explicit.
B. as regards operative activities of internal security services:
i. Internal security services must respect the European Convention on Human Rights.
ii. Any interference by operative activities of internal security services with the European Convention on Human Rights must be authorised by law. Telephone tapping, mechanical or technical, aural and visual surveillance, and other operative measures carrying a high risk of interference with the rights of the individual should be subject to special a priori authorisations by the judiciary. Legislation should normally establish parameters which are to be taken into consideration by judges or magistrates, on call for prior authorisations twenty-four hours a day, with the view that the demand for authorisation be processed within a few hours (maximum), before they authorise operative activities such as house searches. These parameters should include as minimum requirements for authorisation:
a. there is probable cause for belief that an individual is committing, has committed, or is about to commit an offence;
b. there is probable cause for belief that particular communications or specific proof concerning that offence will be obtained through the proposed interception or house searches, or that (in the case of arrest) a crime can thus be prevented;
c. normal investigative procedures have been attempted but have failed or appear unlikely to succeed or be too dangerous.
The authorisation to undertake this kind of operative activity should be time-limited (to a maximum of three months). Once observation or wire-tapping has ended, the person concerned should be informed of the measure taken.
iii. Internal security services should not be authorised to carry out law-enforcement tasks such as criminal investigations, arrests, or detention. Due to the high risk of abuse of these powers, and to avoid duplication of traditional police activities, such powers should be exclusive to other law enforcement agencies.
C. as regards effective democratic control of the internal security services:
i. The executive should exercise ex post facto control of the activities of the internal security services, for example by obliging the internal security services to draw up and submit annual detailed reports on their activities. One minister should be assigned the political responsibility for controlling and supervising internal security services, and his office should have full access in order to make possible effective day-to-day control. The minister should address an annual report to parliament on the activities of internal security services.
ii. The legislature should pass clear and adequate laws putting the internal security services on a statutory basis, regulating which kind of operative activities carrying a high risk of violation of individual rights may be used in which circumstances, and providing for adequate safeguards against abuse. It should also strictly control the services’ budget, inter alia by obliging these services to submit to it annual detailed reports on how their budget is used, and should set up special select control committees.
iii. The judiciary should be authorised to exercise extensive a priori and ex post facto control, including prior authorisation to carry out certain operative activities with a high potential to infringe upon human rights. The overriding principle for ex post facto control should be that persons who feel that their rights have been violated by acts (or omissions) of security organs should in general be able to seek redress before courts of law or other judicial bodies. These courts should have jurisdiction to determine whether the actions complained of were within the powers and functions of the internal security services as established by law. Thus, the court should have the right to determine whether there was undue harassment of the individual or abuse of administrative discretion in his or her regard.
iv. Other bodies (for example ombudsmen and data protection commissioners) should be allowed to exercise ex post facto control of the security services on a case-by-case basis.
v. Individuals should be given a general right of access to information gathered and stored by the internal security service(s), with exceptions to this right in the interest of national security clearly defined by law. It would also be desirable that all disputes concerning an internal security service’s power to bar disclosure of information be subject to judicial review.
II. Draft order
The Assembly instructs its Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) to include the issue of the compatibility of the activities of internal security services in member states with the European norms and standards for human rights and fundamental freedoms in the list of areas to be monitored.
III. Explanatory memorandum, by Mr Frunda
1. In many countries, internal security services have developed a reputation for violating human rights. Especially during the cold war, very often internal security services put the interests of what they perceived as those of national security and their country (and sometimes, of the governing political party) above respect for individual rights. This was especially the case for Warsaw Pact countries in those times: the Russian KGB, the Romanian Securitate and the East German Staatssicherheit (Stasi), for example, all had a well-earned reputation for a whole array of human rights abuses ranging from harassment and intimidation, over breaches of the right to privacy and family life right up to brutality, torture and even murder. But Western internal security services were also not immune to violating the individual rights of supposed terrorists and of those who were said to be engaged in subversive activities (for example communists), while in reality these people were often only exercising their right to free speech or peaceful political dissent.
2. The cold war ended nearly a decade ago. Most countries in central and eastern Europe have passed over to democratic regimes in the meantime, and have tried to reform their internal security services so as to ensure that they cannot return to the bad old days and abuse their power to violate human rights. But how successful have these reforms been in reality? The powers of the Russian Federal Security Service (FSB), for example, still include the right to run its own criminal investigations and pre-trial detention centres, powers that are wide open to abuse as the recent cases of trumped-up charges, investigations, and even detention of environmental activists have shown. And what about some of the western internal security services which might not have been reformed at all? The recent convictions of a former interior minister and high-ranking officials in Spain for their part in the “dirty war” against Basque terrorists show that human rights violations by internal security services are still possible, even today, in democratic countries.
3. With these questions in mind, Mr Stoffelen and fifteen other parliamentarians, including myself, tabled a motion for a resolution on the control of internal security services in Europe in June 1994. The motion noted with concern that internal security services in Council of Europe member states were seldom regulated or subjected to parliamentary control, and called on member states to remedy this shortcoming in order to limit the scope for abuse. The motion was sent to the Committee on Legal Affairs and Human Rights for report, which appointed Mr Severin Rapporteur.
4. In December 1994, Mr Severin submitted a draft questionnaire on the topic to the committee, which approved it. The questionnaire was then sent out to all national parliamentary delegations of the Council of Europe member states, as well as of states with special guest status. 32 replies were received, and they were analysed in a working paper prepared by Romanian expert Ms Monica Macovei (AS/Jur (1996) 23). When Mr Severin became Foreign Minister of Romania and had to leave the committee, I was appointed rapporteur in his place. In May 1997, the Committee decided to consult the European Commission on Democracy through Law (Venice Commission) on the constitutional relations between internal security services and other state organs. On 7 March 1998, the Venice Commission adopted its report on internal security services in Europe, which had been prepared by Mr John Lundum of Denmark, Mr Joseph Said Pullicino of Malta and Mr Antti Suviranta of Finland (CDL-INF (98) 6). The Venice Commission’s report is excellent,1 and I have depended on it quite heavily in the writing of this memorandum.
5. In December 1997, the Committee decided to organise a hearing on the control of internal security services in Europe. It was held on 24 March 1998 in Munich, with the participation of Dr Peter Frisch, Director of the German Bundesverfassungsschutz, General Aurelio Madrigal Diez, Vice-Director of the Spanish CESID, Mr Valentin Sobolev, Vice-Director of the Russian Federal Security Service FSB, Chief Justice Mr Joseph Said Pullicino (Rapporteur of the European Commission for Democracy through Law), NGO experts Ms Monica Macovei and Mr Robin Robison, and Mr Michael O’Boyle, Head of Division at the European Court of Human Rights. The hearing was very productive; again, I have relied on the minutes of the hearing (AS/Jur (1998) 33) in the preparation of this memorandum.
6. This memorandum attempts to combine all the expertise gathered by the Committee through replies to its questionnaire, expert reports and working papers, the opinion of the Venice Commission and the hearing held in March 1998. Obviously, this memorandum cannot go into as much detail as the underlying sources for example the Venice Commission’s opinion on the constitutional aspect, Ms Macovei’s summary of the situation in different states, etc.), but it will present this information in a condensed form in order to reach conclusions and formulate draft recommendations to national governments.
B. Activities of internal security services in Europe: human rights aspects
i. The protection of national security versus individual human rights
7. From a human rights perspective, the main problem today seems to lie in the practically inevitable confrontation between the collective right of a democratic society and state to have its national security and democratic order protected, and individual rights such as the right to privacy, freedom of expression, access to court, etc. As in the case of conflicting human rights and fundamental freedoms of individuals (for example, the right to privacy and the freedom of expression), a careful balance has to be found between the collective right to national security and individual human rights. Of course, some human rights (such as the right to be protected from torture or inhuman treatment) are absolute, and thus will always be overriding. In consequence, in Council of Europe member states, no derogation from a human right should be allowed where the European Convention on Human Rights (ECHR) does not provide for this.
8. In other cases, which right should have priority (the individual or collective right) will have to be established in nearly every individual case, using the principle of proportionality: that is, is the infringement on an individual right by an internal security service necessary to protect national security, and is the method employed proportionate to that legitimate aim (have all other options which would infringe less on that right been tried to no avail, or is the danger to national security so clear and present that the other options cannot be tried first)?
9. Undoubtedly a variety of internal and external situations may arise in which the executive organs of the state, including the internal security services, must act quickly and decisively to protect the fundamental interests of the state and society. There must be consensus that only this need may possibly justify derogation from normal human rights standards. When examined in this light, it quickly becomes clear that violations of some human rights should not be allowed to happen at all, such as torture or inhuman or degrading punishment or treatment, and that other human rights violations may only be justified in defence of the equally important rights of others (such as violations of the right to life). For example, only the most exceptional circumstances might justify the killing of, for example, a terrorist by the internal security services, such as if he were about to set off a bomb. In general, any such actions would have to be classed as abuse of power by internal security services, and should be eradicated.
10. The case is less clear cut as regards other human rights, when the protection of national security has to be carefully weighed up against individual rights. In actual fact, there is a problem with the notion of the protection of national security in general, since it is often not well defined. While human rights and fundamental freedoms are welldefined, for example in the European Convention on Human Rights (ECHR) and the case-law of the European Court of Human Rights, the concept of the protection of national security in many countries remains vague. This vagueness seems to be exploited by some security services in order to broaden their mandate as far as possible, encompassing anything from the fight against political extremism, over the fight against organised crime, up to improving tax collection or protecting the government from embarrassing revelations. I would plead for a narrower definition of the concept of the protection of national security, limited to combating clear and present dangers to the democratic order of the state and its society. In this context, it is also essential to ensure that the internal security services cannot be used against national minorities, religious or other groups of the population.
11. One of the fundamental rights most often interfered with by the internal security services is the right to privacy, a right which is at the very core of any democratic society. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference, as well as the ability to control information about oneself and one’s activities. Thus, it is fundamental to privacy that limits are imposed on the collection, use and disclosure of information obtained. Except where clearly in the public interest, and as authorised by law, ideally such information should be collected, used and disclosed only with the express and informed consent of the persons involved. It is recognised that these considerations do not apply to internal security services only but could also be applied to other data-collecting structures within a modern state and which are today considered to be essential for its sustenance and development. The trend is however towards greater accountability and control in this area which should extend to all state organisations having such functions and powers that could potentially, if abused, be a threat to the right of privacy.
12. The right to privacy is especially endangered in cases concerning telephone tapping, aural and visual surveillance covering matters such as the planting of electronic devices and the use of video cameras to observe the activities of individuals in private places. The case-law of the European Court of Human Rights indicates that the gathering and storage of information, and telephone-tapping, may be justified in a democratic society if necessary for the protection of national security, as long as the conditions under which and the circumstances when such measures could be taken were clearly defined by law (specific enough for ordinary citizens to be able to understand them), and adequate and effective safeguards against abuse were provided for. The introduction of specific legislation in this field, combined with a priori and ex post facto control of these invasive measures, preferably by the judiciary, could thus ensure that whilst the security services are provided with the necessary tools to do their job they do not exceed their powers to the detriment of the right to privacy.
13. Another frequently endangered right is the freedom of expression. The European Court of Human Rights has found that the state enjoys a wide margin of appreciation in defining which restrictions on freedom of expression are necessary in a democratic society. Nevertheless, such restrictions have to be based on relevant and sufficient reasons and be proportionate to the aim of protecting national security. For example, in a case against the United Kingdom, the Court found that the national security interest had evaporated because the material in question had already been published in other countries. In another case against the Netherlands, the injunction against a left-wing magazine was ruled unjustified, because the allegedly secret information it contained was old, and no longer sensitive and copies of it had been previously available. However, in a case against Greece, the Court upheld the government’s decision to punish a Greek officer who had participated in a secret study on guided missiles and had written an article about it, finding that the material was sufficiently sensitive to justify the government’s defence that national security would otherwise be jeopardised.
14. Article 13 of the European Convention on Human Rights (ECHR) inter alia protects the right “to have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity” against violations of rights and freedoms as set forth in the ECHR. With regard to the internal security services, there are two possible problems in this area: First, individuals might not be aware that their rights are being infringed upon (for example through wire-tapping or the storage of inaccurate intelligence information). Second, even if individuals do discover a violation of their rights, and they bring the case to court, the security service may invoke the “national security” privilege and hinder the court to consider the evidence.
15. As a solution, I find that where information concerning an individual has been collected and stored without his knowledge, he should be informed, where practicable, that information is held about him as soon as the activities of the security services are no longer likely to be prejudiced. In addition, periodic reviews of all security service files should be undertaken, to ensure that they are kept up to date and free of superfluous and inaccurate data. Persons who feel that their rights have been violated by acts (or omissions) of security organs should in general be able to seek redress before courts of law or other judicial bodies. These courts must then also have some opportunity of assessing the evidence supporting the claim of national security, if it is invoked by the security service, particularly where the liberty of the subject is concerned (although this should be done in a manner which seeks to respect the national security interests at stake). Within the limitations laid down by law, courts should then have the right to determine whether there was undue harassment of the individual or abuse of administrative discretion. This is because judicial review of executive acts, with the proper safeguards essential in the circumstances to protect the legitimate security interests of the state, should not be unduly withheld.
ii. Specific types and structures with a high risk of abuse
16. It can be noted that a relatively large number of internal security services operate in the new democracies of central and eastern Europe, in particular (for example the Russian Federation, Romania, Poland, Latvia, Moldova), ranging up to five or more specialised agencies per country. There are several problems connected with a high number of different internal security services. First of all, they are expensive. But, more importantly, the proliferation of internal security agencies encourages each agency to broaden its activities in order to justify its existence, which, in turn, leads to inter-agency rivalry and needless duplication of work. Finally, the more internal security services there are, the more difficult and expensive it becomes for judicial, legislative and executive bodies to exercise an adequate overview, possibly leading to inefficient outside control. It would thus be a good idea if member states where to cut down on the number of internal security services operating in their country to a maximum of two.
17. The type of internal security service – military or civilian – affects the accessibility of intelligence information, the efficiency of public oversight and the transparency of the whole process. Internal security services organised along military structures are usually closed and hierarchically structured bodies, with diminished public oversight (indeed, control functions may sometimes be exercised only by military courts). There is a danger that the accumulation of political and military power in such an internal security service, with its exclusive access to classified information, may turn it into a powerful and independent decision-making body, or indeed into an operational force far removed from official aims. To avoid such problems (and others inherent to closed and hierarchical structures), I would recommend that internal security services function within civilian structures and be subject to civilian control. There is no advantage – from a democratic and human rights point of view – to a military-structure type internal security service.
iii. Specific powers with a high risk of abuse
18. Most internal security services are limited, in function, to the protection of national security and the democratic order of the state, and, in methods, to the gathering of intelligence and to the subsequent analysis and interpretation of the material (although they are sometimes authorised to use intrusive methods such as wire-tapping or personal observation). There are some security services, however, whose functions extend to the maintenance of public order and the prosecution of crime, and whose powers include preventive and enforcement methods which often involve forcible means, including house searches, criminal investigations2 and the arrest3 and even detention of people.4
19. These functions and powers are especially open to abuse by their very nature. It might well be preferable to transfer those functions and powers related to the maintenance of public order and the prosecution of crime to other law enforcement agencies (for example the police), to avoid duplication of traditional police activities and prevent the violation of individual rights. If security services are nevertheless assigned such functions and powers, it should at least be assured that there is no discrepancy between the internal security service and the ordinary law enforcement practice, with respect, for example, to the form and duration of initial detention before a suspect is brought before a judge. Exceptions may be made only in the strict interests of national security in accordance with prescribed norms. However, once a judge issues a remand order pending trial,5 the person charged must be detained in a normal remand centre, free of the control of the internal security services. There is no legitimate justification for a separate remand centre for internal security services,6 as any necessary precautions, such as solitary confinement, could effectively be taken in an ordinary remand centre. The same is true for conducting criminal investigations, which should lie in the hands of the police and the prosecutor’s office, and not an internal security service7.
20. Telephone tapping, aural and visual surveillance covering matters such as the planting of electronic devices and the use of video cameras to observe the activities of individuals in private places are also high-risk activities as concerns the violation of human rights, in this case, the right to privacy. It should be noted here that wire-tapping is prohibited by law in Belgium and Malta, which makes one wonder whether it is as necessary a method as some security services claim. Specific measures which can be taken to reduce the risk of human rights violations, if security services are accorded this right, include:
i. requiring prior authorisation to tap someone’s phones, preferably by a judge (other possibilities would be: by a select parliamentary committee, by several ministers, or by the prosecutor-general)
ii. requiring the internal security service to furnish proof that:
— there is a well-grounded suspicion or actual proof that a criminal offence is being, has been, or is about to be committed which might endanger national security or the democratic order of the state;
— there is no other, less intrusive way of obtaining the necessary information;
iii. requiring that, once the tapping has ended, the person tapped should be informed of the surveillance carried out.
So as to allow the internal security services, who often have to work under extreme time-pressure, to work effectively, a judge or magistrate should be on call for prior authorisations twenty-four hours a day, with the view that the demand for authorisation bei processed within a few hours (maximum).
C. Activities of internal security services in Europe: democratic control
i. The need for democratic control
21. Uncontrolled security services have a potential for the abuse of state power. Indeed, if internal security services do not act in the national interest they can become a means of oppression and undue pressure (as many did during the cold war). Thus, it is essential that such services act only in the national interest and not in favour of any particular party in government, or even worse, that they become a power unto themselves - a state within a state. Such a development can only be prevented by submitting internal security services to rigorous democratic control. While it is accepted that the activities of the security services, by their very nature, may sometimes have to be carried out outside the normal controls of other constitutional organs (legislative or judicial) and that, therefore, the individual might not have an absolutely guaranteed opportunity to object to or oppose such activities and ask for protection prior to them being carried out, there should be no question of allowing a person or authority to be above the law or of giving a person or authority any licence to violate fundamental rights and freedoms.
22. Therefore, although it is recognised that internal security services are to be accorded the opportunity to operate swiftly, effectively and preventively with the least possible interference as to the method and means at their disposal, their actions must be subjected to effective democratic control, to ensure that derogations of fundamental rights and freedoms of individuals, who are exposed to their activities and investigations, are kept at a minimum. Whereas it would be unrealistic to require the activities of security services to be fully transparent at all times, they should be accountable for their acts and activities within the legal framework within which they operate. Thus, their actions should be subject to verification and control providing the possibility of ensuring that they have acted within their functions and powers.
23. It appears to be common ground in Council of Europe member states that the control of the security services cannot be merely internal, that is carried out by the leaders of the service in question or by the ministries or agencies to which they belong. On the contrary, it seems that an external control exists in all member states from the executive, from parliament and/or from the judiciary in some form. This is not to say that internal control cannot supplement external control, or cannot be a useful first step (with, for example, the possibility of disciplinary proceedings in the case of abuse of power). But internal control does suffer from the major drawbacks that if crimes or violations of human rights are committed they are not necessarily made public (making a cover-up possible), and that it does not provide a sufficient avenue of redress for the victims of these crimes and violations.
ii. Different types of external democratic control
24. Several types of external control can be envisaged: a priori or ex post facto control, starting with control by the executive, over control exercised by the legislature, to judicial control and control exercised by other independent organs (for example ombudsmen, data protection commissioners and independent auditors), and control by civil society.
25. The executive is usually only involved in a priori control, for example when one (or several) minister(s) have to authorise an intrusive measure, such as wire-tapping, taking the place of (in my opinion preferable) prior judicial authorisation. In a minority of countries, the executive also exercises – mostly weak – ex post facto control, for example by obliging the internal security services to draw up and submit annual reports on their activities. The importance of executive control could be heightened considerably if one minister were assigned the political responsibility for controlling and supervising internal security services, and his office had full access in order to make possible effective day-to-day control.
26. The legislature has several ways of exercising control over internal security services. The first, and most obvious one, is by passing clear and adequate laws putting the internal security services on a statutory basis, regulating which kind of operative activities carrying a high risk of violation of individual rights may be used in which circumstances, and providing for adequate safeguards against abuse. Such legislation must, of course, be in harmony with the constitution and the international obligations of the state and in particular with the rules concerning human rights (in Council of Europe member states, with the ECHR). It is important that the legislature does not delegate to the executive legislative powers in this very sensitive domain, especially given the fact that, in many cases, executive decrees can remain unpublished. Transparency is one of the most effective safeguards of the constitutionality and democratic character of legal regulations.
27. Second, the legislature can also be involved in the everyday control of the security services. A minimum requirement is, for example, in many countries, that the parliament approve the budget of the internal security service(s), although the detail into which the budgets submitted to approval go may vary greatly from country to country. In fact, the demanding imperatives of operational and budgetary control would require strict accounting of the financial sources for internal security services. The legislature can also strictly control the secret services’ budget by, inter alia, obliging the secret services to submit to it annual detailed reports on how their budget is used The need to exclude subjective and partial motivations from the security services justifies the exclusive reliance on state-budget financing. Therefore, I would strongly recommend that member states do not resort to non-governmental financing sources to support their internal security services.
28. Accountability of security and intelligence services may also be achieved by the setting up of committees appointed by parliament whose aim is to effect control and supervision on the mode of operation of such services. Such committees will usually have to remain small (for obvious reasons), and can be comprised of either parliamentarians9 or eminent experts appointed by parliament.10 The extent to which the security services have to account to these committees varies. From a human rights point of view, it is of course preferable that not only general information be submitted to these committees but that they should be authorised to go into individual cases (it being understood that details of operative activities will have to be kept confidential, unless the security service engaged in illicit or illegal activities). In addition, it might be a good idea to engage government responsibility for the activities of the security services by appointing a high-ranking government representative answerable to parliament (or the parliamentary committee).
29. Judicial control is one of the few areas where a priori control, that is authorisation to carry out certain operative activities with a high potential to infringe upon human rights, such as surveillance, wire-tapping, house searches and arrests, is in fact possible and viable without restricting the powers of the internal security services to an unacceptable degree. The judges or magistrates taking such decisions should be given special training to be sensitive to personal rights of privacy, on the one hand, and to recognise the importance of such surveillance and other intrusive measures for law enforcement, on the other hand. Similarly, legislation should establish parameters which are to be taken into consideration by these judges before they authorise such operative activities. Some parameters would be:
a. there is probable cause for belief that an individual is committing, has committed, or is about to commit an offence;
b. there is probable cause for belief that particular communications or specific proof concerning that offence will be obtained through such interception or house searches, or that (in the case of arrest) a crime can thus be prevented;
c. normal investigative procedures have been attempted but have failed or appear unlikely to succeed or be too dangerous.
The authorisation to undertake this kind of operative activity should be time-limited (for example 3 months). Once the period of observation or wire-tapping has ended, the person concerned should be informed of the measure taken.
30. However, the judiciary should also exercise ex post facto control, either by the ordinary courts or through an ad hoc judicial authority. The overriding principle should be that courts have jurisdiction to determine whether the actions complained of were within the powers and functions of the internal security services as established by law. Thus, the court should have the right to determine whether there was undue harassment of the individual or abuse of administrative discretion in his or her regard.11
31. Independent organs, such as ombudsmen, data protection commissioners, and independent auditors (for example the German “Bundesrechnungshof”) can also all play a part in controlling the internal security services. An ombudsman, for example, may act on his initiative or on the basis of complaints filed by individuals. His primary function would be to investigate allegations of wrongdoing. This he could do in an informal manner, inquiring into the matter of the complaint fully, and having access to all relevant files. He would then issue a report on his findings, possibly even making it public if gross abuse of power by the security services were revealed. Data protection commissioners can work along similar lines, while independent auditors can ensure that the security services use their budget with due respect for the aims and methods stipulated.
32. Even civil society can play an important role in controlling the security services. This role will usually be an indirect one, if, for example, all individuals had the general right of access to information obtained and stored by internal security services. Such measures would help to ensure that the activities of internal security services remain circumscribed within lawful boundaries. In certain instances, of course, intelligence information is of such a nature that the costs of disclosure outweigh the benefits. Examples might include specific information about troop movements in time of war, the location of nuclear materials, or security codes needed to gain entry to military installations. In these limited cases, the citizens’ access to information must of necessity yield to the state’s legitimate national security interest. However, I would recommend the adoption of legal measures giving individuals a general right of access to information gathered and stored by the internal security service(s), while clearly defining the exceptions to this right by law. It would also be desirable that all disputes concerning an internal security service’s power to bar disclosure of information be subject to judicial review.
33. As Mr Robin Robison pointed out in his expert paper on the accountability of the security services (AS/Jur (1998) 28), a well-resourced full-time staff is an essential prerequisite for any review body, be it in the executive or the legislature (and, to a lesser extent, even in the judiciary). To be effective, review bodies also need the statutory right to see any of the files of the internal security services, and (preferably) the power to initiate enquiries rather than having to wait to be asked by parliament or government to conduct an inquiry. The ability to maintain secrecy, where necessary, and the capacity to make abuse of power public are also very important.
34. The methods of control currently implemented in Council of Europe member states vary considerably. Ideally, there should be some harmonisation of these methods of control, although some countries may indeed find that their particular system seems to work very well in preventing the abuse of power by the security services. I will make some recommendations on guidelines for a common European denominator regarding the control of internal security services in the last chapter of this memorandum.
D. A role for internal security services in the fight against organised crime?
35. The classic role of internal security services lies in acquiring, monitoring and evaluating information with the aim of providing protection from possible espionage, terrorism and sabotage from foreign powers, to investigate actions which aim at undermining democracy and undertake the surveillance of subversive elements. However, many internal security services, especially (but not exclusively) eastern European ones, are eager to play a greater role in the fight against international organised crime. The types of crime associated with this area are usually: corruption, money laundering, arms smuggling, traffic in women and children, and the narcotics trade.
36. The advocates of a role for internal security services in the fight against organised crime claim that since international organised crime seriously threatens the social texture and economic stability, it, too, endangers national security and the democratic order of the state, thus falling squarely within the job description of the security services.
37. Representatives of non-governmental organisations, on the other hand, consider this is a very dangerous development. They claim that internal security services are only trying to branch out into this area so as to justify their further existence and defend themselves against the otherwise inevitable downsizing of their agencies following the end of the cold war. They also point out that the methods security services employ are not suited to court trials. Since the activities of internal security services are less controlled, the abuse of power and disregard of due process by them are made more likely than by traditional law-enforcement agencies. Thus, NGO representatives recommend strengthening the powers of the police and the judiciary instead.
38. Whether the internal security services have a role to play in organised crime should be considered on the basis of the following criteria: first, concerning the ends, does organised crime pose a clear and present threat to the national security or the democratic order of the country? Second, concerning the means, are the methods used by internal security services (especially covert intelligence activities, such as the use of spies and informants) suited to the fight against organised crime, in particular, as concerns the eventual presentation of evidence in court?
39. In answer to the first question, it must be noted that there seem to be few countries where organised crime might arguably pose a clear and present danger to national security – Italy and the Russian Federation would spring to my mind, and, to a lesser extent, perhaps also Ukraine, Romania, Lithuania and Latvia. The irony is that in many of these countries, agents of the internal security services have been linked to organised crime themselves (as regards, especially, corruption), that is the security services are part of the problem they are meant to fight! Thus, it should be concluded that, in any case, the activities of internal security services in the fight against organised crime should be limited to those instances in which organised crime directly threatens national security –and even then, special attention needs to be paid to “clean up” the internal security services themselves before setting them to this task. Below the level of a clear and present danger to national security, internal security services should not get involved in the fight against organised crime – this job should go, instead, to the police.
40. In answer to the second question, it must be admitted that the methods of internal security services are not very well suited to the requirements of criminal investigations and trials by their very nature. A lot of the information a security service could obtain through its normal channels (for example information from agents or informants, often with the necessity of protecting the source) would not be eligible to be presented as evidence in court. Criminal investigations and public trials generally require both greater transparency and adherence to international standards of due process; good co-operation with the police and the prosecutor’s office (including the transfer of evidence) would be a further condition.
41. Thus, I would personally plead against an involvement of the security services in the fight against organised crime, except when national security or the democratic order of the state are clearly and presently endangered. In case some countries are determined nevertheless to allow their internal security service(s) to play a role in the fight against organised crime, they should subject all secret services’ activities in this area to the goal of bringing cases to public trials.
E. Conclusions and recommendations
42. First of all, I would like to make it clear that nothing in this report should be construed as a desire or a recommendation to get rid of internal security services altogether, or to limit their powers to such an extent that they become unable to fulfil their only legitimate objective, to protect the national security and free order of a democratic state. It should also be clarified that the recommendations I will make are not intended for situations of existing, imminent or potential public emergency – in such situations, other considerations might apply. My recommendations aim at curbing the increased risk of abuse of individual rights inherent in some specific situations, for example, when internal security services are not adequately controlled, are organised in a semi-military fashion, or have too sweeping powers. I do not put individual rights above the collective interest of national security or vice versa per se. In my opinion, which right should have priority will have to be established in nearly every individual case, using the principle of proportionality as elaborated in the second chapter of this report – except, of course, where absolute human rights are concerned (such as the right to protection from torture).
43. To guard against abuse, a number of guidelines should be respected, which I have incorporated into the preliminary draft recommendation [deleted]. It would be desirable to fix these guidelines in an international instrument, for example in a Council of Europe framework convention. This would allow each individual country to provide efficiently for its own internal security requirements while ensuring proper avenues of control in conformity with a uniform democratic standard: a standard that would ensure that the internal security service would act only in the national interest and not in favour of the party in government, or for that matter any other party or institution, that it would not be used as a means of oppression or undue pressure and that it would operate in full respect of fundamental freedoms.
Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none.
Reference to committee: Doc. 7104 and Reference No. 1952 of 28 June 1994; Doc. 7424 and Reference No. 2048 of 9 November 1995.
Draft recommendation and draft order adopted unanimously by the committee on 1 March 1999.
Members of the committee: Jansson (Chairperson), Bindig, Frunda, Moeller (Vice-Chairpersons), Aguiar, Akçali, Arzilli, Attard Montalto, Bartumeu Cassany, Brand, Bulić, Clerfayt, Columberg, Contestabile, Demetriou, Dreyfus-Schmidt, Enright, Frimansdóttir, Fyodorov, Gelderblom-Lankhout (alternate: Dees), Holovaty, Jaskiernia, Jurgens, Karlsson, Kelam, Kelemen, Kirkhill, Kresak (alternate: Fico), Krzyzanowska, Le Guen, Libane, Lintner, Loutfi, Magnusson, Mancina, Marković-Dimova, Martins, Marty, McNamara, Mozetič, Näslund, Nàstase, Pavlov, Pollo, Polydoras, Pourtaud, Rippinger, Robles Fraga, Rodeghiero (alternate: Speroni), Roth, Schwimmer, Shishlov (alternate: Pobedinskaya), Simonsen, Solé Tura (alternate: Calleja), Solonari, Stačiokas, Sungur, Svoboda, Symonenko, Tabajdi, Verivakis, Vishnyakov, Vyvadil, Weyts, Wohlwend.
N.B. The names of those members who were present at the meeting are printed in italics.
1 A copy of the report can be obtained from the Secretariat of the Committee on Legal Affairs and Human Rights upon request, or directly from the Secretariat of the Venice Commission.
2 According to the information available to me, this is the case in Denmark, Greece, Ireland and the Russian Federation.
3 According to the information available to me, this is the case in Denmark, Finland, Ireland, Poland and the Russian Federation.
4 As far as I know, only the Russian FSB enjoys this prerogative.
5 In some countries in transition, the power to issue arrest warrants is still exercised by the prosecutor’s office.
6 The Russian Federal Security Service (FSB) unfortunately still runs its own pre-trial detention centre and some sub-departments of Ministry of Interior-run pre-trial detention centres, with 160 inmates as of March 1998. These centres are due to be transferred to the authority of the Ministry of Justice within the next few years, in the context of a general overhaul of the Russian prison system.
7 Again, the FSB continues to exercise such powers. A transfer of these powers to the police or the prosecutor’s office unfortunately does not seem to be on the cards for the time being.
8 This is the case, for example, in the Netherlands.
9 This is the case in Germany, for example. The drawback might be that MPs are rather susceptible to party politics, and there are not many votes in national security issues. In addition, there is a danger that, in order to be able to include MPs in the circle of awareness they are brought closer and closer to the services they are ostensibly reviewing, making them less critical.
10 The Canadian Security Intelligence Review Committee would be an example of such a solution, which though appointed by parliament is independent of it and is not comprised of members of parliament.
11 As mentioned before, in some countries in transition such powers are instead exercised by the prosecutor’s office. This is highly problematic, since it is difficult to see how an institution whose primary function is to accuse people (for example of a criminal offence), and thus fights, a priori, for the interests of the state, can fight against the state at the same time by redressing the grievances of people whose rights have been violated by other state organs (in this case, the internal security services).