[ Pobierz całość w formacie PDF ]
citizens against the activities of intelligence services can only be made under national legal
systems.
In this connection, the national parliaments have a dual role to play: as legislators, they take
decisions on the nature and powers of the intelligence services and the arrangements for
monitoring their activities. As outlined in detail in the previous chapter, when dealing with the
issue of the admissibility of telecommunications surveillance, the national parliaments must
work on the basis of the restrictions laid down in Article 8 of the ECHR, i.e. the relevant legal
rules must be necessary and proportional and their implications for individuals must be
foreseeable. In addition, adequate and effective monitoring arrangements must be introduced
commensurate with the powers of the intelligence agencies.
Moreover, in most states the national parliament plays an active role as the monitoring
authority, given that, alongside the adoption of legislation, scrutiny of the executive, and thus
also the intelligence services, is the second time-honoured function of a parliament. However,
the Member State parliaments carry out this task in a very wide variety of differing ways,
often on the basis of cooperation between parliamentary and non-parliamentary bodies.
9.2. The powers enjoyed by national authorities to carry out surveillance measures
As a rule, the state may carry out surveillance measures for the purposes of enforcing the law,
maintaining domestic order and safeguarding national security (vis-à-vis foreign
intervention)2.
In all Member States, the principle of telecommunications secrecy may be breached for law
enforcement purposes, provided that there is sufficient evidence that a crime (possibly one
perpetrated under particularly aggravating circumstances) has been committed by a specific
person. In view of the seriousness of the interference in the exercise of the right to privacy, a
warrant is generally required for such an action3 and the warrant then lays down precise
details concerning the permissible duration of the surveillance, the relevant supervisory
measures and the deletion of the collected data.
1
See Chapter 7.
2
Article 8(2) of the ECHR lays down these issues as grounds justifying interference in an individual's exercise
of the right to privacy. See 8.3.2. above.
3
British law is an exception, giving the Home Secretary the power to issue authorisations (Regulation of
Investigatory Powers Act 2000, Section 5(1) and (3)(b)).
DT\437638EN.doc 62/92 PE 300.153
EN
For the purposes of guaranteeing national security and order, the state's right to obtain
information is extended beyond the scope of individual investigations prompted by firm
evidence that a crime has been committed. National law authorises the state to carry out
additional measures to secure information about specific persons or groups with a view to the
early detection of extremist or subversive movements, terrorism and organised crime. The
relevant data is collected and analysed by specific domestic intelligence services.
Finally, a substantial proportion of surveillance measures are carried out for the purposes of
safeguarding state security. As a rule, responsibility for processing, analysing and presenting
relevant information about foreign individuals or countries lies with the state's own foreign
intelligence service1. In general the surveillance targets are not specific persons, but rather set
areas or radio frequencies. Depending on the resources and legal powers of the foreign
intelligence service concerned, surveillance operations may cover a wide spectrum, ranging
from purely military surveillance of short-wave radio transmissions to the surveillance of all
foreign telecommunications links. In some Member States the surveillance of
telecommunications for purely intelligence purposes is simply prohibited2, in other Member
States in some cases subject to authorisation by an independent commission3 - it is carried
out on the basis of a ministerial order4, possibly even without restriction in the case of some
communication media5. The relatively broad powers enjoyed by some foreign intelligence
services can be explained by the fact that their operations are targeted on the surveillance of [ Pobierz całość w formacie PDF ]
zanotowane.pl doc.pisz.pl pdf.pisz.pl fopke.keep.pl
citizens against the activities of intelligence services can only be made under national legal
systems.
In this connection, the national parliaments have a dual role to play: as legislators, they take
decisions on the nature and powers of the intelligence services and the arrangements for
monitoring their activities. As outlined in detail in the previous chapter, when dealing with the
issue of the admissibility of telecommunications surveillance, the national parliaments must
work on the basis of the restrictions laid down in Article 8 of the ECHR, i.e. the relevant legal
rules must be necessary and proportional and their implications for individuals must be
foreseeable. In addition, adequate and effective monitoring arrangements must be introduced
commensurate with the powers of the intelligence agencies.
Moreover, in most states the national parliament plays an active role as the monitoring
authority, given that, alongside the adoption of legislation, scrutiny of the executive, and thus
also the intelligence services, is the second time-honoured function of a parliament. However,
the Member State parliaments carry out this task in a very wide variety of differing ways,
often on the basis of cooperation between parliamentary and non-parliamentary bodies.
9.2. The powers enjoyed by national authorities to carry out surveillance measures
As a rule, the state may carry out surveillance measures for the purposes of enforcing the law,
maintaining domestic order and safeguarding national security (vis-à-vis foreign
intervention)2.
In all Member States, the principle of telecommunications secrecy may be breached for law
enforcement purposes, provided that there is sufficient evidence that a crime (possibly one
perpetrated under particularly aggravating circumstances) has been committed by a specific
person. In view of the seriousness of the interference in the exercise of the right to privacy, a
warrant is generally required for such an action3 and the warrant then lays down precise
details concerning the permissible duration of the surveillance, the relevant supervisory
measures and the deletion of the collected data.
1
See Chapter 7.
2
Article 8(2) of the ECHR lays down these issues as grounds justifying interference in an individual's exercise
of the right to privacy. See 8.3.2. above.
3
British law is an exception, giving the Home Secretary the power to issue authorisations (Regulation of
Investigatory Powers Act 2000, Section 5(1) and (3)(b)).
DT\437638EN.doc 62/92 PE 300.153
EN
For the purposes of guaranteeing national security and order, the state's right to obtain
information is extended beyond the scope of individual investigations prompted by firm
evidence that a crime has been committed. National law authorises the state to carry out
additional measures to secure information about specific persons or groups with a view to the
early detection of extremist or subversive movements, terrorism and organised crime. The
relevant data is collected and analysed by specific domestic intelligence services.
Finally, a substantial proportion of surveillance measures are carried out for the purposes of
safeguarding state security. As a rule, responsibility for processing, analysing and presenting
relevant information about foreign individuals or countries lies with the state's own foreign
intelligence service1. In general the surveillance targets are not specific persons, but rather set
areas or radio frequencies. Depending on the resources and legal powers of the foreign
intelligence service concerned, surveillance operations may cover a wide spectrum, ranging
from purely military surveillance of short-wave radio transmissions to the surveillance of all
foreign telecommunications links. In some Member States the surveillance of
telecommunications for purely intelligence purposes is simply prohibited2, in other Member
States in some cases subject to authorisation by an independent commission3 - it is carried
out on the basis of a ministerial order4, possibly even without restriction in the case of some
communication media5. The relatively broad powers enjoyed by some foreign intelligence
services can be explained by the fact that their operations are targeted on the surveillance of [ Pobierz całość w formacie PDF ]