European human rights, criminal surveillance, and intelligence surveillance: Towards “good enough” oversight, preferably but not necessarily by judges

G. Malgieri, Paul de Hert

Research output: Chapter in Book/Report/Conference proceedingChapterScientificpeer-review

Abstract

The two European Courts (the European Court of Human Rights, ECtHR and, to a lesser degree, the European Union Court of Justice, EUCJ) have contributed greatly to the development of a legal framework for surveillance by either law enforcement agencies in the criminal law area or by secret services. Both courts put great emphasis on a system of control ex ante and post hoc by independent supervisory authorities. A complex and controversial issue remains whether the human rights to privacy, respect of communications, and to an effective remedy (enshrined in Article 8 and 13 of European Convention on Human Rights (ECHR)), requires judicial review as a necessary safeguard for secret surveillance or alternatively, at which conditions, parallel systems of non-judicial review can be accepted as adequate safeguards against illegitimate interference in citizens’ private life.
The European Courts have not yet established a clear doctrine in determining suitable thresholds and parameters. In particular, the ECtHR has a flexible approach in interpreting article 8 and 13 ECHR, depending on several factors (“vital” interests at stake, political considerations, etc.). In general terms, the Court has shown a preference towards judiciary oversight, but in the European legal order there are several examples of alternative oversight systems assessed positively by the Court, such as the quasi-judiciary systems (where the independency of the supervisory body, its wide jurisdiction, its power to data access and its power to effective reactions are proved) or the system of oversight set by Data Protection Authorities in the EU member states. However, in recent judgements of the ECtHR and the EUCJ we see an increasing emphasis on declaring the necessity of a “good enough” judicial (ex ante or post hoc) control over surveillance, meaning not simply a judicial control, but a system of oversight (judicial, quasi-judicial, hybrid) which can provide an effective control over surveillance, supported by empirical checks in the national legal system at issue.
Original languageEnglish
Title of host publicationThe Cambridge Handbook on Surveillance
EditorsDavid C. Gray, Stephen Henderson
Place of PublicationNew York
PublisherCambridge University Press
Pages509-532
Number of pages24
ISBN (Electronic)9781316481127
ISBN (Print)978-1-107-13794-3
DOIs
Publication statusPublished - 2017

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surveillance
intelligence
human rights
ECHR
judiciary
supervisory authority
secret service
right to privacy
data access
data protection
legal order
court of justice
General Terms
EU member state
criminal law
law enforcement
legal system
remedies
privacy
doctrine

Keywords

  • Surveillance

Cite this

Malgieri, G., & de Hert, P. (2017). European human rights, criminal surveillance, and intelligence surveillance: Towards “good enough” oversight, preferably but not necessarily by judges. In D. C. Gray, & S. Henderson (Eds.), The Cambridge Handbook on Surveillance (pp. 509-532). New York: Cambridge University Press. https://doi.org/10.1017/9781316481127
Malgieri, G. ; de Hert, Paul. / European human rights, criminal surveillance, and intelligence surveillance : Towards “good enough” oversight, preferably but not necessarily by judges. The Cambridge Handbook on Surveillance. editor / David C. Gray ; Stephen Henderson. New York : Cambridge University Press, 2017. pp. 509-532
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The European Courts have not yet established a clear doctrine in determining suitable thresholds and parameters. In particular, the ECtHR has a flexible approach in interpreting article 8 and 13 ECHR, depending on several factors (“vital” interests at stake, political considerations, etc.). In general terms, the Court has shown a preference towards judiciary oversight, but in the European legal order there are several examples of alternative oversight systems assessed positively by the Court, such as the quasi-judiciary systems (where the independency of the supervisory body, its wide jurisdiction, its power to data access and its power to effective reactions are proved) or the system of oversight set by Data Protection Authorities in the EU member states. However, in recent judgements of the ECtHR and the EUCJ we see an increasing emphasis on declaring the necessity of a “good enough” judicial (ex ante or post hoc) control over surveillance, meaning not simply a judicial control, but a system of oversight (judicial, quasi-judicial, hybrid) which can provide an effective control over surveillance, supported by empirical checks in the national legal system at issue.",
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Malgieri, G & de Hert, P 2017, European human rights, criminal surveillance, and intelligence surveillance: Towards “good enough” oversight, preferably but not necessarily by judges. in DC Gray & S Henderson (eds), The Cambridge Handbook on Surveillance. Cambridge University Press, New York, pp. 509-532. https://doi.org/10.1017/9781316481127

European human rights, criminal surveillance, and intelligence surveillance : Towards “good enough” oversight, preferably but not necessarily by judges. / Malgieri, G.; de Hert, Paul.

The Cambridge Handbook on Surveillance. ed. / David C. Gray; Stephen Henderson. New York : Cambridge University Press, 2017. p. 509-532.

Research output: Chapter in Book/Report/Conference proceedingChapterScientificpeer-review

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The European Courts have not yet established a clear doctrine in determining suitable thresholds and parameters. In particular, the ECtHR has a flexible approach in interpreting article 8 and 13 ECHR, depending on several factors (“vital” interests at stake, political considerations, etc.). In general terms, the Court has shown a preference towards judiciary oversight, but in the European legal order there are several examples of alternative oversight systems assessed positively by the Court, such as the quasi-judiciary systems (where the independency of the supervisory body, its wide jurisdiction, its power to data access and its power to effective reactions are proved) or the system of oversight set by Data Protection Authorities in the EU member states. However, in recent judgements of the ECtHR and the EUCJ we see an increasing emphasis on declaring the necessity of a “good enough” judicial (ex ante or post hoc) control over surveillance, meaning not simply a judicial control, but a system of oversight (judicial, quasi-judicial, hybrid) which can provide an effective control over surveillance, supported by empirical checks in the national legal system at issue.

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The European Courts have not yet established a clear doctrine in determining suitable thresholds and parameters. In particular, the ECtHR has a flexible approach in interpreting article 8 and 13 ECHR, depending on several factors (“vital” interests at stake, political considerations, etc.). In general terms, the Court has shown a preference towards judiciary oversight, but in the European legal order there are several examples of alternative oversight systems assessed positively by the Court, such as the quasi-judiciary systems (where the independency of the supervisory body, its wide jurisdiction, its power to data access and its power to effective reactions are proved) or the system of oversight set by Data Protection Authorities in the EU member states. However, in recent judgements of the ECtHR and the EUCJ we see an increasing emphasis on declaring the necessity of a “good enough” judicial (ex ante or post hoc) control over surveillance, meaning not simply a judicial control, but a system of oversight (judicial, quasi-judicial, hybrid) which can provide an effective control over surveillance, supported by empirical checks in the national legal system at issue.

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Malgieri G, de Hert P. European human rights, criminal surveillance, and intelligence surveillance: Towards “good enough” oversight, preferably but not necessarily by judges. In Gray DC, Henderson S, editors, The Cambridge Handbook on Surveillance. New York: Cambridge University Press. 2017. p. 509-532 https://doi.org/10.1017/9781316481127