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Deputy Chancellor of Justice's speech "Ombudsman`s Role in the Control of State`s Surveillance Activities"

Deputy Chancellor of Justice's speech "Ombudsman`s Role in the Control of State`s Surveillance Activities" at the conference “Ombudsman’s Role in a Democracy” in Tallinn.

 

Dear Ombudsmen, Ladies and Gentlemen,

I have to admit that, when we started organising the conference around two years ago and thought of including the issue of secret surveillance in the programme, we were at first a little hesitant. Would it be a topic that was sufficiently interesting for the participants? Do other countries face similar questions to those we are grappling with here in Estonia? The events and revelations of the last two years have set aside all doubts about the universal importance of secret surveillance and, unfortunately, have amply confirmed our fears that it can endanger fundamental rights if left without continued oversight. The general indignation provoked by the recent revelation of the massive scale, and sometimes indiscriminate nature, of electronic surveillance is, of course, easy to understand. It is also no surprise that the public have begun to feel that we are living in a “surveillance state” and, worse still, have perhaps even become resigned to this. On the other hand, it seems to me that this cloud has a silver lining and that the public outcry has also been a good thing in a way: it has raised awareness of an issue that was little talked about before. 

However, let me start by striking a note of caution. My own view is that, in discussing this topic, we should not only emphasise the inviolability of fundamental rights, but also give due weight to the legitimate interest of fighting crime. This may sound trivial, but I believe that it serves as a useful reminder that the problem is not one-sided. What it also means is that we should not assume that we understand this area in the same way we understand public administration in general.

We must admit that secret surveillance has always been an inseparable part of the fight against crime. The Constitution of the Republic of Estonia states that circumscription of rights and freedoms must be necessary in a democratic society and may not distort the nature of the rights and freedoms circumscribed. I would imagine there aren’t many people who would question the state’s need and obligation to fight serious crime, be it crimes against individuals and public health (for example drug-related crime), or economic crime and corruption. It’s obvious that the fight against crime cannot be limited to successful prevention alone – it is also necessary to detect the crimes that have already been committed, to prove the guilt of offenders and to bring them to justice. In many cases, secret surveillance is justified and obviously also unavoidable for the detection of the serious crimes I mentioned before. It’s certainly not an accident that our judicial practice of recent years has mostly confirmed the unavoidability of evidence obtained by secret surveillance, especially in the case of economic crime and corruption.

Our approach has to be balanced and informed by the concerns and experience of the people responsible for our safety. It is important to clarify something here. When I say “balanced”, I do not mean that we ought to balance the protection of fundamental rights against safety. This whole image – although very popular – is flawed in my opinion. Why should we think that we are dealing with a simple trade-off here? Why should safeguarding fundamental rights necessarily lead to less security? In fact, not only do they not deserve more safety, but very often, they will fail to gain it. For one thing, indiscriminate secret surveillance itself compromises the feeling of safety. And if it really is indiscriminate, then the public will not be able to comfort themselves with the thought that it is all for a good cause. There may be increased safety from particular types of crime, but this is bought at the price of decreased trust in law enforcement agencies, which in the end must have a harmful effect on their work. The result is that, by curbing fundamental rights, we have not gained, but reduced safety.    

These were more general considerations that formed the background to the rest of my talk. I would now like to come to the question that concerns us most directly: as ombudsmen, what role we can play in the general system of oversight?

I’ll start from a bit further back. Recently, I have noticed the relatively mixed opinions that specialists, politicians and also the media have expressed about the legal regulation of secret surveillance as well as the allegations that the use of secret surveillance is excessive and constitutes an unjustified or disproportionate infringement of the fundamental rights of persons. Since the problems related to secret surveillance cannot be an object of a constant negative (sometimes also superficial and unfounded) discussion in society, the relevant legal regulation must be as clear as possible, unambiguous and applicable in practice. However, is this always the case? I dare to doubt this and it is also confirmed by several rulings made by the European Court of Human Rights.

Therefore, whilst I do agree that in some cases secret surveillance is justified and necessary, I am equally convinced that surveillance also requires a clear legal framework and supervision on a number of levels. Let me repeat one of my earlier thoughts: the ombudsman must have the competency and obligation to interfere, if necessary, in the cases where intensive circumscription of the rights of persons is permitted. However, having a say about secret surveillance when it is launched and carried out cannot be the role of the ombudsman – the executive power of the state (surveillance authority, prosecutor’s office) and the court must remain in charge of this. In my mind, the role of ombudsmen in secret surveillance is that of the inspector after secret surveillance proceedings:

  1. as an independent and balancing institution, the ombudsman should point out possible shortcomings in the processes of planning and carrying out secret surveillance processes, incl. adherence to constitutional principles (ultima ratio, proportionality, etc.) as well as the problems related to informing the people affected by secret surveillance activities. Let me emphasise once again that the ombudsman should not do this in respect of a so-say actively processed specific case, but abstractly and retrospectively;
  2. the ombudsman should assess and analyse the structure of the organisation of work in secret surveillance authorities (including the preparation and training of secret surveillance officers), secret surveillance statistics and an administrative control mechanism in the organisation and implementation of secret surveillance.

The usual practice in Europe is that the permission for secret surveillance and thereby the circumscription of fundamental rights is granted in advance by the court. In the event of criminal cases, the issue of whether secret surveillance is permissible often gets referred back to the judge in the course of the proceedings. The general principle that governs the work of the ombudsman is that he or she should not interfere in the activity of the courts. In our day-to-day practice, we have worked out rather well what this means in other areas, but things are much more complicated when it comes to secret surveillance. Why? The question is whether we ought to refrain from supervising any aspect of the process of secret surveillance that the courts can also supervise. There are good reasons for adhering to this interpretation. Most importantly, if we limit ourselves in this way, we will not be led to criticise the work of the courts either explicitly or implicitly. Since secret surveillance always requires an authorisation from the courts, the latter have an opportunity, and indeed a duty, to make sure that all the requirements have been complied with and, in particular, that the agency has respected the principle of ultima ratio in applying for an authorisation. Now, if the ombudsman were to conclude that the law enforcement agency has not complied with all the legal requirements in preparing its application, either systematically or in a particular case, then this would reflect very badly on the courts, which should have reached the same conclusion and not allowed secret surveillance to take place.

If we leave out entirely the pre-authorisation stage, what is left over? The ombudsman could concentrate his or her efforts on the downstream stage and look at whether the limits set down in the court authorisation have been respected. This is something that courts are not always well placed to do, as no complaint is likely to arrive before them if the person whose rights have been infringed by the law enforcement agency does not even know that it happened. I should mention in this context that, last year, I lodged a constitutional review complaint (I regret that not all ombudsmen have the right) with the Supreme Court in which I argued that the Estonian statutes dealing with secret surveillance did not contain an effective mechanism for ensuring that all persons subjected to secret surveillance will be informed of the fact afterwards. More precisely, there was no mechanism for ensuring that there was a valid ground for continuing not to inform a person that secret surveillance has taken place. This information can be withheld in exceptional cases, but if it is, then the State Prosecutor has to periodically check if it is still justified for reasons of crime prevention, etc. I am glad to report that the Supreme Court agreed with me and required the legislature to set up a system of proper oversight. I particularly liked the way in which the Supreme Court countered the Parliament’s argument that looking over all the past authorisations would be too costly: it said that if the State had enough money to conduct secret surveillance, it should also have enough to make sure that it is legal.

Let me speak briefly about the need for and scope of the inspection of the intelligence activities carried out by security authorities. For those of you who don’t know the subject too well – these are secret surveillance activities carried out outside criminal proceedings in order to guarantee constitutional order of the state, for instance terrorism and counterintelligence. The first aspect we must consider here is that the purpose of the activities of special services is to guarantee the state’s constitutional order and security, which is why their activities are generally considered a state secret. This secrecy and mystery have led to the understanding that security authorities can operate outside the law and nobody ever inspects them. This is where we should ask whether the ombudsman should and could be the one to balance this, the one with the need to know sufficient to gain access to the state’s security information and to play a role in carrying out civil inspection of the intelligence activities of security authorities? I find that similar to the secret surveillance performed in criminal proceedings, the ombudsman cannot supervise the active information files or ongoing domestic and international cooperation activities of security authorities. Above all, the ombudsman can inspect whether security authorities follow the principles of guaranteeing fundamental rights and freedoms and good administrative practice by assessing the adequacy and relevance of the established regulations and the efficiency of the existing control measures.

Determining the remit of the ombudsman is also needed for establishing a good working relationship with the agencies responsible for secret surveillance. By the very nature of things, one cannot hope to be in substantial agreement with the agencies concerning particular cases, but I think that it is essential to find at least some agreement with them as to the general role of the ombudsman. I felt that one way to do this was to ask the Parliament to grant to me as an ombudsman an explicit mandate to supervise secret surveillance. From a strict legal point of view, this was perhaps not necessary, because I could have relied on the general provision that gives me broad supervisory powers regarding state administration. However, asking for a clear, ambiguous mandate had other purposes as well. First of all, it forced the Members of Parliament to make up their mind about what they expect from the ombudsman in this area. By granting the mandate, they commit to a certain interpretation of his or her role. In addition, amending the statute can be used to publicise this aspect of the ombudsman’s activity, allaying fears about the growth of a “surveillance state”.

In conclusion, I firmly believe, and I have emphasised this before, that even if an ombudsman finds a generally well-functioning system instead of a chaos when he or she wraps up the proceedings, the activities of the ombudsman as the inspector of an area where fundamental rights are intensively infringed are certainly valuable for society. Like all other supervisors of the area of secret surveillance, the ombudsman also have the moral obligation to create confidence in the activities of secret surveillance authorities via substantive and credible inspection.

I would like to end my presentations with this thought and hope that a fruitful dialogue will follow.

Thank you for your attention!