SUPERVISION OF SURVEILLANCE ACTIVITIES
The Chancellor supervises state (investigative and security) agencies carrying out covert processing of personal data, so as to ensure that their activities are lawful and respect fundamental rights and freedoms. That part of the Chancellor’s work usually involves information classified as state secrets or for internal use only. Therefore, detailed summaries of those inspection visits and recommendations are only accessible to the inspected agencies themselves and those competent to carry out constant and complete supervision.
The Chancellor also resolves complaints against surveillance measures and, if necessary, verifies, for example, claims disseminated in the media about unlawful surveillance.
Lack of knowledge arising from the covert nature of surveillance often gives rise to unjustified speculations in society, for example about alleged massive and illegal surveillance. The Chancellor’s task is to carry out regular checks as to whether covert measures are taken in conformity with applicable rules and in a manner respecting individuals’ fundamental rights. It is extremely important that, based on the results of the checks, a sense of confidence is given to society that the activities of all agencies competent to carry out covert processing of personal data are lawful and conform to the aim sought. This helps to alleviate people’s uncertainty and fear of unjustified surveillance.
As a rule (though exceptions might be immunity proceedings or specific suspicion of a violation of fundamental rights that cannot be verified in court proceedings), the Chancellor does not deem it possible to assess surveillance in progress. That is and should remain primarily within the competence of the executive (a surveillance agency, the prosecutor’s office) and the court. For this reason, during inspection visits the Chancellor examines surveillance files where ‘active processing’ has finished by the time of the check: i.e. the procedural file is closed or a judgment issued.
The Chancellor’s competence also includes supervision of supervisors, if necessary, in order to influence them to comply with their duties. Even when the actions of the relevant agencies are formally lawful, the Chancellor tries to ensure that people’s fundamental rights are reckoned with to the maximum possible extent. Problems in complying with fundamental rights may be due, for example, to insufficient legal regulation or faulty practice.
During the reporting year, the Chancellor’s advisers checked how the Estonian Internal Security Service, the internal audit bureau of the Police and Border Guard Board and Tallinn, Tartu and Viru Prisons respected the fundamental rights of individuals when carrying out surveillance. A separate inspection visit was carried out to assess cases where information collected by a decision of the Prosecutor General under the Security Agencies Act was produced as evidence in criminal proceedings.
During inspection visits, the Chancellor’s advisers examined a total of 28 surveillance files (selected from among the files opened in 2016–2018) where active proceedings had ended by the time of the inspection. Information contained in paper files as well as in the surveillance information system was examined and compared, and interviews with surveillance officials were also carried out.
The assessment focused primarily on whether, in each specific case, the surveillance measure used to collect information about a criminal offence had been lawful, as well as unavoidable and necessary, and how the surveillance agencies complied with requirements to notify people about a surveillance measure. A separate goal was to assess how the surveillance agencies had observed proposals for better protection of fundamental rights made after inspection visits carried out in 2015–2016.
It is commendable that, in their work, all the surveillance agencies (including the Internal Security Service, the internal audit bureau of the Police and Border Guard Board and the prisons inspected during this reporting year) follow the Chancellor’s recommendations made in previous years. Substantive control by heads of surveillance of the establishments and by prosecutors leading proceedings over keeping surveillance files has increased. This results in additional assessment of surveillance, which in turn, helps to avoid major mistakes.
In order to ensure better protection of fundamental rights, during this reporting year the Chancellor also sent her recommendations and proposals to the establishments inspected.
A surveillance measure is lawful only if the prosecutor’s office or the court has issued an authorisation complying with the requirements as to form and supporting reasoning. No errors or violations to that effect were found in the files inspected. Nevertheless, in the case of some surveillance files of the internal audit bureau of the Police and Border Guard Board, misgivings arose as to whether information available at the time of applying for authorisation had been sufficient to start surveillance measures and restrict individuals’ fundamental rights.
Reasoning contained in surveillance authorisations has improved from year to year, better indicating the need for a surveillance measure as well as the impact of measures on the person subject to surveillance and on third persons connected with them.
Preliminary investigation judges generally observe the opinion ‒ repeatedly expressed in case-law in recent years ‒ that reasoning contained in a court order authorising surveillance must include clear and understandable arguments by the court as regards, inter alia, the need for surveillance as a measure of last resort (the principle of ultima ratio). Only in some isolated cases had no reasoning been given in terms of the ultima ratio consideration. Those authorisations had been issued by a preliminary investigation judge whose surveillance authorisations had also previously (during inspection visits carried out in the previous reporting year) attracted attention in the surveillance files of several surveillance agencies for their unspecific and essentially identical reasoning. Largely thanks to intervention by the Chancellor of Justice, that judge no longer issues surveillance authorisations.
Control of legality of surveillance measures
No randomness was detected in the frame of the files inspected – all files had a clearly defined purpose. The Chancellor’s advisers also found no surveillance measures carried out without authorisation by a preliminary investigation judge or prosecutor. No problems existed concerning compliance with the conditions for a surveillance authorisation.
Where a surveillance measure had been discontinued or cancelled, an explanatory note to that effect had been added to the file. This fulfilled the requirement under § 1262(9) of the Code of Criminal Procedure according to which a measure must immediately be ended when grounds for the surveillance measure cease to exist.
In terms of protection of people’s fundamental rights, it is extremely important that a summary of the measures be added to surveillance files. With the help of that information, those carrying out supervision can retroactively, and without having to re-examine the materials in the criminal case, assess the effectiveness of the surveillance measure, the intensity of interference with privacy, and other essential facts. Largely thanks to recommendations made after the Chancellor’s earlier inspections, that good practice has now also taken root in those surveillance establishments (e.g. prisons) where previously problems existed in this regard.
Notifying a surveillance measure
The Code of Criminal Procedure requires that a surveillance measure be notified to those in respect of whom the surveillance measure was carried out, as well as those identified during the proceedings whose private or family life was significantly interfered with by the measure. Notification may be postponed or foregone only with authorisation from the prosecutor or the court under circumstances laid down by law. Notification helps to protect individuals’ fundamental rights, including creating an opportunity to contest surveillance measures.
In previous years, the Chancellor’s advisers found many cases where people had not been notified at all about surveillance measures affecting them or where notification had been impermissibly late. Now the situation in this regard has also improved. However, one major shortcoming was found in a surveillance file in Tallinn Prison (notification had been impermissibly delayed by over seven months); in the remaining cases the delay was limited to three to five months.
For example, when resolving a petition by an individual, it was found that the prosecutor’s office had failed to comply with the requirements of § 12613 of the Code of Criminal Procedure when notifying the individual of surveillance measures. Consequently, they could not access the materials collected on them in time and could not file a complaint against them. The Chancellor sent a memorandum to the Prosecutor General about this.
Due to incomplete notices sent by the security agencies people could not exactly understand why and to what extent surveillance measures had been carried out in respect of them. The notice did not indicate whether the person themselves or someone else communicating with them had been under surveillance. One petitioner, after having examined the surveillance information, could not understand whether their activity had also been recorded or filmed during surveillance.
The Chancellor reminded the surveillance agencies that, when informing people about surveillance measures that concern them, it is always required to clearly distinguish the target of the measure – whether they are the person subject to surveillance or a so-called third party whose privacy was interfered with by the surveillance measure. Inter alia, this gives the person an opportunity to decide whether and how to protect their rights.