Within the context of interdepartmental consultations we were invited to submit an opinion on two consecutive draft bills revising the federal law instituting measures for the maintenance of internal security. In our opinion on the first draft, we came to the conclusion that the measures envisaged did not respect fundamental rights and that they represented a disproportionate interference in the private sphere. With regard to the second draft bill, we maintain our earlier criticism, in spite of the changes that have been made, that the new draft is incompatible with data protection principles.
1st Draft bill
In July 2005 we were invited to submit an opinion on the first draft revision of the law instituting measures to protect internal security. The intention was to extend the application of the new law to organised crime and to give the Federal Office of Police enhanced powers. One of the particular features of the draft bill was that it authorised the intelligence services (Service for Analysis and Prevention SAP) to use “special investigation methods” even outside the framework of criminal proceedings, e.g. interception of post and communications, covert searches of apartments or vehicles and hacking into data processing systems. Unlike the compulsory measures ordered by a criminal court, such measures would apply to persons even if there were no prima facie evidence of criminal activity. Some of the measures contained in the first draft bill would have to be approved by a special independent committee, whereas others could be ordered directly by the SAP.
We were very critical about this first draft from the very outset. The new measures contained in the draft would have constituted an infringement of the basic freedoms of the persons concerned, and thus a violation of their private sphere. Furthermore, no provision had been made for legal protection, nor had the possibility for the individuals to obtain the information retrospectively been addressed. We came to the conclusion that this draft was not compatible with fundamental rights.
It was also noted that the effectiveness of the measures currently available to the competent authorities (not only the SAP, but also the police and law enforcement agencies) had not been given proper consideration. Nor was any thought given as to whether other less intrusive instruments might not be used to combat terrorism (in particular better cooperation between the different anti-terrorism authorities or even the development of criminal law and procedures). No evidence had been provided to show either the need or the proportionality of the measures envisaged. We also pointed out that such a serious intrusion into the private sphere had not been weighed up against the benefit of increased security. Although no one would dispute the fact that the internal and external security of Switzerland is in the public interest, this does not justify the adoption of measures that constitute such interference in the private sphere. Each individual measure needs to be evaluated in terms of the principle of proportionality. The legitimate goal of combating terrorism may not be invoked to deprive the persons concerned of their fundamental rights.
We further noted that certain provisions of the criminal code already allow the law enforcement authorities to take pre-emptive measures, in other words they may act even before a criminal act is actually committed. According to prevailing law, the competent authorities have the power to order compulsory measures (telephone taps, house searches, etc.) provided that there are specific grounds to suspect a criminal act. Thus, acts preparatory to the commission of certain capital offences (voluntary homicide, murder, grave bodily harm, etc.) are punishable per se, and therefore any person involved in planning such acts is criminally liable (article 260bis of the Criminal Code). By the same token, belonging to a criminal organisation is equally punishable (article 260ter CC). The Criminal Code also contains a provision punishing the financing of terrorism (article 260quinquiesCC). Within the context of criminal proceedings, there are many other possibilities for withholding information from the person concerned.
Following this first interdepartmental consultation, the head of the Federal Department of Justice and Police referred the draft back to its authors in the autumn of 2005, asking them to draw up a new text.
2nd Draft bill
We were invited at the beginning of 2006 to submit an opinion on the 2nd draft bill. The latter differs in several points from its predecessor which was circulated to interested parties in July 2005. In particular, organised crime no longer comes under the law instituting measures for the maintenance of internal security, and the special investigation methods were limited to specific areas. Furthermore, the basic rights of private individuals have been given much greater prominence to the extent that the new draft requires retrospective information to be provided to the persons under observation (subject to certain exceptions) and opens up the possibility for complaints to be filed.
According to the procedure provided for in the second draft bill (authorisation procedure), all special investigative measures must be authorised by the head of the department who therefore has to accept political responsibility. Unlike the first version which made a distinction between the different measures, the second draft requires all measures to be submitted to an “independent control committee”. The committee is composed of three persons appointed by the Federal Council. The SAP is only entitled to use special investigative measures if the control body gives a favourable opinion. An emergency procedure is foreseen which allows the SAP to resort to such measures even without the prior approval of the control commission or the head of the department. However, under such circumstances authorisation must be obtained post hoc.
In spite of the changes that have been made, we do not accept the argument in favour of a revision of the law on internal security, and in particular we are not convinced of either the need or the proportionality of the measures that are being considered. Moreover, we have serious doubts about the implementation of the duty to inform, the effectiveness of the right of appeal, and the efficiency of the control exercised by the independent committee.
It is our view that the case for such measures has not been convincingly made. In particular, it has not been shown how the current provisions in the criminal code fail to provide adequate measures to combat terrorism and to prevent risks to the country’s internal security.
The 2nd draft bill gives the SAP the same right as already exists in the context of criminal proceedings to order compulsory measures. However the conditions for the application of such measures are not the same. The intention is to allow the SAP to order compulsory measures at a much earlier stage than would be allowed within the context of a criminal investigation. In other words, it would be able to act on the basis of “assumptions and vague indications” and would not have to have reasonable grounds to suspect criminal behaviour. We argued that resorting to special investigative measures can only be justified if there is reason to suspect that a criminal act is being prepared or has been committed. To authorise all compulsory measures even without reasonable grounds for suspicion would be tantamount to undermining the principles upon which the rule of law is founded.
In the event that the draft bill does become law in spite of our criticism, we have demanded that it should at least be limited in time and that the effectiveness of the new measures be evaluated after a specified period of time.
Apart from our general comments concerning the need for such measures, we also submitted comments on the following specific points:
Independent control body: In our opinion the independent control body should be a legal authority. It should in any case be elected by parliament and composed of judicial officers. Irrespective of the actual composition of the control body, we believe that it would be wrong for decisions to be taken on the basis of vague clues.
Absolute protection of sources: The intention is to extend protection to all information obtained from internal sources. According to current law, absolute protection of sources only covers information obtained from a foreign country. We are against the proposed change because informers acting in bad faith or who have committed punishable offences should not be entitled to absolute protection. Should they commit a serious offence or crime, or be guilty of providing deliberately false information, civil or criminal proceedings should be brought against them. Moreover, current law already prohibits the disclosure of personal data if it is contrary to an overriding public or private interest.
Emergency procedure: If during the course of an emergency procedure data are collected, but the control body subsequently refuses to grant its approval, the problem of the use of such data during the intervening period remains unresolved. In such cases there is no guarantee that the data that have already been transferred to third parties will be destroyed. In particular there are serious doubts that foreign services that may have acquired the data will destroy them. We have therefore recommended that should such a situation arise, the control body should apply a simplified procedure allowing it to take an immediate decision on whether the data may be communicated to third parties.
Duty of notification – retrospective information: According to the case law of the Swiss Federal Court and the European Court of Human Rights, any person who has been under secret observation must be informed retroactively. This requirement is derived implicitly from the guarantee to protect the private sphere of individuals as well as their correspondence, and must be respected in order to ensure that the person concerned has an effective right to appeal any such decision.
The draft bill imposes limits on retroactive information from the outset. In our view, the information thus communicated to the persons concerned would make it impossible for them to assert their rights, in particular the right to an effective appeal. We believe that any limitations (especially if the public interest is invoked) should be assessed on a case-by-case basis. Furthermore, information provided in accordance with article 18 paragraph 6 of the internal security law subsequent to the filing of a request for an indirect right of access would come too late and would therefore not allow the person concerned to enforce his/her rights in time.
Indirect right of access: Finally, we have expressed our concerns regarding the indirect right of access to information within the context of the revision of the internal security law. This practice needs to be reassessed on the basis of the experiences that have been gained since the internal security law came into effect. Article 18 of the law gives responsibility to the FDPIC to examine the legality of the processing of data held on ISIS (the information system for internal security). However, the person concerned does not in principle obtain any information regarding data that may be held concerning them.