Secret state surveillance has long been regarded as a grave threat to constitutionalism, putting at risk not only individual rights but also the wider democratic process.
At both national and international levels, human rights law has responded by demanding effective oversight of surveillance by independent institutions – but there is an ongoing debate as to what role the judiciary should play. In Klass v Germany the ECtHR expressed a strong preference for judicial control at the point where surveillance is first ordered and while it is being carried out (…). Despite this, the Court did not require prior judicial control or even overall judicial supervision, holding that other systems could be permissible where the supervisory bodies were ‘independent of the authorities carrying out the surveillance’, ‘objective’ and ‘vested with sufficient powers and competence to exercise an effective and continuous control’.
This compromise position has been challenged as surveillance faces greater scrutiny worldwide, and there are strong arguments that a judicial dimension to oversight is not essential. For example, in a significant June 2014 report on the right to privacy in the digital age the Office of the UN High Commissioner for Human Rights (OHCHR) concluded that ‘the involvement of all branches of government in the oversight of surveillance programmes, as well as of an independent civilian oversight agency, is essential to ensure the effective protection of the law‘. That report warned, however, that judicial involvement should not be viewed as a panacea and noted that in a number of countries ‘judicial warranting or review of the digital surveillance activities of intelligence and/or law enforcement agencies have amounted effectively to an exercise in rubber-stamping‘. (s.n. – M.M.-B.)
(Judicial oversight of surveillance: the case of Ireland in comparative perspective în Judges as Guardians of Constitutionalism and Human Rights (coord. M. Scheinin, H. Krunke, M. Aksenova), ed. Elgar, la pp. 136-7)