Proposition 50K2059

Projet de loi modifiant la loi du 30 novembre 1998 organique des services de renseignement et de sécurité et l'article 259bis du Code pénal.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Oct. 9, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

protection of privacy secret service public safety protection of communications

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Discussion ¶

Dec. 17, 2002 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, colleagues, with the bill, the military intelligence service will be able to intercept telephone calls or telecommunications abroad.

The CD&V group does not, in principle, immediately object to this. However, as a group, we would like, in the first place, that the interception of telephone calls be carried out in accordance with the provisions of treaty law and the general principles of good governance. Secondly, we wish that the government, when it takes the initiative to allow the military intelligence service to listen to phone calls, should also give the National Security the opportunity to do so. That will be the subject of my presentation.

First, what are we fixing? We find that the draft in question does not meet the requirements of Article 8 of the European Convention on Human Rights. This was expressly stated in the opinion of the Commission on the Protection of Privacy. That committee gives a negative opinion on the text of the draft law because it does not comply with Article 8 § 2 of the ECHR.

What is it concrete about? It is said that the conditions provided for in the draft law to allow the General Intelligence and Security Service (ADIV) to listen to telephone calls are too broadly defined. They are not sufficiently specified. In this way, they are contrary to the principle of necessity. The necessity means that one must be able to demonstrate that it is necessary to listen to telephone calls. This is not sufficiently the case in the conditions described here. Thus, the draft law is contrary to the established jurisprudence of the European Court of Human Rights, more specifically the judgment class. That judgment speaks specifically about the principle of necessity. In fact, very concretely it is said in the draft law that one can listen, either — I quote the draft law — “for reasons of military nature, or for reasons of security and protection of our troops and of our subjects established abroad”. As the Commission on the Protection of Privacy says, this is a too general description. It would be much more precise to specify under what circumstances the authorisation may be granted to the General Intelligence and Security Service. This should be defined much more precisely: for example, authorisation may be granted in case of a threat of espionage, a threat of terrorism or in case of a concrete threat of or risk of infringement of the physical integrity of the physical security.

My first observation is that this design does not comply with the opinion of the Privacy Committee. It does not meet the requirements of the European Convention on Human Rights. My second observation is that this bill really gives a free guide to the Minister of Land Defense to allow the military intelligence service to listen to phone calls abroad. The draft law states that it is sufficient that the military intelligence services annually submit a list of organizations and institutions to the Minister of Land Defense. They do this to allow him to grant permission to ADIV to enable the interception of telecommunications based on the transmission of an annual list. Colleagues, this is without any doubt contrary to what is called the specificity principle, namely the rule that says that for each interception there is a specific motivation and reason required to give permission to the interception of telecommunications. The description is too general here too. Therefore, the Minister of National Defence is given a freelance. I assume that at this moment we have no doubt in the capabilities of the current Minister of Land Defense. This legislation, however, is a legislation that will apply ad futurum. You never know who will be on this post. This trust will not always be present.

Furthermore, I think that the bill shows another important gap, namely that if one would want to allow the military intelligence services to listen to telephone calls, then there should be a preliminary check, an opportunity check, a check whether it is appropriate to permit the military intelligence services to listen in this particular case. This preliminary inspection should be carried out by an independent body. Colleagues, this is also the case in France, Germany and Luxembourg. An independent committee will be commissioned to conduct a preliminary review. She will be instructed to determine in advance whether there are indeed reasons to allow the military intelligence services to intercept telephone calls.

Our position is that we believe it is necessary to give the military intelligence services that opportunity. Let us, however, do so in circumstances that are, firstly, in accordance with the European Convention on Human Rights and, secondly, in accordance with the necessary guarantee of control, supervision and pre-opportunity control that we must have. That is my first major concern with regard to the design as it currently presents. Mr. Speaker, Mr. Minister, Ladies and Gentlemen, my second concern is the following. The Minister of Land Defense has, in my opinion, rightly emphasized in the committee that the possibility for ADIV to intercept telephone calls is very urgent in the context of the security of our troops there. I totally agree with this. For me, this is not the point of discussion. The point of discussion is that it must be done in accordance with the international order.

Next, the following consideration is essential for the CD&V faction. If the military intelligence services should be able to dispose of this instrument in cases of extreme urgency, it is undoubtedly so, Mr. Minister, that this extreme urgency also applies in relation to State security. We all know the threat that comes from international terrorism right now. By the way, a few weeks ago, very concrete instructions were given to secure a number of locations in this country because there was a real threat.

Belgium is the last country, colleagues, in the so-called Bern group that does not allow its civil intelligence service to listen to telephone calls, to intercept telecommunications. We are the only country that has not yet created this instrument in response to a better, proactive functioning due to the civil intelligence services. I refer very clearly to the activity report of the monitoring committee of the Standing Committee for the Supervision of Intelligence Services. The activity report states that if our State Security wants to function properly it is essential that that State Security could have the instrument of administrative interception. Yesterday afternoon we had another meeting of the accompanying committee of the Standing Committee of Supervision on the Police and Intelligence Services. The Chairman of the Committee I has repeatedly reiterated that it is incomprehensible that in Belgium the administrative intelligence service cannot have the possibility of telecommunications interception.

Therefore, I do not understand why this opportunity is not taken advantage of because of the government at the same time to regulate the problem of the interception of telephone calls by the State Security. Furthermore, the Minister of Justice had very explicitly communicated in the Committee on Justice that he agreed to the possibility for the State Security to intercept telecommunications. Therefore, it is incomprehensible that one does not do it. Very recent information from the Chairman of the Permanent Committee of Surveillance on Intelligence Services has made clear what the problem is. Mr. Speaker, Mr. Minister, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. There is indeed a preliminary bill prepared by the Minister of Justice but according to the chairman of the supervisory committee on the intelligence services, this preliminary bill has been blocked in the Council of Ministers because of the fact that there is no agreement within the government and the Minister of Internal Affairs and the Minister of Budget only agree to the interception of telephone calls by the State Security insofar as the federal police could intercept administratively. What the Minister of Justice has told us, that a draft is being made, does not give us a solution to the problem. This problem is currently blocked within the government and within the Council of Ministers at the request of Home Affairs and Budget. That is why I here very explicitly — and I understand that due to the circumstances of the agenda this discussion comes at a very difficult time when few colleagues can be present — Parliament would really want to place its responsibility. Everyone agrees that the State Security should be able to dispose of this instrument in the context of the threat of international terrorism. and everyone. The Committee I says this very explicitly. We are the only one within the Berne group that has not created this possibility.

Today we will give military intelligence services the opportunity to listen abroad. Let us now take advantage of the opportunity to establish a law that and the military intelligence services at home and abroad, and the State Security provides the opportunity to do so. It is in this sense that the opposition, from a constructive attitude, has submitted an amendment providing for that global legal framework. So there is a completely finished text available that we have submitted with the CD&V group in the committee and back in the plenary session where we have a fully elaborated legal model of intercepting telephone calls, and for the military intelligence services, and for the State Security. Therefore, it is not intended, Mr. Minister of National Defence, to deny this instrument to you. No, on the contrary, we say this is necessary. But let us first do so within an acceptable legal context, within the respect of the European Convention on Human Rights.

Secondly, please — it is almost an emergency cry — let us address that pressing question of all those who are concerned with the problem of international terrorism to give the National Security the outstanding instrument to proactively act against the threat of all kinds of organizations. Let us give the State Security this instrument.

I will give you a concrete example, Mr. Speaker, and I will then conclude. However, it is unthinkable that, for example, with regard to the organization AEL in Antwerp, we should have determined in the accompanying committee of the Committee P and the Committee I that the State Security had little information about AEL, while that information was apparently present with the military intelligence service. This information shows that there are real risks to the Arab European League and its connections with other terrorist networks. One does not have this information because one does not have the instruments and also because one does not have the people. I would like to advocate with conviction to take our responsibility in this regard.

My colleagues, if you do not intervene on this, I would like to put you on your responsibility now. If the international threat would create risks and attacks in the short term and it could be inferred that this is due, among other things, to the fact that we have not given our intelligence services the instrument to listen to telephone calls and thus act proactively, knowing what the concrete threat is, you take a special responsibility in doing so. I hope "trotzdem" that you will follow the constructive initiative of the CD&V group in which we offer you an alternative, fully elaborated text that is legistically correct and complies with the European Convention on Human Rights so that we can give our intelligence services the instrument to which they are entitled. In this way, we have delivered quick, solid and good parliamentary work. If we approve this bill, we know that we have not done the latter. I refer to the opinion of the Commission on the Protection of Privacy. It makes no sense to create such committees, the chairman of the committee for justice, and even to give them a new statute, but in this House of Representatives it is not taken into account if they give a negative opinion.

I hope, Mr. Speaker, that wisdom and sense of responsibility will prevail in this.

Mr. Speaker, Mr. Minister, dear colleagues, the aim of the bill on the possibility of the SGR to intercept communications issued abroad is to ensure the safety and protection of our citizens and our soldiers located abroad. This possibility must draw all our attention because it is one of the conclusions of the Parliamentary Commission of Inquiry on the events that occurred in Rwanda in 1994.

We are, of course, in favor of this measure that responds to the international context in which we live. This context requires that the various services of our country that work for the safety of our fellow citizens can work within a clear legal framework and with efficient technical means. Belgium is thus endowed with a legislative framework available to its partners in the European Union and NATO. The Belgian military will now be able to intercept information broadcast other than by radio.

If the defence of our interests and values is not to be done at the expense of certain principles to which we are attached, an effective control of the listening performed by the SGR must be provided by law. This will be the case through the R Committee, which will be able to stop communication interceptions when they do not comply with the legal provisions in force. If the Committee R is authorized to carry out checks, it shall ensure that it has the human resources to carry out this task.

Another control: that of the Minister, who alone will exercise a power to prohibit and stop listening initiated in an emergency. In the Justice Committee, several votes were raised to impose a supplementary judicial review. From the moment when one is not faced with administrative-type interceptions, centralized control in the hands of the minister may, in the case of this bill, seem sufficient. Therefore, the MR group will vote on the bill amending articles 42 and 44 of the law of 30 November 1998 concerning the SGR.

Mr. Speaker, I would like to thank Mrs. Lejeune for her report and her intervention, which provide a series of answers to the fears expressed by Mr. Van Parys. I would also like to thank him for his interventions. There is still a long way to go for other services. We found ourselves facing different alternatives where we advanced for the intercept by the General Service of Military Intelligence, for operations abroad and according to very strict rules. We also found ourselves in front of alternatives where we expected the overall project. Under these conditions, we were not in the legality at the time of operations that are numerous for the moment and which will undoubtedly still be extended with ⁇ our upcoming presence in Afghanistan. There was a choice of pragmatism. There is a need to be done for other security and intelligence services.

I would also like to reiterate that the opinions of the State Council have been taken into account. The Privacy Commission has the annual list of permissions. Each listening must be specifically motivated. There will also be timely checks of each interception by an independent body, parallel to what is happening in France and Germany.

There is also an opportunity control as the executive, and in this case the Minister of Defense, makes the decision. I would like to thank you for the words you made in my place. It provides for the control of legality and timeliness exercised by the Parliament through the Committee R and the control of legality by the judiciary. The project presented here is limited as it only concerns military interceptions carried out by military personnel abroad for military operations and to ensure the safety of our citizens. Ms. Lejeune wanted to talk about Rwanda to recall the difficulty of working in this area. Controls have also been planned, but I agree to say that there is still work to be done in this sector.

Yes, you just do. Then you have defended the amendment too, if you want.

I will briefly comment on the amendment and at the same time replicate what the Minister has said.

We have submitted an amendment addressing the entire issue, creating a legal framework for both the Military Intelligence Service and the State Security that should allow both services to intercept telecommunications, including with regard to the military intelligence services abroad. I think it rarely happens that the opposition takes the initiative to take the lead when the government is still. We have done a lot of work on this and we have prepared a fully elaborated text, which, by the way, complies with the provisions of the European Convention on Human Rights, in particular Article 8 of the European Convention. It would, of course, be especially unfortunate if we had to decide now, because of the majority and because of the government, to vote away this amendment, where everyone agrees that the amendment meets the need, which is ⁇ real at this moment.

We are currently with three colleagues in the hall. However, I would like to point out, colleagues, that the threat of international terrorism is ⁇ great. We have heard from the Chairman of the Standing Committee for the Supervision of Intelligence Services how at an international meeting a good week ago very explicitly pointed out concrete risks within Europe. Then again came the problem of the fact that our intelligence services do not have the tools they should have. This is not the opposition who says this, this is not the CD&V, this is the Supervisory Committee on the Intelligence Services. This is Mr. Delepierre, who is a very eminent man and who knows matter like no other.

Now, what stops us from discussing and approving this amendment? Mr. Minister, at that moment you have no waste of time. At that point, you have a full text that, by the way, will also allow your military intelligence services to listen to phone calls within the country. So in that regard, you get much more than what you asked for. In addition, we have made the effort to bring the text into conformity with the ECHR, which is not the case at the moment. So the text is in all respects a profit situation for your services and at the same time for the State Security.

The Minister of Justice has tried to send us a clock in the ass, telling in the committee when we should formulate the opinion, that the government was working on a draft to allow the State Security to listen to telephone calls. Yesterday in the accompanying committee of the Committee P, Chairman, when you were just a little away when the meeting with the Committee I could begin, the Chairman of the Committee I said very explicitly that the draft on the interception of the State Security in the government was blocked — he said it — on the initiative of the Minister of Interior and the Minister of Budget, because of the fact that they now also want to give the federal police the opportunity to intercept administratively. Imagine yourself! So the bleeding cloth that the Minister of Justice gives us to say that it is being arranged and that there is a draft on listening to the State Security, therefore does not come.

You stand for your responsibility — you, Chairman of the Chamber, you, Mr. Minister of National Defense, this Parliament — in the context of the international threat. Admit, whether it is large or not, that threat exists. It is real, and every organization involved in it, you confirm that.

Well, we are now facing the choice. There is a legistic text that allows you to address this problem. If you do not, I will be the first to hold you all personally accountable for the risk you are taking when, by not giving the instrument of intercepting the State Security, we do not have the necessary information to be in front of that risk and to anticipate other risks. The population is currently undergoing risks that we cannot take because of the disagreement within the government. Now you can’t get away from the fact that we don’t have texts. We give you the opportunity to do it, the text is in front of you, you can amend it when you find that one or the other is not in accordance with your insights or your ideological view on this matter. Speak about this text. We will be happy to participate in the debate. We are ready, we are ready. This can be handled and completed today without any problem.

Mr. Speaker, I listen with interest to the response of the various political groups to our proposal to allow intelligence services to intercept telecommunications so that, when there are really concrete threats, we will be notified and we will not end up in the same situation as now because the State Security had no information about AEL, although in the meantime it has been revealed with which networks this organization is connected.

I invite the various political groups to take a stand on the CD&V amendment.

Colleague Van Parys, I thank you, of course, but I have been asked to chair the Control Commission on Election spending and the Accounting of political parties. I ask colleague Erdman to replace me. Mr Robert Denis is the rapporteur for one of the following drafts and wishes to speak in the latter draft. Mr. Erdman, can you replace me here?

Mr. Speaker, I assume that for you the election spending is more important than the international threat that exists at the moment. You make the choice of your schedule, for me no problem. I also don’t want to stop the minister, because I respect the family obligations he has. However, I would like to reserve the right to make a detailed explanation on this subject following a vote statement. Mr. Speaker, you will not remember me that, given the hour and the opportunities that were created today.

Let’s get a good deal, Mr. Van Parys. I know that everyone, the minister, the chairman of the committee, you, the group leaders, this Parliament itself, has acted very encouragingly.

I promise to give a little more time for a vote statement tomorrow afternoon. However, do not exaggerate with this. The goodwill shown here also deserves to be rewarded with a small deviation from the timeframe.

Mr. Erdman, please take over my presidency. Chairman: Fred Erdman President Fred Erdman.