The European Agency for Fundamental Rights (FRA) has highlighted a rather concerning fact about Malta's security services.

The report, called 'Surveillance by intelligence services: fundamental rights safeguards and remedies in the EU', highlights that decisions by the Maltese Commissioner for Security Services cannot be subject to appeal, nor can they be questioned before a court.

"This goes against the well-established standards requiring decisions of non-judicial dispute mechanisms to be supervised by a judicial body," the FRA noted this week.

While parliamentary and expert oversight bodies are by law structurally and formally capable of independent oversight, the report mentions that Malta and Sweden, where the remedial function of expert bodies is subject to executive control, serve as examples of systems where the controllers and the controlled agencies might not be sufficiently separated.

"In Malta, the Prime Minister appoints the Commissioner of the Security Service, who is, at the same time, responsible for reviewing the legality of the warrants the prime minister issues. Additionally, the prime minister also appoints the head of the security services. The entire system is therefore dependent on one authority. The commissioner is accountable solely to the prime minister, and cannot communicate with the media or be summoned to court." The report cites this information being present in the Malta Security Service Act, enacted in 1996.

"Moreover, decisions of the commissioner cannot be subject to appeal, nor can they be questioned before a court. This goes against the well-established standards requiring decisions of non-judicial dispute mechanisms to be supervised by a judicial body."

The report looks into the legal arrangements that govern intelligence services and their surveillance practices in the EU member states. It underlines the challenges of protecting citizens while safeguarding the fundamental rights that underpin European societies.

"Intelligence services play a vital role in a democratic society: They guard against security threats, and in doing so protect fundamental freedoms and the rights of individuals," says FRA Director a.i. Constantinos Manolopoulos. "In the wake of the barbaric attacks in Paris, we must ensure that surveillance measures maintain national security and fully respect fundamental rights. This will underscore the EU's firm commitment to democracy, equality and respect for fundamental rights."

The European Parliament requested the FRA study published in its resolution on 14 March 2014. It focuses on the legal framework of intelligence powers in this area, their oversight and access to effective remedies by individuals in this context within the EU member states.

The report was based on data from all EU member states on the legal framework governing surveillance collected by FRA's multidisciplinary research network, FRANET. Additional input came from existing publications and experts. The report does not cover surveillance for law enforcement or for military intelligence.

Malta is mentioned a number of times in the report.

It mentions that the 1996 Security Service Act also curtails the commissioner of the Security Service's ability to bring a problem to the public's attention by directing him/her to only report to the Prime Minister.

The report states that expert oversight boards are important aspects to consider when assessing a body's independence. "The authority that appoints members or the governing structure of oversight and remedial bodies should not control and supervise the work of the intelligence agencies. Malta and Sweden, where the remedial function of expert bodies is subject to executive control, serve as examples of systems where the controllers and the controlled agencies might not be sufficiently separated."

The report highlights that all EU member states, aside from Malta, Ireland, Finland and Portugal, have parliamentary committees to deal with the intelligence services. "The powers granted to them, however, vary."

"Parliamentary oversight is very important because of parliament's supreme responsibility to hold the government accountable."

In Malta, approval for surveillance of communications comes from the minister responsible, the report said.

The report also explains that the obligation to inform and the right to access one's own data can generally be perceived as strong safeguards for ensuring the effectiveness of a remedial action, and, ultimately, legal scrutiny by judicial or non-judicial bodies. "From the point of view of the right to data protection, these safeguards also ensure transparency of data processing and the exercise of other rights of the individual, i.e. the rectification and/or deletion of data being processed unlawfully."

In the context of surveillance, the report read, even with necessary restrictions the obligation to inform and the right to access also enhance transparency and accountability of the intelligence services and help to develop citizens' trust in government actions. "To safeguard national security, obligations and rights may, in accordance with Article 13 (1) of the Data Protection Directive, be restricted to the extent necessary and properly justified"

In 20 member states, including Malta, the obligation to inform and right to access are provided for in the law, albeit with restrictions. The conditions vary regarding when the individual must be informed or may exercise the right to access, or other qualifying aspects. In the majority of these member states, data protection laws alone, or in conjunction with specific laws, constitute the legal basis for the restrictions. "In Malta, the general data protection legislation provides that the obligation to inform and the right to access are not applicable to necessary measures in the interest of national security, while the specific laws do not further regulate this matter."