UUMI'IE LkRMANEN1 DE LUNIKULE DES EKRVICES DE KENSEIGNEMENTS

VAST COMITt VAN TOEZICHT OP DE INLICHTINGENDIENSTEN

PERMANENT COMMITTEE FOR CONTROLOF THE INTELLIGENCE SERVICES

Presentation of the Committee

1997 Assessment:

Four years of Oversight and Recommendations

RUE DE LA LOI - 52 - WETSTRAAT

BRUXELLES- 1040- BRUSSELS

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PRESENTATION OF THE COMMITTEE

Presentation of the Intelligence Control Committee (summary intended for Belgian or foreignvisitors, for lectures or colloquia, for an Internet site, etc.)

History of the Intelligence Control Committee

There are two intelligence services in Belgium:

- the Administration de la Scret6 de I'Etat [State Security Authority], a civil intelligence servicewhich is answerable to the Minister fcr Justice;

- the Service g6enral du Renseignement et de la S6curite [General Intelligence and SecurityService] (SGR for short), a military intelligence service which is answerable to the GeneralStaff of the Armed Forces, itself comes under the Minister for National Defence.

The State Security Authority and the SGR are mentioned in certain laws and in certain RoyalDecrees. To this day however, the existence, tasks and methods of these two services are notthe subject of any framework law. Until 1993, these two services were not subject to any externalcontrol.

In the course of the 1980s the country was shaken by a series of disturbing or even tragicevents, in particular:

what are known as the Walloon Brabant killings: no less than 19 attacks wereperpetrated against individuals, establishments and department stores by what appearedto be an organised band who were called "the killers of Brabant" ( The "Bende van Nijvel"in Dutch); the balance-sheet from these attacks was 27 deaths;

the attempts by the "Cellules communistes combattantes" (C.C.C.), a clandestinemovement claiming kinship with revolutionary Marxist-Leninism of which the balancesheet was two dead;

the discovery of an organisation of the extreme right ("Westland New Post') infiltrated ormanipulated by the State Security Authority;

the discovery in 1990 of the existence in Belgium of a secret network known as "Gladio"operating with the support of the Belgian (State Security Authority and SGR) and foreignintelligence services.

The media made great play of the possible existence of a link between the activities of thissecret network and the acts of terrorism committed in Belgium in the 1980s, but this hypothesiswas not supported by concrete facts. Numerous rumours and accusations then circulatedconcerning the working of the police services and the intelligence services. Furthermore,collaboration and co-ordination between these services, and finally the efficiency of the latter,raised numerous problems and gave rise to a good deal of criticism. Too much had been said,written and done for there to be no reaction.

Two Parliamentary Committees of Enquiry examined these matters and filed their reports:

- on 30 April 1990, the report from the Parliamentary enquiry "on the manner in which thestruggle against organised crime and terrorism is organised";

- on 1st October 1991, the report from the Parliamentary enquiry "on the existence in Belgiumof an international clandestine intelligence network".

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These reports concluded more particularly that there was a need for an organic law on theintelligence services and that there was a need for external supervision of these services.

The Permanent Committee for Control of the Intelligence Services (IC Committee for short) wastherefore established by the Organic Law of 18 July 1991 for the control of the police andintelligence services. The same law also established the Permanent Committee for Control ofthe Police Services (P Committee for short).

At the moment, a draft "organic law for the intelligence and security services" submitted on 2 July1996 is still being debated in Parliament.

The tasks of the IC Committee

The law assigns two tasks to the IC Committee:

* to guarantee the protection of the rights which the Constitution and the law confer on persons;* to ensure the co-ordination and efficiency of the intelligence services.

The IC Committee gives equal importance to each of these two tasks. For this purpose, the ICCommittee inquires into the activities and methods of these services. In order to carry out itstasks, the IC Committee is assisted by an investigative staff. It also has a Clerk andadministrative and logistical personnel.

The task of the supervisory body is mainly to verify whether the political leaders must, in one wayor another, modify the running of the intelligence services which come under its responsibility,or whether changes should be made to the legislation which applies to the services in question.

The main aim of this supervision is not to discover individual events which should be punished,within the intelligence services. This role remains the entire responsibility of the judicial anddisciplinary authorities. Its aim is to observe the occasional imperfections and dysfunction's inthe system and to make proposals for remedying these ' ).

Supervision by the IC Committee does not in any way replace Parliamentary supervision, orsupervision by the Ministers or by the administrative and judicial authorities responsible; itoperates independently of and in addition to the existing Parliamentary and hierarchical systemsof supervision {2).

Contacts and co-operation with the Permanent Committee for Control of the PoliceServices

Established by the same law, the P and IC Committees are independent of one another,however. The ways in which they operate are, with two exceptions, strictly identical. These twocommittees exchange information concerning their activities and their enquiry reports; they holdat least two joint meetings every year and they may have investigations carried out jointly.

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2 Chamber- 1305/1 - 90/91.

Composition of the IC Committee

The IC Committee was actually established on 26 May 1993. It consists of five effectivemembers including a chairman and vice-chairman. Five alternate members have also beennominated. These members are appointed in turns by the Chamber of Representatives and bythe Senate, who can dismiss them.

The members are appointed for a period of five years, which can be renewed once. Certainmembers have a seven-year term of office, however, so as to ensure continuity of the activitiesof the Committee.

The members are chosen from among magistrates, senior police officials or persons with longadministrative or scientific experience.

All the members of the IC Committee carry out their duties full time; they have the title of'adviser'.

By establishing the composition of the Committee in this way, the Senate wanted to create in ita political and linguistic balance in the image of the composition of the Federal Parliament. Asa sign of democracy, the main political groups, from the majority and from the opposition,Flemish and French-speaking, are represented on the P and IC Committees.

The Clerk of the IC Committee

The IC Committee is assisted by a clerk who provides the secretariat for its meetings, preparesthe minutes and ensures that documents are dispatched and records are kept. Under theauthority of the IC committee, the clerk has authority over the administrative and logisticalpersonnel; he manages the administrative infrastructure and the building.

The clerk is appointed in turns by the Chamber of Representatives and by the Senate who canalso dismiss him. The duration of his office is indeterminate.

Internal functioning of the IC Committee

The IC Committee is a collegial body. It has internal rules approved by the Chamber ofRepresentatives and by the Senate and published in the Moniteur Belge (Belgian officialgazette).

The internal rules establish the procedures by means of which the IC Committee takesdecisions, the practical conditions under which its tasks and responsibilities are carried out, aswell as the method of general management of the means of operation allocated to it.

The IC Committee has its own administrative and logistical personnel; it appoints and dismissesits members.

The IC Committee's investigative staff

The IC Committee exercises its authority over the investigative staff; it entrusts it with enquiriesof control over the functioning of the intelligence services and it receives the reports on all thosewhich are carried out.

In theory, the managerial staff of the investigative staff consists of five people. The head of theinvestigative staff is appointed by the IC Committee for a period of five years which can berenewed once. He must be a person of experience chosen from among magistrates, membersor officials of the intelligence or police services.

He must be familiar with the French and Dutch languages.

The members of the investigative staff are appointed by the IC Committee on a proposal fromthe head of the investigative staff.

The current members of the investigative staff have been appointed for a renewable period offive years by secondment from a police or intelligence service.

The head and the members of the investigative staff retain their rights to promotion and toadvancement on the pay scale in the service or authority from which they are seconded.

Who can approach the IC Committee?

1) The federal authorities

Five federal authorities may, each separately, make requests to the IC Committee for enquiries:

* the Chamber of Representatives;* the Senate;* it is in fact the support committees of the Chamber and the Senate together which refer

requests for enquiries to the Committee;* the Minister for National Defence, where the SGR is concerned;* the Minister of Justice, where the State Security Authority is concerned;* the IC Committee can act on its own initiative.

The individuals and the officials concerned

Individuals who have been directly concerned by the intervention of an intelligence service maybe added to these federal authorities. They may address their complaints and accusations tothe IC Committee or to its investigative staff.

Any official, any person carrying out a public function and any member of the armed forcesdirectly concerned by instructions, or decisions of the intelligence services or the implementingprocedures for these, and by the methods or actions of these services, may also lodge acomplaint or make an accusation without having to ask permission from their chiefs or theirsuperiors.

A person who has made an accusation may ask that his anonymity be guaranteed outside theIC Committee and its investigative staff.

The latter are bound to examine the complaints and accusations. They may however file acomplaint or accusation without action in the following cases:

- when it is "manifestly without foundation";- when the person bringing the complaint or accusation cannot be found, refuses to lend his

assistance or drops his complaint;- when the complaint or accusation does not come within the competence of the IC Committee.

Reasons must be given for a decision of this kind. It must be notified to the party who lodgedthe complaint or made the accusation.

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The IC Committee's means of supervision

The IC Committee has several means of enquiry available to it: it has the right to be informedof internal regulations and instructions, and all the documents governing the behaviour of themembers of the intelligence services, and also the sentences, orders or documents fromenquiries relating to the crimes and offences committed by the members of these services. TheCommittee may not however interfere in these judicial enquiries.

The IC Committee and its investigative staff have the right to hear witnesses. In this case, ifmembers of the intelligence services are concerned, they may give evidence on matters coveredby professional secrecy.

The chairman of the IC Committee may have members of the intelligence services summonedby bailiffs. The members of the intelligence services are then bound to give evidence on oath.They are also bound to reveal to the IC Committee the secrets which they hold, which theexception of those which concern a preliminary investigation or a legal investigation in progress.

If a member of an intelligence service considers that he must keep the secret which he holdsbecause revealing it would run the risk of physical danger to a person, the question is submittedto the chairman of the IC Committee who gives a ruling on it.

The IC Committee also has the right to seek assistance from experts and interpreters.

Members of the intelligence services, experts and interpreters conscripted by the Committeewho refuse their co-operation are liable to imprisonment.

The Committee has never, to date, had to resort to any means of constraint in order to carry outits task of supervision.

The measures available to the investigative staff

Like the IC Committee, the investigative staff also has a right of initiative, in matters ofsupervision and also in legal matters.

The members of the IC Committee's investigative staff may make the necessary findingsanywhere. They may at any moment enter places where members of an intelligence servicecarry out their tasks, in order to make the material findings there. They may seize there anyobjects or documents of use to their enquiry, with the exception of those which concern apreliminary investigation or a legal investigation in progress.

These operations can be carried out however only in the simultaneous presence of the head ofthe investigative staff and the head of staff of the intelligence service concerned. If the latterconsiders that the seizure would run the risk of physical danger to a person, the question issubmitted to the chairman of the IC Committee, who gives a ruling on it.

The members of the investigative staff may require the assistance of the police force in carryingout their tasks.

Thejudicial enquiries of the investigative staff

The investigative staff has a special power which does not come from the IC Committee: it mayin fact be entrusted with carrying out investigations concerning the crimes and offences withwhich the members of the intelligence services are charged.

The head and the members of the investigative staff have in fact the status of a criminalinvestigation police officer, assistant to the State Public Prosecutor and to the public prosecutorfor the armed forces.

In judicial matters, the investigative staff does not act on a decision of the IC Committee. It actson the initiative or on the demand of the Public Prosecutor, the military prosecutor orinvestigating judge. It carries out these enquiries in conjunction with the other police services(state police, criminal investigation department, etc.) and even with a right of precedence overthe latter.

In this case, the head and the members of the investigative staff are subject to the authority ofthe Public Prosecutor in the Court of Appeal or the public prosecutor general in the MilitaryCourt.

When a member of the investigative staff finds out about a crime or an offence, he prepares areport concerning it which is sent immediately to the Public Prosecutor, the Military PublicProsecutor or the investigating judge, as the case may be.

Judicial enquiries are conducted separately from supervisory enquiries; they always have priorityover the latter.

Disciplinary investigations concerning members of the intelligence services

Neither the IC Committee nor its investigative staff has any disciplinary power over members ofthe intelligence services. When facts liable to constitute a disciplinary offence are observed, thehead of the investigative staff must immediately report it to the competent disciplinary authority,namely the internal hierarchy of the intelligence services.

IC Committee enquiry reports

The IC Committee has to prepare a report on each of its tasks of enquiry. These reports containconclusions on the manner in which the intelligence services have carried out their tasks; theyindicate whether activities or the methods employed have threatened the rights conferred onpersons by the Constitution and the law. The reports also contain recommendations with a viewto correcting any loopholes observed.

Each report must be sent to the Minister responsible for the intelligence service concerned bythe investigation. Each report must also be sent to the Parliamentary Committees which supportthe IC Committee.

An exchange of views may take place between the Minister responsible and the IC Committeeconcerning each enquiry report. The Minister must within a reasonable period of time inform theIC Committee of the action which he reserves for the conclusions of the enquiry. When at theend of a period of time which it considers reasonable, the Committee finds that no action hasbeen taken concerning its conclusions, or that the measures taken are inappropriate orinadequate, it may make a new report to Parliament.

At this stage, the enquiry reports are always confidential.

Publication of the enquiry reports

The IC Committee may decide to make public all or part of its reports and conclusions. It mustfirst of all seek the opinion of the ministers responsible and advise Parliament thereof. If one ofthese ministers gives an adverse opinion, the IC Committee can decide to make all or part of areport public only with a majority of four votes.

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A number of items of information may never be made public, in particular:

- the identity of an accuser;- documents and items of information concerning judicial investigations in progress;- data or documents which are transmitted by the foreign police - and intelligence services to

the Belgian authorities and which are classified as "secret" or higher.

Before deciding to make a report public, the IC Committee takes account more particularly ofthe following factors:

- the harm which might be caused to the private life and physical safety of persons;- the damage which might be caused to the proper running of the national and foreign

intelligence services;- international co-operation between different services;- the right of the complainants to know what action was taken following their complaint;- the right of citizens to be sure that the intelligence services are working properly.

Annual reports on activities

Each year, the IC Committee presents a general report on its activities to Parliament. This reportsummarises the activities during the preceding year and determines the priorities for activitiesto be undertaken in the matters which come within its competence. This report is prepared ingeneral terms and does not mention specific situations or identify individuals by name so thatit can be circulated widely.

The annual report on activities is produced by a majority of three votes; but, as a sign ofdemocracy, it may mention minority opinions concerning all or part of its contents.

The report is discussed with the members of the parliamentary committees which support theIC Committee. The presentation of this report takes place on the first day of the ordinary sessionof the Chamber of Representatives and of the Senate which is held in October.

The Committee has to date lodged four annual reports of activities. All these reports are public.

The budget of the IC Committee

The appropriations necessary for the operation of the IC Committee are entered in theappropriations budget. They do not come under the executive power.

This does not mean however that the Committee is free to dispose of its appropriation as itthinks fit. It must first of all present to Parliament a draft budget in good and due form.This document is discussed, approved or amended by the budget committees of the Chamberof Representatives.

Implementation of the budget is subject to rigorous internal and external checks. Since 1997,the accounts of the IC Committee have been subject to verification by the Court of Auditors.

1997 ASSESSMENT: FOUR YEARS OF OVERSIGHT ANDRECOMMENDATIONS

After four years of supervising and making recommendations, the R Committee ( ) now wishesto present an assessment covering:

- its main findings and recommendations;- the reforms which are being planned or have been carried out as regards operation of the

intelligence services;- improvements which should be made with a view to increased protection of citizens' rights

and to the effectiveness of these services.

In accordance with its statutory tasks, the concerns of the R Committee relate to the followingaspects:

- adoption of a law on the intelligence services, including a clear definition of their tasks andmethods;

- protection of citizens' rights through strict control over the methods employed;- the effectiveness and coordination of these services and their collaboration.

In this spirit, the R Committee examined foreign legislation on intelligence services, in particularlegislation in the Federal Republic of Germany, the Netherlands, Portugal, Switzerland, theGrand Duchy of Luxembourg, the French Republic, the United Kingdom, Italy, the United Statesand Canada.

On the basis of this assessment, the R Committee wishes to give careful consideration to thequestion of what should be the character of the intelligence services, while at the same timetaking into account the balance of interests which should be struck between the protection ofcitizens' rights on the one hand and the effectiveness of these services on the other.

1. LAW ON THE INTELLIGENCE SERVICES

The main conclusions and recommendations of the Annual Report 1994 were as follows:

The Committee considers that it is essential that specific legislation should be adopted inorder to establish and regulate both the tasks and methods of the intelligence services (..).In the absence of specific legislation, the methods of the intelligence services do notprovide any legal security for citizens as they are not protected against possible improperinterference by these services in their private lives (..).Legislation granting full status to these services would also contribute to improving theireffectiveness."

Such legislation would also enable the R Committee to accomplish fully its oversight task.

Its official name in the French language is Comit6 R, the 'R' being an abbreviation for"Renseignements" or "Intelligence".

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In 1995, the Annual Report of the R Committee analyzed the policy memorandum presented tothe government by the working group which had been asked to prepare a preliminary bill relatingto the intelligence services.

Two Committee members considered that future legislation should apply not only to the StateSecurity Service (2) and to the SGR (31 "but also to all the other services (the police, gendarmerieetc.), insofar as they are authorized by law to gather, analyze and use security intelligence".

In 1995 the R Committee also tried, in the absence of legislation, to specify the tasks of theBelgian intelligence services on the basis of the currently applicable Royal Decrees and otherregulatory texts.

The 2nd of July 1996, the government tabled in Parliament a "draft law on the intelligence andsecurity services". The R Committee was invited by the Mixed Commission on Justice andNational Defence of the House of Representatives to deliver an opinion on the bill.

In the opinion which it delivered to the Commission on the 7th of January 1997, the R Committeeproposed to Parliament to add a second subparagraph to Article 2 of the future law, which wouldread as follows: "No other service may carry out intelligence and security tasks except inaccordance with legislation".

The view that future legislation should apply to any service authorized by law to carry outintelligence tasks is not shared by the government. The text which has been tabled applies onlyto the State Security Service and the SGR. Some members of parliament have, however, tabledamendments for the purpose of widening the scope of legislation.

The 30th of June 1997, the bill was still under discussion in Parliament. A vote took place in thepresence of the Mixed Commission on Justice and National Defence of the House ofRepresentatives.

2. PROTECTION OF CITIZENS' RIGHTS

2.1. General

In 1994, the R Committee stated:In the absence of specific legislation, the methods of the intelligence services do not provideany legal security for citizens as they are not protected against possible improperinterference by these services in their private lives".

In analyzing the Government's Policy Memorandum in 1995, the R Committee expressed thewish that the definition of the tasks of the intelligence services should not be too broad or toogeneral, as "this could well give them a field of intervention which would be too wide as regardsconstitutional and democratic freedoms."

The draft law on the intelligence and security services indicates that in performing their tasksthese services should ensure respect for and contribute to "the protection of individual rights andfreedoms and to the democratic development of society".

(2) The official name in the French language is "Administration de la SUret6 de I'Etat".

(3) This is an abbreviation in the French language of "Service G6neral de Renseignements" or"General Intelligence Service" (Military Intelligence Service).

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However, the 29th of November 1995, the Legislation Section of the Council of State delivereda highly critical opinion in this regard concerning the draft law. Indeed, it criticised the textbecause it relegated to a position of secondary importance the protection of fundamental rightsin a democratic society.

" While it can be accepted that the public authorities should be provided with services, thespecific function of which is to supply them with intelligence which will enable them to prevent,by means of appropriate decisions, reprehensible attacks on the interests for which they haveassumed responsibility, it is nevertheless true that the law should also protect the communityagainst the harm which, due to the secrecy which usually characterises them, these activitiescould cause to the free exercise of fundamental rights."

2.2. Investigations affecting protection of citizens' rights

The R Committee has always exercised its oversight task by taking account of the balance ofinterests which should be struck between the protection of citizens' rights on the one hand andthe effectiveness of the intelligence services on the other.

This concern has been expressed above all by means of the following general studies andinquiries, as the individual right most frequently referred to is, of course, the right to a private andfamily life as provided for in Article 22 of the Constitution and Article 8 of the Convention for theProtection of Human Rights and Fundamental Freedoms:

- Security certificates (1995): Together with the Council of State, the R Committee considersthat an investigation into the private life of an individual and his or her family can be carriedout only in accordance with law. A right of appeal should be granted to a person to whom asecurity clearance has been refused or from whom it has been withdrawn.

- Harmful sects (1995 and 1996): This threat to civil life should, of course, be dealt withwithout harm to freedom of conscience and freedom of religion as recognised in theConstitution.

- Destruction of documents by the State Security Service and the SGR (1995): One of thequestions raised in particular was how the Commission on the Protection of Private Life andthe R Committee could accomplish their tasks of protecting citizens' rights if the intelligenceservices could, without any other kind of formality, destroy the personal data held by them.

- The status of employees of the intelligence services (1996 and 1997): Is prior approvalby the Minister of applications for employment in the intelligence services in conformity withArticles 10, 11 and 22 of the Constitution? The R Committee considers that intelligenceservice employees should enjoy the same guarantees as those enjoyed by civil servants asregards evaluation and disciplinary procedures. They should also have trade union rightscompatible with their functions.

- Right of access by an individual to the file on such individual held by an intelligenceservice (1997): The R Committee considers that an individual who reports probable materialdamage or mental distress in relation to information contained on such individual in a file ofthe intelligence services should - subject to certain conditions but to a greater extent thancurrently - be in a position to obtain a right to consult such documents.The appropriateness of permitting or refusing such access should not be left exclusively tothe judgment of the intelligence services.

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- Interception of telecommunications - security wiretaps and bugs (1996 and 1997): Thestatutory prohibitions in this matter are, of course, motivated by the respect owed to theprivate and family life of citizens. The Committee recommends that the legislation be reviewedwith a view to permitting the use of security wiretaps and bugs, but with solid guaranteesrelating to control and appeals for citizens.

- Pending adoption of legislation authorising the intelligence services to engage in securityinterceptions, the SGR has voluntary supplied to the R Committee the listening devices whichit has and which enable it to carry out such interceptions.

- SGR activities and the establishment of provincial units by this service (1997): Thisinquiry was opened, inter alia, at the request of the Minister of National Defence who wishesto check on assertions that the SGR has been spying on civilians from its provincial stations.

- Possible creation of a new intelligence service with special responsibility to exercisesurveillance over immigrants (1997): The press and people in political life have almostunanimously condemned a passage in a memorandum which was intended for the GeneralStaff of the Armed Forces and which was considered to be racist in content. The RCommittee conducted an inquiry in order to ascertain in what respect if any the SGR or anynew intelligence service was involved in the drafting and implementation of this memorandum.

The Commission also conducted inquiries into and reported on five complaints made by privateindividuals. None of the inquiries concluded that disproportionate or unjustified harm had beencaused to the rights and freedoms of the complaints.

3. EFFECTIVENESS OF THE INTELLIGENCE SERVICES

It is the opinion of the R Committee that the effectiveness of the intelligence services dependsat one and the same time on:

- a clear definition of their future tasks and a responsible choice as to their objectives, whiletheir activities necessarily take place in both a national and international context;

- the possibility of legal use, but subject to control, of certain special methods of intelligenceresearch;

- the granting of a budget which will enable the services to accomplish the tasks assigned tothem;

- their being provided with sufficient qualified personnel with a guaranteed status;- a structure and organization appropriate to the current tasks of the services;- a reasonable and appropriate definition of secrecy (professional secrecy, secrecy of sources,

secrecy of information etc.);- coordination of the activities of the intelligence services and effective collaboration between

these services and the police;

3.1. Definition of the tasks of the intelligence services

The draft of the law on the intelligence services contains, in accordance with the wishes of theR Committee, a general definition of the tasks of the State Security Service and the SGR.

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3.1.1 The intelligence tasks

(a) \List of subjects

Until a law lays down the general tasks of the intelligence services, they will only have a list ofsubjects as a working basis. In 1995, the R Committee requested the "list of subjects" on whichthe State Security Service was working or which was submitted regularly to the Minister ofJustice so that he could approve it personally."The criteria determining which organization or group may appear on the list of subjects shouldbe defined".

The list of subjects dealt with by the State Security Service, which is dated on the 14th ofOctober 1996, contains a preliminary memorandum explaining the activities and criteria whichdetermine which persons or organizations should appear on the list. The aims of the dataprocessing involved are also indicated. As far as the R Committee is aware, the list has not,however, been signed by the Minister of Justice.

The SGR list of subjects does not yet indicate the criteria governing its preparation. As far as theR Committee is aware, this list has likewise not been signed by the Minister of National Defence.

It should, however, be noted that Article 3 of the Royal Decree of June 21th 1996, on thecreation of a Ministerial Committee on Intelligence and Security, has entrusted to this body thetask of establishing general intelligence policy and of determining the priorities of the intelligenceservices.

Notwithstanding this provision, the individual ministerial responsibility is still engaged.

(b) Sects

As far back as 1995, the R Committee had cited harmful sects as being one of the new subjectswhich should be of interest to the intelligence services.

In 1996, the R Committee recommended improved collaboration with regard to this matterbetween the State Security Service and the SGR for the purpose of implementing a commonpolicy relating to security certificates. It therefore recommended wide distribution of intelligenceon this subject.

The Commission with responsibility for the parliamentary inquiry "(...)aimed at drawing up apolicy to combat the illegal practices of sects and the danger which they represent to society andindividuals, particularly minors", considered that "an improvement in coordination is called forbetween the police and the various intelligence services and between these services and thejudicial authorities".

The Commission recommended, in particular, "sanctioning the role of the State Security Servicewhich should be given responsibility, in coordination with all the other intelligence services, forthe activities of gathering information, centralization and, above all, analysis of information".

The Memorandum of Agreement, signed in May 1997 between the SGR and the State SecurityService, is implementing this recommendation in relation to the intelligence services.

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The draft of the law on the intelligence and security services confirms that "the moral or physicalconstraint exercised by a sectarian organisation" is a threat to "the internal security of the Stateand to the stability of the democratic and constitutional order" and should be dealt with by theState Security Service.

(c) The new intelligence tasks

The draft law on the intelligence and security services assigns other new intelligence tasks tothe State Security Service and to the SGR, in particular:

- the external security of the State and international relations;- activities which threaten or could threaten the security of Belgian nationals abroad;- safeguarding the scientific and economic potential of the country.

The R Committee has emphasized the importance of these tasks on several occasions since1995. However, the R Committee finds it necessary to record that, in the absence of additionalresources in the form of qualified personnel, the intelligence services will be unable toaccomplish these new tasks.

3.2. Security tasks

In this connection, the R Committee also considered in 1994 that "the role expected of theintelligence services as regards security should be laid down ... by law". In 1995 and 1996, theR Committee devoted several inquiries into the security tasks of the intelligence services.

In each of these areas it has been the constant concern of the R Committee to draw theattention of the responsible authorities to the importance of security tasks with a view toproviding the intelligence services with complete legislation and appropriate structures.

- Security of information systems: The R Committee has encouraged the work of theBelinfosec group. It has also conveyed its recommendations to Parliament.The memorandum of agreement between the SGR and the State Security Service providesfor reciprocal assistance in this field. Much remains to be done, however, at the legislativeand regulatory levels.

-Security certificates: The government has prepared two preliminary bills, one of whichrelates to "security clearances", while the other assigns to the R Committee the competenceto know about appeals against refusals to grant such a clearances.These preliminary bills were submitted to the Council of State which gave its opinion on the21th and the 28th of May 1997.

The R Committee has not yet had the opportunity of stating its opinion on these bills, but it willmake sure to do so in the near future.

- Protection of persons: All of section 2 of the draft of the "law on the intelligence and securityservices" is devoted to the 'performance of tasks relating to the protection of persons" by theState Security Service.

- The preservation, storage and destruction of files: There are clear directives in this regardwithin the State Security Service and the SGR. A chronic shortage of administrative staff is,however, delaying implementation of these measures in the two intelligence services.

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3.2.1. Distribution of intelligence to the political, administrative and judicial authoritiesand to private bodies and individuals.

The R Committee considers that the distribution of intelligence is an essential task of theintelligence services. When analysing the Government's Policy Memorandum in 1995, the RCommittee wondered whether the government should be the sole recipient of intelligenceproduced by the State Security Service.

The R Committee believes that the authorities of the Communities and Regions and even theprovincial governors and mayors should be able to receive intelligence in case of necessity.

The question of distribution of intelligence was debated in the context of section 3 of Article 10of the draft "law on the intelligence and security services".

Amendments were tabled for the purpose of permitting a wide distribution of intelligence, inparticular to foreign intelligence and security services, and to bodies and individuals "who havea legitimate reason to take note of it".

Finally the government' s amendment n°.38 indicates that "the intelligence and security servicesmay communicate such intelligence only to the Ministers and judicial and administrativeauthorities concerned, to the police and any bodies or individuals specified in accordance withthe conditions laid down by the Ministerial Committee and the objectives of their tasks".

3.3. The methods of the intelligence services

The R Committee has always approved the general principle of the bill in accordance with whichthe methods of the intelligence services should rule out any means of constraint and, except inan exceptional case, invade privacy.

Consequently:- whatever is not forbidden to a citizen is permitted to the intelligence services;- a statutory security authorization is required for the use of certain special methods.

In this respect it has also been a constant concern of the R Committee to attract the attentionof the competent authorities to the importance for the intelligence services of being in a positionto use in a legal and controlled manner certain special research methods, in particular:

- the use of informers;- interception of telecommunications;- interception of written correspondence;- entry into and search of a dwelling;- shadowing and observation of individuals, meetings and gatherings;- use of optical means of surveillance;- the gathering of personal data and access to certain files and information held by other

authorities.

The need for statutory authorization to use these methods derives from the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms. The R Committeeand the Council of State have emphasised this on several occasions.

The R Committee has also been interested in the use of "open sources" by the intelligenceservices.

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3.3.1 Use of informers

This Annual Report 1997 contains a series of recommendations regarding the use of thisimportant source of information for the intelligence services.

The R Committee recommends in particular that legislation apply in this field the principles ofsubsidiarily and proportionality. The R Committee also recommends clear directives relating tothe behaviour and evaluation of informers and to measures designed to guarantee theirprotection. These provisions still have to be drawn up.

3.3.2 Interception of telecommunications

The R Committee has devoted attention to this matter on more than one occasion. In 1996, itdevoted a chapter in its annual report to a theoretical study of legislation on administrativewiretaps and bugs. In 1997, at the request of Parliament, it conducted an inquiry intointerceptions of telecommunications carried out by the SGR.

This type of activity is essential for the SGR. It is mainly oriented to the military area and makesit possible, among other things, to detect the presence - or disappearance - of major units. TheCOMINT section of the SGR works in close collaboration with similar allied services, from whichit also receives essential intelligence.

At the present time, the interception of private telecommunications, even of a military nature,even abroad and even in time of war is formally prohibited by two statutory provisions.The R Committee has therefore recommended that the legislation be adapted with a view toenabling the SGR to continue this task within a legal framework. Article 26 of the draft law onthe intelligence services provides for this in part.

The R Committee is also aware that a preliminary bill on security wiretapping and bugs is beingdrawn up for the purpose of enabling the State Security Service to resort to them. As soon asthe R Committee is aware of the content of this preliminary bill it will make sure to study it.

3.3.3 Access to certain files and information held by other authorities

In 1994, the R Committee ascertained that a considerable amount of intelligence concerningindividuals could be gathered through consultation of documents drawn up and held by variousbranches of the public service. Intelligence of this kind was gathered mainly on the basis ofinformal contacts.

In analyzing the '1995 Policy Memorandum', two members of the R Committee considered thatthe statutory authorization given to civil servants to communicate information to the intelligenceservices, should be limited to the information requested by these services, in order to avoidarbitrary denunciations.

However, these two members believed that a right of requisition should be granted as regardsdata held by the police, especially in connection with the maintenance of law and order,searches for nuclear materials and close protection of individuals. Two other members proposedthat a Royal Decree should permit the intelligence services to consult certain databases ofcertain branches of the public service.

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Article 10 of the draft law on the intelligence and security services provides that publicprosecutors, civil servants and public service employees may communicate informationrequested by such services in compliance with the law "and the procedures laid down by theirresponsible authorities".

The R Committee has asked itself in this regard whether leaving it to the responsible authoritiesto determine the communication procedures might not give rise to a risk of arbitrary action ontheir part.

The R Committee has therefore proposed that the communication of information by civil servantsand public service employees should be only "in accordance with law", as is the case in Dutchlegislation.

In addition, the bill provides that "the procedures for communicating information contained in theregister of births, marriages and deaths and the register of aliens shall be established by RoyalDecree deliberated in the Council of Ministers". An amendment tabled by the government aimsat establishing the principle of explaining a refusal to communicate information requested by theState Security Service and the SGR. The R Committee approves these provisions.

Article 7 of the bill on central judicial records provides in particular that, subject to certainexceptions, "level -1 employees of the intelligence services, as defined by the law of 18 July1991 on oversight of the police and intelligence services, who have been designated by namein writing (...) shall have permanent access to the information registered in the judicial recordrelating to an individual only within the framework of the tasks laid down for them by legislationrequiring knowledge of the judicial record".

This text was adopted by the Justice Commission on the 15th of July 1997 (4}

The R Committee approves this provision insofar as only officers designated by name in writingwill be authorised to have access to the central judicial records. A precaution of this nature islikely to limit abuses which could be committed following consultation of the central judicialrecords.

However, in restricting this prerogative to level -1 officers, the R Committee has asked itselfabout the possibilities which will be available to the military personnel of the SGR, as theirgrades are not equivalent to the civilian grades of civil servants.

3.3.4 Use of "open sources"

Since 1994, the R Committee has been mindful of the importance of "open sources" in theintelligence world. In 1996, the R Committee issued a detailed proposal in the context of theefficient use of open sources by a joint unit of the Belgian intelligence services. The proposalwas initially in two parts:

1°: broaden the general documentation services through the recruitment of analysts;2°: provide the services with sufficient information technology resources.

On several occasions, the R Committee has suggested that the SGR and the State SecurityService link up together to certain commercial databases in order to reduce costs.

(4) House of Representatives, 1-663/4 - Session 96/97, July 15th 1997, page 5

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The officials of the intelligence services admit that 80% -90% of the information required for theirservices can currently be obtained from open sources.

However, there are reservations as regards joint exploitation of such sources. Depending ontheir operational needs, exploitation will always be of a nature specific to the SGR and the StateSecurity Service. Contacts have, however, taken place between these services.

A chronic shortage of administrative staff and analysts, together with the lack of computerspecialists in the context of the work of the intelligence services is, however, an obstacle to thedevelopment of this resource and to collaboration between the services in this field.

3.4 The budgets of the intelligence services

In 1995, the R Committee devoted a chapter in its annual report to the budgets of the StateSecurity Service and SGR.

Unlike the SGR, which draws up budget estimates, the State Security Service does not have thispower, and this sets limits to the initiatives which it can take in programming its tasks. Moreover,the R Committee has recommended that the SGR should no longer systematically destroy itsaccounts, as it has been accustomed to do. Effect has been given to this recommendation.

The R Committee did not conduct any further inquiries in this matter in 1996 or 1997. In thecourse of its activities next year, the R Committee will make sure to check use of the budgetgranted to the intelligence services in relation to the tasks assigned to them.

3.5 The personnel of the intelligence services

In 1996, the R Committee carried out a study on the status of the of members of the intelligenceservices. A chapter in the Annual Report 1996 was devoted to the employees of the StateSecurity Service, while a chapter in the Annual Report 1997 was devoted to the SGRemployees.

The R Committee's concern in this matter is that the intelligence services should have asufficient number of stable and qualified personnel (especially lawyers, analysts and computerspecialists) who have a clear and coordinated status.

The R Committee has issued around twenty recommendations aimed at bridging the gapbetween the specific status of this personnel and the status of civil servants.

While some provisions governing the different kinds of status involved must continue to be ofa specific character, the two kinds of status should nevertheless be approximated as much aspossible. Any modification made to either status should be on the basis of consultation and, ifpossible, by agreement with the Minister responsible for the other service.

The R Committee is aware of a draft Royal Decree on the conditions of service of members ofthe external services of the State Security Service.

The R Committee also knows that a general revision of salary scales was decided in the Ministryof National Defence in 1994. Some amendments to the status of the civilian employees of themilitary security service are envisaged in connection with this general revision of salary scales.

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As far as the R Committee knows, these drafts are being examined without consultation betweenthe competent Ministers. The R Committee regrets this and considers that consultation shouldbe arranged without delay.

3.6 Restructuring and organisation of the intelligence services

Since 1994, the R Committee has taken an interest in the organisation and structure of theintelligence services.

As early as its first annual report, the R Committee emphasised that the services had undergoneradical changes as a result of:

- the splitting in 1994 of the two departments of the Public Security Administration (Aliens'Office and State Security);

- an internal reorganisation of the SGR in 1993 which, however, left this service under thedirect authority of the Chief of the General Staff of the Armed Forces.

In 1995, the R Committee issued a series of recommendations relating in particular to thepreparation, updating, classification, coordination and codification of memoranda and serviceassignments of the State Security Service and to signing powers.

The R Committee also asked that the SGR standing orders be simultaneously translated intothe two national languages, and this has now been done.

In 1997, the R Committee reported on the re-establishment of the provincial stations of the SGR.

While the State Security Service has undertaken work relating to internal restructuring, this hasnot yet been completed despite a commitment by the Director-General to complete it by the endof 1995. A large number of out-of-date memoranda have not yet been reviewed and the standingorders applicable to the State Security Service still have not been codified.

In 1997, two members of the Committee proposed that the State Security Service should infuture be under the jurisdiction of the Minister of the Interior rather than of the Minister of Justice.

Three reasons were given.

Firstly, the history of the intelligence services teaches us that the State Security Service wasattached to the Ministry of the Interior during the second half of the 19th century.

Secondly, the various articles in the bill do not in any way cover activities forming part of theministerial responsibilities of the Minister of Justice. The fields of justice and intelligence are twoentirely distinct matters.

Thirdly, no legislation in the countries studied to date by the R Committee gives this responsibilityto the Minister of Justice.

The draft law on the intelligence and security services provides for maintaining the StateSecurity Service under the authority of the Minister of Justice. However, the Minister of theInterior is associated with the organisation and administration of this service as regards theperformance of tasks relating to maintaining law and order and personal protection.

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The Minister of the Interior may therefore call on the State Security Service to perform thesetasks, make recommendations and give exact details regarding the means to be implementedand the resources to be used.

In connection with these powers, the two Committee members perviously referred to believedin 1995 that:

- new legislation giving a right of requisition to the Minster of the Interior as regards closeprotection of individuals would restrict the powers of the King as laid down in Article 11 of thelaw of 5 August 1992 on the police function;

- the prerogative granted to this Minister as regards making recommendations and giving exactdetails of the means to be used and the resources to be employed were "likely to give rise toconflict and frustration" in relations between the Minister and the service involved. These twomembers recommended that the power of recommendation should, instead, be granted toa coordinator.

Similarly, the bill provides that a joint signature or the assent of the Minister of the Interior isrequired in relation to a series of regulatory texts governing the State Security Service. In thiscontext, the two Corrmittee members previously referred to believed that these texts should,instead, be deliberated in the Ministerial Council of Intelligence and Security.

In relation to the provisions in the bill regarding the distribution of spheres of competencesbetween the Ministers of Justice, the Interior, and National Defence, the Council of Stateconsidered that it is for the executive power to regulate its own organisation and that thelegislative power may not therefore adopt these provisions without encroaching on the powerswhich the Constitution has reserved to the King.

3.7 A reasonable and appropriate definition of secrecy

One essential characteristic of the intelligence services is that they work secretly. On severaloccasions, the R Committee has wondered about the nature and basis of this obligation ofsecrecy.

In 1995, it was the manner in which the policy memorandum dealt with secrecy of sources andinformers that had the attention of the R Committee. The problem is therefore how to find "abalance between protecting the anonymity of informers and the need in certain cases (in legalproceedings) to know their identity".

In 1997, the R Committee discussed the question of the balance to be found between the rightof the individual to have access to his or her file on the one hand and the need for secrecy onthe other.

The R Committee is of the opinion that under no circumstances should the intelligence servicescontinue to be the sole judges of the obligation as to secrecy:

- in the case of evidence produced by witnesses in legal proceedings, the solution applied inthe Netherlands has been proposed, namely, a member of an intelligence service may beexcused before a judge from his or her duty as to secrecy on the basis of an agreement tothis by two Ministers, one of whom will be the Minister directly responsible for the intelligenceservice.

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- for the purpose of permitting or refusing access by an individual to the file held on thatindividual by an intelligence service, a collegiate body such as the R Committee could, afterconsultation with the competent Minister, find that the communication of certain informationdoes not compromise state security, national defence, public security or the security of privateindividuals.

The R Committee therefore considers that the law on the intelligence and security servicesshould lay down what is meant by secrecy of information, that is to say, the content of theinformation involved, as a determination of the degrees of classification is not sufficient.

In the study on the status of the members of the intelligence services, the R Committee brieflyconsidered the obligations as to secrecy to which such employees are bound. It has decided tohold an inquiry into this matter in the near future.

3.8 Coordination of the intelligence services

3.8.1 Inter-agency coordination among the intelligence services

In 1994, the R Committee stated:"The adoption of an law would provide an appropriate framework within which to arrange for

coordination of the intelligence services, as such coordination is currently not structureddespite many common areas of interest and operation."

In 1995, the R Committee expressed regret that, despite the wishes of the legislature, theintelligence services had not systematically coordinated their activities. The R Committee statedhowever that the responsibilities of these services had to be qualified insofar as the responsibleMinisters had not arranged for this coordination.

The main recommendations of the R Committee were therefore that:- policy relating to intelligence and security should be made at government level and not at the

level of the services;.- the general policy on intelligence and on priorities for the services should be established by

way of concerted action within the government. The same should apply to determining policyon the protection of sensitive information.

- on the other hand, the function of carrying out and effectively coordinating the operationaltasks of the intelligence services should be entrusted to a "Coordinator".

In 1995 and 1996, the R Committee greatly regretted the shortcomings which existed as regardsthe coordination and exchange of information between the SGR and the State Security Service.

This regret was expressed in particular in the following inquiries:

- inquiry "into the effectiveness of the intelligence services in relation to the activities of sectsin Belgium";

- inquiry "into the effectiveness and collaboration of the intelligence services as regards theevents in Rwanda".

Two Royal Decrees of June 21th 1996 established the Ministerial Committee on Intelligence andSecurity and the College for Intelligence and Security. The task of the latter body is to ensurethat the decisions of the Ministerial Committee are implemented in a coordinated manner.

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Finally, a memorandum of agreement was signed on February 20th 1997 by the Director-General of the State Security Service and by the head of the SGR. This agreement was initiatedand approved by the competent Ministers.

While the R Committee welcomes this development, it would like to propose a minor amendmentto the memorandum in regard to the fight against organised crime and the proliferation of NBCweapons, these being questions in which the SGR should become involved to a greater extent.Practical implementation of the memorandum of agreement has begun.

Moreover, the draft law on the intelligence and security services imposes an obligation on theseservices to cooperate in an effective manner.

3.8.2 Collaboration between the intelligence services and with the police

On several occasions the R Committee has emphasised that the police are authorised to gatherand process intelligence under Article 39 of the law on the police function.

In 1994, the R Committee considered that, in the context of a consultation body, a nationalmagistrate could take over "the necessary coordination of the intelligence services, judicialauthorities and the police involved in the same tasks".

However, other measures have been taken with a view to ensuring coordination of the activitiesof the intelligence services and the police:

- On the one hand, the civil servant who is head of the General Police of the Kingdom and theCommandant of the Gendarmerie are members of the College for Intelligence and Security(Article 2 of the Royal Decree of June 21th 1996 on the College).

- On the other hand, the Ghent public prosecutor has been entrusted with the specific task ofrelations with the State Security Service (Article 3 of the Royal Decree of May 6th 1997 on thespecific tasks of the members of the College of Procurators-General (Public Prosecutors).

An amendment to the draft law on the intelligence and security services currently imposes anobligation on the intelligence services to ensure "effective collaboration with the police and withthe administrative and judicial authorities".

The R Committee considers that, following the example of the memorandum of agreementconcluded between the SGR and the State Security Service, a memorandum of this kind shouldbe signed between the intelligence services on the one hand and the police on the other.

Such an agreement is required in order to bring into operation the coordination provided for inlegislation and the regulatory texts. This would also be justified because of the increasingly largenumber of matters in which the spheres of competence of these services overlap, particularlyas regards terrorism, organised crime, money laundering etc.

3.8.3 Reporting crimes and offences to the judicial authorities

As early as 1994, the R Committee found that the obligation to report a crime or offence to thejudicial authorities, as provided for in Article 29 of the Rules of Criminal Procedure, couldcompromise pursuit of the investigations of the intelligence services.

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In 1996 and 1997, the R Committee recommended that Article 29 be amended along the linesof Section 138 of the "Strafprozessordnung'<5 ) of the Federal Republic of Germany.

This provision enables the German intelligence services to assess the need for thecommunication of information concerning an offence in accordance with its gravity on the onehand and the significance of the operations which are being conducted on the other.The intelligence services may reach an agreement with the public prosecutor in this regard.

However, §1.3.8. of the "Strafprozessordnung" determines the crimes and offences which haveto be brought before justice in all circumstances.

In 1997, the R Committee also cited the example of subparagraph 3 of Article 22 of the lawapplicable in the Netherlands, regarding the intelligence and security services which providesfor consultation with the public prosecutor's office.

The draft law on the intelligence and security services doesn't contain a provision amendingArticle 29 of the Rules of Criminal Procedure.

For its part, the R Committee hopes that a modus vivendi can be found in this matter in thecontext of the coordination bodies referred to above.

(5) In English: "Code of Criminal Procedure".

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+31703200733 P.02/37

ANNUAL REPORT 1996NATIONAL SECURITY SERVICE

Leidschendam. July 1997

466

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