Report on the performance by the AIVD of the obligation to notify (2010)
By the Act on the Intelligence and Security Services of 7 February 2002 (effective date 29 May 2002) the Review Committee on the Intelligence and Security Services was introduced as a new review body. The reason for this act were judgments by the Administrative Law Division of the Council of State, in which (part of) the old act on the intelligence and security services was found to be inconsistent with the articles 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The formation of the Review Committee is also based on these articles.
Intelligence and security services have the right to infringe on human rights in order to fulfil their duties. For such an infringement to be considered legitimate, it has to meet strict requirements. These requirements are found in the ECHR and ECHR case law based on it. This concerns among other things the possibilities those involved have to complain about the conduct of the services and the supervision of the services. The ECHR has ruled in this context that the review body does not necessarily have to be a judiciary body.
The Committee consists of three members including the chairman. These members are appointed by Royal Decree on the recommendation of the relevant ministers, after the Lower House has nominated three persons per vacancy. At the moment the Committee consists of:
- A.H. van Delden, chairman of the Committee
- E.T. van Hoorn, member of the Committee
- S.J.E. Horstink-Von Meyenfeldt, member of the Committee
The members of the Committee also have a staff, that supports the members in their tasks. The staff is made up among others of a secretary and four investigators.
The Review Committee’s task is to assess the legitimacy of the actions of the Dutch intelligence and security services. This supervision sees to the civil intelligence and security service (the AIVD) and the military intelligence and security service (MIVD), as well as (parts of) a number of organisations in so far as these are active in the area of intelligence. This supervision does not comprise an assessment of aspects of suitability; in particular purely policy decisions taken by the services are therefore not included in the committee’s review task. In addition to this task the Review Committee can give the relevant ministers solicited and unsolicited information and advice on the Committee’s findings. To effect this possibility, among other things, the Review Committee conducts in-depth investigations as well as random samples.
Another task of the Committee is to supervise the legitimacy of the implementation of the Security Screening Act (WVO), which provides rules for the security screening carried out by the services before a person may hold a so-called position involving confidentiality.
The Review Committee is independent and has been given far-reaching statutory powers to perform its task. For example, the Committee has access to all relevant information of the services and may hear all the staff of the services. Furthermore the Committee has the right to hear witnesses (under oath) or experts. Finally, it may access all places which it deems necessary in the context of its task, with the exception of dwellings. The competences of the CTIVD are laid down in the articles 74 up to and including 77 of the Intelligence and Security Services Act (WIV) 2002.
The Review Committee draws up a report of each investigation it has conducted. The review report contains a public part and a classified part. The classified part cannot be made public due to possible state secrets it contains. The review report is sent to the relevant minister who is subsequently given the opportunity to indicate if the public part of the report states the names of any other persons who, in the opinion of the minister, should not be disclosed. After receiving the minister’s response, the Committee adopts the review report following which the report is again sent to the minister. The minister is to forward the public part of the report to the two Houses of the States General within six weeks. The classified part the minister may send confidentially to the parliamentary Committee for the Intelligence and Security Services (CIVD).
In addition to the review reports the Review Committee issues an annual public report of its activities.
If one wishes to complain about an action of one of the services, the first body to refer to is the relevant minister. In case of a complaint the relevant minister under article 83, paragraph 3, Intelligence and Security Services Act (WIV) 2002 is held to seek the advice of the Review Committee. If it deems this necessary, the Committee in the context of handling the complaint may hear persons who have the statutory obligation to provide information. The minister decides after having heard the advice of the Committee. If the complainant cannot agree with this decision, he or she may refer to the National Ombudsman, an independent body engaged in handling complaints against the government. However, after its investigation the National Ombudsman may only give recommendations and not give a binding decision.
For further information on the CTIVD (in PDF):
Annual reports
Annual Report 2009-2010
Annual Report 2007-2008
Investigative Reports (selection)
The performance by the AIVD of the obligation to notify (CTIVD no. 24, 2010)
The cooperation of the AIVD with foreign intelligence and/or security services (CTIVD no. 22A, 2009)
The investigation by the AIVD into the leaking of state secrets (CTIVD no. 10, 2006)
The deployment by the AIVD of informers and agents, more in particular abroad (CTIVD no. 8b, 2006)
The deployment by the MIVD of informers and agents, more in particular abroad (CTIVD no. 8a, 2006)
A counter-terrorism operation by the AIVD (CTIVD no. 7, 2006)
The AIVD's investigation into radical animal rights activism and left-wing extremism (CTIVD no. 6, 2006)
Miscellaneous
Compilation 'Accountability of Intelligence and Security Services and Human Rights (2007)