Real Transparency and Real Oversight of Law Enforcement Data. The ECHR and the Lack of Accountability of Indirect Access Procedures

The present paper looks at the right of access to one’s data, especially in the law enforcement sector, as developed by the European Court of Human Rights (ECtHR) with regard to the right to private life (Article 8) and to effective remedies (Article 13) in the European Convention on Human Rights (ECHR). Can this right to directly access one’s data be (entirely) replaced, as happens with the practice of ‘indirect access’, by a system of independent oversight by administrative (data protection) authorities? If yes, under what conditions would such a system be rights compatible? The ECtHR has recently defined stricter requirements on effective oversight by the supervisory authorities which oversee the cases of restrictions on direct access, especially as concerns their powers to check the legality of the data processing and the restrictions on access, and to communicate the results of their checks to the concerned individuals. The paper then demonstrates that ‘indirect access’ procedures in three EU Member States – Belgium, France and Germany – are likely to be in breach of the rights provided under Articles 8 and 13 ECHR. Although these procedures are the result of an implementation of EU law (Article 17(3) Directive 2016/680), they restrict the powers of the supervising authorities both with regard to review and subsequent communication about the review to individuals.