03 July 2019

Finland extends its control over the intelligence services to keep them legal

Liviu Ioniţă

Recently, the Finnish government has appointed country’s first intelligence ombudsman. Hence, Kimmo Hakonen becomes the first person to hold a position created for just a while, with Finnish Parliament adoption of a security laws package. Generally, Ombudsman's institution refers to an independent (legal, organizational, financial) structure that, following international principles (such as the 1993 Paris Principles), oversees a specific area and mediates in order to protect human’s rights. Within Scandinavian states, the ombudsman is an independent individual, responsible with examining citizens' complaints against the administration.

Image source: Mediafax

The ombudsman institution and intelligence services’ monitoring

After the Swedish parliament created, in 1809, the riksdagens justitieombudsman, responsible with overseeing public authorities’ activities, the institution expanded to other states, initially in the Scandinavian ones, as part of the government, then having attributions in various fields, such as the Military (the first military ombudsman was created by Germany, in 1957), police, health services, minority’s protection, etc. or having a national general mandate (New Zealand, 1962). The European Union created the European Ombudsman in 1995 to supervise the European institutions, carry out their actions following good governance’s principles.

Military Ombudsman (Netherlands, Slovakia, Lithuania, Czech Republic and Belgium) has a central role in security’s field, in armed forces’ surveillance, the prevention of human rights’ abuses within the armed forces or circumscribed to their work. The same surveillance task is developed by ombudsman when it comes to intelligence services.

Intelligence structures’ monitoring, verification, evaluation, investigation in terms of rightfulness, fairness and efficiency can be made by different committees (parliamentary commissions, judicial bodies) or by independent ombudsman-type institutions, the main goal being monitoring and make intelligence services jointly liable for their policies and actions. Such ombudsman type is also the independent general inspector for information in Australia, New Zealand or South Africa.
Created outside the structure he/she controls, intelligence’s Ombudsman tracks services’ work, makes sure if it is carried following the law and the fundamental human rights.


Creating the intelligence ombudsman
In Finland, intelligence gets divided between defense forces (military intelligence) and police. The Security Service, the Finnish Security Police (Suojelupoliisi, SUPO), is the civilian authority, part of the Finnish police, which performs operational tasks related to counter-espionage, counter-terrorism and other activities related to national security. Following a Nordic tradition, SUPO, the security structure, is a national police unit operating under the Ministry of Home Affairs. Following the Swedish model, Finland has established itself a parliamentary ombudsman position since 1920. Adopting a new intelligence legislation has led to Finland considering the creation of an intelligence ombudsman as necessary, after more than a decade.

In 2013, due to security structures warnings that there were alarming information according to which foreign countries have lately increased their espionage, the Finnish government has set up a working group to adapt the legislation regulating the services information to cyber era and new threats’ reality and get Finland to its Western Europe partners’ standards.

Therefore, it resulted a package of laws to enhance both military intelligence and SUPO's powers and extend their surveillance abilities to get security information. It also sought to get authorization to conduct operations abroad to collect essential information on threats to national security, such as terrorism, espionage, due to Finland’s security environment that is constantly changing, and that new threats require new training and planning methods. According to authorities, criminality prevention capabilities did not allow the early detection of threats to national security and proper actions, as Finland is one of the few Western Balkans’ stat to have no intelligence legislation to that end.

Foreign intelligence agencies activities’ increase in Finland, which, according to Home Affairs Minister, Kai Mykkänen, strangely reached a level similar to Cold War’s one, urged a proper response.

But there is one problem, though: Finland’s Constitution. To those we add the ones who thought civil liberties would be limited.

The new legislation was controversial from the very start because it allowed security servicesţ activity to affect citizen's right to privacy, given that they were given the possibility to supervise even when they were not suspected of committing a crime.
Hence, it took approximately two years for the new laws to be adopted, first of all, to introduce a constitutional amendment, adopted by Parliament in 2018’s autumn referring to privacy rights rules and secrete correspondence’s inviolability, telephone conversations and other types of confidential communication (Internet).
Finland’s Constitution ensured private correspondence’s protection, except for cases where a crime needed to be investigated. The constitutional amendment aimed at adding exceptions to the provision guaranteeing privacy’s right so that security services could get the approval to track emails and other private messages, in order to gather information in case of military or other activities suspicion that would threaten security national. Laws’ package final version was sent to Parliament under critical political conditions, after the resignation of Prime Minister Juha Sipila and the center-right government. Thus, on 1th of 1 March, Eduskunta (Finnish Parliament) adopted regulations which allow intelligence officers and police civilian intelligence officers more supervisory power, the Intelligence Civil Act being then prepared to improve capabilities in order to protect against serious threats against national security.
Finnish lawmakers have adopted, given the political situation, through a special procedure without a vote, two bills foreseeing that if a person is suspected for carrying out actions that are a major threat against national security, he/she may be monitored.

 Granting extended powers to security services led to the creation of a new supervisory authority: the intelligence ombudsman. Before the intelligence ombudsman, in Finland there were only two more law supervisors: the Justice Chancellor and the parliamentary ombudsman. Both have quite the same responsibilities: overseeing actions’ legality, taken by authorities, notably by investigating the received complaints, focusing on promoting fundamental human rights.

According to Finnish authorities, Finland has the most comprehensive supervision and control system in all Europe’s intelligence services legislation. SUPO carries out its own internal legality control and is also supervised by the Home Affairs Ministry.

With the new legislation, the surveillance activity is carried out by two other structures: the intelligence ombudsman and by Parliament's Information Committee, which does interfere in operations’ rightfulness control, but performs general information surveillance provided by intelligence services.


Intelligence ombudsman’s role
The Intelligence Ombudsman has the responsibility to track the information use, gathering methods and he may also ask for intelligence reports. The Ombudsman is required to report any illegal behavior and has free access to documents and information, premises and computer systems, all data and information gathering operations. If it establishes that the authorities have committed any crime, the intelligence ombudsman may order intelligence operation’s suspension or completion and the removal of any information obtained illegally. It will also monitor and evaluate legislation in the field and propose improvements as it considers necessary. The Intelligence Ombudsman may file complaints about information gathering lawfulness. A person who has been the target of information gathering (telecommunications interception, data traffic monitoring, etc.) may request the investigation of measure’s rightfulness.

Intelligence ombudsman is appointed by the government for maximum 5 years and will annually report to the Parliament, the parliamentary ombudsman and the government on his/her activities.

Finnish authorities consider that intelligence services laws have been adopted because the new methods set out through these normative acts could provide more effective ways for country's security, given international politics’ dramatic changes, as radical measures’ public disclosure, taken by some states’ intelligence services, shows a high tension level. Also, according to the new legislation and the constitutional amendment, Finland can gather information for internal security and abroad, relying on international exchanges in the field.
Time will prove, however, whether and how Europe’s most comprehensive surveillance system will operate. How will the intelligence ombudsmen get to an agreement, even if it is stated that intelligence ombudsman’s competences and abilities would not overlap with Judicial Chancellor and Parliamentary ombudsman or any other ombudsmen’s surveillance activities. For example, what will be intelligence ombudsman’s position in terms of the annual reports on resources, used to get information, which the police, customs authorities, border guards and defense forces presented to the parliamentary ombudsman. Or in terms of the special task of the same parliamentary ombudsman in monitoring the rightfulness of undercover operations. And certainly there are many other similar situations.

Translated by Andreea Soare