- Surveillance measures,
- Situations where data relating to the private life of an individual is stored by public authorities, and Data retention by providers of electronic or telecommunication services i.e.,
- storage of call detail records (CDRs) of telephony or internet traffic and transaction data (IPDRs).
Guarantee A :
Is processing based on clear, precise and accessible rules (legal basis) ?
The nature of the offences which may give rise to an interception or surveillance
order :
- national independence, territorial integrity and security as well as national defense ;
- the prevention of terrorism ;
- the prevention of attacks on the government ;
- the major interests of foreign policy, the execution of international commitments of Benin and the prevention of any form of foreign interference ;
- crime and organized crime ; the fight against the proliferation of arms ;
- economic, industrial and scientific interests.(Intelligence Services Act in Benin Republic : Article 3)
A definition of the categories of people that might be subject to surveillance :
The surveillance measures are applicable to any person on whom there are serious reasons to collect information for intelligence purposes, except members of parliaments, judges, public prosecutors and barristers during the period of their mandate or professional activity, as well as people who, by virtue of their statute are likely to know of the indictment of the President of the Republic and members of the Government.
The exemption can be lifted by the National Commission for the Control of Surveillance Measures as part of legal proceedings or under conditions of absolute necessity.
(Intelligence Services Act in Benin Republic : Article 6)
A limit on the duration of the measure :
The surveillance measures are granted for a maximum period of four (4) months by the National Commission for the Control of Surveillance Measures. They shall stop at the end of this period. They are renewable under the same conditions of form and duration.
(Intelligence Services Act in Benin Republic : Article 17)
The procedure to be followed for examining, using and storing the data obtained.
The authorization granted by the Head of Government to carry out surveillance measures is subject to the prior opinion of the National Commission for the Control of Surveillance Measures, except in the cases provided by the law.
The Commission has twenty four (24) hours to respond to requests and seventy two (72) hours if a plenary session of the committee is necessary.
After authorization by the Head of Government, and with the exception of the emergency cases listed in the law, requests for the implementation of surveillance measures are expressed in writing and are motivated by the National Intelligence Coordinator.
Each request must specify :
- the organization for which it is presented ;
- the purpose(s) pursued ; the reason(s) for the measure(s) ;
- the person(s) concerned.
If the identity of the person(s) concerned is not known, s/he may be designated by his/her technical identifier(s) or his/her function(s).
Requests for renewal of an authorization also specify the reasons why this renewal is justified.
(Intelligence Services Act in Benin Republic : Article 14, 15, 16).
The precautions to be taken when communicating the data to other parties :
If a request for international mutual legal assistance, or if a national legal procedure concerns facts or acts committed by intelligence services and covered by the secrecy of national defense, the public prosecutor, under the authority of the minister in charge of justice, shall inform the National Intelligence Coordinator.
If this is the case, the Minister of justice shall inform the public prosecutor or the requesting international authority that its request cannot be granted, in whole or in part.
This decision is notified to the judicial authority at the origin of the request and shall obstruct the execution of the request or the return of performance documents.
If this is not the case, the National Intelligence Coordinator shall propose total or partial lifting of the secrecy of national defense, relating to these acts and acts committed.
(Intelligence Services Act in Benin Republic : Article 25)
The circumstances and substantive and procedural conditions relating to the access of the competent authorities :
The authorization and implementation of surveillance measures on national territory can only be decided if :
- they proceed from an authority legally empowered ;
- they result from a procedure in accordance with the law ;
- they respect the missions entrusted to the competent services ;
- they are justified by the threats, risks and challenges related to the fundamental interests of the Nation.
(Intelligence Services Act in Benin Republic : Article 4)
Furthermore, please assess whether the number of persons who can access the stored data limited to what is “strictly necessary” in view of the objective pursued.
The agents committed for the collection of intelligence data must be sworn agents. They are responsible for any deliberate infringement of the individual liberties and the rights to privacy if the violations go beyond the provisions of the law.
(Intelligence Services Act in Benin Republic : Article 5)
Guarantee B :
Are necessity and proportionality with regard to the legitimate objectives pursued sufficiently demonstrated ?
In general, do the laws of your country impose such a limitation to what is “strictly necessary” ?
Rights to privacy, in particular the secrecy of correspondence, the protection of personal data and the inviolability of home, are guaranteed by law.
The public authority can only infringe on them in case of necessity, of public interest and within the limits fixed by law.
(Intelligence Services Act in Benin Republic : Article 4)
What objective criteria are used to determine which personal data of individuals are stored ?
Only information related to one of the following objectives can be retained :
- national independence, territorial integrity and security as well as national defense ;
- the prevention of terrorism ;
- the prevention of attacks on the government ;
- the major interests of foreign policy, the execution of international commitments of Benin and the prevention of any form of foreign interference ;
- crime and organized crime ;
- the fight against the proliferation of arms ; economic, industrial and scientific interests
(Intelligence Services Act in Benin Republic : Article 18)
National legislation requires a relationship between the data which must be retained and a threat to public security.
(Intelligence Services Act in Benin Republic : Article 3)
National legislation does not restrict the data retention in relation to …
– Data pertaining to a particular time period and/or geographical area and/or a group of persons likely to be involved, in one way or another, in a serious crime ;
– Persons who could, for other reasons, contribute, through their data being retained, to fighting crime (i.e., witnesses).
National legislation provides for exception for persons under an obligation of professional secrecy (e.g., doctors, judges, public prosecutors, lawyers).
(Intelligence Services Act in Benin Republic : Article 3)
Guarantee C :
Is processing subject to an independent oversight mechanism ?
“Who” : Who is responsible for overseeing surveillance measures ? A judge or a different executive body, such as a control committee ? Is their sufficient impartiality and independence from the executive/government safeguarded, and if so, how ?
The National Commission for the control of surveillance measures is an independent administrative authority.
It is composed of five (5) members :
two (2) members of parliament designated for the duration of the legislature by the National Assembly, one (l) from the majority and one (l) from the minority ; two (2) judges of the Supreme Court appointed by the President of the Supreme Court, one from the Administrative Chamber, the other from the Judicial Chamber ;
one (1) high ranking officer, still in function or not, appointed by the Head of Government because of his knowledge and experience in intelligence and State security.In the exercise of their functions, the members of the commission do not receive instructions from any authority.(Intelligence Services Act in Benin Republic : Articles 7 and 8)
“When” : At which “stage” during the lifecycle of a data processing operation does (independent) oversight in relation to surveillance measures take place ? If oversight only takes place at the third (last) stage, is such an oversight initiated ex officio ?
The authorization granted by the Head of Government to carry out surveillance measures is subject to the prior opinion of the National Commission for the Control of Surveillance Measures, except in the cases provided by the law.
(Intelligence Services Act in Benin Republic : Articles 7 and 14)
Guarantee D :
Are effective remedies available to the individual ?
National legislation provides for possibility for an individual to pursue legal remedies in order to have access to personal data relating to him or her, or to obtain the rectification or erasure of such data.
Any citizen who suspects that he or she is subject of surveillance can submit a complaint to the National Commission for control of surveillance measures which shall carry out investigations.
The Court of Appeal has jurisdiction in first instance to hear cases related the implementation of surveillances measures.
The Supreme Court has jurisdiction in last resort.
(Intelligence Services Act in Benin Republic : Articles 32 and 33)
Who should the individual address (see, Guarantee C) ?
An independent oversight committee
Does the court/control committee have access to all relevant information, including closed materials ?
The requests and authorizations are recorded in the registers kept by the National Intelligence Coordinator and accessible to the National Commission for the Control of surveillance measures whenever necessary.
(Intelligence Services Act in Benin Republic : Article 17)
Additional Information.
Law No 217- 44 of 5 February 2018 on Intelligence Services in the Republic of Benin
Constitutional Court decision No DCC 18-013 of 01 February 2018
(conformity of surveillance legislation with the Constitution)
