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Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 7: Judicial oversight of surveillance: the case of Ireland in comparative perspective

TJ McIntyre

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society


Dr. TJ McIntyre, UCD Sutherland School of Law and Digital Rights Ireland. This chapter addresses the challenges of judicial oversight of secret methods of surveillance, where the traditional approach has been to rely on an aggregate of judicial and non-judicial methods of oversight that jointly can amount to effective oversight. With reference to the landmark case of Digital Rights Ireland at the Court of Justice of the European Union, where the author was involved as the chairperson of the lead plaintiff, and the emphasis put by the Court on ex ante judicial authorisation of data retention measures, the author calls for a greater role for judicial oversight but not without careful thinking of what the modalities of effective judicial oversight of secret surveillance can be. This is necessitated, inter alia, by the rapid developments of surveillance technologies. The author warns against a narrow perception of the oversight role of a judge, pertaining to narrow questions of legality, to the detriment of broader issues of policy, proportionality and effectiveness. The chapter identifies a need to specify the judicial role in some detail in legislation and also to involve data protection authorities in oversight, besides the judiciary itself.

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