A/HRC/10/3 page 8 1. A legislative framework for special investigative techniques 27. A crucial first element in ensuring that States and their intelligence agencies are accountable for their actions is the establishment of a specific9 and comprehensive legislative framework that defines the mandate of any intelligence agency and clarifies its special powers. Without such a framework States are likely not to meet their obligation under human rights treaties to respect and ensure the effective enjoyment of human rights.10 An example of best practice lies in the very detailed provisions governing each investigative technique that Dutch intelligence may use.11 28. The approaches of States as to what measures and techniques require judicial approval tend to vary, depending on the scope and strength of the constitutional rights recognized in the State in question, in particular the scope of privacy rights.12 The mere act of opening a thematic, organization-specific or individual intelligence file may not be seen as raising a human rights issue when there are suspicions that someone is planning to commit a terrorist offence.13 29. In this regard, the Special Rapporteur stresses however that information gathered for “strategic intelligence” (i.e. information obtained by intelligence agencies for the purposes of policymaking) must not be used in court proceedings when there is no judicial supervision attached to measures directed at named individuals. The Special Rapporteur has noted with concern that in different courts, the line between such strategic intelligence and probative evidence has become blurred to the advantage of different forms of “national security imperatives”. Judicial approval for a special investigative technique must be given in order to make permissible the use of the fruits of the technique as evidence in court. 30. States may make use of certain preventive measures like covert surveillance or the interception and monitoring of communications, provided that these are case-specific interferences, on the basis of a warrant issued by a judge on showing of probable cause or reasonable grounds; there must be some factual basis, related to the behaviour of an individual which justifies the suspicion that he may be engaged in preparing a terrorist attack. This preventive, intelligence-led approach seeks to anticipate rather than to circumvent legal proceedings and can be a desirable, reasonable and proportionate method to identify risks or to find out more about suspicions against a terrorist suspect. However, States need to be aware that 9 See for instance Kruslin v. France, ECHR, 24 April 1990, para. 33. 10 See analogously, Rotaru v. Romania, ECHR judgement, 4 May 2000. 11 Intelligence and Security Services Act 2002, arts. 17-34. 12 European Commission for Democracy through Law (Venice Commission), report on the democratic oversight of the security services, CDL-AD(2007)016, para. 199. 13 See for background: Leander v. Sweden, ECHR, 26 March 1987, paras. 52-57.