2015 World Forum for Democracy, Strasbourg.
Rosemary Bechler (RB): Thank you for sharing your thoughts,
Commissioner, on the recent Forum, which under the
heading, Freedom vs. Control: for a Democratic
Response gathered in Strasbourg to
discuss surveillance, and building trust and responsibility in diverse
societies among other themes. This was rather prescient,
since the Forum took place in the immediate wake of the 13 November Paris
attacks. How did you find the debate?
Nils Muižnieks (NM): The discussions were very interesting because they touched upon key-issues for our societies. The discussions around surveillance were particularly stimulating and should inform future policies, because at stake here is not only whether the response we adopt against terrorism abides by human rights standards. What is really on the table is the type of society we want to live in and leave to our children.
The discussions around surveillance… should inform future policies, because at stake here is… the type of society we want to live in and leave to our children.
I think that freedom and control are only superficially at odds with one another. In reality, they go hand in hand. Governments need to be able to exert some control to ensure that our freedoms are protected, but at the same time they need to maintain freedoms in order to increase public support for their action and reduce reasons to support anti-democratic causes.
RB: Preliminary recommendations from Strasbourg include the following: “Although fear could never be eradicated fully, it was assessed that the best antidotes against it were: keeping a high level of trust in democratic institutions…”. In recent days you have called on the Polish president not to sign Poland’s new media law, pointed to the risk of Denmark violating international legal standards in its Alien Act, and Hungary violating human rights for asylum seekers… What is your assessment of the balance of fear in Europe going into 2016?
NM: In 2015 fear has been a major actor in the political arena. In some cases, legitimate fears of European citizens about their security have been exploited to adopt measures that have considerably weakened people’s ability to enjoy human rights. In other cases, politicians have pandered to public fears to push through anti-immigrant and xenophobic policies.
European governments have certainly faced very complex events in 2015, but they must not use this difficulty as an excuse to disregard human rights. On the contrary, it is only by upholding them that we can cope more effectively with future challenges. This is why it is crucial that in 2016 governments renew their commitment to human rights - not as an abstract concept, but as a tool of governance.
RB: In the important Issues Paper you published in 2015 on the ‘Democratic and effective oversight of national security services’ you have a particularly interesting Chapter 2 on the impact of national security service activities on human rights protection in Europe. Tell us more?
NM: I decided to publish this Issue Paper as I was analysing the last 15 years of counter-terrorism operations. Terrorism constitutes a deadly threat which requires action by states to prevent and sanction terrorist acts. However, not all means are justifiable.
Forfeiting human rights in the fight against terrorism proved to be a grave mistake and an ineffective measure that has in some cases helped the cause of the terrorists.
When we look at the operations conducted by a number of states in the context of the so-called “war on terrorism” in recent years, including the “rendition programmes”, the establishment of “black sites” and mass surveillance, we see that a wide range of human rights have been affected by counter terrorism measures, notably the right to life, the prohibition on torture or inhuman or degrading treatment, the right to liberty and security, the right to a fair trial, and respect for private and family life.
All this has however not made us safer. On the contrary, forfeiting human rights in the fight against terrorism proved to be a grave mistake and an ineffective measure that has in some cases helped the cause of the terrorists.
In the Issue Paper I observed that Council of Europe member states have taken diverse approaches to oversight, which include parliamentary committees, independent oversight bodies, institutions with broader jurisdictions such as ombudspersons, data commissioners and judicial bodies. However, none abides fully by internationally established norms. Drawing upon international and European standards and national practices, the paper sets out the most significant objectives and overriding principles that can enable more effective oversight of security services.
In particular, I put the emphasis on the need to keep oversight democratic - primarily through the involvement of parliaments - and to ensure prior authorisation of the most intrusive measures, including surveillance. I also recommend establishing a body able to issue legally binding decisions over complaints by individuals affected by security activities, as well as to access all intelligence-related information. The new security-oriented turn restricts considerably our ability to enjoy fundamental human rights.
Some progress has been made in the past, but the Paris attacks in 2015 have polarised the debate, which is now largely influenced by fear. I see a general backsliding all over Europe when it comes to the need for safeguarding human rights while fighting terrorism, and some would have us believe that it is acceptable to forfeit human rights to get more security. This explains why in many European countries intrusive surveillance and antiterrorism laws are being adopted or drafted.
The new security-oriented turn restricts considerably our ability to enjoy fundamental human rights.
This is a dangerous trend that we must resist. By disregarding human rights, circumventing judicial safeguards, centralising powers in the hands of the executive, and treating all citizens as potential suspects, the new security-oriented turn restricts considerably our ability to enjoy fundamental human rights - and represents a success for terrorists who want us to abandon our lifestyle and live in fear.
important is EU accession to the European Convention on Human Rights, which would
create a common European legal space for over 820 million European citizens? It's not something we hear much of in our discussions about European citizenship.
In reality, this common legal space already exists because the European Convention on Human Rights applies to the 47 countries of the Council of Europe, which include the 28 EU member States. The EU accession to the European Convention on Human Rights would indeed help ensure that EU legislation does not contradict human rights. It would also allow for individual citizens to challenge EU law before the European Court of Human Rights. Therefore, it would be a great step forward for human rights protection. Unfortunately, this process is now halted after a decision of the European Court of Justice in December 2014, which found that the draft agreement would breach EU Law. I hope this stalemate can soon be solved and the protection gap finally closed.
There is an acute and growing tension between the concern for safety and the protection of our freedoms. How do we handle this? Read more from the World Forum for Democracy partnership.