Madis Ernits, Deputy Chancellor of Justice
Saale Laos, Adviser - Head of the Department
5th Conference of the Parliamentary Committees for the Oversight of Intelligence and Security Services of the European Union member states, Tallinn, 25–26 May 2009
Ladies and gentlemen! Dear participants of the conference!
It is more than obvious that in the context of intelligence and security activities the main task of democratic societies is to seek and find the proper balance between individual rights and state´s interest in ensuring its national security.
Let me remind you the famous quote attributed to Benjamin Franklin: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
I agree that security and privacy are not opposite ends. Restrictions of rights and liberties are necessary in the interest of security. On the other hand there is no security without fundamental rights and liberties.
As the last speaker I would like to point out some ideas about common principles we share in Europe. I will use the following keywords: (1) respect of basic rights, (2) legitimate aims of surveillance, (3) chain of legitimacy, (4) standard of democratic oversight and (5) creating confidence on European level.
1. Respect of basic rights – One of the primary principles of a state based on the rule of law is the protection of the fundamental rights and freedoms. I do not doubt that respect of basic rights is self-evident part of our (state representatives) daily practice. In our societies intelligence and security agencies and the powers available for them are accepted by the public as inevitable tool preserving democratic order and underlying values like personal and political freedom, rule of law etc. At the same time the task of such agencies is related to a high degree of secrecy and thus lacks the democratic transparency. As a result the clandestine nature of such action, the fact that abuse is potentially so easy in individual cases and the severity of possible infringements with basic rights, there is continuously a need for special attention in respect of intelligence and security services. Instead of waiting until the judgement against one´s state from the European Court of Human Rights (ECtHR), it is elementary to reckon with the standard of protection developed by the court. I should mention that Estonian Government has in 2008 initiated a draft law concerning use of secret surveillance activities in the fight against crime and submitted it to the Parliament; the legislative proceedings are still ongoing.
2. Legitimate aims of surveillance – As the parties to the European Convention of Human Rights we are bound by the Article 8 section 2 which allows interferences by a public authority with the exercise of right to respect for private and family life, home and correspondence only when it is necessary [in a democratic society] in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The constitutions of our countries stipulate more precisely the legitimate aims which justify the infringements with fundamental rights and freedoms. It is perceptible that there is an increasing need of governments to collect information including personal data. Under such circumstances it has to be remembered at every stage of action that collection of intelligence is not an aim itself. In Estonia this argument for instance has been used in discussions against keeping a special Surveillance Act. Following these observations I would like to remark that today we share at a general level quite similar internal as well as cross-border security threats in Europe. Sharing also common democratic values, at least we have a similar starting point while discussing common European principles.
3. Chain of legitimacy – In the first place it is a question about public functions directly associated with the state monopoly of power. While the performance of certain tasks can bring about an intensive infringement with the most important fundamental rights, these cannot be transferred from the state to private section. The non-transferability of the core functions required for the protection of internal and external peace is not a principle in itself. It is necessary for the reason that only when acting directly through the public bodies the state is able to perform (with quality) its duty of protection. Hence both aspects – legitimacy of security agencies and statutory prescribed grounds and procedures – are relevant. For instance according to the Estonian Constitution (Article 43) the right to confidentiality of messages may be interfered only with measures authorized by a court and to combat a criminal offence, or to ascertain the truth in a criminal procedure. Our constitution leaves no room for allowing private security services or private detectives to perform surveillance of telecommunications. But what would be the assessment of the surveillance cameras in public places instead of surveillance of telecommunications?
4. Standards of democratic oversight – I´m sure we all take for granted the principle that the security services must be open to oversight and inspection. Academic comparative research in the area of secret surveillance activities has confirmed that there is no need for a single (let´s say European) model of organisation of supervision. Differences in political, cultural and legal framework should be and have been addressed. We should rather find and create the effective and working arrangement suitable for every single state. We can learn from or use as an example our experiences in the past, minimum standards created by the European Court of Human Rights or best practices of other states. Irrespective of the aforementioned sources it is important to have in mind that through the parliamentary oversight the accountability of the security services on behalf of public (who has elected representatives of the people) will be realised. Giving increased intrusive powers to the executive, the parliaments are obliged to approve legal regulations for accountability in order to avoid abuse of such powers, as well as obliged to provide the ultimate legitimacy of security services through its supervisory action. On the other hand, from the point of view of the protection of rights, it is essential to have an independent body or bodies with the task to investigate complaints and to control legality of secret surveillance activities. In Estonia, it seems to me, there is some improvement possible and necessary.
5. Creating confidence (mutual trust) in European level – We should not forget the principle of free movement in the European Union. Are we always aware of the level of protection of rights against all kinds of secret surveillance activities while crossing freely the state borders inside the EU? It seems reasonable to assume that sharing common democratic values means that the level of protection remains the same regardless of crossing any border. The only way to guarantee such certainty is to create confidence towards services performing secret surveillance activities both in domestic and international level. I hope that you agree that creating confidence is one task of democratic oversight. Due to the relative lack of transparency in the field of secret surveillance activities especially parliamentary committees for oversight can act as a link between security agencies and public. On the other hand mutual trust of security agencies is a prerequisite for effective international cooperation against cross-border threats. Bilateral sharing of secretly gathered data is quite critical from the point of view of protecting basic rights. Hence trans-national data sharing has to be addressed by the legislators by creating legal rules concerning also accountability of such data sharing and protecting basic rights.
Ladies and gentlemen!
In summary, I am convinced that despite of many differences of our legal systems in details, we all acknowledge common principles governing democratic oversight of intelligence and counter-intelligence in order to respect human rights and to preserve both – constitutionalism and democracy.
But the question how to obtain the right balance between these competing values in everyday practice remains…