By Konstantina Mintzoli, EU Migration Expert
History shows that governments have always been coped with an organized response to crises in the form of emergency rules or the implementation of a state of emergency. EU member states have different perceptions on that issue since they have been faced different experiences of terrorism. For that reason, the EU approach is formed by the varying internal and external strictness and preferences of its member states. In other words, the uniqueness of this appeal is based on the sui generis nature of the EU.
Nowadays, protecting private life has to be even more serious due to the increasing breakthroughs happening in investigatory and surveillance systems technology. Security and privacy should constitute premiums and not situations formed by their consolidation. For this reason, while an investigation into terrorism or similar actions is happening, the conductors need to respect “the principles of necessity, proportionality, and non-discrimination.”
In the first part, I discuss the frame of privacy and derogation based on the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights. In the second part, I draw attention to certain strengths and weaknesses of the right to derogation regarding the importance of derogating from the respect to private life. I advocate that derogations are matters of the response to both domestic political uncertainty and violations from external factors. The importance of human rights to combat terrorism strategy lays on the fact that human rights are a fundamental element of it. Consequently, derogation and privacy are two sides of the same coin, a necessary coin for the prevention of terrorism.
Framing the right to privacy
“The poorest man may in his cottage bid defiance to all the forces of the Crown…”
William Pitt (the Elder)
From the above – mentioned quote derives the necessity of the right to privacy. Pitt’s words convey the idea that each person should be allowed to maintain some privacy, to raise walls around a piece of his life protecting it from unwanted surveillance.
Of the thirty human rights, the right to respect for private life is maybe the most difficult to be described as it embraces a wide range information of someone’s private life and identity. As a result, privacy is part of the “information privacy, bodily privacy, privacy of communications, territorial privacy” and stands by human dignity. However, this difficulty does not affect its importance, on the contrary, the right of privacy is so significant that the magazine ‘The UNESCO Courier’ calls it “a cornerstone of human rights” since it affects the ability of other key values to be exercised, as it is identified in the customary international law.
Responding to the phenomenon of terrorism, governments of modern democracies react with the suspension and/or restriction of guarantees and/or freedoms, in particular, the personal safety of their citizens. The scope of modern foreign fighter phenomenon has led the international community to intensified coordination and cooperation to deal with it and the use of institutional and operational measures where the state security juxtaposes unevenly with individual freedoms and rights.
In accordance with several human rights treaties and constitutions as well as the ECHR, certain rights are declared non-derogable and cannot be derogated by Article 15, even in a state of emergency. Those are the so-called ‘the core rights’ in other words they are rights and freedoms that can under no circumstances be suspended or restricted. Even though the right to privacy is not an absolute right that Article 15 paragraph 2 prohibits; thus, it does not belong to the norms of jus cogens , that does not mean that it can be treated as a right of less importance than the others since it embraces all levels of society.
In that regard, I argue that privacy is the point of rupture between freedom and security, because of the grown insecurity in response to terrorism and crime, pushing for measures that shrink individual rights generally and privacy in particular. As a result, ‘the man’, the subject of rights tends to drop back in a supervised object.
The state, as a power carrier, used to handle its sovereignty exclusively, hence the state was the power and vice versa since governments are primarily responsible for ensuring their people’s enjoyment to human rights. Today, the state’s sovereignty is becoming international. Under these circumstances, the shift of public and private boundaries evolves into quicksand. Citizens are wallowed in what is called state of emergency, when freedom, democracy, and security are at stake. At this point, someone could ask what is the demarcation line between them? Who or what is at risk and to what extent? The more security is increasing, the more the presence of threat and crisis management mechanisms and measures.
In general, derogation permits a state to receive the status of a temporary or partial exception or suspension of fundamental principles of the rule or law. Derogation differs from terms like abrogation, obrogation and/or dispensation, while its clauses do not suspend the rule of law. It is rather a connection between the rule and the exception.
In terms of ECHR, provisions of derogation allow a member state to deviate from an element of the EU law or its fulfillment, respectively, depending on its national values during certain circumstances, which will be discussed later. Its purpose is to create a balance between the most important needs of the state is concerned and the protection of the human rights in times of emergency, by placing reasonable limits on emergency powers. The derogation clause lies on the Article 15 ECHR entitled ‘Derogation in time of emergency’ and provides that derogation must meet three de facto legal criteria in order to be valid, which the author Claire Macken summarized into three prerequisites: the ‘principle of exceptional threat’, the ‘condition of strict necessity’ and the ‘principle of consistency’, correspondingly.
Moreover, invoking derogation from the right of people to their life is prohibited as well as their torture and servitude. Derogation also provides that no one’s acts and omissions should be considered as a criminal offense without the prescription of the law (the nullum crimen, nulla poena principle).
In order for a derogation to be permissible, there are some procedural limitations declaring a state of emergency. The state derogating or temporarily not complying with some of its obligations based on the Convention must submit an official notice to the Secretary General of the Council of Europe for the measures that have put into force as well as the reasons by which it has been impelled. In addition, the member state must notify the Secretary General of the time when these measures have paused as well as the time when the state started again to perform in accordance with the provisions of the Convention. As a result, the clauses of the Article 15 of the ECHR endeavor to limit the abuse of extraordinary powers. This notification test delivers as a pledge for supervision of the legality of the recognition of a state of emergency.
It is crucial to be mentioned that the ECHR lacks a clear definition of a “public emergency threatening the life of the nation”. The extent of this ‘exceptional nature’ has to be examined on case-by-case basis, since even in terrorist incidents the wide margin of appreciation raises the question whether these incidents are kind of emergency. “War‟ is referred as an example for a public emergency threatening the life of the nation in Article 15. Moreover, its wording gives a space of interpretation that war is not the only emergency situation, but there are more that need the same or similar urgency. For instance, terrorist operations can take place and conclude to an armed conflict, while an armed conflict does not automatically mean that meets all the requirements of a derogation regime.
To respect the right to privacy does not mean that measures to combat terrorism should be banned, but that the counter-terrorism measures taken must not disregard the right to privacy. One aspect argues that privacy must be curtailed by states during a case of emergency in order to protect the public safety. The other side advocates that derogating from privacy is not an effective response to prevent terrorism. Opt-out provisions have conceivably negative outcomes since they authoritatively overlook a deviation from prior responsibilities accurately when those duties are most in danger of being undermined. In my opinion, the essence is not to find arguments in favor or against to the use of derogation, but to understand how and when it is sustainable compatible with the law to derogate from the human rights principles or not.
Amid times of open crisis, numerous member states find derogation from the right to privacy the best way to ensure the national security, and keep the state from falling into disorder. By invoking derogation, which is foreseen by international and national law, inter alia agreements as well as by the ECHR, an option is providing to a member state to decide when an emergency threatens its existence, to what extent it should act to overcome this situation and with what means to protect the rights guaranteed by the Convention of its citizens.
In that way, in the European building, the derogation regime is used as the “dividing line” between issues that are primarily matters for every Member State to decide about them at a national level and issues that the discretion of state institutions surpass its obligation to offer safety to its nation. Moreover, the right to derogation could be considered a response to the concerns of the national governments that policymaking in international level and in that case of the Convention could possibly put in jeopardy national security.
Another argument is that, since terrorism can never be completely annihilated, data sharing among European states, progressing in the direction of a tranquil adjustment of the Middle East and better coordination of Muslims in Europe will go far toward counteracting more atrocities.
In a similar vein, the national authorities are in principle in a better place than any judge to evaluate the existence of their possible state of emergency as well as the nature and type of deviations from the protection of the ECHR rights that are necessary for the transcendence. Each government, in theory, is in direct contact with its society and the requiring measures to overcome the situation are needed. In addition, the ECtHR is responsible for pointing out that the derogation is not unlimited. The ECtHR retains the final say to verify whether the state intervention goes beyond of the necessary measures to address the emergency status and whether the latter actually exists. The Court deals with the measures are used by a Member State in order to achieve the objective. Subsequently, the Court is based on the principle of proportionality since it investigates, at this stage, if the means were appropriate sufficient to achieve the objective and do not go beyond government’s frameworks. At this point, I could argue that derogation is the other side of the principle of proportionality. This is because the more intense is the effort for the implementation of the principle of proportionality, the less derogation of the member states.
The Court of Justice tends to recognize relatively wide margin of appreciation in the States since they invoke public interest to justify the restrictions. However, the derogation from the right to privacy is a very limited set of exceptional circumstances. As a result, the width of the appreciation depends on the type of public interest justifying derogation from a specific right. In that regard, in the case Klass and others vs Germany, concerning the German legislation which permitted the interception of telecommunications, the Court held that the Member States enjoy a discretion as to the imposition of such a system, given the technological developments in monitoring and the increase of terrorism in Europe.
Moreover, in defense of derogation system is that this temporary or partial exception or suspension of the law obligation gives time and space to the national government is concerned from its election interests, law cases, and others in order to face its national threat. Therefore, the legal acceptance of a state of emergency reassures the members or groups involved that the state’s deviation is temporary and in accordance with law. To that regard, it might be argued that it is improbable to predict and speculate all the requirements relating to derogation that meet all the sets of circumstances.
The right to privacy in the age of counter-terrorism and mass surveillance is difficult to find a place in full compliance with human rights. One of the greatest comes from anti-terrorism measures over Europe are those expanding to mass observation. One argument against the use of derogation is that ‘more data’ is not needed but trust is a key segment in European collaboration, which will not be increased through proposals concentrated on re-setting up national border controls to grow reconnaissance among the Europeans. On the contrary, the model ‘less is more’ could work in a better way regarding the less data utilization, but in more accurate way of the exchange and analyze of it by law authorization powers.
Derogation from the right to privacy is not only an individual tragedy but also creates social and political turmoil, constituting the starting point of violence and conflict within and between societies and nations. Changing the definition of the ‘ultra-solution’ by Watzlawick in his effort to identify the more securitization, to prevent terrorism by derogating from privacy is an answer, which is not genuine but rather more problematic than the issue itself since it strengthens the base and the targets of the problem while raising more questions.
An overarching concern is that privacy is dismissed in the perpetual journey of States to build surveillance measures keeping in mind the end goal to distinguish potential terrorists. Surveillance administrations, for the sake of the assurance of national security, powerfully affect protection and different rights and from time to time appear to be in conflict. There are cases in which surveillance has brought about premature deliveries of equity, prompting disappointments of due procedure and wrongful feelings. Because of the way that terrorists work around the world, the information connected with their exercises can be effectively blended with information relating to individuals who are not terrorists. Consequently, in Popp’s perspective, if the administrations need access to this information, then they should likewise have some approach to secure the protection of the individuals who are not included in terrorism. At the end of the day, as indicated by Hammarberg, the Commissioner for Human Rights at the Council of Europe, surveillance may appear to work to a limited degree, however, it can definitely prompt activities against expansive quantities of blameless individuals, on a scale that is unsatisfactory in a just society.
I cannot underestimate the possibility of what Liotta calls ‘boomerang effect’ of the derogation of privacy, which concentrates security in all levels. The failure of the EU to comply with international law and human rights standards may result in promotion of terrorism. This idea is based on the nature of terrorism; on its discriminatory measures and ignorance to human rights. If marginalization and radicalization are succeeded through this strategy how terrorism can be prevented based on the same methodology?
Last but not least, sometimes, security technologies are more than items used for the protection, security and surveillance. Many times the security practices, are political tactics to create a need for security to citizens; this is the contradiction: the more security, the more the fear of insecurity will be. Privacy was missing in the society of Oceania in George Orwell’s book ‘1984’. It depicts a society under the lack of privacy, a ‘Big Brother’-existence can manage people’s lives. People should not quit their liberties, or anyone else’s liberties, in order to gain purely symbolic benefits in the fight against terrorism.
The aim of the derogating measures is the member states to avoid ‘future risks’ that threat their populations, such as terrorism. However, any viable counter-terrorism methodology is prone to meddle with security rights. It is, hence, imperative to comprehend the degree to which it is legitimate to meddle with these rights. I argue that derogation can be a missing piece of the chain between the insurance of individual rights and the assurance of national need, where derogation is by all accounts the only path for a member state to tackle a genuine emergency because of a risk to the wellbeing of a country. However, the notion of ‘more information’ without the vital and better cross-border collaboration among the law authorization powers of EU part states is not a productive strategy reaction and undermines Europe’s establishing standards related to privacy.
In theory, derogation clauses are to strike a harmony between the sovereign right of a government to keep up peace during public crisis, and to secure individual’s privileges from misuse by the state. In practice, member states should not put their action of a direction to an increased need for security because of the modern society of risks-age. Derogation from privacy should be the last resort of the state to combat terrorism and by its measures should not follow the dilemma of resigning from freedom or safety. Safety is always conceivable in the context of freedom. Security and privacy should constitute premiums and not situations formed by their consolidation.
Bigo, D., S. Carrera, N. Hernanz, J. Jeandesboz, J. Parkin, F. Ragazzi and A. Scherrer (2012),” Justice and Home Affairs Databases and a Smart Borders Systems at EU External Borders: An Evaluation of Current and Forthcoming Proposals”, CEPS Papers in Liberty and Security in Europe, No. 52, CEPS, Brussels, December.
Bigo, D., S. Carrera, B. Hayes, N. Hernanz and J. Jeandesboz (2013), “Mass Surveillance of Personal Data by EU Member States and its Compatibility with EU Law”, CEPS Papers in Liberty and Security in Europe, No. 61, CEPS, Brussels.
Bigo, D., Carrera, S., Guild, E., Guittet, E.-P., Jeandesboz, J., Mitsilegas, V., Ragazzi, F. and Scherrer, A. (2015) The EU and its counter-terrorism policies after the Paris attacks. Available at: http://www.sciencespo.fr/ceri/sites/sciencespo.fr.ceri/files/no84_0.pdf
Brown, I., Korff, D., 2009, Terrorism and the proportionality on internet surveillance, European Journal of Criminology, Vol. 6, No. 2., p. 1.
Chalmers, Α D., Davies, G. and Monti, G. (2014) European Union law: Text and materials. Cambridge University Press
Cian C Murphy (2012) EU counter-terrorism law: Pre-Emption and the rule of law. Bloomsbury Publishing.
Conte, A. (2010) Human rights in the prevention and punishment of terrorism.Springer Available at: https://books.google.ae/books?id=pJsqayP3OD8C&pg=PA543&lpg=PA543&dq=countries+Derogate+from+ECHR+terrorism&source=bl&ots=zKUolYFDqe&sig=hQAKKbSRIde1pnFY2ZhP-XeQWj8&hl=el&sa=X&ved=0ahUKEwiQ8s2GhrTMAhUEL8AKHVCSCec4ChDoAQgZMAA#v=onepage&q=countries%20Derogate%20from%20ECHR%20terrorism&f=false
Duner B, “Disregard for Security: The Human Rights movement and 9/11” in M. Ranstorp and P. Wilkinson
EurA (2016) Hungary anti-terror spy law breaches privacy: European rights court. Available at: http://www.euractiv.com/section/justice-home-affairs/news/hungary-anti-terror-spy-law-breaches-privacy-european-rights-court/
Hafetz, J.L. (2002) “‘A Man’s Home Is His Castle?’: Reflections On The Home, The Family, And Privacy During The Late Nineteenth And Early Twentieth Centuries.” Volume 8, Issue 2, Article 2. William & Mary Law School Scholarship Repository. Available at: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1190&context=wmjowl
Lehmann, J.M. (no date) Limits to counter-terrorism: Comparing derogation from the international covenant on civil and political rights and the European convention on human rights. Available at: http://projects.essex.ac.uk/ehrr/V8N1/Lehmann.pdf
McGoldrick, D. (2004) ‘The interface between public emergency powers and international law’, International Journal of Constitutional Law, 2(2), pp. 380–429. doi: 10.1093/icon/2.2.380.
Rengel, A. (2013) Privacy in the 21st century. Martinus Nijhoff Publishers
Rosalyn Higgins, „Derogations under Human Rights Treaties‟, (1978) 48 British Yearbook of International Law 286.
Siserman, C. (no date) A Global Perspective On The Protection Of Privacy And Related Human Rights In Countering The Use Of Internet For Terrorist Purposes. Available at: https://journals.muni.cz/mujlt/article/viewFile/2643/2207
Warbrick, C. (2004) ‘The European response to terrorism in an age of human rights’, The European Journal of International Law EJIL, 15(5), pp. 989–1018. doi: 10.1093/ejil/chh506.
Watzlawick, P. (1988), Comment réussir à échouer : Trouver l’ultrasolution, Paris: Seuil.
Yusuf, S. (2012) Protecting human rights while countering terrorism. Available at: http://www.e-ir.info/2012/02/14/protecting-human-rights-while-countering-terrorism/