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Richard Miron: Welcome to this episode of the Fundamentally Right podcast from the Fundamental Rights Agency with me, Richard Miron. The FRA is part of the European Union and provides advice on people's rights as well as the obligations of the authorities to ensure that people are protected. The European Union's Charter of Fundamental Rights is the foundational document on which the FRA's work is built. The Charter came into force over a decade ago in December 2009.
This podcast looks at the rights from the personal perspective of individuals who work for the FRA. In this episode, we're featuring Jana Gajdošová, who's a Programme Manager in FRA's Research and Data Unit. Jana is a trained lawyer and an expert in international human rights law in the highly relevant subject of data protection. She's lived and travelled throughout Europe, but Jana's personal story begins some years ago as a small girl growing up in what is now Slovakia, but was then a very different country.
Jana Gajdošová: When I was born, there was still a communist regime. It was a one state party government that controls most of people's lives, from the basic things like what's in the shops – basically, you had one type of soap, you had the one type of jeans – to issues like what is in the curricula of schools and who can enter university and apply for what type of jobs. I was too young to realise some of these things, more serious ones. For me, there were practical issues like – I remember my mom, or my grandma in fact, always had to spend a lot of time queuing in shops to get us oranges, for instance.
And I don't know, per day, maybe two hours in queues in general. And while, of course, in public we were all equal and all that, there was a lot of bribery because people wanted to jump the queue. So in a way, a lot of corruption and trying to, you know, to get the best oranges and things like that, so we call them Western goods in a way. And they only came for Christmas, for instance. And so we couldn't get oranges during the year, whenever we wanted. So this I remember very vividly.
Another anecdote, for instance, which I remember, both of my parents – music teachers – were religious, Catholics and when we were going to, we wanted to practice our religions, we wanted to attend mass. We always had to travel to another city to do that. Because religion in general was not encouraged at all. Some people who were from the secret police were attending masses and monitoring who is there, especially from certain types of professions, like teachers. And they were listing those people and of course, then these people had problems. Basically going to mass, didn't mean just coming to a church in the city where you live, we had to get up very early. I was on a bus, I was preparing for school on a bus, I was doing my homework on a bus because, I mean, it was almost two hours journey and basically this regular weekly travelling on a bus. And I just hated the fact that we had to get up so early because I got sick on the bus.
So that didn't help. But that was what I remembered, this kind of routine. And I just didn't understand why we have to do that. And I just understood that I have to be careful because my parents can get into trouble. Then we had to be careful what we say and it was not easy because both of them were teachers and teacher was a very sensitive type of profession. And so I have to be careful what I say. I mean, they were not like – my parents didn't tell me and, you know, whenever they ask you, you can't say this, it was more like an unsaid thing, we understood. Probably if somebody asks me, I would probably very honestly say: “Yes, we are Catholics.” But obviously I didn't feel I should be talking about going to masses like on my own, you know, so it was kind of unsaid thing.
And that went with the fact that, of course, we had to take a bus, we had to go, and my parents explained to us: “OK, we have to do that because, you know, there are some guys, bad guys who are listing names.” I felt, you know, excitement during the times when the communist regime was coming to an end. During that period, 1999, you know – a lot of demonstrations. People all of a sudden, all this creating new organisations to fight for rights, and I remember especially my mom being very active, always on the phone and always organising some demonstrations. It was weeks and weeks she was spending on phone and it was all very exciting. So that type of excitement, you know – I was, what, maybe seven years old. I was like getting on me, of course. And all of a sudden in our church, which we had in our city, we could use the bells, you know. The bells – when the mass was about to start, usually you hear bells. That was not happening during the communist regime and all of a sudden I realised, oh, we have bells, then a new church was built in that very city. So that I remember very, very vividly.
And of course, the fact that we could all of a sudden go and visit other countries, we never went outside of Czechoslovakia back then. When I was a kid and we could go for vacation or even just go and do shopping outside in Hungary or in, you know, in Austria. Especially without getting any extra permission, without being frisked, you know, cleared: “OK, these are safe people to go somewhere,” you know, so this freedom of kind of moving around cities and around countries was something that I realised as a kid was a great thing to be able to do.
So the first time I went to Austria, of course what we were very surprised about was the amount of goods in shops and the variety. You had like a million types of certain product that we've never seen. The fact that everything was super sophisticated, like automatic doors opening on a shop. I mean, the first time we passed by the doors opened we got scared like what happened. And that liberty, like to just go and buy the product without having to queue, there were no queues as well. And people were dressed like in the different clothes, like in the streets back then and we saw people always dressed in the same style, you know, the same type of jeans and all that. And the different types of cars, that was also amazing, you know. The richness of everything was really amazing. It was amazing for me as a child. Now, when looking at it nowadays, perhaps that was consciously something that pushed me in that direction.
I remember already as a child, I was very much – when I was listening to news and especially some judgments from the court of human rights, I was in primary school, so I didn't know anything about the law.
But I just heard all this, you know, in the news, like how certain people were able to, you know, exercise their right and now the government has to really change things like, for instance, for Roma community that is very, very present, even nowadays in Slovakia. As a child I remember we had classrooms where there was always one pupil of Roma origin and that person was always sitting at the back in the classroom, always and alone always.
And I remember nobody wanted even to sit next to, next to that person, and I remember once just saying: “OK, why shouldn't I be sitting next to the person?” I went there and sat next to that girl, this Roma girl. It was surprising to everybody, but to her I think the most, she couldn't understand what I'm doing there all of a sudden.
And, you know, you get to hear these things, you know, and how all of a sudden certain policies had to change in a country. So, already there I was just like very kind of proactive and saying, oh, yeah, that's a great court, that's great things you can fight for. And maybe that also had obviously some, some influence on my thinking, but subconsciously it was not something that I just consciously realised and said yeah because of my childhood and maybe lack of freedom, now I want to fight for it. But there probably was something that was somewhere in my brain which pushed me to this, what I call a higher goal in a way in my life as well, that I feel like when I do something while I can – you know you don't get results immediately, you still can go to bed with your conscience being happy that you are doing the right thing or you're trying to do the right thing in your life.
Richard Miron: Jana, we heard there about your upbringing in Slovakia and also some of the things which in a way personally drove you to do what you do today. Now, just to clarify, you work on legal issues for the FRA and freedoms is a major title within the Charter, and it's very broad. What does that mean to you in your professional work?
Jana Gajdošová: I mean, the freedoms that are encompassed under the title, all these are rights that are not absolute, which means you have to always balance them. They… it doesn't mean that if you have a freedom to religion you can exercise it in a way that it would hurt another freedom or it would limit another of freedom of another person. So our right to protection of personal data and privacy all comes with limitations. So I think that's very particular about this title that you don't get a right that is an absolute right, like for instance, the right to dignity, which is an absolute right and cannot be really limited. Freedom of movement, for instance, or freedom of assembly, freedom of expression, all these freedoms come with some maybe I can call it obligations here, I mean, our responsibility, let's call it responsibility. So when you are exercising your freedom of expression doesn't mean that you can say “I hate, well it's my freedom of expression to say I hate this particular group of population because they are of that religion,” for instance. So you have a certain responsibility and you have to exercise your freedoms with that responsibility in mind.
Richard Miron: Doesn't that hit upon one of the basic problems with the issue of freedoms in the Charter, which is it sets them out, but then it doesn't set the limitations upon those freedoms?
Jana Gajdošová: The Charter does set limitations but in a very broad way, at the very end of the Charter it says that all these rights have to be balanced. And of course, at the end of the day, when you have an issue, it's usually the courts that would tell you where is the boundary and, you know, to set a boundary.
So you do have certain principles set out in the Charter, the basic general principles that you have to apply. But indeed, the practical example of its application is usually by looking at cases where people had to go and maybe fight for their rights and make courts decide and say: “OK, this was really wrong, what was done, or this is where we have to set a boundary.” So that's why I think justice, which is another Title, is so interlinked with other Titles of the Charter. It comes as a right that makes other rights a reality, or helps other rights to become reality.
Richard Miron: So as you say, these are intertwined rights that you can't have freedom without justice because justice must set out the limits of those freedoms and the extent of those freedoms.
Jana Gajdošová: Indeed, and that's why justice is, independent justice is so important, because after all we trust that courts make the right decisions and they are the final arbiter in our lives in general. So, yes, we do have different Titles in the Charter, but you cannot understand them in isolation, you always have to understand them jointly and together in conjunction with each other.
Richard Miron: Now, I noticed that Article eight of the Charter is about the protection of personal data. That is something which all of us and governments, of course, are particularly concerned with at the moment because of the extent to which data is held and the amount of data that's simply out there. And I know this is something to do with your work. Just tell me a little bit about that and some of the real issues that confront you in dealing with exactly that, with the protection of personal data.
Jana Gajdošová: Indeed, maybe that's a very good example of how the balancing of different rights happens in practice. One of the prominent issues that one gets to read in newspapers and in media in general is about how facial recognition, for instance, it’s technology can be used by law enforcement. So when, for instance, police want to investigate a crime, how they can use the CCTV camera video footage in real life to identify potential suspects, for instance, potentially terrorists, for instance. And obviously there you have different rights at stake. You have obviously, people would say, well, it's my facial image, its biometric data, it belongs to sensitive data. It's not just the personal data, it’s sensitive data, which should come with a higher protection, which bigger safeguards in a way. And at the same time, you want also to feel safe in the streets. You want to be, you want to live your life freely and without living in fear that something might happen to you, so you also want the police to do their job. You need to balance that carefully, and we – recently, the Agency issued a paper on this particular balancing of facial recognition technology and fundamental rights implications, and what to bear in mind when testing or potentially using, deploying these systems in public sector, especially by law enforcement authorities. And it's not a question about yes or no, it's really a question about understanding there are different types of technology, there are different types of rights as well, and different types of intrusions into rights and what to bear in mind in order to balance those rights.
Richard Miron: One of the things I know that you looked at when you were in the UK, and you just sort of touched upon this, was the freedoms that existed there. And that's also the freedom of expression and information is one of the rights set out in the Charter. What were you struck with in the UK, for example, the freedom of the press there and both the attributes and some of the drawbacks of that? And how does that sit when you also look at the Charter here and now?
Jana Gajdošová: Obviously coming to the UK from a post-communist country, freedom of press is amazing in the UK when compared, even nowadays to Slovak press. And you just understand how powerful press can be and how important it is also. At the same time, you realise that even freedom of expression or freedom of press has its limits. And when you get these tabloids talking about personal life of people who might be known to public, either because of their profession, like being actors or because they come from a royal family, you might be wondering why you are supposed to read about what happened to the daughter of somebody who is from a royal family and really the particular details from the private life that in a way is just to create, maybe news that is not really bring anything to the discussions of general interest. It's just creating stories from nothing in a way.
And you do wonder, you do sympathise with those people as well. They are public people, publicly known, so of course, you balance differently freedom of press with those type of people and those that are really private individuals, still, they do have rights as well. And I think that's when one has to realise that the balancing should be happening and it's not about one right being more important than the other.
Richard Miron: You grew up at a time and in an environment where freedoms were limited. We do now have the Charter, do you see it as sort of – there's just a linear progression to an ever freer environment in which we are living, or are there dangers and obstacles towards that?
Jana Gajdošová: Currently we are flooded with information. The new technology… all that creates new challenges, modern challenges you can call it. The Charter itself is not an old instrument. We know that, for instance, freedom of expression can mean that OK, well, you have all this access to all this information and some of them are fake news, and you really have to be careful yourself to understand what you can trust and what you cannot trust. Yes, we have a basic freedoms like access to courts, independent judiciary.
Yes, there are countries which do have problems currently with this basic right. We, we have to be vigilant, even nowadays. Having a Charter is something that gives us this baseline and we always have to come back to the Charter and to our basic rights, not forgetting how some of us had to fight to really make those rights a reality. And don't take them for granted that they are all there, they are there and they will always be there. But be very careful with especially these new challenges, how those can have an impact on the rights, on the limitations of the rights and keep fighting and keep being vigilant. But having a Charter is really a good source of something that we have all in common in Europe. It's our common values, something that brings us together.
Richard Miron: That's Jana Gajdošová, a lawyer with the FRA, giving a legal as well as powerful personal viewpoint on the meaning of freedom. In other episodes in this series, we'll hear a range of stories, including what the conflict in Northern Ireland looked like to a little girl and how it influenced her as an adult. This podcast has been presented by me, Richard Miron, and produced by Anouk Millet. This is an Earshot Strategies production.