Further integrating fundamental rights in internal security policies

Speech by FRA Director Morten Kjaerum at the High-level conference on a renewed internal security strategy, Brussels, 29 September 2014.
Downloads: 

Internal Security Strategy conference contribution

[pdf]en (214.84 KB)

Ministers, Commissioner Malmström, Members of the European Parliament, Ladies and gentlemen,

It’s really a very great honour and a pleasure to be here. First of all, I’d like to thank the European Commission and the Italian Presidency for the invitation to speak on the fundamental rights issues related to the EU’s internal security strategy at this important event.

As we move on from the Stockholm Programme, we are now in the course of renewing the EU’s internal security strategy. In parallel to this, the EU fundamental rights landscape is being transformed, with major structural developments underway such as

  1. the EU’s accession to the European Convention on Human Rights
  2. the reform of the data protection regime and
  3. the end of the transitional period for the former third pillar.

There is also new impetus by the European Commission on the rule of law. This is demonstrated by the fact that the Commission elect will have a First Vice-President with responsibility for the rule of law and the Charter of Fundamental Rights. This reflects the growing importance of fundamental rights as an integral part of EU policy. One of the new First Vice-President’s tasks will be to ensure that every Commission proposal or initiative complies with the Charter of Fundamental Rights. 

All these developments will potentially have a fundamental rights impact on the internal security strategy.

At the same time, we also have to ensure that activities undertaken by the EU bodies and agencies are fundamental-rights compliant. FRONTEX, for example, has benefited from a stronger fundamental rights framework, which includes the introduction of a structured dialogue with civil society and intergovernmental bodies addressing human rights issues. The Fundamental Rights Agency works with FRONTEX on training and a number of other issues. So there needs to be a transparent and accountable framework related to fundamental rights for all EU security bodies and agencies. And of course the training of staff who are responsible is of key importance, and there’s a lot to be done in that regard.

It is clear that integrating fundamental rights into internal security will be a challenge, in particular during periods like the present where there is a heightened security risk. However, it is exactly in difficult times like these that the core values of the Union as they are established in Article Two of the Treaty on European Union and the Charter of Fundamental Rights have to be upheld.

Rulings of national courts across the EU and the European Court of Human Rights have repeatedly confirmed that reasons of national security should not prevent the application of fundamental rights safeguards. Most recently we received the decision from the European Court of Justice on the data retention directive, which again firmly underlined the importance of fundamental rights on security issues.

In essence, security and fundamental rights must be recognised as being two sides of the same coin.

To put these points in context, let me take three highly topical policy issues as examples:

  1. The use of Passenger Name Record information for law enforcement purposes
  2. Measures taken vis-à-vis foreign fighters, and
  3. Issues related to large scale surveillance.

1. PASSENGER NAME RECORD (PNR)

The gathering and exchange of Passenger Name Record data has been a contentious area for fundamental rights since bilateral negotiations began with the USA in 2003.  Fundamental rights concerns are inherent to any PNR system. Use of PNR data by law enforcement authorities to assess the risk posed by individual passengers amounts to profiling. But as FRA underlines in its Guide to understanding and preventing discriminatory ethnic profiling, there are legitimate as well as illegitimate uses of profiling. So profiling itself is not illegitimate, although it can be. Risks of discriminatory profiling and ‘false positive’ matches can be mitigated by introducing clear and strict limitations on purpose, protection of personal data, increased transparency of the system towards passengers, and other safeguards. In this context, FRA set out a list of twelve dos and don’ts earlier this year that in our view would alleviate some of the system’s weaknesses without compromising its primary function, and which would serve to enhance fundamental rights compliance.

2. FOREIGN FIGHTERS

I will now move on to the issue of ‘foreign fighters’.

The phenomenon of EU citizens participating in armed conflicts outside the EU, or ‘foreign fighters’, clearly poses a security risk and was the subject of a resolution at the United Nations just last week. However, in order to combat radicalisation in the EU, it is imperative that we tackle the broader social issues of migrant integration and social cohesion. Internal security measures that strengthen trust are more effective and less likely to fail: fundamental rights will have to be part of the solution.
We know that current conflicts may attract people with specific ethnic or religious backgrounds, and monitoring people suspected of criminal activity of course constitutes a legitimate preventive instrument – that’s what we expect from law enforcement agencies. But measures that consist of surveillance of a specific group or profiling potential suspects based first and foremost on ethnicity or religion can create the risk of unacceptable discriminatory treatment.

For example, if the confiscation of passports is to be introduced, this needs to be very well considered. It must not target people primarily defined by religion, nationality or ethnicity, but rather be based on concrete suspicion. Policies should comply with the rich jurisprudence on this topic from the European Court of Human Rights, in particular addressing the freedom of movement aspect in this regard.

If certain ethnic or religious groups find that they are singled out, this will in itself foster more radicalisation, which is well illustrated in FRA’s work on this topic. Marginalisation brings about a profound trust deficit that hinders the cooperation between law enforcement authorities and the relevant communities when it is most needed. Addressing discrimination and in particular hate crime against certain ethnic or religious groups should therefore be an integral component of policies that aim to prevent the radicalisation and growth of extremism in the EU more generally.

In this regard I would also like to remind you that inclusion is also understanding that respecting fundamental rights values is not a one-way street from state to citizen, but that citizens also have to respect these values within their sphere of influence. That is why democratic understanding and teaching is of paramount importance in this regard.
Let me conclude this section with a quote from UN Secretary-General Ban Ki-Moon during his speech last week in the Security Council: “Over the long term, the biggest threat to terrorists is not the power of missiles – it is the politics of inclusion.” 

3. SURVEILLANCE
I will now come to my third point: surveillance.

The EU was confronted with the Snowden revelations on large scale surveillance as it was discussing an overarching reform of its own data protection framework. Besides interfering with the right to private life and the protection of personal data, large-scale surveillance of communication has many potential implications for other rights. These include freedom of expression and information, the right to an effective remedy and to a fair trial. Perhaps the most troubling aspect of the surveillance debate, however, is the lack of transparency of the surveillance schemes themselves.

Secrecy is part and parcel of national security measures. This in turn, though, means that we need strong oversight mechanisms – stronger than the ones we have at present. The reform of surveillance frameworks needs to take the issue of increased transparency and democratic oversight of intelligence services as their starting point, including reviewing the competences of current oversight and monitoring mechanisms.

FRA is currently conducting research at the request of the European Parliament into fundamental rights safeguards and existing remedies in the context of large scale surveillance. We will share the results with you at the earliest possible opportunity.

I would add that the role of the private sector in surveillance also needs to be addressed. The UN Principles on Business and Human Rights emphasise that businesses should prevent as well as avoid causing or contributing to adverse effects on human rights through their activities. 

The bottom line is this: security policies have to count on governments as well as a private sector that are trusted by the citizens. If security measures are challenged by courts – which often enjoy higher levels of trust than governments and parliaments – the chosen security paradigm becomes democratically unsustainable. With surveillance, as with the policies to combat radicalisation that I mentioned earlier, a proactive and fully-fledged commitment to fundamental rights can help to increase trust and improve the effectiveness of new measures taken.

4. WAYS FORWARD

Ladies and gentlemen,

In concluding: how should we proceed? How can we gain trust? And how can we strengthen the fundamental rights foundation to the strategies or integrate fundamental rights into current policy? Let me mention just two aspects here.

One is the proposal for the adoption of an internal EU strategic framework on fundamental rights. This would integrate EU institutions, as well as national, regional and local level actors into more structured cooperation.

In the field of security, the existence of such a framework could facilitate a more coordinated debate on the compatibility of proposed measures with fundamental rights, provide viable alternatives, and help avoid complications both within the legislative process and in the subsequent implementation.

Secondly: combating hate crime and discrimination may be seen by some as alien to the task of safeguarding internal security. But work by the Fundamental Rights Agency and others shows clearly that they can and indeed must be linked. To move forward, we need comprehensive and joined-up approaches to security that are underpinned by fundamental rights compliance tests on policy and action.

FRA looks forward to continue playing our role in this. A fundamental-rights compatible Internal Security Strategy is not only possible, but essential.

Thank you.

See also: