Toespraak Franco Frattini over veiligheidsdiensten en mensenrechten (en)

SPEECH/07/378

Franco Frattini

European Commissioner responsible for Justice, Freedom and Security

"ACCOUNTABILITY OF THE INTELLIGENCE AND SECURITY AGENCIES AND HUMAN RIGHTS"

International Symposium

The Hague, 7 June 2007

Introduction

Chairman, Prime Minister, ladies and gentlemen, Thank you for inviting me to this symposium.

O I know from first hand experience in Italy, where as Minister with responsibility for Coordination of the Intelligence and Security Services, and, as President of the Parliamentary Committee for Intelligence and Security Services, that the questions you will address in this symposium are of great importance in Europe and also internationally.

O The European Commission's direct involvement in Justice & Home Affairs is relatively recent. DG Justice Freedom and Security was only created in 1999 and the "Fight against Terrorism" Unit was only established in 2004.

O Since 2001, the impact of terrorism in Europe, as well as elsewhere, has intensified. And as I speak to my political colleagues in capitals, I am informed that the threat remains significant.

O We have much to protect. Not only our loved ones, our citizens and residents, but also our "values"...

O European society is now enjoying a period of prolonged peace, underpinned by stable economics, and a Europe that is steadfastly focused on cooperation, not conflict. We also know that our stability has been hard won; it will require the continued vigilance of good governance if it is to be sustained.

O But the concept of security itself should not be taken for granted. September 11 th 2001 showed that security threats are not declared in advance by an enemy. That the enemy may be unknown and can come from inside our society. And that attacks can occur anywhere and on anyone. We must see ourselves as providers of security - and the security services play a key role. We are not just consumers of security. We must take responsibility for our security - not expect 'others' to provide it.

• 1. 

  The problem

O Turning to the subject of "ACCOUNTABILITY OF THE INTELLIGENCE AND SECURITY AGENCIES AND HUMAN RIGHTS" there are a number of issues that we need to consider:

1. [ Accountability]: You know the range of intelligence, operational and technical capabilities that underpin the work of the services. But how can national parliaments, and the public who elect them, be assured that these activities, many undertaken using covert methods and under an umbrella of necessary secrecy, are legal, proportionate and operate within a robust governance structure. How can accountability be assured?

• 2. 

  [ Fundamental rights] In all our work we need to think carefully about how we protect and promote fundamental rights, not just in policy and legislation, but also in daily practice. The intelligence services' activities, as well as their cooperation - a key factor in combating terrorism - must be conducted with full respect for fundamental rights and the principle of the rule of law.

O Among these fundamental rights we must also include the fundamental right to "freedom and security", as enshrined by article.6 of the Charter of Fundamental Rights and article. 5 of the European Convention of Human Right (" Every person has the right to freedom and security").

O September the 11th 2001 fundamentally changed some peoples view on how to fight terrorism and other crimes. In this uncertain and irregular climate how do we ensure security concerns do not swamp fundamental rights?

O The fight against terrorism should go alongside the protection and promotion of fundamental rights. We must be fully committed to promoting the respect of fundamental rights at EU level if we are to achieve a Europe of which we can all be proud.

O The obligation to respect fundamental rights does not mean that these rights may not be limited under certain circumstance.

O Apart from certain rights which are of an absolute nature, such as the prohibition of torture and inhuman treatment, the European Convention on Human Rights accepts, under certain strictly defined conditions, a state's interference with fundamental rights.

• 3. 

  [ Supervision] What forms of appropriate and effective means of supervision can be established. And how can the confidence of the general public be secured?
• - 

  Responsibility for control of the security and intelligence services are clearly matters for national governments.

O However, this symposium offers the opportunity to consider the accountability question from a European and International perspective.

• 2. 

  Finding a solution

O We can share insights into different accountability practices. This will enable us to see how, and where, effective supervision, whether by parliament, ministers, or for example an ombudsman arrangement, can play a role in securing accountability and protecting fundamental rights.

O I would like to draw your attention to recent research undertaken jointly by: the Geneva Centre for the Democratic Control of Armed Forces; the Intelligence Oversight Committee of the Norwegian Parliament and the Department of Law, University of Durham

O The findings are illuminating, and potentially instructive for national governments. The research looked at supervision arrangements for the security and intelligence services in a number of countries.

O It is worth noting that the means of supervision vary, reflecting constitutional, parliamentary and legal traditions. There are however dimensions which can be described as best practice:

• 1. 

  [ Legal framework] The importance of a legal framework, setting out the responsibilities and powers of the services, as well as the arrangements for governance and supervision cannot be underestimated. A legal framework brings with it clarity and transparency - both important factors in maintaining public confidence. Intelligence services are the responsibility of national Governments. I believe that the legal boundaries governing operational work must be clearly defined by the law. This provides a legal framework which enables agents to understand their mandate, "what they can and what they cannot do". And also their personal responsibility. We value the work which the intelligence services do - and the difficult decisions they must take.

• 2. 

  [ Managerial control] Increased internal control within agencies plays a crucial role. For example establishing and maintaining professional standards, codes of behaviour and review mechanisms. These are managerial activities. They offer assurance. They have to ensure that fundamental rights are fully respected at the operational level, on a day-to-day basis.

3[ Executive control] Effective control by the executive, often the prime minister or senior minister. This guarantees that the executive is providing governance and control at a strategic level. This ensures that the services are accountable. That they work within their powers for the government of the day.

• 4. 

  [ Parliamentary supervision] The research demonstrates the ways in which differing forms of parliamentary supervision can be put in place. These have to be shaped according to the legal and constitutional framework of the country. For example establishing a cross-party scrutiny committee; providing the committee with capacity to investigate; or establishing an ombudsman arrangement.

• 5. 

  [ Civil society] And finally, though by no means least, the opportunity for civil society to demonstrate interest through the right to free speech and political debate is vital.

• 3. 

  The future

O So far I have focused my attention on internal Member State arrangements for the governance of their intelligence and security services.

O But trans-national data sharing is becoming an increasingly important tool in tackling terrorism and organised crime. Incorporation in the European Union of the Treaty of Prum; Passenger Name Records; Swift; Schenghen and other instruments all point to increased trans-national data sharing.

O A question for the future, is can we continue to rely on national supervision arrangements? Or is there a point when some form of European and maybe international supervision and accountability will be required to provide the necessary assurances that our trans-national use of data is appropriate, proportionate and complies with fundamental rights?

O We must also understand that tackling terrorists and organised crime is a complex process from the first investigations to the final conviction. Work must not stop with the end of the investigation and prosecution. But the trial and judicial involvement are also key. We must ensure that our judicial systems can operate quickly, effectively and fairly, within the rule of law. We need to look at the "entire process" even after a sentence has been imposed. This part often occurs after you, here today, have done your work.

• 4. 

  Conclusion

O The threat to security in Europe (and outside) remains real. We need to continue our efforts at Member State, European and International levels to combat terrorism, while respecting fundamental rights. Indeed, the two rights must go hand in hand.

• - 

  The firmer our guarantees that we shall respect fundamental rights, the better our chances of making effective advances in the fight against terrorism.

O Let us recognise that progress is being made. I would encourage Member States to look carefully at the governance and accountability of their services, and consider the lessons learnt from other countries.

O Our countries must achieve high standards. Therefore we will further strengthen public confidence in our Services and protect the fundamental rights of all citizens.