Recommendation 1713 (2005)1
Democratic oversight of the security sector in member states
1. The Parliamentary Assembly notes that in recent years, as a result of the
rise in terrorism and crime, European societies have felt an increasing need
for security.
2. The bodies and forces responsible for ensuring our security have a
variety of roles and tasks. At domestic level, it is their job to preserve
law and order, protect the security of the State, persons and property,
safeguard democratic institutions and procedures and ensure the peaceful
coexistence of different sections of the community.
3. At external level, in addition to its national defence commitments, the
security sector must be co-ordinated through international bilateral or
multilateral framework agreements. Security forces may be involved in
concerted or joint action under collective defence arrangements and/or
international peacekeeping missions intended to prevent or settle conflicts,
or assist with post-conflict reconstruction.
4. Some of today’s security threats, such as international organised crime,
international terrorism and arms proliferation, increasingly affect both
internal and external security and therefore require responses by the
services of the security sector, preferably co-ordinated and overseen at
European level. Each of these tasks must be reflected in the assignments and
duties of the various components of a country’s security system.
5. It is essential to strike the right balance between our concept of
freedom and our need for security. This raises the question, however, of the
extent to which guarantees of security in a society may entail restrictions
on fundamental freedoms.
6. Government measures must be both lawful and legitimate. Consequently,
some form of democratic supervision is required, the essence of which must
be carried out by parliament. The judiciary, in turn, plays a crucial role
because it can punish any misuse of exceptional measures in which there may
be a risk of human rights violations. International organisations also play
an increasing role in guiding policies and harmonising rules.
7. Democratic supervision makes use of a series of specific tools intended
to ensure the political accountability and transparency of the security
sector. These instruments include constitutional principles, legal rules and
institutional and logistical provisions, as well as more general activities
aimed at fostering good relations between the various parts of the security
sector on the one hand, and the political powers (the executive, legislative
and judiciary) and representatives of civil society (NGOs, the media,
political parties, etc.) on the other.
8. The Council of Europe is concerned about certain practices that have been
adopted, particularly in the fight against terrorism, such as the indefinite
imprisonment of foreign nationals on no precise charge and without access to
an independent tribunal, degrading treatment during interrogations, the
interception of private communications without subsequently informing those
concerned, extradition to countries likely to apply the death penalty or the
use of torture, and detention and assaults on the grounds of political or
religious activism, which are contrary to the European Convention on Human
Rights (ETS No. 5) and the protocols thereto, the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS
No. 126) and the Framework Decision of the Council of the European Union.
9. The need for security often leads governments to adopt exceptional
measures. These must be truly exceptional as no state has the right to
disregard the principle of the rule of law, even in extreme situations. At
all events, there must be statutory guarantees preventing any misuse of
exceptional measures.
10. The Parliamentary Assembly of the Council of Europe, conscious of the
fact that the proper functioning of democracy and respect for human rights
are the Council of Europe’s main concern, recommends that the Committee of
Ministers prepare and adopt guidelines for governments setting out the
political rules, standards and practical approaches required to apply the
principle of democratic supervision of the security sector in member states,
drawing on the following principles.
i. Intelligence
services
a.
The functioning of these services must be based on clear and appropriate
legislation supervised by the courts.
b.
Each parliament should have an appropriately functioning specialised
committee. Supervision of the intelligence services’ “remits” and budgets
is a minimum prerequisite.
c.
Conditions for the use of exceptional measures by these services must be
laid down by the law in precise limits of time.
d.
Under no circumstances should the intelligence services be politicised as
they must be able to report to policy makers in an objective, impartial
and professional manner. Any restrictions imposed on the civil and
political rights of security personnel must be prescribed by the law.
e.
The Committee of Ministers of the Council of Europe is called upon to
adopt a European code of intelligence ethics (in the same fashion as the
European Code of Police Ethics, which was adopted by the Council of
Europe).
f.
The delicate balance between confidentiality and accountability can be
managed to a certain extent through the principle of deferred
transparency, that is, by declassifying confidential material after a
period of time prescribed by law.
g.
Lastly, parliament must be kept regularly informed about changes which
could affect the general intelligence policy.
ii. Police
a.
In each state a specific legal framework for the functioning and
supervision of a democratic police force must be set up. The credibility
of the police will depend on its professionalism and the extent to which
it operates in accordance with democratic rules and the utmost respect for
human rights.
b.
Given their different mandate and competences, it is important that
legislation distinguishes between security and intelligence services on
the one hand, and law enforcement agencies on the other.
c.
The police must remain neutral and not be subject to any political
influence. Transparency is also important if the public is to have
confidence in the police and co-operate with them.
d.
Police officers must be given training covering humanitarian principles,
constitutional safeguards and standards deriving from codes of ethics laid
down by international organisations such as the United Nations, the
Council of Europe and the Organization for Security and Co-operation in
Europe (OSCE).
e.
Legislation in this area must take account of developments in modern
technologies and cybercrime and be updated regularly.
f.
Police action against crime must show due regard for the principle of
proportionality, particularly during public demonstrations where there is
a significant risk of matters getting out of hand.
iii. Border management
a.
As a result of the rise in crime and terrorism, this sector must be
subject to heightened democratic supervision and enhanced international
co-operation. Clear legislation is needed in this respect to prevent
corruption, discrimination and excessive use of force.
b.
The principle of the free movement of persons must not be subject to
unwarranted restrictions. However, our borders must be protected from
economic crime, trafficking in human beings, drug trafficking and arms
smuggling. Where state authorities consider that there is a threat to law
and order and security and consequently apply the border protection
clause, such measures should not be applied excessively or to groups or
individuals whose presence is undesirable for ideological or political
reasons only.
c.
Border security must be provided by a centralised, hierarchical system
with clearly defined rules. Training and working and living conditions for
border guards must be organised in such a way as to protect them from the
pressures of organised crime and corruption.
iv. Defence
a.
National security is the armed forces’ main duty. This essential function
must not be diluted by assigning the armed forces auxiliary tasks, save in
exceptional circumstances.
b.
The increasing importance attached to international co-operation and
peacekeeping missions abroad must not be allowed to have an adverse effect
on the role of parliament in the decision-making process. Democratic
legitimacy must take precedence over confidentiality.
c.
At European level, it is essential to avoid any step backwards in relation
to the democratic achievements of the Western European Union Assembly by
introducing a system of collective consultation between national
parliaments on security and defence issues.
d.
In this connection, national parliaments should continue to have an
interparliamentary body to which the relevant European executive body
would report and with which it would hold regular institutional
discussions on all aspects of European security and defence.
e.
Deployments of troops abroad should be in
accordance with the United Nations Charter, international law and
international humanitarian law. The conduct of the troops should be
subject to the jurisdiction of the International Criminal Court in The
Hague.
v. National security and democracy
a.
In general, due regard must be had to the hierarchy of values in a
democratic society when deciding on national security policies. It is
essential that this sector, which traditionally lacks transparency, be
overseen by democratic institutions and subject to democratic procedures.
b.
Exceptional measures in any field must be supervised by parliaments and
must not seriously hamper the exercise of fundamental constitutional
rights.
c.
Member states should ensure that there is a reasonable number of women in
the various security sectors at all levels, including ministries of
defence and national delegations in international security bodies.
d.
Freedom of the press and the audiovisual media must be preserved in law
and in practice, and restrictions imposed in cases of absolute necessity
must not entail any infringement of the international principles of
fundamental rights.
e.
Private companies dealing with intelligence and security affairs should be
regulated by law, and specific oversight systems should be put in place,
preferably at European level. Such regulations should include provisions
on parliamentary oversight, monitoring mechanisms, licensing provisions
and means to establish minimal requirements for the functioning of those
private companies.
1. Assembly debate
on 23 June 2005 (23rd Sitting)
(see
Doc. 10567,
report of the Political Affairs Committee, rapporteur: Mr de Puig).
Text adopted by the Assembly on 23 June 2005 (23rd Sitting).
