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Doc. 10567
2 June 2005
Democratic oversight of the security sector in member states
Report
Political Affairs Committee
Rapporteur: Mr Lluis Maria de Puig, Spain, Socialist Group
Summary
In recent years, European societies have felt an increasing need for security. Indeed, today’s security threats, such as international organised crime, international terrorism and arms proliferation are more present both at national and at international levels in member states.
A democratic oversight of the security sector is required and government measures must be both lawful and legitimate. This oversight should be organised by implementing a series of specific tools intended to ensure political accountability and transparency.
The Parliamentary Assembly highly recommends a democratic oversight, the essence of which must be carried out by parliament and focused on four main sectors: defence, the police, intelligence services and border management.
I. Draft recommendation
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 an international level, in addition to its national defence commitments, the security sector must be co-ordinated through bilateral or multilateral framework agreements and 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 the 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 and the Protocols thereto, the Convention against Torture 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 an European Code of Intelligence Ethics (in the same fashion as the European Code of Police Ethics adopted by the Coucil 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 to say by declassifying confidential material after a period of time prescribed by law;
g. lastly, parliament must be kept regularly informed about general intelligence policy;
ii. Police
a. each state must set up its own specific legal framework for the functioning and supervision of a democratic police force. 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 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 cannot be abused for reasons relating to 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 based on 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 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 the 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.
II. Explanatory memorandum by Mr de Puig1
Introduction
1. In recent years, as a result of the rise in terrorism and more complex forms of serious crime (e.g. mafia groups, drug and human traffickers, corruption, transnational crime etc), our societies have felt an increasing need for security. A feeling of danger, insecurity and powerlessness has permeated countries where terrorist attacks have been committed and where there has been a sharp rise in crime. Perceptions of heightened insecurity are now major political issues.
2. Aside from addressing the social, economic and political root causes of terrorism and more complex forms of crime, governments at the national and international level, in response to calls for greater security and protection, have had to agree on measures to combat terrorism and serious crime. All governments have subscribed to the fight against these phenomena and have taken various steps to address the issue, including military, police, administrative, judicial, border and intelligence services measures aimed at improving both prosecution and, especially, prevention.
3. The question has arisen as to the extent to which measures taken to guarantee the security of the state or society in prosecuting crime at all levels could restrict fundamental freedoms and human rights. Demands for greater security have led governments to introduce strict surveillance and search measures which may, on occasion, violate privacy and human dignity. Clearly, there is a problem of striking a balance between our concept of freedom and our need for security.
4. The Council of Europe cannot remain on the sidelines of this debate or the problem itself. The Council is the organisation which formally set out the fundamental rights of human beings and even though it has on numerous occasions taken a clear stance (particularly in the Parliamentary Assembly) on terrorism and crime, it has always insisted that this legitimate fight should be waged with due regard for the rights and freedoms enshrined in the European Convention on Human Rights.
5. To ensure there are no abuses, additional limitations or impunities in the fight against terrorism and organised crime (mafia groups, drug traffickers, etc), there clearly has to be democratic supervision to make sure that the measures adopted by governments are lawful and legitimate. Such supervision must be carried out at parliamentary level. Hence this report and recommendation on measures taken by governments in the security field (defence, intelligence, police, border controls).
6. The security sector plays an invaluable role in contemporary societies. Both the internal and external security and stability of member states have to be protected against new threats and risks, especially after 9/11, that go far beyond the traditional security risks, e.g. terrorist attacks, organised crime, illegal trafficking, inter-ethnic conflict. These new threats require more than military responses but also a coordinated effort from the police, security and intelligence services and border management. The tragic events of 11 September in New York and 11 March in Madrid, and a series of less spectacular but equally appalling incidents (Moscow, Casablanca, etc) have indicated that the police, security services and border management play an especially crucial role in protecting society against these new threats.
7. Democratic oversight of the security sector is part of security sector governance which refers to a multi-actor, multi-level concept of governing the security sector. It includes not only state oversight bodies, such as the executive, parliament, judiciary and independent oversight bodies, but also civil society and international organisations. Furthermore, it includes not only a constitution and a legal framework which lays down the basis of the various oversight mechanisms and institutions, but also norms, standards and a political culture and resources which fosters a willingness among parliamentarians and civil society to oversee the security sector.
8. The various oversight institutions play different roles. The executive is responsible for controlling (in the sense of managing) the security sector on a day-to-day basis. The parliament deals with the general oversight of the security services, including adopting the budget, enacting adequate laws, and conducting inquiries in case of wrong-doing or failing performance. The judiciary plays a crucial role because it gives or withholds authorisation for the use of exceptional powers with a high potential for human rights violations and prosecutes members of the security services in case of wrong-doings. Civil society performs the function of watchdog and can provide the public with a second opinion, in addition to information coming from the government. Increasingly, international organisations play a role, for example the case law of the European Court of Human Rights (ECtHR) in Strasbourg has implications for the legal framework of CoE member states; European think tanks such as BICC in Bonn, SIPRI in Stockholm, IISS in London or DCAF in Geneva provide governments, parliaments and civil society with advice and training on security sector reform; and international organisations provide guidance and direction for its member states by adopting conventions or codes of conduct on issues such as civil-military relations and the role of human rights in the fight against terrorism.
9. The objective of this study is to put forward possible political standards, norms and practical guidelines for the implementation of democratic oversight of the four services of the security sector, i.e. defence, the police, security services and border management.
Intelligence Services
A. Relevance to national security
10. Security (or internal security) and intelligence services are a key component of any state, providing independent analysis of information relevant to the security of the state and its citizens and to the protection of its vital interests. The new threats and risks to internal security resulting from international terrorism, drug and human trafficking, smuggling, organised crime and illegal migration, elicit calls to strengthen intelligence capabilities. In particular, following the events of September 11, 2001, good intelligence is seen as essential.
11. In order to anticipate security threats, security and intelligence services may under specific circumstances use exceptional powers. These special powers allow the services to interfere with private property and communication, for example to open letters or to turn to providers of public telecommunication with the request to furnish information relating to the identity of users and the content of communication. Special powers underline the need for oversight as these powers imply a high potential for infringement of basic human rights, especially the right of privacy (see also below).
12. Though it is important that intelligence closely meets the demands of policy-makers, it is important that intelligence is not politicised by either the agencies themselves nor the political leaders and government. Intelligence officers ought to report to policy makers in an objective, balanced and professional manner. In order that intelligence services are capable of ‘telling truth to power’, it is important that the services are insulated but not isolated from politics.
B. Recent trends
13. The tragic terrorist attacks on Washington DC and New York on 11 September 2001 (9/11) and Madrid on 11 March 2004 (11-M) marked a watershed of changes for the security and intelligence services. That is to say, it was not entirely new trends that began after 9/11 but rather existing trends were accelerated.
14. The failure to prevent the recent terrorist attacks in Casablanca, Madrid, Bali, New York, Istanbul and Washington DC etc has put a lot of blame and pressure on the security services to respond more adequately to the new threats. Intelligence services were required to reform and to coordinate better their activities. In general, the responses by governments and their services to the terrorist attack have some common features which can be summarised as follows:
a. Increased intelligence co-operation and data-sharing on possible terrorist threats. However, to date, co-operation mainly takes shape at the level of bilateralism, less so at the level of international organisations due to a lack of trust that secrets can be kept within those international organisations.
b. Increased co-operation between foreign intelligence services, internal security services, border guards, custom authorities and immigration services at the national level.
c. The involvement of private companies in the fight against terrorism, for example, forcing private airliners to hand over information to (foreign) authorities, forcing internet and telephone providers to cooperate with intelligence services (e.g. to overhear telephone conversations and to report findings to the services), or using private security companies to protect airports and when interrogating suspects.
d. Adoption and harmonisation of laws across European states, in terms of the fight against money laundering, the euro arrest warrant and a widening definition of terrorism.
e. A swing of the pendulum away from liberty and human rights protection towards a greater focus on security.
15. The last aspect of the fight against terrorism, i.e. giving more priority to security than to liberty, can be witnessed in various ways.
16. Unthinkable previously, many states that had abolished capital punishment, amended their laws enabling them to hand over suspects to countries with capital punishment (e.g. the USA) as part of the co-operation and exchange of information between the countries in the name of the prevention of terrorist activities. A number of countries have introduced new capital offences relating to "terrorism" since 2001. They include Guyana, India, Jordan, Morocco, the USA and Zimbabwe, or discussions for the reestablishment of the death penalty for terrorist activities.
17. Some states have derogated from basic human rights, notably the right of fair trial and created the legal possibility to incarcerate foreigners (immigrants, asylum seekers) indefinitely, without charge or trial, principally on the basis of secret evidence. Concern has been expressed about possible negative effects of new legislation and practices on asylum seekers, including the risk of refoulement and the absence of monitoring mechanisms with respect to the expulsion of those suspected of terrorism to their countries of origin. The guarantee of realistic access to an independent court is a fundamental requirement. This standard is not met by certain anti-terrorism legislation which makes it possible to imprison aliens indefinitely without any access to an independent court. It is recognised that the Council of Europe has adopted the Protocol amending the European Convention on the Suppression of Terrorism.
18. In December 2002, the Ministerial Council of the Organization for Security Cooperation in Europe (OSCE) adopted a Charter on Preventing and Combating Terrorism. The OSCE undertook "to implement effective and resolute measures against terrorism and to conduct all counter-terrorism measures and co-operation in accordance with the rule of law, the United Nations Charter and the relevant provisions of international law, international standards of human rights and, where applicable, international humanitarian law."
19. Various states have amended legislation enabling the services to interfere with private communication without informing them afterwards.
20. Other states apply interrogation techniques which are against the right to prohibition of torture, or to inhuman or degrading treatment as provided for in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (e.g. USA). In January 2004, the European Arrest Warrant came into force in eight of the fifteen European Union member states. The preamble to the EU framework decision adopting the warrant reaffirms the absolute nature of the prohibitions against the death penalty, torture, and returns to torture or ill-treatment. The guidelines elaborated by the Council of Europe’s Group of Specialists on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers on July 15, 2002, reaffirm the absolute prohibition against torture in all circumstances “irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.” The guidelines also reaffirm the absolute nature of the prohibition on extradition to face such treatment: “[e]xtradition may not be granted when there is serious reason to believe that: i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment.” No exceptions are permitted for either guideline. The guidelines permit states to seek assurances that a person subject to surrender will not be subject to the death penalty, but no express provision is made for states to seek diplomatic assurances that a person subject to surrender will not be at risk for torture.
21. Various states have applied a wider definition to terrorism in their legislation, which has raised concerns it incorporates a whole series of offences currently covered under criminal law, such as by restricting the right of peaceful protest or campaigning (e.g. Belgium, France, Italy, Germany, Spain and the UK). Such implies drawing a tighter line between democratic legitimate protest and terrorist acts e.g. UK where concern has been expressed at reports of attacks and harassment on the basis of
religious beliefs and the use of religion to incite criminal acts, and called for criminal legislation to cover offences motivated by religious hatred and other steps to protect against religious discrimination. The European Union Council Framework Decision on Combating Terrorism lists acts which Member States are required to incriminate under their national law (Article 1).
22. Authoritarian states with a questionable human rights and democracy record, became allies in the fight against terrorism (for example in Central Asia and the US forging new alignments with, most notably, Pakistan and states such as Kyrgyzstan and Uzbekistan).
23. Certain states carry out extrajudicial killings of suspected terrorists. Extrajudicial killings clearly contravene the right to life and a number of national courts have concluded that the prohibition of extrajudicial executions is a jus cogens norm. The international community has declared that every state should bring to justice those responsible for extrajudicial executions.
24. As an unintended side effect of the war against terrorism, authoritarian regimes are using the changing balance between security and human rights is as a pretext to label political opponents as terrorists and apply all their anti-terrorist tools to these opponents. Additionally, as some western states are limiting and violating human rights, notably the USA, they are loosing the moral authority to criticise authoritarian regimes for their bad human rights record. In turn, a worsening political and civil rights climate leads to the dangerous situation that it may breed new generation of terrorists.
C. Democratic oversight
25. Resolutions, guidelines, recommendations etc. of many international organisations show that there is a common understanding that secret and intelligence services should be under democratic control.
26. Democratic oversight of intelligence services, including parliamentary oversight and the establishment of services by law, is a new phenomenon in Europe. In all Eastern European states it started after 1989 and even in Western European states with a long democratic tradition. For example, parliamentary oversight started in the UK in 1989/1994, Denmark in 1988, Norway in 1996, Greece in 1994 and Austria in 1991 (only few Western European states had parliamentary oversight of the intelligence services before the 1980s, such as the Netherlands and Germany)..
27. Various countries have adopted different systems of intelligence oversight, as reflected in differences in legislation and institutions involved. In spite of these differences, it is possible to distinguish some general features of democratic oversight of secret and intelligence services based on comparative research carried out by DCAF, the Parliamentary Assembly of the Council of Europe, the Venice Commission, the Group of Specialists on Internal Security Services of the Council of Europe as well as case law of the European Court of Human Rights.
28. The objectives of democratic oversight can be grouped into three clusters: (a) Legality: to oversee that the services are functioning within the boundaries of the law; (b) Legitimacy: to oversee that the will of the majority in parliament prevails and that the human rights of individuals and minorities are protected and that the main principles of good governance are respected (transparency, responsiveness, accountability etc); (c) Efficiency: oversee that the services are sufficiently resourced, that they spend their resources efficiently and that the activities of the services are geared toward the goals as designated by the elected authorities.
29. Legal framework. The security and intelligence services’ functioning and oversight should be based on law enacted by parliament. Without a legal framework there is no basis for distinguishing between actions taken on behalf of the state and those of law-breakers, including terrorists. National security cannot be a pretext to abandon the commitment to the rule of law which characterises democratic states, even in extreme situations. The use of the exceptional powers by the services should be determined by law (when, who, what, why, how) and overseen by the judiciary.
30.The case law of the European Court of Human Rights stipulates, among other things, that security and intelligence services can only exercise their exceptional powers if they are regulated by law. The court specifies that (a) the law should be clear and precise and publicly accessible; (b) law has to stipulate the scope of discretion for the use of powers in individual cases (unrestrained discretion is not allowed for); (c) safeguards – established by law - must exist against the abuse of special powers; (d) the law should set up conditions and procedures for interference with private property and communication.
31. It is important that the law also regulates the mandate of security and intelligence services and that the mandate is limited to protecting national security. It is essential that the laws define what national security entails as otherwise the services may move to other areas without the necessity to amend the law with parliamentary approval. Previously, the Parliamentary Assembly of the Council of Europe has argued that the concept of national security should be interpreted narrowly and should not include economic objectives and the fight against organised crime. The reason for interpreting national security narrowly is the fact that otherwise many aspects of political, social and economic life become a security issue. Securitising aspects of social, political and economic life should be a careful process with a system of checks and balances in place including the approval of parliament. The widening of the mandate should not be left to the discretion of the services alone.
32. As previous reports on intelligence oversight have shown, in most countries the appropriate legislation on the functioning and oversight of intelligence services is in place. Concerns exist to what extent the ‘adequate’ laws are implemented and enforced.
33. Limitations in the civil and political rights of security and intelligence services personnel, should be arranged by law. For example, some countries (e.g. Poland and Ukraine), intelligence officers are not allowed to become members of a political party (in order to safeguard the political neutrality of the services). In other countries, the intelligence officers are not allowed to strike (e.g. Ukraine). These limitations should be in concordance with the ECHR and the European Charter.
34. The role of the executive is to exercise control over the secret and intelligence services, that is to be responsible for the day-to-day management of the services. It is the task of the executive to task and to prioritise the services. Services should not be self-tasking.
35. The government should explicitly instruct the security services to stay outside the political process. Unfortunately, in some countries, such as the Ukraine or in Azerbaijan, the security forces ‘are interfering in the political process through criminal and tax investigations of politicians, journalist and influential businessmen.’
36. In this respect, the executive plays an important role in initiating reform of the services and monitoring its progress. Like other bureaucracies, services have in-built resistance against change, are hindered by red-tape, pursue sometimes parochial interests and prefer procedures above outcomes. It is the responsibility of the executive to take care that intelligence services take initiative whenever necessary, co-operate with other agencies, respect human rights and abide by the rule of law.
37. The role of Parliament. Oversight or scrutiny of the security sector cannot remain the exclusive preserve of the government alone without inviting potential abuse. It is commonplace, aside from their role in setting the legal framework, for Parliaments to take on the task of scrutinising governmental activity. In a democracy, no area of state activity should be a ‘no-go’ zone for Parliament, including the security and intelligence sector. Parliamentary involvement gives legitimacy and direct democratic accountability. Effective parliamentary oversight of secret and intelligence services includes:
38. First, enacting clear and adequate laws which place the services on a statutory basis. The laws should explicitly regulate what kind of exceptional powers with a high risk of human rights violations may be used in which circumstances and provide for adequate safeguards against abuse.
39. Second, a well-functioning parliamentary committee for intelligence oversight; Having a specialised committee on intelligence is essential as a committee is the main tool of parliamentary work. Therefore, it is unfortunate that some states, such as France, do not have a specialised parliamentary control body. Unfortunately in other countries, the parliamentary intelligence body’s independence from the executive is not entirely guaranteed as the members of the parliamentary oversight bodies are appointed by the prime minister and the body’s annual report to parliament has to be approved by the prime minister before it can be published.
40. Third, the possibility to control the budgets of the services. Budget control of the security sector is mentioned explicitly in the OSCE Code of Conduct as a key-element of parliamentary oversight. Previous reports of the Council of Europe Parliamentary Assembly have qualified parliamentary budget control of (internal) security services as a minimum requirement. The obstacle here is the existence of so-called ‘skunkworks’ or ‘black budgets’, i.e. funds for the services which are not made visible in the yearly budget. As a matter of good governance, all expenditures should be mentioned on the yearly budget and all expenditures should be paid with government money (no external funding). A positive example in this respect is the UK parliament, where the Parliamentary Intelligence and Security Committee ‘sees every detail of the Single Intelligence Account – including how much they spend on staff, stationery and agents.
41. Fourth, in order to perform its oversight tasks and budget control adequately, parliamentarians of the committee should have access to classified information. They should also have the legal power to conduct investigations including the possibility to visit sites and subponea power.
42. Fifth, the possibility of commissioning experts from civil society.
43. Sixth, clear and effective reporting mechanisms between government, services and parliament. Parliamentary oversight also has its dangers and limits. The services may be drawn into political controversy and an immature parliamentary approach may lead to sensationalism. Therefore, regarding the political sensitivity of the matter, it is essential that senior and experienced parliamentarians have a seat in the parliamentary intelligence oversight committee.
44. Judicial oversight has numerous functions. Firstly, courts decide whether an agency receives the authorisation for using exceptional powers (interference with private communication and property). The courts play an important role whether it is legally justified to use powers which infringe upon human rights, e.g. wire-tapping, surveillance, house searches. The authorisation should always be time-limited, e.g. 3 months. This is the a priori control function of the courts. The judiciary also exercises ex post control. The overriding principle is that courts have the jurisdiction to determine whether operations complained of are within the law. As a matter of a fact, Article 13 of the ECHR stipulates that everyone whose rights and freedoms are violated should have an effective remedy thru judicial or non-judicial bodies (see point below, independent oversight bodies). Judicial ex post control is necessary as various human right organisations report about the violation of human rights by members of the security services, for example to torture suspects or to beat and harass members of the opposition, journalists or human rights activists.
45. Serious doubts exist as to the extent to which judges are independent to exercise their powers as they deem necessary. Firstly, in some countries, the judicial control over the security and intelligence services is not entirely independent from the executive and the executive can interfere in the legal process (e.g. the authority to stop a criminal procedure against members of the secret service in Turkey or UK). A second concern is that in some countries the doctrine of judicial deference seems to exist. Judicial deference means that courts nearly always defer to a judgment of the executive branch and the security services when matters of national security are concerned. For example, in the USA this doctrine is explicitly used by the judiciary and in the UK Lord Hutton was accused of judicial deference. Thirdly, in other countries, judges complain that they are subject to phone tapping and surveillance, especially when dealing with cases in which political opposition leaders are involved.
46. Independent oversight bodies play an important role, especially the financial audit of the services (e.g. by the German ‘Bundesrechnungshof’ or the French Cour des Comptes). In some countries, for example in Hungary, in Norway or Ukraine a special independent body exists where citizens can go to if they have complaints about the functioning of the services leading to violations of their human rights. As intelligence services have special powers which can limit the human rights of citizens, Article 13 of the ECHR is relevant because it prescribes that:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority nothwithstanding that the violation has been committed by persons acting in an official capacity”.
47. Civil society. The media, human rights organisations and other watchdogs play a very important role in overseeing the security and intelligence organisations. Problematic in various countries is a lack or non-enforcement of freedom of information legislation which normally protects and determines the citizens’ right to access information. Many, not all, countries in Europe have enacted freedom of information legislation and in other countries laws are pending. It would bolster civil society if all CoE member states enact freedom of information laws.
48. In some European countries, unfortunately, the media, especially when they are reporting about the government critically, are harassed, censored, threatened with death, mysteriously killed in car accidents or unexpected ‘suicide’, due to the involvement of ‘unknown’ armed groups, often allegedly associated with the countries’ secret services. All too often, the close ties between government, secret services and organised crime blurs the distinction between political and criminal acts. Legal harassment seems to be an effective weapon for governments to silence critical press. For example, in Azerbaijan, 40 lawsuits were brought against 18 journalists in 2003, resulting in high fines which are very difficult for newspapers to pay and sometimes lead to bankruptcy. Nor should one forget the serious situation which exists in Belarus and which also existed not so long ago in Ukraine.
D. Challenges and concerns
49. A positive conclusion is that in most countries appropriate laws for the functioning and oversight of the security and intelligence services are enacted. Nevertheless, there is a much improvement possible, both in western and in so-called transition states.
50. For the services with exceptional powers, in most countries legislation is in place. However, it is recommended to bring the functioning and oversight of all services under legislation, i.e. security services, foreign intelligence services, military services and services aimed at signal/electronic intelligence gathering. Outsourcing intelligence gathering to private companies, e.g. internet or mobile phone companies, should be done on the basis of law and by approval of parliament.
51. The use of exceptional powers by the services should be in accordance with the ECHR (especially Article 8 concerning privacy). The laws should be legislated by parliament, necessary in a democratic society, proportionate use of the powers and remedies available for citizens should be legislated. Needless to say that the laws need to be implemented, enforced and respected. Otherwise the law is only a facade for unconstitutional, illegal practices.
52. It is important that the laws on security and intelligence services define the mandate of the services, that is, the laws have to define national security and that their functioning is limited to threats to national security. Only in this way can it be avoided that the security services move to other areas without explicit consent of parliament.
53. The executive is responsible for tasking and prioritising the services, including the reform of the services which is necessary in the new security environment. Especially after 9/11 and 11-M this is necessary to avoid the services “fighting the previous war”.
54. Serious concerns exist that in various European states, the government is instrumentalising the security services in the context of the government’s struggles with the political opposition.
55. Parliaments should have a specialised committee on intelligence oversight which is independent from the executive in terms of resources, agenda-setting, membership and reporting. Parliament has the power to approve the budget, has access to all necessary information, is able to commission expertise from civil society and has effective reporting mechanisms in place. Parliament should not control (manage) the services operations, sources and methods.
56. An independent judiciary is essential for monitoring the services and includes a priori and ex post control of the services’ operations. The executive and services should not interfere with due process.
57. Independent review bodies exist (ombudsman, audit offices), preferably appointed by and reporting to parliament. Parliament should check whether legislation is implemented in accordance with parliament’s objectives.
58. Governments should refrain from interfering with the functioning of the free press. It goes without saying that the civil rights of journalists are respected and that libel laws are not misused for silencing the press.
Democratic policing
A. Relevance to national security
59. Regular police are responsible for providing law and order, public safety and fighting crime. The nature of the work of police and their powers of arrest means that they have substantial scope to limit people’s rights and freedoms. The common view now among many experts is that the fundamental
purpose of the regular police is to protect human rights and uphold the law, both by preventing the infringement of people’s human rights by others and by respecting human rights in the exercise of that duty. Respect for human rights is thus essential for good and effective regular policing.
60. National security is not really the correct emphasis when considering regular policing, but becomes relevant in the case of special police units dealing with terrorism and serious organised crime such as the UK Special Branch). Additionally, the national police increasingly have to deal with the problems associated with illegal trafficking of drugs, arms and persons, smuggling and illegal migration. Naturally, the situation greatly varies by country, and presents a diverse set of problems, challenges and, thus, different recommendations.
61. While the consolidated Western democracies have been the driving force in advocating the spread of principles of democratic policing to the young democracies of Central, Eastern and South-eastern Europe, they may be now finding themselves in the situation tainted with problems entailing the reshaped context of global security.
B. Trends in the wake of 9/11
62. In many countries with close ties to the United States, legislation expanding police powers was rushed through shortly after the attacks. In the climate of tragedy and shock that followed the attacks on New York and Washington, new legal instruments were introduced nationally in European states and at the EU level. According to critics, many of the measures lacked adequate safeguards against the potential abuse of executive authority and were accepted without adequate consideration of human rights and civil liberties, including privacy. While EC member states have long co-operated in internal security matters, the 9-11 attacks led to the acceleration of co-operation in EU Justice and Home Affairs and the Europeanisation of crime control policies. International law enforcement co-operation was also enhanced.
63. European responses to the international campaign against terrorism after the events of 9/11 can be seen on two levels: national responses and collective responses at the EU level. Much attention has been focused on the need to strengthen international co-operation in counter-terrorism, but also important has been the need to strengthen internal state counter-terrorism capacity. At the EU level, efforts to develop a stronger institutional approach to internal security matters preceded the 11 September attacks. The EU formulated a common Action Plan and took measures that include enhancing cross-border police and judicial co-operation including a harmonisation of policies for defining, responding to and sentencing terrorists, enhanced police-intelligence co-operation including joint investigative teams of police and magistrates, establishment of Eurojust, improving border control and asylum/immigration systems, and the adoption and wide application of the European arrest warrant; improving air transport security throughout Europe; improving emergency preparedness; and taking steps in economic and financial policy to eliminate sources of terrorist financing and fight money-laundering more effectively. Major states such as France, Germany and UK all had strong anti-terrorist legislative frameworks prior to 9/11, but have made some recent changes that have strengthened it even further. Germany, for example, passed laws in late 2001 expanding the powers of law enforcement agencies together and share financial and other data. The UK introduced the Anti-Terrorism, Crime and Security Act 2001 and various other pieces of legislation that tightened immigration, asylum and visa procedures, enabled greater collection, access and sharing of data among law enforcement agencies.
C. Oversight and accountability
64. In a democracy, policing must be based on public consent, trust and co-operation if it is to be effective. That means that the community acknowledges the policing task to be legitimate and confers the authority of the police to carry out that task. Public consent depends on the accountability of police in providing the community with the policing services it needs. Police are also accountable under the law, just as all other citizens are, and must act within the law as they work to uphold and enforce it. Police are supposed to act impartially in the interests of the community, rather than in the interests of the executives of government policy. That is, police should be neutral and not subject to political direction. It is also important that transparency exist if the public is to have confidence in the police and to co-operate with the police.
65. It is essential that mechanisms are put in place to ensure as far as possible that police are accountable before the law and to the community they serve. There are at least three types of mechanisms that should exist for police accountability. First, there should be internal police accountability and control mechanisms such as disciplinary procedures for dealing with allegations of misconduct and evidence that officers are brought before ordinary criminal courts for breaking the law. Second, there should be mechanisms involving police working in partnership with representatives of the community at the national and local level (ie. Accountable to elected political authorities at the national and local level, civilian review boards or committees, municipal boards). And third, there should be an independent (non-police) review and investigation process with its own resources and broad powers to examine serious public complaints about police behaviour, such as an ombudsman.
66. At international level, it seems that states agree on the basic principles of functioning and oversight of police in a democratic state. The most relevant international agreements and code of conducts are:
a. Council of Europe European Code of Police Ethics. The Code defines the objectives of the police, the legal basis of its functioning under the rule of law, its relation to the criminal justice system, the desired principles for organisational structure (including the accountability mechanisms), and the guidelines for action/ intervention.
b. UN Code of Conduct for Law Enforcement Officials. The Code emphasises the human rights and rule of law dimensions of all police activities, and urges their unconditional observance.
c. UN Civilian Police Principles and Guidelines. Although primarily designed as a set of guidelines for policing in the context of peacekeeping operations, it underlines the same general set of themes as other policing Codes, both in relation to the principles and situations in the field. Its added value is the extensive section devoted to training mechanisms.
d. OSCE Code of Conduct on Politico-Military Aspects of Security. The Code stating the participating states’ commitment to an appropriate balance of assuring effective security and the respect for human rights and fundamental freedoms. It is wider in scope, in that it encompasses the military, paramilitary and internal security forces, as well as intelligence services
D. Problems and challenges
67. The principles of Democratic Policing, and particularly Democratic Oversight of the police are no longer the central subject of the debate, and most experts seem to agree on them. The real problem is the effectiveness of the oversight mechanisms. The internal mechanisms are inherently vested with in-built problems, whereas the effectiveness of the external mechanisms tends to be very variable. The police are likely to resist the pressures from the external bodies they disagree with, and arguably they got quite good at handling that. It is difficult to disentangle which oversight mechanisms are most effective, and while it is sensible to presume that they should be applied simultaneously, their effect can only become tangible if the principles are translated to actions on managerial, personnel, training/ education as well as policy levels. Effective democratic oversight will at the very fundamental level require strong, and perhaps concerted, commitments from both the civil society and the police practitioners. Only then the otherwise indirectly and moderately effective principles may become entrenched in the organisational culture of the police forces.
68. Two of the main problems in the post-9/11 environment are that the emphasis in policing in certain states has shifted to counter-terrorist policing, which tends to be covert and involves increased interaction with security services and intelligence agencies. This is resulting in the blurring of the lines between police and security / intelligence services, and has potential to degrade transparency and accountability. Moreover, the key concern in counter-terrorist policing is maximising efficiency, which may come at the expense of legal and procedural safeguards.
69. The very fundamental core problem of democratic oversight of the police agencies, is either lacking or inadequate legal framework spelling out the mechanisms of accountability and oversight. Naturally, the entailing problems affect the legitimacy of the police, and are also likely to be related to the low indices of professionalism of a particular force in question.
70. In any case, ensuring adequate legislative framework consisting of all the discussed elements is a necessary point of departure towards democratic oversight of the police.
71. The problems of inadequate legislation are to a large extent characteristic of the Council of Europe States that experience relatively the least of the international pressure for reforms.
72. Providing an adequate legislative framework is only a very essential pre-requisite conducive to achieving the standards of full democratic oversight; the legislation itself, however, does not suffice unless effectively implemented in practice. The latter objective often proves to be much more demanding than the former.
73. The problems of adequate legal reform can be linked with the phenomenon of politicisation of the police services. It is a much wider problem, but in general terms the politicisation of the police is a factor preventing the introduction of adequate legal reforms, at it is simply against the interests of the (ruling) who benefit from the subordination of the police.
74. It is already been said that the police must enjoy some discretionary capabilities to perform their tasks well; the downside of that, however, is the likelihood of the police developing a tendency to distrust the ‘outsiders’. This can be manifested not only in the reluctance to transpire the activities to the civil society or general public, but even in the hesitation to be subjected to controls by the external governmental and judiciary bodies.
75. It can be noticed that the degree of militarization and centralisation are likely to be linked to the level of transparency of the police services. The problem widely encountered, albeit in varying degrees, across the formerly communist states is the inheritance of the non-transparent organisational cultures in the police services, as well as security services in general. The problem is further exacerbated in countries with high levels of politicisation of the police, which favours the preservation of highly centralised, militaristic and non-transparent structures. The post-Soviet Union countries illustrate the latter point; so do the countries of the former Yugoslavia whose inherited post-communist organisational models were consolidated by the context of the Balkan wars of the 1990s.
76. The politicisation of the police services is another problem that compromises police accountability and the achievement of democratic policing. Police must exercise some discretionary capacities in order to perform their tasks well. The wide margin of discretion exercised by police can, however, be marred by misjudgement or bias and cause harm to the rights and liberties of citizens. Corruption looms as a further problem, and is often characteristic of police in the ‘young’ democratic states. Many post-communist states of Central, Eastern and Southeastern Europe are troubled by high levels of corruption among state officials, including the police.
77. As observed by a number of international organisations, including the Stability Pact, OSCE, the Western European Union and the European Union, the training of the police forces is key to overcoming these issues: professionalisation).
78. A case in point illustrating the emerging emphasis on cross-border co-operation to face the new security threats is the issue of Europol. Although a relatively new force, Europol can hardly be seen as an example of the implementation of the democratic policing models. The concerns over Europol can be summarised as follows:
a. Concerns as to the security of data held in the Europol Computer System and other issues relating to data protection
b. Concerns over the type of data held by Europol and how this data is used and analysed by TECS.
c. Concerns as to the input of data by third countries and third parties.
d. Concerns as to the immunity from prosecution of Europol officials and seconded liaison officers (ELOs).
e. Concerns over the level of political and judicial accountability of Europol.
f. Concerns relating to the staffing and level of competence of Europol.
g. Matters relating to the possible development of Europol into a European FBI.
Border management
Relevance to national security
79. The main threats to border security in Europe are today perceived as non-state actors seeking to cross national boundaries and evade national law enforcement efforts – transnational organised crime, international terrorism, smuggling of contraband including drugs, weapons and fissile materials, trafficking in human beings and illegal immigration. “Frontier controls have come to be seen as the EU’s first line of defence against instability and its consequences – such as refugees, crime, and the breakdown of law and order.” Regardless of their objective effectiveness at deterring illicit cross-border movements, border controls play an important political and symbolic role in highlighting the state’s authority and legitimacy to exert control within a territorial space.
80. The term border control must be used with the caveat that borders, like conflict and crime, are at best managed — full control is rarely possible. For that reason, border management is sometimes preferred as a term. Here the terms will be used interchangeably. Border management services is used as a generalised descriptive term, and may include police, customs, immigration, health inspection and other services, while border police or border guards refers to the agents fulfilling functional security roles in border regions. Differences between Council of Europe member states sees the terms border guards and border police used interchangeably and the organisation of the border services of varying types, either as independent and specialised multi-purpose organisations, subordinated to ministries of the interior, or forming part of a national police force. The importance of the border guards’ role at the intersection of military/ police, national/international, and internal/external security is now clear even if their categorisation as military or police remains contested.
81. There are three main functions that the border services should fulfil. These are:
a. Facilitation of lawful traffic (provide facilities for fluent traffic)
b. Protection of rights (human rights and right to international protection)
c. Security (border management and other law enforcement).
82. The EU has long recognised that the development of the single market without internal frontiers in which there is free movement of goods, persons, services and capital would require a commensurate increase in effectiveness of controls at the external EU border in addition to development of common asylum, immigration and visa policies. With the dismantling of internal border controls, member states of the European Union recognised that cross-border or transnational threats are a common concern, they will require common, coordinated and harmonised policies to deal effectively with them. In the case of European border security, this response is found in the concept of integrated border management (IBM). This concept emphasizes the need for all actors concerned with border security threats to coordinate their efforts. Customs offices, migration and various inspection authorities, for example, are encouraged to work closely with border police organisations. With the effects of globalisation and growing inter-dependency, border security is not simply a national concern, but requires international co-operation to tackle common problems. Border management systems therefore include co-operation on the national (inter-agency) and international (bilateral, regional and multilateral such as EU) levels.
83. Border management in the European Union member states is governed by the Schengen agreement of 1985, which entered into force in March 1995. It remained at an intergovernmental competence until 1 May 1999, when the Amsterdam Treaty came into effect and the Schengen acquis became part of the EU machinery in the first pillar. All EU countries, with the exception of Ireland and Britain, are now Schengen countries. Schengen countries have eliminated internal border controls while harmonising and tightening external border controls. Schengen also includes movement towards a common visa regime, an agreed asylum processing procedure, police and judicial co-operation and the creation of a shared computer information exchange system that links data bases of member states with the names of criminal aliens, rejected asylum applicants and other undesirables.
Obligations of border guards to respect human rights of refugees and asylum seekers
84. Border guards fulfil policing and law enforcement missions, and as such border guards have a fundamental duty to protect human rights by preventing the infringement of people’s human rights by others and by respecting human rights in the exercise of that duty. As a primary step towards ensuring that human rights remain a core concern of border guards in the fulfilment of their duties, training in human rights and especially how to implement them in the practical aspects of their work should be provided for border guards, customs officers and immigration officials. External civilian oversight and monitoring of respect for human rights by border officials can be performed by NGOs involved in human rights, and advocacy groups working on behalf of refugees and asylum-seekers, anti-trafficking groups and others.
Oversight
85. Democratic oversight of this sector has been largely neglected until recently by the policy community. Border management, like other elements of the security sector, requires multiple and effective oversight mechanisms, accountability and transparency. In theory, legislatures should exercise oversight of border management at the highest political levels through relevant legislative committees and subcommittees. It is relatively uncommon to have committees dealing specifically with border management services. It is essential, then, that all organs and agencies involved in border management have precisely defined authorities and competencies set out in law.
86. External civilian oversight of border management programs and policies can also be undertaken by the investigative and reporting body that conducts audits, program reviews and evaluations of executive branch activities and provides this information to the legislative body to help it in holding government to account. Such bodies include the UK’s National Audit Office, the German Bundesrechnungshof, France’s Cour des Comptes, the U.S. General Accounting Office (GAO), Canadian Office of the Auditor General (OAG).
87. At European level, parliamentary oversight also remains inadequate. Europe has moved progressively towards multilateral border services, in particular the creation of a European Corps of Border Guards, proposed in May 2002 and now in development. The European Commission also recently proposed the establishment of a European Agency for the Management of Operational Co-operation at the External Borders, which would improve operational co-operation among member states on control and surveillance of the external borders, provide training at the European level for border guard trainers, carry out risk assessments, follow research in the area and render technical and operational assistance to member states when necessary. The creation of this agency is seen as addressing institutional shortcomings of existing structures and would presumably also ‘increase transparency in an area that so far is rather characterised by opaqueness.’ However, as originally formulated by the Commission to be intergovernmental in character, the agency would be deficient from the point of view of parliamentary oversight. Noting this, the European Parliament encouraged a more communitarian character for the agency, since only by enabling the full involvement of the Commission and the Parliament could the agency be effectively controlled and be held accountable.
88. Geo-political circumstances dictate the focus of the role of border guards. The operational demands of managing green (that is, land) borders on the outer edges of Europe, in regions where the state is weak and armed gangs may make incursions over a border, may make a police organisation and capabilities inappropriate. Often working in dangerous environments, border guards have a traditional affinity with military units. Even police-oriented border services require a mobile or rapid-reaction response that depends on military-style discipline to be effective. Yet at the same time the management of illegal trafficking and migration is essentially a policing activity. This means that responding to migrant and alien smuggling involves the border guard working with the regular police, other government agencies, NGOs, and international organisations, and that policing functions must be implemented with respect for human rights.
89. Most commonly, border policing in European states is performed by a separate, professional and multi-purpose law enforcement organisation operating under the Ministry of the Interior. According to one expert group, the most effective border security system is a single unified system that is based on a centralised authority, with clear areas of responsibility and an unambiguous line of command authority. The border security authority must have strict discipline and a strongly hierarchical organisation, but must also allow regional units with more knowledge of local conditions and problems to tackle problems effectively, implying a degree of decentralisation in decision-making processes.
90. A well-functioning legal framework serves as the basis for a state’s actions, setting out the limits to its authority, and making its duties and responsibilities clear to itself and outside actors. In turn, this clarifies and legitimises the functions and competences of the border security authority, preventing the emergence of ambiguity with regard to its role. Lastly, the presence of a legal perspective in this field of action makes it possible to address the internal regulation of border guard services and of international co-operation.
91. Relevant EU-standards directly related to management of external borders are the following:
- The core of standards is the Schengen Acquis, integrated into the EU-Acquis. These provisions have the status of binding legislation.
- Essential standards are set as well in the so called Non-binding provisions. The most important part of this category of standards is the Schengen Catalogue, which defines recommendations and best practices.
- Several other relevant documents exist, and the further development towards integrated management of external border will bring in new material.
92. With regard to certain aspects of the European Schengen Information System, there are no sufficient legal safeguards concerning human rights, for example data protection, free movement across borders, rights of stateless people to travel. The appropriate legislative framework should be drawn up and introduced as national legislation.
93. Non-binding provisions include European Council decisions. Naturally, these decisions are of very general nature, but they point out the highest political commitment, which will later be given a more concrete substance in decisions of the Council of Ministers or by the Commission. One decision of the European Council is worth noting here: The European Council held a special meeting on 15 and 16 October 1999 in Tampere on the creation of an area of freedom, security and justice in the European Union. It emphasised the importance of border management and concluded that management of the external borders shall be carried out by specialised trained professionals. The Tampere Conclusions express a commitment to establish a border security system that meets high standards. These standards can only be met by using specialised trained professionals in border guard duties.
94. Democratic civilian control and oversight of border guards is essential because of the potential of border guards, as a specialised police force, to engage in corruption, discrimination and excessive use of force.
95. Oversight is undoubtedly required to ensure the eradication of corruption, discrimination or brutality but internal means are also vital to addressing such problems, backed up by external sanctions as necessary. The chosen means may differ but all should reflect the objectives of achieving an effective yet democratically controlled and accountable border service that functions with respect for human rights. Leadership will be a key issue in determining the effectiveness of reform; the acceptance of the centrality of human rights and accountability at the highest and most influential levels of the border guard management structure is essential to having the norms accepted through the ranks.
96. Oversight by the courts and the judiciary should apply equally to border management. In Europe, where the Schengen acquis structures the border control systems of member states and an increasing number of aspiring states on the periphery of the EU, legal and judicial knowledge are particularly relevant to the understanding and application of this complex body of law and its interaction with the state’s international obligations, including the respect of human rights.
97. Oversight, accountability and transparency concerns also arise with regard to state claims of exception to the Schengen regime. Critics maintain that due to the dominance of security concerns, especially after the terrorist attacks of 11 September 2001, the principle of freedom of movement of persons has been undermined along with other fundamental rights and freedoms guaranteed at the European and international levels, both for EU citizens and third country nationals. The Schengen Convention (Article 2.2) establishes that internal borders may be crossed without checks on persons being carried out. However, it also recognises that where public policy or national security so requires, a member state may decide unilaterally to carry out national border checks appropriate to the situation for a limited period. Even though this was meant to apply exceptionally to emergencies and limited in time, EU member states have used this provision on a regular basis to re-establish border controls. This often occurs when there are high-level international political summits or meetings taking place which are expected to draw demonstrators and protestors. Protestors have been blocked entry into EU member states on the basis of membership in a group, rather than on an individual case-by-case basis. Because this provision remains at the intergovernmental level (ie. state authorities unilaterally take the decision to reimpose border controls), there is complete lack of judicial and parliamentary accountability for the implementation of this paragraph. ‘The law enforcement authorities at the national level have wide discretion to determine the existence of a threat to public policy and national security, and the security standards to follow in the particular event.’ Through the over-use of supposed emergency clauses to reimpose border controls and to prevent entry to those deemed likely to demonstrate and cause disturbances to public order, states impinge on basic human rights such as the freedom of expression and freedom of assembly. There is a lack of democratic accountability, in particular of the failure to respect the principles of proportionality, transparency and human rights.
Defence
Overseeing security in the defence sector
98. It is not our task here to define democratic supervision of defence as a whole. This report is concerned solely with the aspects relating to security. In this respect, it must be noted that over the last twenty or so years, there has been a refocusing of defence policy and the role of the armed forces towards “security”. This implies a new concept of the role of the military sector above and beyond the traditional roles in time of war, centring on tasks that are clearly security-oriented in nature. Since 1990 many defence systems have been restructured to adapt to the new threats posed to security. Often such reforms entail military support to the civilian authorities and the police to cope with serious situations such as terrorist attacks, organised crime and drugs trafficking.
99. Over and above military intervention to bring about, restore or maintain peace, the defence sector is today called upon to carry out a number of security-related roles. Occasionally this can be direct action by the armed forces (surveillance, patrols, border checks, protection of state institutions, humanitarian action), or it can involve the use of defence capabilities (intelligence, communications, equipment). In any event, the role of the armed forces or the use made of military resources must take place within the context of clearly defined laws and verified democratic supervision.
100. Furthermore, in some member states there are certain militarised police and internal security forces, whose structure and functioning are similar to those of the armed forces: gendarmerie, civil guard, border police.
101. When considering democratic supervision in this field, a distinction must be drawn between national level and European level. Democratic supervision at national level is carried out by each parliament with regard to its government. Here there are major differences between the powers of parliaments vis-ŕ-vis their respective governments; some have extensive powers, others very limited powers. Nonetheless, they all have in common the fact of having the final say in approving the defence budget and many of them have a decisive influence on the overseas deployment of the armed forces, even where this has been decided at European level under the ESDP. Members of parliament are also the most effective link between policy and citizens on behalf of whom that policy has been framed. At European level, there are two dimensions to parliamentary activities: first, inter-parliamentary co-operation, and second, information, dialogue and consultation with the decision-makers in the EU.
102. All political systems place at parliament’s disposal a range of resources enabling it to obtain information to monitor the actions of the government and the administration in the security and defence fields. In practice, the three most common means of parliamentary supervision are parliamentary debates, questions and parliamentary enquiries. Nevertheless, the powers assigned to parliaments vary according to the country. In some countries, parliament has the power to approve the appointment of certain high-level officials; it approves the budget; it passes and promulgates legislation; it debates defence and security policy; it examines and/or approves large-scale arms procurement plans; it approves, beforehand or subsequently, the sending of troops abroad; finally, it ratifies international treaties or accession to multilateral security alliances.
103. At least three aspects of security and defence cause genuine difficulties with regard to parliamentary supervision: (a) laws on secrecy or confidentiality can have adverse repercussions for transparency, thereby undermining parliamentary supervision; (b) security and defence are highly complex fields, in which parliaments are supposed to monitor questions such as arms markets or the state of readiness of the armed forces; (c) the growing importance attached to international co-operation in the security field can have an impact on a country’s transparency, democratic legitimacy and security policy if parliament is kept at arm’s length from the process.
A few examples
104. Given the complex nature of the field in question, there has to be an elaborate structure if parliament is to have a genuine influence on the executive. Moreover, parliamentary supervision in this area often depends not on one committee but on several, whose names and powers vary from one parliament to another. In dealing with defence and security issues, several committees (defence committee, foreign affairs committee, budget or finance committee, intelligence committee – or sub-
committee, industry committee, home affairs committee, etc) are sometimes required to hold joint meetings. The following is therefore a series of examples which cover practically all the supervisory systems to be found in member states.
105. In the Ukrainian parliament (Verkhovna Rada) there is a national security and defence committee. It may decide on its own initiative to hold hearings, but has no power to insist that its decisions be implemented. It has two sub-committees, one responsible for legislative guarantees relating to security, intelligence and counter-espionage bodies, and one relating to the border and customs services. Meetings on matters relating to the fight against terrorism, intelligence and counter-espionage are held in camera with the application of the rules of confidentiality. In practice, parliamentary supervision is inadequate and ineffective. It should be improved by strengthening the powers of the relevant committee and sub-committees.
106. In Finland, the defence committee is responsible for parliamentary supervision of matters relating to military service, the armed forces and the forces involved in peace-keeping operations. The foreign affairs committee is also involved in this latter area. This committee also plays a role in general security policy and deals with questions relating to the EU’s Common Foreign and Security Policy. (CFSP). There is no special sub-committee. The committee’s meetings are normally held in camera with due regard for the rules of confidentiality. However, the committees may from time to time organise public hearings. They can ask to take statements from ministers, civil servants or other experts. Parliamentary supervision in the fight against terrorism is carried out via hearings with ministers and senior officials and by examining reports drafted by the government, which are debated in the parliament’s plenary sessions. Lastly, the government has to obtain a specific mandate from parliament before taking any decision at EU level.
107. The Polish parliament has two chambers. Under the Polish constitution, both the Chamber of Deputies (Sejm) and the Senate have legislative powers, but only the Sejm has the right of parliamentary supervision of the government. The Sejm has a standing national defence committee and a secret services committee. Generally speaking, the defence committee meets in public, but can, where deemed necessary, meet in camera. The secret services committee always meets in camera. The rules of functioning of the Senate’s national defence committee and public security committee are similar. All members of parliament have access to documents classified “secret”. “Top secret” information can be given to members of parliament following a special request. The defence committee can put questions to members of the government and answers must be given within 21 days. It may also invite representatives of the relevant authorities in order to obtain information it needs for its supervisory activities. However, the national defence committee is not able to hold extraordinary hearings, comparable with a committee of enquiry; however, ad hoc committees of enquiry can be set up to look at specific cases. The Sejm also receives regular audit reports on the activities of government and administration bodies drafted by the Supreme Chamber of Control.
108. In the two chambers of the Romanian parliament, there is a defence, public order and national security committee belonging to the Chamber of Deputies, a joint Chamber of Deputies/Senate committee for parliamentary monitoring of the activities of the Romanian internal intelligence service and a joint committee on the activities of the foreign intelligence service.
109. The committee’s meetings are generally held in camera and the members of the committee are required not to divulge any secret or confidential information of which they are made aware. So far, members of parliament do not have automatic access to classified information. In addition, the Senate committee may initiate an enquiry in an area falling under its competence, with the approval of the Senate Bureau.
110. In the fight against terrorism, the Supreme Defence Council has appointed the internal intelligence service as the national authority competent in the field of terrorism. Accordingly, it is the joint committee on parliamentary monitoring of the activities of the Romanian internal intelligence service that is responsible for parliamentary monitoring of the fight against terrorism.
111. In Turkey, the National Assembly has a national defence committee. This committee does not have the authority to monitor the day-to-day activities of the Ministry of National Defence and the armed forces but it is responsible for examining draft legislation relating to national defence, defence strategy, military service etc. Its work is primarily legislative. In general, its meetings are public, but at the request of the minister or two thirds of its members meetings in camera are also possible. The
committee does not have a direct influence on national defence policy, the framing and implementation of which falls mainly under the remit of the National Security Council, the President and the Chief of Staff.
112. In the Belgian Chamber of Representatives, the national defence committee is competent to deal with defence and international security measures. The relevant committee for national security is the committee on home affairs, general affairs and the civil service. The national defence committee is a standing committee like all the others, having no specific regulations. In principle, its meetings are public (unless it is explicitly decided to meet in camera). The rules governing confidentiality are the same as in other committees, and like all other committees it can organise hearings. If a committee of enquiry is set up, there are enhanced powers for organising hearings and witnesses may be called.
113. In the Belgian Senate, the committee on foreign relations and defence is competent to deal with defence issues, it being the prime mover. In pursuance of its activities, it can organise hearings. As a rule, hearings are public, but the committee may decide otherwise.
114. In the Riksdag in Sweden, the defence committee deals with all matters relating to security and defence. However, issues relating to terrorism are dealt with by the justice committee. The defence committee generally meets in camera, although public hearings are from time to time held on specific matters. Members of the committee are bound by an obligation of confidentiality with regard to any classified information of which they become aware. They are entitled to be informed about any matter falling under their remit and have access to all documents, including those classified “secret”.
115. The foreign affairs and defence committees are involved in the European Common Foreign and Defence Policy both independently or jointly. In the latter case, a joint committee is sometimes set up temporarily to deal with specific issues.
116. Government representatives and members of parliament consult together in the foreign affairs committee before meetings of the EU’s Council of Ministers. Where decisions are taken relating to the CFSP, it is the foreign minister or the minister of defence who attends the foreign affairs committee, which is parliament’s official body for consultation with the government on EU-related issues.
117. In Spain, there is a defence committee in the Congreso de los Diputados and an equivalent committee in the Senado. There are also two foreign affairs committees dealing with all defence-related aspects and two home affairs committees, competent to address security issues. Spain has developed a very clearly defined anti-terrorist legislation because of the terrorism problem within its borders. However, this legislation does not provide for any action by the armed forces. There is a confidential affairs committee which meets in camera, with a representative appointed by each parliamentary group. Information is secret. Offences committed by military personnel are dealt with by the ordinary courts. It was recently decreed that only parliament could approve the deployment of Spanish troops abroad.
118. Such are the supervisory systems based on parliamentary supervision which are to be found with minor variations in the majority of member states.
Supervision of European security policy
119. Above and beyond defence policy at national level, there are well-known multilateral defence organisations in Europe (NATO, OSCE, WEU) and a draft common defence policy (ESDP) in the European Union. A number of typically “security”-related missions were developed under the former Western European Union and now the ESDP. Examples are the sanctions surveillance missions on the Danube and the setting up of a police contingent in Bosnia and in the Balkans under the responsibility of the WEU. What kind of supervision is there for such operations? Who is able to carry out or be responsible for such supervision?
120. A national parliament finds it difficult to obtain information on the ESDP decision-making process at European level. It does not have direct access to the EU institutions and relies almost exclusively on the information it is given by its own government; the latter provides such information in accordance with national policy criteria. It has to assess the decisions taken at European level without being represented at that level, whereas governments regularly consult within the Council.
121. In contrast, the European Parliament is informed about developments in the CFSP and the ESDP either through the Presidency or the High Representative for the CFSP, since it has the right to information. However, it has not the slightest power of supervision in this field. Governments did not wish to grant it such power and expressly refused to do so.
122. The inter-parliamentary bodies in Europe, comprising representatives of national parliaments, which monitor security issues are, amongst others, the NATO Parliamentary Assembly, the OSCE Assembly and the WEU Assembly. The first two are bodies with no legal link with the NATO and OSCE executives and their role is one of “parliamentary diplomacy” rather than constituting a genuine parliamentary dimension of those organisations.
123. On the other hand, the WEU Assembly derives from a treaty (the modified Brussels Treaty) and for 50 years has carried out genuine supervision of European defence policy. It is, however, under threat of disappearing, with no parliamentary supervisory body taking its place. With the establishment of the ESDP and the transfer of the WEU’s competences and bodies to the European Union there is a question mark about the survival of this long-standing supervision which, if it disappears, will increase further the European democratic deficit – especially in the security and defence sector.
124. For many years the WEU Assembly has carried out a meticulous job of examining the common defence policy. Everybody acknowledges this. The bulk of its political activity was divided among the Defence Committee, the Political Committee and the Technological and Aerospace Committee. Apart from drafting reports on matters referred to them by the Assembly, the committees regularly organise public colloquies on topical security and defence issues and on arms co-operation, particularly on the technological and aerospace aspects.
125. Following discussion of the reports presented by the committees in response to the annual report of the Council of the WEU, the Assembly votes on the draft recommendations. The Council is obliged to respond to the recommendations adopted. There is no such obligation in other parliamentary organisations (NATO, OSCE). The Assembly can, by an absolute majority of representatives, decide not to approve the annual report.
126. Representatives can put oral questions to ministers or other speakers addressing the Assembly. They can at any time put written questions to the Council, which must reply within a specified time. The mechanisms in the WEU therefore make for an ongoing institutional dialogue between governments and representatives of national parliaments on defence and security matters. Governments have a legal obligation to maintain this dialogue with parliamentarians at European level in the defence sector.
127. This was a major advance for democratic supervision in the field of security and defence in Europe. If, in the event that the WEU Assembly is dissolved, this advance were to lapse and not be carried over in some way or other in the EU, it would be a major step backwards for democracy, one to be avoided at all cost. In point of fact, the European Union’s ESDP already suffers from a two-fold democratic deficit.
128. It is only via the WEU Assembly that national parliaments have direct access to information at European level, thanks to the two hats worn by the High Representative and the Secretary General of the WEU, the representatives of the Political and Security Committee (COPS) and those of the WEU Council. Accordingly, a level of dialogue on the ESDP has already become established de facto between the national parliaments represented in the WEU Assembly and the executive authorities. However, if no legal solution is found requiring the European executive to maintain dialogue on the ESDP with a European body representing national parliaments, member parliaments will lose an indispensable source of information and the opportunity for dialogue and exchanging views, so important for monitoring intergovernmental activities on the ESDP at European level and for effective supervision of security problems on our continent.
Reporting Committee: Political Affairs Committee.
Reference to Committee: Doc. 9712, Reference No. 2814 of 31.03.03
Draft Recommendation unanimously adopted by the Committee on 26.04.05
Members of the Committee : MM. Abdülkadir Ateş (Chairperson), Mr Mikhail Margelov (Vice-Chairperson) Mr Latchezar Toshev (Vice-Chairperson) Mr Dick Marty (Vice-Chairperson), Mrs Manuela Aguiar, Mr. Giuseppe Arzilli, Mr David Atkinson (alternate: Lord John Tomlinson), Mr Claudio Azzolini, Mr Miroslav Beneš, Mr Radu-Mircea Berceanu, Mr Gerardo Bianco, Mr Haakon Blankenborg, Mr Giorgi Bokeria, Mrs Beáta Brestenká, Mr Doros Christodoulides, Mrs Anna Čurdová, Mrs Juana Serna, Mr Noel Davern, Mr Michel Dreyfus-Schmidt, Mr Adri Duivesteijn, Mrs Josette Durrieu, Mr Mikko Elo, Mr Jean-Charles Gardetto, Mr Charles Goerens, Mr Daniel Goulet, Mr Andreas Gross (alternate: Mr Maximilian Reimann), Mr Klaus-Jürgen Hedrich, Mr Jean-Pol Henry, Mr Joachim Hörster, Mr Tadeusz Iwiński (alternate: Mr Jerzy Jaskiernia), Mr Elmir Jahić (alternate: Mr Sead Avdić), Mr Ljubiša Jovašević, Lord Frank Judd,Mr Ivan Kalezić, Mr Oleksandr Karpov, Mr Oskars Kastēns, Mr Petro Koçi, Mr Konstantin Kosachev, Mr Yuriy Kostenko, Mrs Darja Lavtižar-Bebler, Mr Göran Lindblad, Mr Tony Lloyd (alternate: Ms Jane Griffiths), Mr Younal Loutfi, Mr Frano Matušić, Mr José Medeiros Ferreira, Mr Evagelos Meimarakis (alternate: Mrs Elsa Papadimitriou), Mr Murat Mercan, Mr Jean-Claude Mignon, Mr Marko Mihkelson, Mrs Natalia Narochnitskaya, Mr Zsolt Németh, Mrs Carina Ohlsson, Mr Boris Oliynyk, Mr Algirdas Paleckis, Mr Theodoros Pangalos, Mrs Eleonora Petrova-Mitevska, Mrs Sólveig Pétursdóttir, Mrs Clara Pintat Rossell, Mr Gordon Prentice, Mr Dumitru Prijmireanu, Mr Gabino Puche (alternate: Mrs Marěa Rosario Fátima Aburto), Mr Lluís Maria de Puig, Mr Jeffrey Pullicino Orlando, Mr Umberto Ranieri, Mr Michael Roth, Mr Jan Rzymełka, Mr Peter Schieder, Mr Adrian Severin, Mrs Hanne Severinsen, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Michael Spindelegger, Mr Zoltán Szabó, Mr Mehmet Tekelioğlu, Mr Tigran Torosyan, Mrs Marianne Tritz, Mr Vagif Vakilov (alternate: Mr Azim Mollazade), Mr Luc Van den Brande, Mr Varujan Vosganian, Mr Andrzej Wielowieyski, Mr Bart van Winsen, Mrs Renate Wohlwend, Mr Marco Zacchera
Ex-officio: MM. Mátyás Eörsi, Mats Einarsson,
N.B. : The names of the members who took part in the meeting are printed in bold
Head of the Secretariat : Mr Perin
Secretaries to the Committee: Mrs Nachilo, Mr Chevtchenko, Mrs Sirtori-Milner
1 The Rapporteur expresses his gratitude to the Centre for the democratic control of armed forces (DCAF – Geneva) for its contribution.