10th International Judicial Conference in Strasbourg from 23 to 24 May
Address by Luzius Wildhaber, President of the European Court of Human Rights
Balancing necessity and Human Rights in response to terrorism
The European Convention on Human Rights came into being largely to protect democracy against the perceived totalitarian threat of the cold war years. It is founded upon the twin principles of democracy and the rule of law. Recent events have caused us to focus on the relationship between the Convention and the need to combat terrorism, terrorism being by definition the antithesis of democracy and the rule of law.
Terrorism raises two fundamental issues which human rights law must address. Firstly, it strikes directly at democracy and the rule of law, these two central pillars of the European Convention on Human Rights. It must be therefore be possible for democratic States governed by the rule of law to protect themselves effectively against terrorism; human rights law must be able to accommodate this need. The European Convention should not be applied in such a way as to prevent States from taking reasonable and proportionate action to defend democracy and the rule of law. Moreover, as the European Court of Human Rights has held, Convention States have a duty under Article 2 of the Convention to take appropriate steps to safeguard the lives of those within their jurisdiction1.
The second way in which terrorism challenges democracy and human rights law is by inciting States to take repressive measures, thereby insidiously undermining the foundations of democratic society. Our response to terrorism has accordingly to strike a balance between the need to take protective measures and the need to preserve those rights and freedoms without which there is no democracy. At the same time and from a wider perspective, it is precisely situations in which there is a lack of respect for human dignity, a lack of effective human rights protection, which breed terrorism. Efforts to prevent the spread of international terrorism should therefore embrace the aims of international human rights law.
The starting point of this discussion must therefore be the protection of democracy and the rule of law. Democracy and the rule of the law are, as I have said, the two pillars on which or around which the Convention is constructed. What we understand by human rights in Strasbourg is encapsulated in those two principles and by the interplay between them. They are of course interdependent. There can be no democracy without the rule of law; there can be no rule of law, as we understand it, without democracy.
The Convention protects both direct participation in the democratic process and obvious attributes of democratic life such as the freedom of expression and the freedom of association, the active exercise of democracy. At the same time the Convention promotes the effective operation of the rule of law with a view to preventing the sort of encroachment on individual rights which paves the way for totalitarian government or the insidious attempts to undermine the democratic way of life. The drafters were convinced that totalitarian takeover was often a gradual process with a progressive whittling down of rights. Now this is, it seems to me, of particular importance in the present context of a heightened awareness of the risks of terrorism. Terrorism, as I have said, attacks democracy both directly and insidiously, that is both open assault on the institutions of democracy and the insidious undermining of the principles on which it is based. The question that has to be addressed is: how can democratic society protect itself effectively against the threat of terrorist action without sacrificing the very values on which it is based? But this question is merely to magnify a tension which is inherent in the notion of fundamental rights, evidenced by the constant search for a balance between competing interests. This is the philosophers’ “paradox of freedom” as explained for instance by Karl Popper, that is the realisation that absolute freedom is no freedom at all2. Popper cited the old story of a Judge who, when faced with a hooligan who claimed that his freedom as a citizen entitled him to move his fist in any direction he wished, commented “the freedom of your fists is limited by the position of your neighbour’s nose”.
The Convention also respects the products of the democratic process. It recognises that restrictions on certain fundamental rights may be “necessary in a democratic society” and that deference should to be accorded to national democratic institutions in determining what is necessary. Here again we may speak of a natural tension, between democracy and human rights. Conflicts will inevitably arise between the interest of the community and the individual interest. Human rights law must accommodate this tension by enabling the search for a balance between competing interests and this will entail heavy reliance on the notion of proportionality.
It has long been accepted in Convention case-law that a democracy should be capable of defending itself. Once again it is a question of seeking the proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights. As the Court noted as far back as 1978, democratic societies find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake, for example, the secret surveillance of subversive elements operating within its jurisdiction. The existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications was therefore necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime3.
The Strasbourg Court has consistently recognised the particular difficulties which combating terrorism creates for democratic societies. It takes into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the applicable provisions of the Convention in the light of their particular wording and overall object and purpose4. Thus the Court has accepted that the use of confidential information is essential in combating terrorist violence and the threat that organised terrorism poses to the lives of citizens and democratic society. This does not mean however that the investigating authorities should be given carte blanche under Article 5 of the Convention to arrest suspects for questioning free from effective control by the domestic courts or by the Convention supervisory mechanism5. Again, in the context of Article 5 of the Convention, the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding an arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity. But the exigencies of the situation cannot justify stretching the notion of reasonableness to the point where the essence of the safeguard secured by Article 5 § 1 (c) (requiring among other things “reasonable suspicion” of having committed an offence) is impaired6.
Many of the cases concerning terrorism have involved detention issues under Article 5 of the Convention. However, the question of the extent to which terrorism justifies restrictions on Convention guarantees has arisen in connection with other rights. Thus, for instance, the Court has found, in an Irish case where the applicants were arrested on suspicion of serious terrorist offences and subsequently charged with and convicted of failing to give an account of their movements, that legitimate security and public order concerns could not justify a measure which extinguished the very essence of the right to silence and the privilege against self-incrimination guaranteed under Article 6 § 17.
In connection with freedom of expression under Article 10 of the Convention, where speech threatens to undermine democracy by for instance inciting to violence, the Court accepts that States enjoy a relatively wide margin of appreciation or area of discretion. In a group of thirteen cases concerning Turkey8, the applicants had all been convicted and sentenced to a term of imprisonment and/or a fine after publishing statements or making public declarations linked to the situation in south east Turkey and in particular the Kurdish problem; the charges included disseminating separatist propaganda and encouraging violence against the State.
The Court considered whether the speech in question really did involve a threat to society, in which case a wide margin of appreciation would have operated in the Government’s favour. If there was no sufficient link between the words used and a real possibility of resulting violence, the protection offered by the Convention to political speech would prevail. Looking at the facts and all the circumstances the Court took the view that the statements in the majority of the cases which were then before it did not, despite the aggressive language sometimes employed, amount to incitement to violence or armed revolt. In one case, on the other hand, the expressions used, which included a reference to “the fascist Turkish army” and the “hired killers of imperialism”, were found by the Court to amount to an appeal for bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence9. This was “hate speech” and the “glorification of violence”, and the interference complained of, in this instance accompanied by a fairly modest fine, was proportionate to the legitimate aim pursued.
The now defunct European Commission of Human Rights declared two applications concerning the ban on broadcasting interviews with members of proscribed organisations inadmissible, noting the difficulties involved in striking a fair balance between the requirements of protecting freedom of information - especially the free flow of information from the media - and the need to protect the State and the public against armed conspiracies seeking to overthrow the democratic order which guarantees this freedom and other human rights10.
The Court examines the reality of the threat and the nature and the appropriateness or proportionality of the repression. In the field of freedom of expression, the Convention will pull in the direction of democracy and free political speech as an essential component of democracy, but violence being by definition anti-democratic will in principle never attract its protection. Where the reality of the link between speech and violence is established, the speech in question should not do so either11.
Democratic society acting in full conformity with the Convention is therefore not defenceless in the face of terrorism. Some compromise may be necessary, as the Court has recognised, between the requirements for defending democratic society and individual rights12. It would run counter to the fundamental object and purpose of the Convention, for national authorities to be prevented from making a proportionate response to such threats in the interests of safety of the community as a whole.
In saying this, I must reiterate that the insidious undermining of fundamental rights is one of the dangers of terrorism. Limitations which may be possible within the margin of appreciation must never be so broad as to impair the very essence of the right in question; they must, in Strasbourg terms, also pursue a legitimate aim and bear a reasonable relationship of proportionality between the means employed and the aims sought to be achieved. One question that needs to be asked in connection with exceptional measures taken to combat terrorism is whether there are techniques which can be employed which both meet legitimate security concerns and yet accord the individual a substantial measure of procedural justice13. Nor should it be possible for the national authorities to free themselves from effective control by the domestic courts, or ultimately international jurisdiction, simply by asserting that national security and terrorism are involved. At the same time the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism14.
There are moreover Convention rights which are absolute in nature. Thus Article 3 prohibiting torture, and inhuman or degrading treatment enshrines one of the most fundamental values of democratic society. While the Strasbourg Court is well aware of the immense difficulties faced by States in protecting their communities from terrorist violence, even in these circumstances the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. The prohibition provided for in Article 3 against ill-treatment is equally absolute in expulsion cases. Whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to a particular receiving State, the responsibility of the Contracting (holding) State to safeguard him or her against such treatment is engaged in the event of expulsion15. In these circumstances the activities of the individual in question cannot be a material consideration. There is no room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 is engaged16.
In rendering his court’s decision of September 1999 that physical interrogation techniques were unlawful even in ticking-bomb situations, Justice Barak, the President of the Israeli Supreme Court, said this: “We are aware that this decision does not ease dealing with [the harsh] reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices are open to it. Although a democracy must often fight with one hand tied behind his back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day they strengthen its spirit and strength and allow it to overcome its difficulties”17. Given the particular context existing in Israel, at the time and unfortunately still today, his words are perhaps of special significance.
It might be thought that one way for a State to confront terrorism would be to seek a derogation under Article 15 of the Convention which refers to a “public emergency threatening the life of the nation”. Few States have in fact done so, but a recent example is the United Kingdom in the wake of the September 11 attacks. I cannot of course comment on that decision, which may soon be the object of proceedings before the Court in Strasbourg. What I can say is that Article 15 does not provide a blanket exemption from Convention requirements. In the first place an Article 15 derogation may not be issued in respect of certain Articles of the Convention, including Articles 2 and 318. Moreover derogation is permissible only “to the extent strictly required by the exigencies of the situation”. The Court can therefore examine the proportionality of the measures taken under such a derogation. This test was found to be satisfied in respect of powers of extended detention without judicial control in Northern Ireland, when the Court had regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus had been available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a lawyer forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor. The Court concluded that the United Kingdom Government had not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation19. In the latter case, the applicants were held for seven days. The Court had also to consider the effect of a derogation under Article 15 entered by the Turkish Government. Notwithstanding the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it, the Court was not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. It noted in particular the lack of sufficient safeguards available to the applicant, notably the denial of access to a lawyer, doctor, relative or friend. The absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him20.
It has been said that the purpose of Article 15 is to balance the most vital need of the State with the strongest protection of human rights possible in the circumstances21 and that is an assessment that I could agree with. At all events, measures taken under Article 15 will be subject to the scrutiny of the Court and notably as to their necessity. In this sense, while Article 15 may in particular circumstances permit the dilution of certain Convention guarantees, it will never extinguish them entirely.
Human rights law does not operate in a vacuum. It is an integral part of democratic society and a threat to that society will impact on the way in which it is applied. The majority of the rights set out in the Convention are not absolute in that they may be curtailed in the wider interest of the community, to the extent strictly necessary and provided that this does not impose an excessive and disproportionate burden on individuals or a sector of the population. This could be formulated the other way round, that is that the individual exercising his civil liberties cannot be allowed to impose a disproportionate burden on the community. What we mean when we talk about the margin of appreciation is essentially that the Convention guarantees are applied in a context defined by the democratic society in which they function. This is just common sense. Human rights cannot be and should not be divorced from the practical day-to-day functioning of society and this is why they are best secured by the national courts.
Terrorism is anti-democratic; arbitrary interference with individual rights and freedoms is anti-democratic; democracy without the rule of law is anti-democratic as is, self-evidently, the rule of law without democracy. In their wisdom the authors of the European Convention on Human Rights just over fifty years ago constructed a framework for the effective operation of democracy and the rule of law based on minimum standards that are now in principle shared through forty-three European States. That framework, evolving as it has done through the Strasbourg case-law, remains as relevant today as it was then. It still represents a more long-term but ultimately more effective means of protecting democracy than short-term, disproportionately repressive measures which may purport to do the same, but which in the end court the risk of undermining the foundations of democratic society. In 1978 the Court warned against the danger of undermining or even destroying democracy on the ground of defending it22. That is a warning that we would all do well to keep in sight.