Back Intelligence: “French Draft law seriously infringes human rights”

Le Monde, 13/04/2015

Terrorism is a real threat and a challenge to the foundations of our democracies. This threat requires an effective response to protect our societies. Nonetheless, states must not take anti-terrorist measures that undermine democracy, the rule of law and human rights.

The recent attacks in Paris and Copenhagen have demonstrated the contempt held by terrorists for human life and the ideals and aspirations on which we have been building Europe for sixty years. By murdering journalists and cartoonists because of what they published, by killing innocent people because of their thought or religion, and by executing police officers, these terrorists seek to weaken our democracies.

We must do our utmost to prevent them from succeeding. We do not think the French government bill on intelligence is the right answer.

Firstly, because it permits the use of surveillance methods which pose a serious threat to the right to private life. The installation of microphones and geolocation tags, as well as the use of tools allowing interception of communications, are liable in particular to violate the secrecy of correspondence, the confidentiality of journalistic sources, and the professional secrecy of lawyers and other professions. The threat is still more serious in that the methods which the proposed law sets out to legalise will lead to arbitrary intrusions into the private life not only of suspects, but also of persons who communicate with them, live or work in the same places, or even happen to be near them.

Secondly, because it would allow the application of these intrusive measures without prior independent oversight. The right to private life is fundamental. Enjoyment of this right, which protects the individual from state intrusions, should not be limited without the judicial authority verifying beforehand the legality, expediency and proportionality of a surveillance measure.

Independence not guaranteed

The bill provides for consultation of the national control board for intelligence techniques. However, the institutional and political independence of this new administrative authority seems not to be guaranteed, while the bill imposes no real obligation of judicial review as to the objective justification of surveillance measures before they are put into effect. The executive should not be left in the position of being able to decide without the checks and balances imperative in a democracy. This bill could deal a severe blow to the democratic checks and balances, which are one of the foundations of the rule of law and effective enjoyment of civil and political rights.

Thirdly, because it might aggravate social tensions. By authorising indiscriminate scrutiny of persons not suspected of terrorist activity, the proposed law is liable to create a nefarious social climate in which all individuals are regarded as potential suspects.

The debate commencing in the National Assembly is the occasion to provide answers to these major concerns. The law must be precise and clear as to the nature of the charged or suspected activities of persons who may be subjected to surveillance and must set out strict limits on the duration of the operations, as well as rules on the use, storage and destruction of data obtained during those operations.

Persons subjected to surveillance operations must have an effective remedy in order to contest the validity of the measures applied to them, as well as the decisions on the use and storage of the data concerning them.

Finally, democratic oversight of the executive must be strengthened. Even in emergency situations, it should not be possible to institute any surveillance measure without independent oversight. The independence of the national control board for intelligence techniques should be guaranteed in law and upheld in practice, and its remit broadened. The proposed law should also increase the accountability and transparency of the intelligence services, including vis-à-vis Parliament.

What is at stake under this law is not only the fight against terrorism, which we want to be as effective as possible, but also the society in which we want to live.

In this context, haste is a bad counsellor. An open debate involving the various players competent for human rights should be conducted to enable France to strike the proper balance between security and respect for human rights.

Nils Muižnieks is the Council of Europe Commissioner for Human Rights. Michel Forst is the United Nations Special Rapporteur on the situation of human rights defenders. Ben Emmerson is the United Nations Special Rapporteur on human rights and counter-terrorism.

Read the article published in Le Monde