European convention on human rights as the minimum international standard for national legislation on special services: a comparative aspect

Numerous studies acknowledge that national security belongs to key categories and, at the same time, is understudied [6; 7], still not being scientifically separated from such related concepts as state security, national security protection, state security protection, etc. Thus, V.F. Smolianiuk [8] proposes to distinguish the system of national security from the system of national security protection, emphasising that the former is a more complex entity. Therewith, “both systems are in a state of dynamic development. They have not acquired their final forms. This could not happen, considering the complexity of nation-building processes in modern Ukraine, insufficient definition of national interests, the superficial nature of their legal consolidation, as well as the lack of experience (traditions) of national security of independent Ukraine” [8]. Scholars A. Yanchuk, P. Pryhunov, and V. Kolesnik [9] note that the constitutional provisions on national security and its protection “require immediate improvement and clarification”, because “it is not clear from the text of the Constitution of Ukraine Law on the Intelligence and Security Agency of Bosnia and Herzegovina. (2004, April). Retrieved from https://www.legislationline.org/download/id/1199/file/35d065b27c243a9098a01793763f1b86.pdf ^{Constitution of Ukraine. (1996, June). Retrieved from}

https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80 what the interests of national security are and how they differ from the interests of the state. Can they restrict human rights only in the interests of national security and not in the interests of the state? Are the interests of national security separate from the interests of the state? That is, there is an urgent need for regulatory improvement of the definition of “national security”, the definition of the main functions of the latter, which should be provided by the state: defence, protection, guardianship” [9].

Studies offer various ways to improve the system of national security, one of which is “the development of a hierarchical tree of national security goals, which will be achieved by identifying and implementing appropriate methods that form a single systemic idea of national security policy” [10]. Furthermore, “National security activities are now addressing a far wider array of phenomena than in the past, both in the Western world and beyond. We take as our starting point the assumption that national security cannot be completely divorced from `traditional' interpretations, in which policy is shaped by agencies, ministries and other institutions tasked with the protection of national interests from exogenous threats” [11]. That is, the modern realities are filled with a completely different meaning than in the past, and this significantly expands the scope of phenomena that are currently covered by the category of “national security”. Dexter Fergie aptly and humorously notes that “When the two-word phrase became a national obsession, it turned everything from trade rules to dating apps into a potential threat to the United States”, that “In the United States, “national security” is the preoccupation that never has to explain itself' [12]. Researchers at the Council of Bars & Law Societies of Europe (CCBE) [13] also point out that the European Court of Human Rights (ECtHR) has not sought to define national security. Case law from the ECtHR has focused instead on the conditions which justify an interference with an individual's rights on grounds of national security. The European Commission of Human Rights believes that national laws do not require a complete definition of the concept of `the interests of national security'. It justified its position by underlining the fact that “many laws, which by their subject-matter require to be flexible, are inevitably couched in terms which are to a greater or lesser extent vague and whose interpretation and application are questions of practice”¹. In other words, it is not the very notion of national security or “national security interests” that is important for the ECHR, but the conditions under which there has been an interference with human rights for reasons of national security protection [14-16].

V.O. Antonov [17] believes that the concept of national security is based on three fundamental categories: “interest”, “threats”, “protection”. The forms, methods, and means of ensuring national security largely depend on their content”. In other words, special services, using specific forms, methods, forces, and means in their activities to perform their objectives, must proceed from the constitutional definitions of forms, methods, and means of national security protection. Professor O.N. Yarmysh [18] emphasises that “issues of national security are always a priority in the system of functioning of any state. The importance of this function is growing in modern world, due to the necessity of responding to a range of destructive globalisation challenges”; “National security and defence legislation does not meet the threats to Ukraine's national security and requires development, revision, or clarification”. His proposal to amend the Constitution of Ukraine¹ with the section “National Security” is very reasonable.

Considering the above, national security and state security, as stated in Article 1 of the Law of Ukraine “On National Security”, differ in that the former covers “protection Constitution of Ukraine. (1996, June). Retrieved from

https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80 of state sovereignty, territorial integrity, democratic constitutional order, and other national interests of Ukraine from real and potential threats” 1, while state security covers “protection of state sovereignty, territorial integrity, and democratic constitutional order and other vital national interests from real and potential threats of non-military nature”. It is threats of a non-military nature, as noted by the Ukrainian legislator, which distinguish state security from national security. In this way, a direct reference is made to the fact that these threats arise from entities that encroach on state sovereignty, territorial integrity, and democratic constitutional order, and in actions, activities, or inaction which express signs of crimes, including: espionage, terrorism, intelligence and subversive or separatist and extremist activities, drug distribution, human trafficking. Admittedly, such threats should be countered only by state security bodies, which constitute special purpose state authorities with law enforcement functions¹.

With regard to national security, it is ensured by counteracting threats that constitute “phenomena, trends, and factors that render impossible or complicate or may render impossible or complicate the fulfilment of the national interests and preservation of the national values of Ukraine” (Clause 6)'Law of Ukraine No 2469-VIII “On National Security of Ukraine”. (2018, June). Retrieved from https://zakon.rada.gov.ua/laws/show/2469-19 ^{Law of Ukraine “On the Security Service of Ukraine” No 2229-XII. (1992, March). Retrieved from} https://zakon.rada.gov.ua/laws/show/2229-12. These threats usually arise from foreign individuals or legal entities whose actions, activities, or inaction do not express direct signs of crime, but the nature of which is clearly unfriendly, mercantile, and sometimes provocative and hostile. Only intelligence agencies can counter these threats, because, firstly, the threats are external in nature, and, secondly, only intelligence has in its arsenal the full set of necessary forces and means to counter these threats. It is no coincidence that the legislator in Article 6 of the Law of Ukraine “On Law Enforcement Intelligence Operations” provided the intelligence agencies with the opportunity to perform law enforcement intelligence operations, apart from protecting their security, also to procure intelligence information Law of Ukraine “On Law Enforcement Intelligence Operations” No 2135-XII. (1992, February).

Retrieved from https://zakon.rada.gov.ua/laws/show/2135-12.

CONCLUSIONS

Thus, the uncertainty of the category of “national security”, as well as the vagueness of the place and role of state security and intelligence in its protection are factors of possible violation of constitutional rights and freedoms of person and citizen contrary to the ECHR provisions. The comparative analysis demonstrates different approaches of the legislators of the CoE member states to the implementation of the provisions of the ECHR in the national legislation on special services. Simple replication or transfer is clearly insufficient to really guarantee the protection of human rights and freedoms by the secret services. Constitutions or individual laws should set forth a detailed understanding of the category of national security, as well as related categories that are directly associated with its protection. It is impossible for the legislation on special services to be limited only to enumeration of principles of their activities. It is necessary to thoroughly outline each principle based on previous scientific development by a legal provision, to prevent vagueness and ambiguity, to consider the areas of national and state security protection on the part of law enforcement agencies, intelligence, and counterintelligence bodies. This is especially true of the principle of respect for and observance of human and civil rights and freedoms.

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