Freedom or Security: the False Alternative

Last update: 2022-04-22 09:50:26

Can the need to guarantee the safety of citizens place at risk the enjoyment of fundamental rights and the guarantees of freedom? The answer to this question is of contemporary relevance because it solicits the looking for, and defining of, a criterion of judgement to assess whether, and within which limits, those measures that are adopted to counter terrorism and restrict these rights are legitimate. But this very question has a character that rises above contemporary relevance because it enables us to have a better understanding of the essence of rights and fundamental freedoms. In fact, although fundamental rights make up a juridical heritage of the person, being rights that cannot be attributed by the State but which must be recognised and guaranteed by every juridical system as being inherent to the dignity of man, how can these rights be limited or restricted without wounding the dignity itself of the person. And can rights that are commonly defined as inviolable be limited and restricted without this bringing about their injury? And if these rights are inalienable, how can an exchange between greater security and restrictions on the enjoyment of rights be justified? The initial question expands and can be addressed in a series of further questions that open up the perspective of an antithesis between the peaceful exercise of fundamental rights and the requirements of security. The need to assure the ordered living of social life and to protect these rights from attack by those who do not acknowledge them, and indeed fight with terrorist violence against societies that place them at the basis of their social life, could lead to a limitation of the specific enjoyment of the rights that we want to guarantee. With the paradox that the defence of rights can lead to their violation or at the least to the restriction on their free exercise. These reflections propose in new terms questions which have been debated from some time with reference to situations that create a state of need for public safety such as to justify exceptional measures: to defend the Constitution from internal aggressions carried out by revolutionary acts or to defend the State from external aggressions carried out through actions of war. The novelty of the contemporary experience is provided by structured and systematic terrorism which seeks to be an instrument of non-territorial armed conflict and operates beyond traditional actions of war without observing the rules that the internal community, too, envisages for war. This places at risk the ordinary living of social life and tends to strike the community and the institutions of democratic systems which have as an essential element the protection of fundamental rights. The disturbance of the established order, which takes place in the reality of these extraordinary situations, justifies those exceptional measures alone that are necessary to safeguard the community, preserve institutions, and guarantee the lives, the physical integrity and the safety of citizens. However the justification for exceptional measures is located in a slippery terrain that runs the risk of leading not to the safeguarding of, but to a break with, the Constitution, and the prejudicing of the fundamental rights that it guarantees and protects. For this negative outcome not to take place, it is necessary that the measures that are adopted are rigorously circumscribed in time and at the level of their contents. They can derogate the ordinary system and order only for the length of an emergency, which by its very nature is temporary, and if the emergency cannot be addressed in another way. Every measure that limits the enjoyment of fundamental rights must always safeguard their narrow and essential core. In addition, it must be a measure that is needed to counter a specific and concrete danger of aggression to the essential possessions that are to be protected, and the measure that is adopted must be proportionate to the gravity of the danger and the aggression. To these substantial requirements other guarantees of a formal character are added. The adoption of individual measures cannot be carried out in the exercise of a power that is without balances and controls. They must be measures envisaged by the law, whose application can be subjected to the control of a judge who is independent in relation to the power that organises and implements such restrictive measures. Not all fundamental rights are susceptible to limitations that have these justifications. The sacrifice of the life and the physical integrity of a person, which are supreme possessions and cannot be recovered, can never be imposed in any case. But it is equally difficult to imagine that measures can be justified that bear upon the moral inviolability of a person: on his identity, his dignity, his freedom of conscience and religion, his freedom of thought, his equality before the law, his personal penal responsibility, and his right to a fair trial in which the guarantees of a defence are assured. Partly different reflections can be made about rights to do with the relationships of a person. In this field, emergency situations can justify certain specific, reasonable and temporary restrictions on the exercise of certain rights: on freedom of circulation, assembly and association, secrecy in correspondence and communications, privacy in the personal and private sphere, and on to those restrictions on personal freedom that are allowed when crimes have been committed. However, it is necessary to have guarantees that are as incisive as the restrictions are invasive, and to avoid that the emergency becomes an opportunity for measures that go beyond what is strictly indispensable for the goals that justify them or are not accompanied by the formal guarantees that must be envisaged for their application. The distinction between rights that relate to a person in his physical and moral character, and rights that concern his relational life, his relationships with other people and the albeit essential dimension of sociality, do not introduce a hierarchy into fundamental rights. Rather, it brings out a difference in the structure of these two groups of rights. In the group of rights that relate to the character itself of the person every limitation expresses itself as a violation of a right and not only as a limitation on its exercise. In rights that bear upon relational life, restrictions, if they are adopted in line with the principles of proportionality and reasonableness, limit and compress the exercise of that right but they do not eliminate it. The reflections hitherto presented in summarising form are not the outcome of an abstract elaboration but reflect the formulation of the principles common to the international accords and conventions that list and protect human rights. The Universal Declaration of Human Rights of 1948, in offering an essential catalogue of fundamental rights, establishes at a general level that 'In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society' (art. 29). A clearer formulation of the same principles is contained in the Charter of Fundamental Rights of the European Union (which was proclaimed on the occasion of the European Council of Nice in 2000). It is based on the universal values of inviolable and inalienable rights and lays down that: 'Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others' (art. 52). Fundamental rights, and the guarantees envisaged for them, must find general application in a way that corresponds to the universal vocation that characterises them. Not even those who do not recognise fundamental rights, do not guarantee them to others and indeed fight against them, can be excluded from the enjoyment of fundamental rights. The holding and the exercise of the rights of freedom cannot be conditioned by the respect that others have for these same rights, thus removing the essential characteristic of their inviolability. Instead, freedom must also be assured to the enemies of freedom. Otherwise, freedom would lose its character of absoluteness and become relative and conditional because it would depend on contingent elements and ones that were extraneous to the person who bears rights. The universality and the absoluteness of fundamental rights, indeed, require that respect for them is also imposed on those who do not recognise them, with a legitimation of the intervention of the international community in relation to States that violate them. One cannot, therefore, argue that the enjoyment of rights and fundamental freedoms depends on a reciprocity of recognition and that citizens of countries that do not recognise the same rights and do not apply equal guarantees are excluded from them. This would lead to a general levelling down and in some cases to the total exclusion of the level of protection, whereas the constant orientation of every international agreement in the field of fundamental rights concedes and tends to call for a more extensive protection than that agreement envisages as a minimum level of protection. After rejecting the criterion of reciprocity as a conditioning factor in the enjoyment of fundamental rights, one should uphold the principle of their expansion. Given that these rights are innate, indeed the irremovable juridical heritage of a person, a restriction that reflects the limitation imposed in other systems is not allowed; indeed, this requires that the rights themselves expand in every system through an upholding of their universal character. To conclude, we can answer the question with which we began by stating that the alternative of security or fundamental rights is a false dilemma. One is dealing, instead, with two possessions that are not disjoined but mutually complementary. If fundamental rights disappear, guarantees of personal security also disappear, being susceptible as they are to being placed at risk by the arbitrary exercise of power. If conditions of safety in the life of people and the community disappear, the peaceful exercise of fundamental rights are placed at risk. Safety and the guaranteeing of rights, therefore, go together and are complementary in assuring at a practical level the living of the personhood of everyone.